Acosta v. U.S. Marshals Service, 05-1733.

• Decision Date: 19 April 2006
• Docket Number: No. 05-1733.,05-1733.
• Citation: 445 F.3d 509
• Parties: Pablo ACOSTA, Plaintiff, Appellant, v. UNITED STATES MARSHALS SERVICE, et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

445 F.3d 509

Pablo ACOSTA, Plaintiff, Appellant, v. UNITED STATES MARSHALS SERVICE, et al., Defendants, Appellees.

No. 05-1733.

United States Court of Appeals, First Circuit.

Heard February 7, 2006.

Decided April 19, 2006.

Alan Joel Finkel, for appellant.

T. David Plourde, Assistant United States Attorney, with whom Thomas P. Colantuono, United States Attorney, was on brief for appellees.

Before BOUDIN, Chief Judge, STAHL, Senior Circuit Judge, and LIPEZ, Circuit Judge.

BOUDIN, Chief Judge.

On October 19, 1999, Pablo Acosta was arrested on federal drug and firearm charges (he later pled guilty to cocaine distribution) and held without bail. During his pre-trial detention, the United States Marshals Service lodged him in several county jail facilities with which it contracts; he also spent time in two federal facilities. Acosta suffered health problems and sued. This appeal is from the dismissal of that action.

Because the case was dismissed at the pleading stage, we accept as true the facts stated in Acosta's complaint, Mass. Sch. of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 40 (1st Cir.1998) — although the grounds for the dismissal were largely procedural. The sequence of Acosta's alleged medical troubles can be briefly summarized as follows (bearing in mind that the charges of negligence are also only allegations):

• Acosta housed in the Hillsborough County (New Hampshire) Department of Corrections, where a doctor negligently prescribed the medication Elavil for arm pain due to over-tight handcuffs;

• Acosta transferred to the Cumberland County (Maine) Jail, where an unnamed doctor "abruptly terminated" his Elavil prescription;

• Acosta transferred to the Merrimack County (New Hampshire) House of Corrections, where he suffered a seizure allegedly caused by the Elavil treatment and its abrupt termination, causing him to fall from a top bunk and fracture his skull;

• Acosta treated for the skull fracture at the private Dartmouth-Hitchcock Medical Center, where due to improper treatment he suffered a seizure just prior to being discharged;

• Acosta transferred to a federal facility, FMC Rochester, where under the care of Dr. Thomas Clifford he suffered a fall, broke a finger, and was mistreated;

• Acosta transferred to Strafford County (New Hampshire) House of Corrections, where a new foot injury was initially ignored by the prison staff and then mistreated by a private physician, Dr. Mark Geppert, leading to permanent impairment;

• Acosta transferred to another federal facility, FCI Raybrook, where a staff doctor improperly treated a skin rash.

On February 12, 2002, while still at FCI Raybrook, Acosta filed a standard-form "Claim For Damage, Injury, or Death" with the New Hampshire office of the Marshals Service, seeking $1 million in damages. He listed the accident as having occurred at 11:30 p.m. on February 16, 2000 — the date of the skull fracture incident (which occurred in the afternoon) — and identified the Merrimack facility as the situs. He attached several medical records, an excerpt from his pre-sentence report, and a letter to a lawyer. The letter referred to several of the other episodes.

On February 13, 2003, Acosta lodged a complaint in federal district court in New York, later transferred to and filed in the federal district court in New Hampshire and thereafter amended. The amended complaint charged as defendants, among others, the United States, the Marshals Service, the federal Bureau of Prisons, county jails in Maine and New Hampshire, Dartmouth-Hitchcock Medical Center, and Drs. Geppert and Clifford.

Acosta alleged claims under 42 U.S.C. § 1983 (2000), under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (2000) ("FTCA"), and for negligence under state law based on diversity of citizenship. The episodes set forth above were recounted, together with generalized claims of conspiracy and somewhat more specific claims of negligence. Although Acosta initially proceeded pro se, the amended complaint was co-signed by counsel.

Eventually, after transfer of the case to the federal district court in Maine, motion practice and two recommendations and reports by the magistrate judge,¹ the district court on April 8, 2005, dismissed the complaint. Most of the federal claims were dismissed for failure to exhaust administrative remedies; several others, for failure to state a claim. Finally, the court declined to exercise supplemental jurisdiction over the state-law negligence claims.

Our review, save as to dismissal of the state law claims, is de novo. See Mass. Sch. of Law, 142 F.3d at 40. We begin with the civil rights claims under section 1983 against county facilities and personnel, which were dismissed for failure to meet the exhaustion requirement of the Prison Litigation Reform Act of 1995 ("PLRA"). Pub.L. No. 104-134, 110 Stat. 1321 (codified as amended in scattered sections of 18 U.S.C., 28 U.S.C., and 42 U.S.C.). That statute pertinently provides:

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.

42 U.S.C. § 1997e(a).

"Prison conditions" under this provision include individual instances of medical mis — or non-treatment,² and Acosta does not claim to have sought any administrative remedy — except for his above described complaint filed with the Marshals Service on February 12, 2002. Because we have treated section 1997e(a) as an affirmative defense, Casanova v. Dubois, 304 F.3d 75, 77-78 (1st Cir.2002), Acosta might have argued that the burden was upon the defendants to show that there were available (albeit unexhausted) remedies.

Instead (perhaps because such remedies usually exist) Acosta has argued that he fulfilled any such exhaustion requirement by sending his claim form to the Marshals Service. This will not wash: the claims as to the counties had to be directed to the county facilities responsible for the supposed wrongdoing. Cf. Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.) ("To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require."), cert. denied, 537 U.S. 949, 123 S.Ct. 414, 154 L.Ed.2d 293 (2002). Otherwise, the ordinary purposes served by such requirements — to provide timely notice of the claim and an avenue for redress short of litigation, see McCarthy v. Madigan, 503 U.S. 140, 145, 112 S.Ct. 1081, 117 L.Ed.2d 291 (1992); Ezratty v. Puerto Rico, 648 F.2d 770, 774 (1st Cir.1981) — could not be served. Nothing in Acosta's brief explains how filing a claim with the Marshals Service could constitute adequate notice to a Maine or New Hampshire entity or otherwise encourage administrative resolution of the matter.

The district court also relied upon section 1997e(a) in dismissing the claim against Dr. Clifford, the doctor serving at FMC Rochester. Being at best a federal actor, he was not subject to suit at all under section 1983, see Soldevila v. Sec'y of Agric., 512 F.2d 427, 429 (1st Cir.1975); but the district court treated the civil rights claim against him as a Bivens action, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The agency responsible for federal prisons is the Bureau of Prisons, not the Marshals Service, and Acosta relies only on the notice he provided to the latter.

The Marshals Service appears to have treated the complaint to it as directed only to the events that occurred while Acosta was housed at the Merrimack County facility; this was certainly the explicit incident referred to in the "basis for claim" and it is far from clear that a package of attachments referring obliquely to other incidents could fairly be treated as stating separate claims as to them. In any event, no claim was filed with the Bureau of Prisons, so the claim against Dr. Clifford was not exhausted. See 28 C.F.R. § 542.10-.19 (2005) (regulations governing the Administrative Remedy Program for inmates in facilities operated by the Bureau of Prisons).

One might argue that notice to one federal agency is notice to another, but this would be unrealistic. The argument might be stronger here because the Bureau and the Marshals Service are both components of the Department of Justice, but both are themselves large organizations.³ In all events, to litigate based on whether notice was in fact received, or likely to be received, by some other agency is a recipe for turning a threshold procedural requirement into a litigation morass of its own.

A second, different set of Acosta's claims was dismissed for failure to exhaust but under a different exhaustion provision. In the second count of his complaint, Acosta alleged claims against the federal government under the Federal Tort Claims Act. A key provision of the FTCA, 28 U.S.C. § 1346(b), allows certain civil actions against the United States based on

the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.

"Employee" includes "officers or employees of any federal agency" and "persons acting on behalf of a federal agency in an official capacity," 28 U.S.C. § 2671, but "federal agency" within the meaning of the statute "does not include any contractor with the United States." Id. The statute also contains an exhaustion requirement,⁴ which has been viewed as "a non-waivable jurisdictional...