Chandler v. C.C.S. Medical Services

Filing 10

OPINION AND ORDER Adopting 9 Magistrate Judge's Report and Recommendation granting 7 Defendant's Motion to Dismiss without prejudice. Plaintiff is hereby granted thirty (30) days from the date of this Order to file an Amended Complaint. Failure to file an Amended Complaint in the time period provided shall result in the dismissal of all claims with prejudice. Signed by Chief Judge Christina Reiss on 8/26/2016. (pac)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

U.S. DISTRICT COU~.J
DISTRICT OF VERMDNT
FILED

20" AUG 26 PH 2: 29
CLERK

BY
JABBAR CHANDLER,
Plaintiff,
v.

C.C.S. MEDICAL SERVICES,
Defendant.

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lA:W

tlEFUTY CLE~K

Case No. 2:16-cv-22

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 7 & 9)
This matter came before the court for a review of the Magistrate Judge's July 11,
2016 Report and Recommendation ("R & R") (Doc. 9), in which he recommended that
the court grant the motion to dismiss filed by Defendant C.C.S. Medical Services with
leave to amend. (Doc. 7.) Neither party has filed an objection to the R & R, and the time
period to do so has expired.
In his Complaint, Plaintiff Jabbar Chandler alleged that Defendant's employees at
Southern State Correctional Facility in Springfield, Vermont negligently cared for his
injured finger in January 2014, thereby leaving him unable to work in his former
employment as a barber. Plaintiff conceded that the Vermont Department of Corrections
("DOC") had a grievance procedure in place. However, he did not utilize the grievance
program because he did not believe it could address his medical malpractice claim
against non-DOC contractors.
Defendant moved to dismiss Plaintiff's Complaint for (1) failure to exhaust his
claims under the Prisoner Litigation Reform Act ("PLRA"), (2) lack of subject matter
jurisdiction and noncompliance with Vermont's pleading requirements for medical

malpractice claims, and (3) lack of proper service of Defendant. Plaintiff did not oppose
dismissal.
A district judge must make a de novo determination ofthose portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United States, 194 F.3d 401, 405 (2d
Cir. 1999). The district judge 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)(l);

accord Cullen, 194 F.3d at 405. A district judge, however, is not required to review the
factual or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
In his ten pageR & R, the Magistrate Judge carefully reviewed the factual
allegations and legal claims in both the Complaint and the motion to dismiss and
ultimately recommended dismissal without prejudice of all claims against Defendant.
The Magistrate Judge noted that Plaintiffs claims arose out of medical treatment
provided to him while he was incarcerated, and therefore the PLRA's exhaustion
requirement applied. See 42 U.S.C. § 1997e(a) ("No action shall be brought with respect
to prison conditions under [42 U.S.C. § 1983], or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted"). Contrary to Plaintiffs belief, the PLRA
applies to prison contractors and thus the exhaustion requirement applies. See Frierson v.

St. Francis Med. Ctr., 2011 WL 3423930, at *6 n.16 (D.N.J. Aug. 4, 2011) ("The
language of the PLRA ... cannot reasonably be read to exempt complaints about medical
treatment merely because such treatment was provided by private medical service
providers"); LaBombardv. Burroughs-Biron, 2010 WL 2264973, at *7 n.3 (D. Vt. Aug.
30, 2010), adopted 2010 WL 2265004 (D. Vt. June 2, 2010) (applying PLRA's
exhaustion requirements to a private company that "assumed the DOC's constitutional
obligation to provide medical care to Vermont prisoners, and may thus be held liable for
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constitutional violations"). Because Plaintiff failed to follow DOC's grievance program
or establish an exception to the exhaustion requirement, the Magistrate Judge properly
recommended dismissal ofPlaintiffs Complaint. See Jones v. Bock, 549 U.S. 199, 211
(2007) ("[t]here is no question that exhaustion is mandatory under the PLRA").
The Magistrate Judge further recommended that Plaintiffs Complaint be
dismissed for lack of subject matter jurisdiction because his state law claims failed to
present a federal question or establish the minimum amount in controversy required for
diversity jurisdiction. See Owens v. Bellevue Hasp. Ctr., 1996 WL 134227, at * 1 (2d Cir.
Mar. 25, 1996) ("Allegations of medical malpractice or negligent failure to provide
treatment will not suffice to support an action under 42 U.S.C. § 1983"). In the event the
court determined it has jurisdiction, the Magistrate Judge concluded that Plaintiff failed
to comply with the filing requirements of Vermont's medical malpractice statute. 1
Finally, the Magistrate Judge evaluated Defendant's argument that Plaintiff failed
to properly serve Defendant and concluded that because Defendant had received adequate
notice of Plaintiffs Complaint as evidenced by its motion to dismiss, dismissal should
not be granted on this ground. (Doc. 9 at 8.) The Magistrate Judge recommended that
Plaintiff be granted leave to file an Amended Complaint. The court agrees with the
Magistrate Judge's well-reasoned conclusions and hereby adopts the R & R in its
entirety.

1

A plaintiff asserting a medical malpractice claim must file a certificate of merit simultaneously
with the complaint showing that he or she consulted with a qualified health care provider and
that the health care provider has:
(1) described the applicable standard of care;
(2) indicated that based on reasonably available evidence, there is a reasonable
likelihood that the plaintiff will be able to show that the defendant failed to meet
that standard of care; and
(3) indicated that there is a reasonable likelihood that the plaintiff will be able to
show that the defendant's failure to meet the standard of care caused the
plaintiffs injury.
12 V.S.A. § 1042(a).
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CONCLUSION

For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R (Doc. 9) as the court's Order and Opinion, and GRANTS Defendant's motion to
dismiss on the grounds that Plaintiff failed to satisfy the PLRA's exhaustion requirement
and establish the court's jurisdiction or comply with Vermont's medical malpractice
pleading requirements. (Doc. 7.)
Plaintiff is hereby GRANTED thirty (30) days from the date of this Order to file
an Amended Complaint. Any amended filing shall be entitled "Amended Complaint"
and shall consist of numbered paragraphs containing short and plain factual allegations, a
short and plain statement of each legal claim Plaintiff asserts, and a clear and concise
statement of the relief requested. See Fed. R. Civ. P. 8( a) (listing required contents of a
pleading that states a claim for relief). In the Amended Complaint, Plaintiff must allege
all claims and name all defendants that Plaintiff intends to include, as the Amended
Complaint will take the place of the original Complaint in all respects. He must allege
facts sufficient to establish either a federal question or diversity jurisdiction and, if he
seeks to file a medical malpractice claim, he must comply with 12 V.S.A. § 1042(a) or
allege facts that establish the requirements are not applicable. Failure to file an Amended
Complaint in the time period provided shall result in the dismissal of all claims with
prejudice.
SO ORDERED.

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Dated at Burlington, in the District of Vermont, this ~(p day of August, 2016.

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