Berry v. Wexford Health Sources, Inc. et al

Filing 43

ORDER sustaining 40 Objection; denying 29 Motion to Dismiss; denying 28 Motion for Summary Judgment. Signed by District Judge Carlton W. Reeves on 7/26/2016. Copy mailed to plaintiff at address listed on docket sheet. (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
MARVIN RAY BERRY

PLAINTIFF

V.

CAUSE NO. 3:14-CV-665-CWR-FKB

WEXFORD HEALTH SOURCES, ET AL.

DEFENDANTS

ORDER
Before the Court are a motion to dismiss filed by the private healthcare-provider
defendants, a motion for summary judgment filed by the State defendants, the Magistrate Judge’s
Report and Recommendation (R&R) proposing to grant both motions, and the plaintiff’s
objection to that R&R. The Court has reviewed the facts and is ready to rule.
I.

Factual Background
While incarcerated at Central Mississippi Correctional Facility, Marvin Berry filed a

formal request for administrative remedy with the Mississippi Department of Corrections. He
claimed that employees of the prison’s private healthcare provider, Wexford Health Sources,
displayed deliberate indifference toward his serious medical needs when they flagrantly
disregarded his series of heart attacks as reflux and anxiety. Berry asked for an investigation,
termination of the responsible individuals, medical care, several millions dollars in damages,
discovery, and the right to proceed in federal court on his claims.
The prison’s Legal Claims Adjudicator refused to let Berry enter the Administrative
Remedy Program. He or she checked a box indicating that Berry’s request was “beyond the
power of the Mississippi Department of Corrections to grant.” This suit followed.
The defendants now argue that Berry’s suit cannot proceed because he failed to exhaust
his administrative remedies. The Magistrate Judge agreed, and Berry has objected.

II.

Substantive Law
Under federal law, prisoners must exhaust administrative remedies if they wish to sue the

persons who have violated their constitutional rights. See 42 U.S.C. § 1997e(a). Prisoners must
administratively exhaust requests for money damages even if the administrative process cannot
award them money damages. Booth v. Churner, 532 U.S. 731, 739 (2001). As the Supreme Court
has put it, “Congress meant to require procedural exhaustion regardless of the fit between a
prisoner’s prayer for relief and the administrative remedies possible.” Id.
“When ‘the relevant administrative procedure lacks authority to provide any relief or to
take any action whatsoever in response to a complaint,’ exhaustion is not required under the
PLRA because there is no ‘available’ remedy.” Dillon v. Rogers, 596 F.3d 260, 267 (5th Cir.
2010) (quoting Booth, 532 U.S. at 736). “[W]hile it is a question of law whether administrative
remedies qualify as being ‘available’ under 42 U.S.C. § 1997e(a), availability may sometimes
turn on questions of fact.” Id. at 266 (citation omitted) (remanding for discovery).
III.

Discussion
A.

Wexford’s Motion to Dismiss

The Legal Claims Adjudicator erred when he or she refused to let Berry enter the
Administrative Remedy Program. It was within MDOC’s power to investigate Wexford’s
response to Berry’s heart attacks, refer the matter to criminal prosecutors, provide additional
medical care for Berry, or terminate Wexford’s contract, among many other things. And while
MDOC may not have been able to force Wexford to pay monetary damages, that still was not a
basis to reject Berry’s request. Well-established federal law required him to file his request in
order to seek money from Wexford in federal court.

2

The Legal Claims Adjudicator may have thought that a prisoner has no administrative
remedy when he wants money from a private prison contractor, since getting damages out of a
private company is beyond the power of MDOC to grant. But prisoners in this State routinely
exhaust administrative remedies before suing private contractors. E.g., Smith v. Woodall, No.
1:14-CV-294, 2016 WL 165021, at *3 (S.D. Miss. Jan. 14, 2016) (SMCI inmate exhausted
remedies before suing Wexford); Davis v. Wexford Health Servs., No. 2:11-CV-142, 2013 WL
1180891, at *1 (S.D. Miss. Mar. 20, 2013) (same); Jackson v. Dunn, No. 4:13-CV-79, 2014 WL
3385166, at *3 (N.D. Miss. July 9, 2014) (MSP inmate exhausted remedies before suing a
Wexford dentist). It is not clear why Berry did not receive the same treatment.
The Legal Claims Adjudicator should have “accepted” Berry’s request into the
Administrative Remedy Program and sent it on for Step 1 review. From there, Berry would have
been able to proceed through Steps 1 and 2, and then file this lawsuit. But the Adjudicator’s error
halted the entire process. Berry’s claim was essentially denied at “Step 0.”
To all this, the R&R says Berry should have “corrected” his request and refiled it within
five days. Neither the R&R nor the defendants have explained what kind of correction Berry
should have made. Correction was inappropriate under MDOC’s policy because there was no
“technical reason[] or matter[] of form” to fix. Berry’s request for administrative remedy was
already very detailed as to events, times, names, and dates. It is among the best this Court has
seen. It should have been accepted into the program and advanced to Step 1.
Wexford’s two-paragraph motion also fails to persuade. First, because it relies upon
documents outside of the pleadings – specifically, the documents attached to the State’s motion
for summary judgment – it too should have been brought as a summary judgment motion.
Second, Wexford’s argument that this suit should be dismissed because “Berry made no attempt

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to appeal the original decision” is unfortunate and disingenuous. There is no appeal from a
rejection at Step 0.
On this record, when the Legal Claims Adjudicator denied Berry acceptance into the
Administrative Remedy Program, he no longer had an available administrative remedy. See
Dillon, 596 F.3d at 267. His objection is sustained and Wexford’s motion to dismiss is denied.
B.

The State’s Motion for Summary Judgment

The State acknowledges that Berry filed a request for administrative remedy, but argues
that the substance of his grievance was not enough to put MDOC on notice that it sought relief
from it, or had any complaints about, MDOC employees. The argument is a fair point, but two
reasons support denying the motion at this time.
First, documentary evidence reveals that MDOC executives were personally put on notice
of Berry’s urgent health needs. After Berry’s request for administrative remedy was filed and
rejected, he received copies of emails his children had sent to MDOC executives Christopher
Epps, Gloria Perry, Archie Longley, and Johnnie Denmark, in which the children had sought
immediate medical care for their father. It is not clear how these emails should be considered in
this unique situation, where the request for assistance came from family and the inmate’s own
request for administrative remedy should have been accepted into the ARP program.
Second, had Berry’s request for administrative remedy been accepted into the program,
MDOC policy suggests that it would have been personally reviewed at Step 2 by a MDOC
executives. MDOC obviously had ultimate responsibility to evaluate Berry’s grievance and to
oversee Wexford’s provision of health services at CMCF. Gloria Perry and Commissioner Epps
in particular had “authority to provide any relief or to take any action whatsoever” in response to
Berry’s complaints of inadequate medical care. Dillon, 596 F.3d at 267; see also Porter v.

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Mississippi Dep’t of Corr., No. 4:07-CV-70, 2009 WL 902051, at *7 (N.D. Miss. Mar. 30, 2009)
(“Defendant Epps repeatedly and boastfully testified that he was the policy maker for
MDOC.”).1 Upon receipt of Berry’s children’s emails, in fact, MDOC officials directed
subordinates to look into Berry’s situation.2 It is unfortunate that Berry’s final set of heart attacks
occurred the very next day.
The dilemma here is that while no formal administrative remedy was sought against
particular MDOC employees, specific MDOC executives had the authority to force Wexford to
address Berry’s heart attacks, were personally put on notice of the problem by Berry’s children,
and would have been on notice of the problem through the formal ARP program had Berry’s
grievance not been improperly rejected by a MDOC employee. Given these facts, the better
course of action is to deny MDOC’s motion without prejudice.
IV.

Conclusion
Berry’s objection is sustained and the dispositive motions are denied.
SO ORDERED, this the 26th day of July, 2016.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

1

In deposition testimony elicited during Tillman v. Epps, No. 3:11-CV-239 (S.D. Miss. 2011), Commissioner Epps
testified, “The point is if my child was locked up in prison I wouldn’t be calling anybody. What I would be doing is
coming up to that person’s office, and I’d camp out there until they see me. . . . I’d stay there from 8 to 5.” When
asked whether such a camper would have been allowed to personally present his grievance to Epps, the
Commissioner responded, “That’s exactly right, they would.”
2
If the State defendants believe that this and other evidence show that they were not deliberately indifferent, they
may file an appropriate summary judgment motion. Today’s ruling is limited to administrative exhaustion.

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