WILSON v. CORRECTIONAL MEDICAL SERVICES (C.M.S.) et al

Filing 61

OPINION. Signed by Judge William J. Martini on 3/17/10. (gh, )

UNITED STATES DISTRICT COURT D I S T R IC T OF NEW JERSEY

E U G E N E R. WILSON, Plaintiff, v. C O R R E C T I O N A L MEDICAL SERVICES, et a l., Defendants.

C iv il Action Number: 2:07-5826

O P IN IO N H O N . WILLIAM J. MARTINI

O P IN IO N 1 I. INTRODUCTION In this civil rights action asserting both federal and state theories of liability, the p la in tif f , a state prisoner, alleges that he was seriously injured by improper medical care (in c lu d in g the alleged lack thereof). Defendants Correctional Medical Services, Niranjana S h a h , M.D., Jeane Betha, C.M.A., and Rosenleine Prophete's, R.N. ("Medical Defendants") h a v e brought a motion to dismiss (the "Motion"), arguing that Plaintiff failed to exhaust his a d m in i s tra tiv e remedies. The matter was briefed and, in addition, Plaintiff was also

For the convenience of the reader of this document in electronic format, hyperlinks to the Court's record and to authority cited herein may be inserted. No endorsement of any p ro v id e r of electronic or other resources is intended by the Court's practice of using h yp e r l i n k s .

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specifically directed by the Court to explain what actions he took to exhaust his claim. (Doc. N o s . 48, 51.) For the reasons explained below, the Court will GRANT in part, and DENY in part th e Motion, (Doc. No. 25).

I.

F A C T S , PROCEDURAL POSTURE, AND THE CONTENTIONS OF THE P A R T IE S O n December 6, 2007, Plaintiff filed a complaint alleging that, while incarcerated in

N o rth e rn State Prison, he was denied proper medical treatment for a serious medical c o n d itio n . (Doc. No. 1.) On December 3, 2008, he filed an amended seventeen-count c o m p la in t, asserting a variety of federal and state causes of action, the latter ostensibly falling u n d e r the Court's supplemental jurisdiction. More specifically, Plaintiff asserted a cause of a c tio n under 42 U.S.C. §1983, alleging that, while incarcerated, he was denied proper m e d ic a l treatment for a serious medical condition in violation of his Eighth Amendment right a g a in s t cruel and unusual punishment and in violation of his due process rights under the F if th and Fourteenth Amendments. (Doc. No. 23.) The Medical Defendants' Motion is now fully briefed. See The Opening Brief, (Doc. N o . 25); Opposition Brief, (Doc. No. 28); Reply Brief, (Doc. No. 29); and Sur Reply Brief, (D o c . No. 30). The Medical Defendants argued in their Motion that Plaintiff failed to exhaust h is administrative remedies. Opening Brief 35-38. The Court ordered supplemental briefing f ro m both parties on this issue. (Doc. Nos. 48, 51.) The Medical Defendants state, and it is -2-

not disputed, that the Northern State Prison has a system in place through which prisoners m a y seek to vindicate grievances administratively prior to bringing suit in court. See Opening B rie f 35-38; Brooks Aff., (Doc. No. 52); Inmate Handbook, (Doc. No. 52-1); 42 U.S.C. § 1997e; Concepcion v. Morton, 306 F.3d 1347, 1355 (3d Cir. 2002) (holding that the e x h a u s tio n process put forward in a prison handbook applies even if the handbook was not a d o p te d by the state administrative agency). Here, the Medical Defendants put forward P la in tif f 's (purported) grievance forms, also known as Inmate Request Forms ("IRFs"), and f u rth e r noted that Plaintiff failed to take an appeal in regard to any of them. See Brooks Aff., (D o c . No. 52). Plaintiff makes several responses to this argument. First, he argues that there were o th e r IRFs relating to this matter, that is, IRFs in addition to those put forward by the M e d ic a l Defendants in their supplemental filing on the exhaustion issue. In responding to the M e d ic a l Defendants' argument, Plaintiff did not actually supply the missing IRFs; rather, P la in tif f claimed that the missing IRFs were in the file in the clerk's office. See Doc. No. 1-2 (p ro v id in g the IRFs as an attachment to the original complaint); Doc. No. 28-2 (providing IR F s as exhibits to Plaintiff's opposition brief). Second, he claims that because of the c o n tin u in g nature of the harm caused by the Defendants, his "wait[ing] for a 30 day appeal f ro m the administration would have been redundant or frivolous." (Doc. No. 56 at 1.) Third, h e asserts that there were some IRFs which were put in the appeal process, although he fails to specify in any way which IRFs were appealed, or if they were the ones put forward by the

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Medical Defendants, or if they were the ones the Medical Defendants failed to put forward.

II.

S T A N D A R D OF REVIEW T h e Motion is brought pursuant to Fed. R. Civ. P. 12(b)(6). This rule provides for the

d is m is s a l of a complaint, in whole or in part, if the plaintiff fails to state a claim upon which re lie f can be granted. The moving party bears the burden of showing that no claim has been s ta te d , Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005), and dismissal is a p p ro p ria te only if, accepting all of the facts alleged in the complaint as true, the plaintiff has f a ile d to plead "enough facts to state a claim to relief that is plausible on its face," Bell A tla n tic Corp. v. Twombly, 550 U.S. 544, 570 (2007) (abrogating "no set of facts" language f o u n d in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). The facts alleged must be sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. This re q u i r e m e n t "calls for enough fact[s] to raise a reasonable expectation that discovery will re v e a l evidence of" necessary elements of the plaintiff's cause of action. Id. Furthermore, in o rd e r satisfy federal pleading requirements, the plaintiff must "provide the grounds of his e n title m e n t to relief," which "requires more than labels and conclusions, and a formulaic re c ita tio n of the elements of a cause of action will not do." Phillips v. County of A lle g h e n y , 515 F.3d 224, 231 (3d Cir. 2008) (brackets and quotations marks omitted) (q u o tin g Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion to dismiss, the court generally relies on the

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complaint, attached exhibits, and matters of public record. Sands v. McCormick, 502 F .3 d 263 (3d Cir. 2007). The court may also consider "undisputedly authentic document[s] th a t a defendant attaches as an exhibit to a motion to dismiss if the plaintiff's claims are b a s e d on the [attached] document[s]." Pension Benefit Guar. Corp. v. White Consol. In d u s ., 998 F.2d 1192, 1196 (3d Cir. 1993). Moreover, "documents whose contents are a lle g e d in the complaint and whose authenticity no party questions, but which are not p h ys ic a lly attached to the pleading, may be considered." Pryor v. Nat'l Collegiate Athletic A ss 'n , 288 F.3d 548, 560 (3d Cir. 2002). Generally, the court may not rely on other parts of th e record in determining a motion to dismiss. Jordan v. Fox, Rothschild, O'Brien & F ra n k e l, 20 F.3d 1250, 1261 (3d Cir. 1994).

III.

A N A L Y S IS T h e Prison Litigation Reform Act (the "PLRA") of 1995, as codified at 42 U.S.C.

§ 1997e, states that "[n]o action shall be brought with respect to prison conditions under s e c tio n 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, o r other correctional facility until such administrative remedies as are available are e x h a u s t e d ." 42 U.S.C. § 1997e(a).2 The exhaustion of all administrative remedies, at all

Generally, the failure to exhaust administrative remedies is an affirmative defense u n d e r the PLRA. See Jones v. Bock, 549 U.S. 199 (2007). Defendants "have the burden of p le a d in g and proving the defense in a motion for summary judgment or at trial." Kounelis v . Sherrer, Civil Action No. 04-4714, 2005 WL 2175442, at *6 (D.N.J. Sept. 6, 2005). As e x p la in e d below, dismissal under the Rule 12(b)(6) standard based on the exhaustion defense -5-

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levels of review, is mandatory, even if (1) the prisoner believes they are ineffective, or (2) the a v a ila b le administrative process cannot grant the desired remedy. Booth v. Churner, 532 U .S . 731, 739-41 (2001); see Porter v. Nussle, 534 U.S. 516, 524 (2002). Therefore, to c o m p ly with the PLRA, a prisoner must properly exhaust administrative remedies as a p re c o n d itio n to bringing a federal claim in federal court, or risk defaulting the claim. Warren v . Pennsylvania, 316 Fed. Appx 109, 112 (3d Cir. 2008). The Medical Defendants have put forward nine IRFs as both relevant to the instant d is p u te and as the only ones Plaintiff entered into the grievance system. These nine IRFs are d a te d between December 6, 2007 and March 21, 2009. This suit was brought by Plaintiff on D e c e m b e r 6, 2007, as such grievances filed after December 6, 2007 are largely irrelevant to th is suit, and probably were not the ones contemplated by Plaintiff in his papers. Indeed, Plaintiff argues that the IRFs put forward by the Medical Defendants are not th e only ones he filed relevant to this dispute. The Court agrees. Plaintiff filed with the Court ­ on two occasions ­ nine IRFs dated between December 23, 2006 and September 17, 2007: a ll dated prior to the start of this lawsuit. See Doc. No. 1-2 (attachment to the original c o m p la in t); Doc. No. 28-2 (exhibit to Plaintiff's opposition brief). However, each of these IRF forms ­ on their face ­ provided a space on the form for th e prisoner to appeal the administrative decision rendered. Id. at 1 (see Part IV of the form). E v e ry one of the IRFs put forward by the Plaintiff has left the section providing for an appeal

is appropriate on the particular facts of this case. -6-

blank. In regard to each of these IRF forms, Plaintiff failed to take an administrative appeal ­ i.e., he failed to exhaust. (Just as he failed to appeal or exhaust in regard to each of the IRFs s u p p lie d by the Medical Defendants, where, here too, in each of these nine IRFs, Part IV was a g a in left blank.) Standing alone, this appears to be a sufficient basis to dismiss this action. Second, Plaintiff admitted in his most recent filing that he failed to exhaust his re m e d ie s : arguing that "wait[ing] for a 30 day appeal from the administration would have b e e n redundant or frivolous." (Doc. No. 56 at 1.) The PLRA demands that the Plaintiff e x h a u s t. Although a prisoner need only exhaust "available" remedies, he cannot escape the r e q u ire m e n ts of the PLRA merely by characterizing the process provided by the state as re d u n d a n t or frivolous. Again, standing alone, Plaintiff's admission in his brief, apart from a n y evidence in the record, appears to be a sufficient basis to dismiss this suit under the Rule 1 2 (b )(6 ) standard. Finally, Plaintiff argues that he did, in fact, appeal some of his IRFs. This factual a lle g a tio n is undermined by his own exhibits (none of which indicate that any appeal was ta k e n ), and also undermined by the Medical Defendants exhibits (none of which indicate that a n y appeal was taken). To the extent that Plaintiff is suggesting there are some other IRFs, not supplied by h im and not supplied by the Medical Defendants, which had been properly appealed (and

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thereby exhausted),3 then that conclusory factual allegation comes absent any specificity or d e ta il: What particular grievance did it seek to vindicate?; In relation to a harm occurring on w h a t date?; When was the IRF initially filed; When was appeal taken?; And what remedy w a s he offered (if any) by the administration? Without these details, even assuming there w e re some IRFs which neither party supplied as an exhibit, that is, even taking Plaintiff's f a c t u a l allegation in regard to the existence of unreturned but otherwise appealed and e x h a u s te d IRFs as true, there is no reason to believe that the missing IRFs would furnish a s u f f ic ie n t basis for the legal claims at issue in this litigation. Cf. Twombly, 550 U.S. at 555. Nevertheless, the Court notes and is troubled by the fact that the nine IRFs supplied b y the Plaintiff, which on their face appear to be relevant to this litigation, were not supplied b y Brooks in her declaration on behalf of the Medical Defendants. Indeed, that declaration re f e re n c e d other IRFs as at issue in this litigation, and indicated that no other such relevant IR F s had been filed by Wilson. This appears to be an error on Brooks' part, and it may in d ic a te that the Medical Defendants and Brooks misunderstood the Amended Complaint or d id not do an adequate search of their records, which if done, may reveal other IRFs which w e re , in fact, properly initially filed, appealed, and exhausted. Therefore, the Court will direct the Medical Defendants and Brooks to do a thorough, c o m p le te , and diligent search of their records for all other IRFs which may be relevant to this

See Plaintiff's Opposition to the Brooks' Declaration ("[T]here were IRFs that were p u t in the administrative appeal process, and which were never answered or returned ...."), (D o c . No. 56 at 1). -8-

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action, and to supply the Court and Plaintiff with a copy of all such IRFs within 10 days from th e entry of this opinion and order in conjunction with a certification or declaration e x p la in in g what was found. If no such IRFs are found (beyond the eighteen produced to date in this litigation), then the Medical Defendants and Brooks shall file within 10 days from the e n try of this opinion and order a certification or declaration stating that no additional IRFs w e re found. Plaintiff shall file a response to the Medical Defendants' declaration or certification w ith in 15 days from the date the Medical Defendants file their certification or declaration. T h e Court will delay entering a final order on the Motion until that time.

IV.

C O N C L U S IO N The Medical Defendants and Brooks are ordered to do a thorough, complete, and

d ilig e n t search of their records for all other IRFs which may be relevant to this action, and to supply the Court and Plaintiff with a copy of all such IRFs within 10 days from the entry o f this opinion and order in conjunction with a certification or declaration explaining what w a s found. If no such IRFs are found (beyond the eighteen produced to date in this litig a tio n ), then the Medical Defendants and Brooks shall file within 10 days from the entry o f this opinion and order a certification or declaration stating that no additional IRFs were found. Plaintiff shall file a response to the Medical Defendants' declaration or certification

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within 15 days from the date the Medical Defendants file their certification or declaration. T h e Court will delay entering a final order on the Motion until that time. An appropriate order accompanies this opinion.

DATE: March 17, 2010

s/ William J. Martini William J. Martini, U.S.D.J.

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