Cardona-Tomassini v. Correctional Health Services et al

Filing 115

ORDER granting in part and denying in part 95 Motion to Dismiss. All claims and causes of action in the complaint are hereby DISMISSED WITHOUT PREJUDICE. Signed by US Magistrate Judge Marcos E. Lopez on 5/7/12. (Lopez, Marcos)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

JORGE CARDONA TOMASSINI,
Plaintiff,
v.

CIVIL NO.: 09-2059 (MEL)

CORRECTIONAL HEALTH SERVICES
CORPORATION, et. al.,
Defendants.

OPINION AND ORDER
Pending before the court is co-defendant Manuel Jiménez's motion to dismiss for failure
to exhaust administrative remedies as required by the Prison Litigation Reform Act of 1995
("PLRA"), 42 U.S.C. § 1997e, which co-defendant Correctional Health Services Corporation,
Inc. has joined, and plaintiff Jorge Cardona Tomassini's response in opposition. (Docket Nos.
95, 98, and 106). For the reasons set forth below, defendants' motion is granted in part and
denied in part, and plaintiff's claims are dismissed without prejudice.
I.

Factual and Procedural Background

On October 13, 2009, Jorge Cardona Tomassini (“Cardona” or “plaintiff”), who was then
under the custody of the Puerto Rico Department of Corrections at the Guerrero Aguadilla
Correctional Facility, filed a pro se complaint against that facility and the Department of
Corrections as well as Dr. Manuel Jiménez, alleging that he had not been receiving adequate
medical treatment. (Docket No. 3). Plaintiff filed an amended complaint on February 5, 2010,
after he was appointed counsel, which included co-defendant Correctional Health Services

Corporation. (Docket No. 34). On or about November 1, 2010, plaintiff was released from
incarceration and filed a second amended complaint against Dr. Jiménez, Correctional Health
Services Corporation, and Jesús González Cruz in his official capacity as the Secretary of the
Puerto Rico Department of Corrections (collectively, “defendants”). (Docket No. 76). The
complaint alleges violations of Cardona’s Eight Amendment rights via 28 U.S.C. § 1983 as well
as a medical malpractice claim under Article 1802 of the Puerto Rico Civil Code, P.R. Laws
Ann. tit. 31 § 5141, the general tort statute.1
On December 16, 2011, Dr. Jiménez filed a motion to dismiss the complaint with
prejudice for failure to exhaust administrative remedies as required by the PLRA. (Docket No.
95).

Correctional Health Services Corporation joined the motion on December 20, 2011.

(Docket No. 98). In his response in opposition, plaintiff concedes that he did not exhaust his
administrative remedies and that dismissal is thus warranted.2 He argues, however, that the
dismissal should be without prejudice because the PLRA’s exhaustion requirement applies only
to “prisoners,” and, because he has been released from prison, the requirement no longer applies
to him. Because plaintiff only requests that the action be dismissed without prejudice, not that it
be allowed to proceed, it appears he is not contending that the PLRA exhaustion requirement no
longer applies to him in this action, but rather in any future action he may file if the case is
dismissed without prejudice.3

1

On November 21, 2011, all claims against Dr. Jiménez and Jesús González Cruz in their official capacities were
dismissed. (Docket No. 89).
2
Plaintiff first concedes his failure to exhaust “for the sake of argument,” (Docket No. 106, p. 2 n.1), but later
concedes without qualification “the fact that he failed to exhaust administrative remedies under the PLRA.” (Docket
No. 106, p. 5).
3
The court refers to Cardona in the present tense for ease of reference, however, on January 26, 2012, the court was
informed that he had passed away. (Docket No. 110). No motion for substitution has been filed as per Federal Rule
of Civil Procedure 25, although under Puerto Rico law a decedent’s heirs inherit his causes of action for personal
injuries and civil rights violations. See Mangual v. Toledo, 526 F. Supp. 2d 127, 134 (D.P.R. 2008) (“The law of
Puerto Rico allows [plaintiff’s] pain and suffering to transmit to his immediate heirs, who can bring an action
claiming damages for the deceased’s pain [under Section 1983 and Article 1802].”); Schroeder v. De Bertolo, 879

2

II.

Applicable Legal Standards and Analysis

The PLRA requires prisoners to exhaust all available administrative remedies as a
precondition to suit rights under Section 1983. 42 U.S.C. § 1997e(a). To satisfy the exhaustion
requirement, “prisoners must ‘complete the administrative review process in accordance with the
applicable procedural rules,’–rules that are defined not by the PLRA, but by the prison grievance
process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007). The Supreme Court has held that the
PLRA requires “proper exhaustion,” not merely “ordinary exhaustion,” meaning that a plaintiff
must pursue the available administrative remedies in accordance with the relevant procedural
rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 88 (2006) (holding that the PLRA
contains a procedural default requirement).
A.

Plaintiff’s Failure to Exhaust

In support of their motion, defendants have submitted a copy of the Regulation to
Address the Applications for Administrative Remedies Filed by Members of the Correctional
Population, promulgated by the Puerto Rico Department of Corrections, which sets forth the
grievance process for inmates in Puerto Rico correctional facilities. (Docket No. 95-1). The
regulation sets forth a five-tier review process, which need not be detailed here given that
plaintiff concedes that he did not complete this process. See Cruz Berríos v. Oliver Baez, 792 F.
Supp. 2d 224, 228-29 (D.P.R. 2011) (describing each of the five steps in the grievance process).
Defendants have also submitted copies of several initial administrative complaints that plaintiff
filed through the inmate grievance process along with a certification stating that he did not seek

F. Supp. 173, 179 (D.P.R. 1995) (“[A] man never dies with respect to his civil rights and obligations[,] which are not
personal [,] but are transmitted to his heirs.”) (quoting Manuel de Río-Torres, et al. v. Heirs of Rafael A. Cancel, et
al., 36 P.R.R. 468, 470-71 (1927)).

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reconsideration for any of these requests, which is the next step in the administrative review
process. (Docket Nos. 104-1, 104-2).
The PLRA’s administrative exhaustion requirement is a precondition to suit; therefore,
whether it applies depends on the plaintiff’s status at the time of filing the initial complaint. This
is evident from the language of the statute, which states, in relevant part, that: “No action shall
be brought with respect to prison conditions under section 1983 of this title, or any other
Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available have been exhausted.”

42 U.S.C. § 1997e(1a)

(emphasis added). Therefore, the instant case remains an action brought by a prisoner, even if
that prisoner has subsequently been released.4 Courts faced with this question have routinely
reached the same result, holding that “it is the plaintiff’s status at the time he files suit that
determines whether § 1997e(a)’s exhaustion provision applies.” Norton v. City of Marietta, 432
F.3d 1145, 1150 (10th Cir. 2005); see Witzke v. Femal, 376 F.3d 744, 750 (7th Cir. 2004);
Dixon v. Page, 291 F.3d 485, 488-89 (7th Cir. 2002); Ahmed v. Dragovich, 297 F.3d 201, 210
(3d Cir. 2002); Fahey v. Federal Bureau of Prisons, Civil No. 09-40066-RGS, 2009 WL
4841082, at *2 (D. Mass. Dec. 11, 2009); see also Rodríguez Meléndez v. Fortuño Burset, 2011
WL 3442471, at *3 n.1 (D.P.R. Aug. 8, 2011) (“While the First Circuit is silent on the issue,
courts in other jurisdictions have found that the PLRA's definition of ‘prisoner’ extends to those
who began their action while in prison and have since been released”). Courts have reached the
same conclusion with respect to the PLRA’s physical injury requirement, which also limits

4

The PLRA defines "prisoner" as "any person incarcerated or detained in any facility who is accused of, convicted
of, sentenced for, or adjudicated delinquent for, violations of criminal law or the terms and conditions of parole,
probation, pretrial release, or diversionary program." 42 U.S.C. §§ 1997e(h).

4

actions “brought by a prisoner confined in a jail, prison, or other correctional facility.” See Cox
v. Mayer, 332 F.3d 422 (6th Cir. 2003); Harris v. Garner, 216 F.3d 970 (11th Cir. 2000).5
Plaintiff cites only one case reaching the opposite conclusion—that a plaintiff who files
an action while incarcerated and is subsequently released can proceed with the same action
without exhausting administrative remedies. Ovens v. Alaska Dep't of Corrections, No. A980199-CV, 2000 WL 34514101, at *3 (D. Alaska Mar. 13, 2000) (unpublished). This decision,
however, is unconvincing as it relies on a holding from a factually distinct case. Id. at *3 (citing
Page v. Torrey, 201 F.3d 1136 (9th Cir. 2000)). The plaintiff in Page had filed a complaint while
he was civilly committed, subsequent to finishing his sentence in a correctional facility.
201 F.3d at 1140. The Ninth Circuit held that the PLRA exhaustion requirement did not apply to
him as a civil detainee; rather “only individuals who, at the time they seek to file their civil
actions, are detained as a result of being accused of, convicted of, or sentenced for criminal
offenses, are ‘prisoners’ within the definition of 42 U.S.C. § 1997e.” Therefore, the Ninth
Circuit is, in fact, in accordance with the prevailing view that the plaintiff’s confinement status at
the time of filing the complaint determines whether the PLRA exhaustion requirement applies.
In the same vein, courts across jurisdictions have uniformly held that a plaintiff who
brings a Section 1983 claim regarding prison conditions after release is not subject to the
PLRA’s exhaustion provision. “Indeed, a plain reading of the statute makes clear that one must
be detained in order to be considered a prisoner.” Rivera Rodríguez v. Pereira Castillo, Civil No.
04-1389 (HL), 2005 WL 290160, at *5-6 (D.P.R. Jan. 31, 2005) (holding that action filed after
juvenile was released from custody was not subject to PLRA exhaustion requirement); see also
Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999); Doe v. Washington County, 150 F.3d 920,
5

That subsection of the PLRA provides: "No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury." 42 U.S.C. § 1997e(e).

5

924 (8th Cir. 1998); Kerr v. Puckett, 138 F.3d 321, 323 (7th Cir. 1998). Here, however, plaintiff
filed this action while still incarcerated. In view of this, and because it is uncontested that he did
not exhaust the available administrative remedies, dismissal of plaintiff’s Section 1983 claims is
proper.
B.

Dismissal Without Prejudice

Dismissals solely for failure to exhaust administrative remedies under the PLRA are
generally dismissals without prejudice. See Hernández Vásquez v. Ortiz Martínez, 2010 WL
132343, at *3 (D.P.R. Jan. 8, 2010) ("Failure to exhaust administrative remedies prior to
bringing suit requires dismissal of plaintiff's claim without prejudice."); Abbot v. United States,
2001 WL 1636809, at *3 n.5 (D.P.R. Nov. 8, 2001) ("The PLRA mandates that dismissals based
on failure to exhaust administrative remedies be without prejudice.") (citing Freytes v. Laboy,
143 F. Supp. 2d 187, 189 (D.P.R. 2001). Indeed, it appears that more often than not, dismissals
in this court have been without prejudice. Compare, e.g., Maldonado Concepción v. Puerto
Rico, 683 F. Supp. 2d 174, 176 (D.P.R. 2010) (dismissing claims for failure to exhaust); Montero
Rivera v. Puerto Rico, 2010 WL 455001, at *2 (D.P.R. Feb 4, 2010); Figueroa Rivera v. Puerto
Rico, 609 F. Supp. 2d 205, 207 (D.P.R. 2009); Meléndez Marrero v. Puerto Rico, 206 F. Supp.
2d 299 (D.P.R. 2002), with, e.g., Barbosa Orona v. Flores Dasta, 10-2267 (DRD), 2012 WL
489752 (D.P.R.

Feb. 15, 2012) (dismissing claims with prejudice for failure to exhaust);

Rodríguez Rodríguez v. García, 09-1094 (JAF/JP), 2011 WL 6057746 (D.P.R. Dec. 6, 2011);
Cruz Berríos v. Oliver Baez, 792 F. Supp. 2d 224 (D.P.R. 2011).
Courts that have explained their rationale for dismissing without rather than with
prejudice, have expressed the view that the failure to exhaust is a “temporary, curable,
procedural flaw,” which may be remedied allowing the claims to be properly reasserted. See

6

Fitzgerald v. Corrections Corp. of America, 403 F.3d 1134, 1139 (10th Cir. 2005); Snider v.
Melindez, 199 F.3d 108 (2d Cir. 1999). On the other hand, because the Supreme Court has held
that the PLRA contains a procedural default requirement, some courts have held that
unexhausted claims should be dismissed with prejudice when it is clear that administrative
remedies are no longer available because the claims have been rejected by the prison grievance
system on procedural grounds. See Kikumura v. Osagie, 461 F.3d 1269, 1290 (10th Cir. 2006)
(“Once a prison formally denies an inmate's grievance for untimeliness, and either the inmate
does not challenge the basis for that decision or the court upholds the decision, the inmate's
failure to exhaust is no longer a 'temporary, curable, procedural flaw.'"); Berry v. Kirk, 366 F.3d
85 (2d Cir. 2004) (holding that dismissal should be with prejudice where "exhaustion was
required but administrative remedies have become unavailable after the prisoner had ample
opportunity to use them and no special circumstances justified failure to exhaust."); Bryant v.
Rich, 530 F.3d 1368, 1375 n. 11 (11th Cir. 2008) (in certain circumstances failure to exhaust
administrative remedies may warrant dismissal of the action with prejudice). But see Ford v.
Johnson, 362 F.3d 395, 401 (7th Cir. 2004) (holding that all dismissals for non-exhaustion should
be without prejudice, since, inter alia, “[s]tates may allow cure of failure to exhaust” or litigation
in state court, and defenses to a new suit should be addressed directly in that suit.); Bell v.
Konteh, 450 F.3d 651, 654-55 (6th Cir. 2006); Wyatt v. Terhune, 315 F.3d 1108, 1120 (9th Cir.
2003) ("[D]ismissal of an action on the ground of failure to exhaust administrative remedies is
not on the merits . . . the proper remedy is dismissal of the claim without prejudice.") (citations
and quotations omitted); Aggers v. Tyson, Civil No. 07-1701, 2011 WL 2458083, at *6 (E.D.
Cal. June 16, 2011) (declining to dismiss action with prejudice even where plaintiff procedurally
defaulted in absence of controlling authority from Ninth Circuit).

7

In plaintiff’s case, it is clear that administrative remedies are no longer available to him
because he is no longer incarcerated. However, unlike the procedural default situation, this
would not bar a future suit. To the contrary, in a subsequent action, he would not be hindered by
the PLRA’s administrative exhaustion requirement. Therefore, a dismissal without prejudice is
warranted here.6
III.

Conclusion
Accordingly, for the foregoing reasons, defendants’ motion to dismiss (Docket No. 95) is

GRANTED IN PART AND DENIED IN PART and all of plaintiff’s claims are DISMISSED
WITHOUT PREJUDICE.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 7th day of May, 2012.
s/Marcos E. López
U.S. Magistrate Judge

6

Additionally, the court declines to exercise supplemental jurisdiction over plaintiff’s claim under Article 1802 of
the Puerto Rico Civil Code, P.R. Laws. Ann. tit. 31 § 5141. See United Mine Workers of Am. v. Gibbs, 383 U.S.
715, 726 (1966); Rodríguez v. Doral Mortg. Corp., 57 F.3d 1168, 1177 (1st Cir. 1995).

8