Rodriguez v. F.B.O.P et al
ORDER ADOPTING REPORT AND RECOMMENDATION for 30 Motion for Judgment on the Pleadings filed by Dr. Bussanich, 36 Report and Recommendations. For the foregoing reasons, the Court adopts Magistrate Judge Netburn's August 5, 2014 R & R. Accordingly, Bussanich's motion for judgment on the pleadings is denied. The parties should engage in expedited, limited discovery on the issue of Rodriguez's exhaustion efforts. The order of reference to Magistrate Judge Netburn continues for further disposition of this matter. (Signed by Judge Paul A. Crotty on 2/27/2015) Copies Mailed By Chambers. (lmb)
I ELECTRONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
l DOC#: _ __
l! DATE FILED:
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2- ?. 7 - l ).'
LUIS PAULINO RODRIGUEZ,
13 Civ. 3643 (PAC) (SN)
ORDER ADOPTING REPORT
CORRECTIONAL FACILITY; DR.
BUSSANICH, CLINICAL DIRECTOR OF
HONORABLE PAUL A . CROTTY, United States District Judge:
Prose Plaintiff Luis Paulino Rodriguez ("Rodriguez" ) brings this action against the
Warden ofthe Metropolitan Correctional Center ("MCC") and Dr. Bussanich ("Bussanich"),
clinical director of the MCC, pursuant to Bivens v. Six Unknown Named Agents ofFederal
Bureau ofNarcotics, 403 U.S. 388 (1971).1 He alleges that, while a pretrial detainee at the
MCC, he received inadequate medical attention following an injury he sustained. Bussanich
now moves to dismiss the complaint pursuant to Fed. R. Civ. P. 12(c). On August 5, 2014,
Magistrate Judge Sarah Netburn issued a Report and Recommendation ("R & R") that the Court
deny Bussanich's motion. Dkt. 36. Bussanich filed objections to the R & Ron September 16,
2014. Dkt. 48. For the following reasons, the Court adopts Magistrate Judge Netburn's R & R,
but grants limited discovery on the issue of exhaustion of remedies.
August I, 20 13, the Court construed the complaint to allege a Bivens claim, dismissed claims against
"Insurance ofthe MCC," "F.B.O.P," and "Medical Administration," and added " Warden , Metropolitan Correctional
Facility" and "John or Jane Doe, head of Medical Care at Metropolitan Correctional Facility," as defendants. Dkt. 6.
A. Factual and Procedural Background
On November 28, 2012, Rodriguez fell from the stairs at the MCC and sustained injuries
to his head and back. R & R at 2. He experienced severe complications from these injuries. !d.
at 2-3. He filed grievances concerning his medical treatment three times using the MCC ' s
Inmate Request to Staff forms and once by email. !d. at 2-3. On January 9 and 10, 2013, a
paralegal at the office of his attorney wrote to the MCC ' s legal and medical departments
requesting medical assistance for Rodriguez. !d. at 3-4.
Rodriguez filed his complaint on May 21, 2013, seeking $2.5 million in compensatory
damages and injunctive relief in the form of medical treatment for his conditions and repair of
the broken steps on which he fell. On Rodriguez' s form complaint, when asked to describe his
efforts to exhaust administrative remedies, Rodriguez indicated that he "wrote a BP9 to the
administration of MCC. Step two was to the office of the F.B.O.P., step three was to the federal
civil court." Compl. ~ IV.E.3. Rodriguez also stated that "my lawyer also wrote the legal
department ofMC[C] ."
IV.F. Bussanich moved for judgment on the pleadings on April 8,
2014, arguing that Rodriguez has failed to exhaust administrative remedies as required by the
Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e, and failed to adequately plead
personal involvement, and that Bussanich is shielded from suit by the doctrine of qualified
B. Magistrate Judge Netburn's Report and Recommendation
In Magistrate Judge Netburn ' s R & R, she found that (1) failure to exhaust was not
apparent from the face of the complaint; (2) Rodriguez had adequately pled that Bussanich was
A detailed factual background of this dispute is set forth in the R & R. The Court recites only those facts relevant
to Bussanich' s objections to the R & R.
deliberately indifferent to his serious medical needs; and (3) Rodriguez had sufficiently alleged
Bussanich's personal involvement. R & Rat 7-21. In addition, Magistrate Judge Netbum found
that a determination of qualified immunity was premature because "the facts supporting the
defense do not 'appear on the face of the complaint."' R & Rat 22 (quoting McKenna v. Wright,
386 F.3d 432, 436 (2d Cir. 2004)). Magistrate Judge Netbum also declined to convert
Bussanich' s motion into a motion for summary judgment by considering documents outside of
the pleadings submitted by Bussanich to show Rodriguez's failure to exhaust. R & Rat 11-13.
With respect to the finding on failure to exhaust, Magistrate Judge Netbum examined
Rodriguez's complaint and determined that Rodriguez "has not pled that he did not exhaust; and
at this stage in the litigation, he does not need to demonstrate that he did." R & Rat 10.
Magistrate Judge Netbum rejected Bussanich's argument that Rodriguez's complaint made clear
that he did not pursue relief beyond the initial stage of informal resolution for two of his
grievances, and that he did not pursue reliefbeyond the second stage for the remaining
grievances. ld. at 9-10. Magistrate Judge Netbum found that because "exhaustion is not an
affirmative pleading requirement, ... Rodriguez cannot be penalized for what he does not say in
his pleading about his efforts to exhaust." Id. at 10.
Magistrate Judge Netbum also recommended prohibiting limited discovery on the issue
of exhaustion because "such a measure would not serve any desirable judicial end." R & Rat
12. The R & R found that bifurcating discovery in such a manner would unnecessarily
complicate and delay proceedings and that full fact discovery would not be so extensive as to
hinder timely resolution of the action. ld. at 13.
C. Bussanich's Objections
Bussanich objects to Magistrate Judge Netbum's finding that Rodriguez's complaint did
not demonstrate failure to exhaust on its face. Objections at 2. Bussanich argues that the
complaint clearly shows a failure to exhaust administrative remedies. ld. at 6-8. Bussanich
describes Rodriguez's claims in his complaint regarding his efforts to exhaust, and argues that
"[these allegations make clear that Plaintiff never completed the fourth step of the administrative
process-an appeal to the office of General Counsel-and therefore failed to exhaust available
administrative remedies. " ld. at 7.
Bussanich argues that should the Court find that Rodriguez's failure to exhaust is not
clear from the face of the complaint, the Court should permit limited discovery regarding
exhaustion. ld. at 8. Bussanich asserts that discovery solely with respect to exhaustion would be
limited and swift, while full discovery would be extensive, complicated, and protracted. ld.
Standard of Review
When considering a report and recommendation, the Court "may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. §
636(b)(1 )(C). The Court must review de novo those findings to which an objection has been
timely filed. See Arista Records LLC v. Doe 3, 604 F.3d 110, 116 (2d Cir. 2010). "However,
where a party does not submit a timely objection, ' a district court need only satisfy itself that
there is no clear error on the face of the record."' Martinson v. US. Parole Comm 'n, 2005 WL
1309054, at *3 (S.D.N.Y. June 1, 2005) (internal citations omitted). In light of Rodriguez's pro
se status, the Court reads his filings liberally and construes them to raise the strongest arguments
that they suggest. Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
Plaintifrs Failure to Exhaust
A. The Prison Litigation Reform Act
The PLRA holds that "[n]o action shall be brought with respect to prison conditions
under ... any ... Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a);
see also Porter v. Nussle, 534 U.S. 516, 524 (2002) (discussing the application of the exhaustion
requirement to Bivens claims). A prisoner need only comply with prison grievance procedures to
properly exhaust, Jones v. Bock, 549 U.S. 199, 218 (2007), and must complete "all steps that the
agency holds out," Woodford v. Ngo, 548 U.S. 81, 90 (2006). Because the MCC is a BOPoperated facility, the grievance procedure applicable to Rodriguez's claim is the "Administrative
Remedy Program," which requires that the inmate (1) seek informal resolution ofhis grievance
through an internal procedure; (2) file an Administrative Remedy Request using the BP-9 form
addressed to the Warden within twenty days of the incident; (3) file a Regional Appeal of any
unfavorable response on a BP-10 form to the Regional Director within twenty days of the
Warden's response; and (4) further appeal any decision to the General Counsel in Washington
D.C. within thirty days of a response. See R & Rat 8-9; 28 C.F.R. § 542.13(a), § 542.14(a), §
Failure to exhaust constitutes an affirmative defense and need not be pled or
demonstrated in a complaint. Jones, 549 U.S. at 216. The Court may only grant a motion to
dismiss based on failure to exhaust if non-exhaustion is clear from the face of the complaint. See
Lewis v. City ofN. Y, 2013 WL 3833001 , at *3 (S.D.N.Y. July 23, 2013).
B. Plaintiff's Exhaustion
Magistrate Judge Netbum found that Rodriguez's failure to exhaust was not
demonstrated on the face of the complaint. The R & R concluded that "Rodriguez cannot be
penalized for what he does not say in his pleading about his efforts to exhaust" and that,
particularly in light of Rodriguez' s prose status, "statements of the efforts he took [to exhaust]
cannot be construed to mean that he did not pursue the proper avenues for exhaustion." R & Rat
10. Bussanich objects, arguing that Rodriguez' s complaint acknowledges the existence of the
grievance process and his failure to comply therewith. Objections at 7.
Upon de novo review of the complaint, and considering Rodriguez' s pro se status, the
Court finds that the failure to exhaust administrative remedies is not clear from the face of the
complaint. Rodriguez' s statements regarding his exhaustion attempts are ambiguous and
somewhat opaque. Moreover, there is no indication that they represent the entirety of his efforts.
While Rodriguez's complaint may suggest a failure to exhaust, such failure is not directly
evident from the face of the complaint. See Parris v. N.Y. State Dep 't Corr. Servs. , 947 F. Supp.
2d 354, 361-62 (" [A]mbiguity is not a valid basis for dismissal under Jones , which does not
require that the plaintiff demonstrate exhaustion in the complaint."); Smalls v. Jummonte, 2010
WL 3291587, at *3 (S.D.N.Y. Aug. 13, 2010).
C. Limited Discovery Regarding Exhaustion
Bussanich argues that discovery "solely on the issue of exhaustion would be very limited
and could be complete[ d) quickly," as could "any further motion practice on that issue."
Objections at 8. The Cow.i agrees that discovery limited to the issue of Rodriguez's exhaustion
would be expedient, and would not unnecessarily delay or complicate the action.
For the foregoing reasons, the Court adopts Magistrate Judge Netburn' s August 5, 2014
R & R. Accordingly, Bussanich's motion for judgment on the pleadings is denied. The parties
should engage in expedited, limited discovery on the issue of Rodriguez's exhaustion efforts.
The order of reference to Magistrate Judge Netburn continues for further disposition of this
Dated: New York, New York
PAUL A. CR1TY
United States District Judge
Copies mailed by Chambers to:
Luis Paulino Rodriguez
ICE Processing Center
8915 Montana Avenue
El Paso, TX 79925
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