Meredith v. McGraw
Filing
24
MEMORANDUM OPINION AND ORDER overruling the 19 Objection by Marquita Leigh Meredith to the Proposed Findings and Recommendation; adopting the 16 Proposed Findings and Recommendation by Magistrate Judge; granting the Motion by the Federal Bureau o f Prisons to Substitute the United States as the Defendant and granting the Motion to Dismiss Plaintiff's Punitive Damages Claim (ECF No. 15 in Consolidated Lead Case No. 1:22-cv-00466); granting the Motion by Jessica McGraw to Dismiss, or in th e Alternative, Motion for Summary Judgment (ECF No. 17 in Consolidated Lead Case No. 1:22-cv-00466); referring this matter back to Magistrate Judge Aboulhosn for further proceedings regarding Plaintiff's Federal Tort Claims Act claims against the United States. Signed by Senior Judge David A. Faber on 3/27/2024. (cc: Plaintiff, pro se and counsel of record) (arb)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
MARQUITA LEIGH MEREDITH,
Plaintiff,
v.
CIVIL ACTION NOS.
1:22-00466
1:22-00515
JESSICA MCGRAW, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
By Standing Order, these actions were referred to United
States Magistrate Judge Omar J. Aboulhosn for submission of
findings and recommendation regarding disposition pursuant to 28
U.S.C. § 636(b)(1)(B).
Magistrate Judge Aboulhosn submitted to
the court his Proposed Findings and Recommendation (“PF&R”) on
October 30, 2023.
(See ECF No. 30).
In accordance with the
provisions of 28 U.S.C. § 636(b), the parties were allotted
fourteen days and three mailing days to object to the PF&R.
Pro
se plaintiff Marquita Leigh Meredith filed a timely objection.
(See ECF No. 33).
I.
Background
Ms. Meredith claims she injured her knee playing softball
while incarcerated at Federal Prison Camp Alderson in Alderson,
West Virginia.
(See ECF No. 30 at 3).
She claims that prison
staff provided her with inadequate care for her injuries,
severely exacerbating them.
(See id.).
Based on these
allegations, she brought two lawsuits, which were consolidated
into this action.
She asserts negligence claims under the
Federal Tort Claims Act (“FTCA”) against the Federal Bureau of
Prisons, (see ECF No. 7), and she asserts claims under Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388, 395-97 (1971) against the nurse that allegedly
evaluated her after her injuries, Jessica McGraw, (see Civil
Action No. 1:22-cv-00515, ECF No. 5).
In response to these claims, the Bureau of Prisons moves to
substitute the United States as the appropriate defendant to the
FTCA claims, and to dismiss Ms. Meredith’s request for punitive
damages.
(See ECF No. 15).
Ms. McGraw moves to dismiss, or in
the alternative for summary judgment on, the claims against her.
(See ECF No. 17).
Magistrate Judge Aboulhosn recommends that this court (1)
grant the Bureau of Prisons’s motions to substitute the United
States as the defendant and to dismiss Ms. Meredith’s punitive
damages request, (2) grant Ms. McGraw’s “Motion to Dismiss, or
the alternative, Motion for Summary Judgment,” and (3) refer the
matter back to him for further proceedings on the FTCA claims
against the United States.
(See ECF No. 30 at 22-23).
2
Ms. Meredith objects only to the dismissal of her Bivens
claims against Ms. McGraw.
II.
Legal Standard
Pursuant to Rule 72(b) of the Federal Rules of Civil
Procedure, the court must “make a de novo determination upon the
record . . . of any portion of the magistrate judge’s
disposition to which specific written objection has been made.”
However, the court is not required to review, under a de novo or
any other standard, the factual or legal conclusions of the
magistrate judge as to those portions of the findings or
recommendation to which no objections are addressed.
See Thomas
v. Arn, 474 U.S. 140, 149–50 (1985).
“A document filed pro se is ‘to be liberally construed.’”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Specifically, as to
objections to a PF&R, courts are “under an obligation to read a
pro se litigant’s objections broadly rather than narrowly.”
Beck v. Comm’r of Internal Revenue Serv., No. 2:96CV308, 1997 WL
625499, at *1-2 (W.D.N.C. June 20, 1997).
III. Discussion
Magistrate Judge Aboulhosn recommends dismissing Ms.
Meredith’s Bivens claims for failing to exhaust her
administrative remedies, as required by the Prison Litigation
Reform Act (“PLRA”), 42 U.S.C. § 1997e(a).
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Ms. Meredith does not object to Magistrate Judge
Aboulhosn’s proposed finding that she failed to exhaust her
administrative remedies.
Instead, she asks this court to
“excuse the exhaustion requirements of the PLRA,” arguing that
potential administrative remedies were “unavailable” to her.
(See ECF No. 33 at 2).
The PLRA’s exhaustion requirement is well established:
“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 are
exhausted.”
Williams v. Carvajal, 63 F. 4th 279, 285 (4th Cir.
2023) (quoting 42 U.S.C. § 1997e(a)).
“For Bivens purposes,
proper exhaustion of available administrative remedies requires
that ‘a prisoner must submit inmate complaints and appeals in
the place, and at the time, the prison’s administrative rules
require.’”
Moore v. Rife, No. 1:20-00575, 2023 WL 2674860, at
*2 (S.D.W. Va. Mar. 29, 2023) (quoting Dale v. Lappin, 376 F. 3d
652, 655 (7th Cir. 2004)).
the process.
A prisoner must “use all steps” in
Id. (cleaned up) (quoting Woodford v. Ngo, 548
U.S. 81, 93 (2006)).
Generally, “‘a court may not excuse a failure to exhaust’
because the PLRA’s mandatory exhaustion scheme ‘foreclose[es]
judicial discretion.’”
Asplund v. Carver, No. 1:21-00541, 2021
4
WL 7630111, at *3 (S.D.W. Va. Sept. 30, 2021) (quoting Ross v.
Blake, 578 U.S. 632, 639 (2016)).
However, “the exhaustion
requirement hinges on the ‘availability’ of administrative
remedies:
An inmate, that is, must exhaust available remedies,
but need not exhaust unavailable ones.”
Ross, 578 U.S. at 642
(cleaned up) (quoting 42 U.S.C. § 1997e(a)).
There are several circumstances that render administrative
remedies unavailable.
First, “an administrative procedure is
unavailable when (despite what regulations or guidance materials
may promise) it operates as a simple dead end—with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates.”
Id. at 643.
“Next, an administrative
scheme might be so opaque that it becomes, practically speaking,
incapable of use.”
Id.
Finally, administrative remedies are
unavailable “when prison administrators thwart inmates from
taking advantage of a grievance process through machination,
misrepresentation, or intimidation.”
Id. at 644.
In this case, Ms. Meredith argues that the administrative
process was unavailable to her for two reasons.
First, she
argues that she submitted an Administrative Remedy Request at
the institutional level, the first step in the administrative
process, on June 28, 2021, but never received a response.
ECF No. 33 at 1).
(See
Second, she argues that “[d]ue to the effect
of the pandemic there were many barriers when trying to file
5
administrative remedies, making [the] process effectively
unavailable . . . .”
(Id.).
Ms. Meredith’s first argument, that she submitted an
Administrative Remedy Request with no response, falls within the
first potential category of unavailable administrative remedies:
that her attempt to utilize the administrative process led to “a
simple dead end.”
Ms. Meredith raised this argument before
Judge Aboulhosn as well.
However, he rejected it because she
offered no evidence that she filed an Administrative Remedy
Request, as she insists, and “[s]uch bare assertions without
producing a scintilla of evidence is insufficient to create a
genuine dispute of material fact.”
(ECF No. 30 at 19).
This
court agrees.
The record does not support Ms. Meredith’s contention that
she submitted an Administrative Remedy Request at the
institutional level.
The government offers prison records
showing that Ms. Meredith filed eighteen prison remedies or
appeals between March 25, 2021, and January 23, 2023, (see ECF
No. 17-1), but that none were related to her alleged injuries in
this case, which she claims occurred on July 25, 2021, (see ECF
No. 30 at 3).
This evidence belies both Ms. Meredith’s argument
that she submitted an Administrative Remedy Request, and her
argument that the administrative process was unavailable to her.
6
With the government’s evidence that Ms. Meredith failed to
exhaust her administrative remedies, she bears the burden of
showing that administrative remedies were unavailable:
“Once
the defendant has made a threshold showing of failure to
exhaust, the burden of showing that administrative remedies were
unavailable falls to the plaintiff.”
Murray v. Matheney, No.
2:13-cv-15798, 2017 WL 4684746, at *4 (S.D.W. Va. Oct. 18, 2017)
(quoting Creel v. Hudson, No. 2:14-cv-10648, 2017 WL 4004579, at
*4 (S.D.W. Va. Sept. 12, 2017)).
However, her conclusory
statement that she filed an Administrative Remedy Request,
without more, does not carry her burden.
The court, therefore,
agrees with Magistrate Judge Aboulhosn’s finding that this
argument fails to show that the administrative remedies were
unavailable to Ms. Meredith.
Ms. Meredith’s second argument, that the COVID-19 pandemic
made the administrative process unavailable to her, is also
contradicted by the evidence that she filed eighteen remedies
and appeals after the pandemic started and during the same
timeframe as her alleged injuries in this case.
Regardless,
this court has rejected similar inmate efforts to use the COVID19 pandemic to excuse the administrative exhaustion requirements
for Bivens claims.
See Syslo v. Carver, No. 1:21-00533, 2021 WL
9037652, at *1 (S.D.W. Va. Sept. 30, 2021).
In rejecting these
efforts, the court explained that “circumventing the exhaustion
7
requirement thus removing the agency’s expertise from the
process is shortsighted[,]” id. at *4 (quoting United States v.
Thompson, 458 F. Supp. 3d 482, 486 (S.D.W. Va. May 5, 2020)),
and that the court “will not read futility or other exceptions
into statutory exhaustion requirements . . . .”
Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001)).
Id. (quoting
Therefore,
this argument likewise fails to show that the administrative
remedies were unavailable to Ms. Meredith.
For these reasons, Ms. Meredith’s objection to the PF&R is
OVERRULED.
IV.
Conclusion
The court has reviewed the record, the Magistrate Judge’s
PF&R, and plaintiff’s objection.
For the reasons explained
above plaintiff’s objection (ECF No. 33) is OVERRULED.
The court adopts the Findings and Recommendation of
Magistrate Judge Aboulhosn as follows:
1. The Federal Bureau of Prisons’s motion to substitute the
United States as the defendant, and to dismiss plaintiff’s
punitive damages request (ECF No. 15) is GRANTED;
2. Defendant Jessica McGraw’s “Motion to Dismiss, or the
alternative, Motion for Summary Judgment” (ECF No. 17) is
GRANTED.
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The court REFERS this matter back to Magistrate Judge
Aboulhosn for further proceedings regarding plaintiff’s Federal
Tort Claims Act claims against the United States.
IT IS SO ORDERED this 27th day of March, 2024.
ENTER:
David A. Faber
Senior United States District Judge
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