Dunfee v. Barry
| Decision Date | 24 September 2018 |
| Docket Number | CIVIL ACTION NO. 17-40108-DHH |
| Parties | JOSHUA DUNFEE Plaintiff, v. DR. BARRY, et al. Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Hennessy, M.J.
This matter comes before the court on the Defendants' motion to dismiss, or in the alternative, for summary judgment (Docket #12). Also pending before the court is pro se Plaintiff Joshua Dunfee's motion to amend his complaint. (Docket #18). These matters are now ripe for review. For the following reasons, I hereby ALLOW the motion for summary judgment (Docket #12) and DENY the motion to amend (Docket #18).
On December 16, 2014, Dunfee was sentenced to a twenty-year term of imprisonment followed by a five-year term of supervised release for the offenses of Coercion and Enticement of a Minor in violation of 18 U.S.C. § 2422(b) and Sexual Exploitation of a Child in violation of 18 U.S.C. § 2251(a) & (e). See United States v. Dunfee, 12-cr-10024, Docket #99 (Sept. 24, 2013) and #301 (Dec. 16, 2014).
In February 2015, Dunfee was incarcerated at the Federal Correctional Institute in Milan, Michigan ("FCI Milan"). (Docket #1 at ¶ 1). Dunfee alleges that, while at FCI Milan, Dr. Hagit Barry, Ph.D., a psychologist, sexually harassed him, retaliated against him when he complained, and had him transferred from FCI Milan to the Federal Medical Center, Devens, Massachusetts ("FMC Devens"), far from his family and friends. (Id. at ¶¶ 2-4). Upon arrival at FMC Devens, Dunfee asserts that he was treated by Dr. Cheryl Renaud and Counselor Justin Patronick. (Id. at ¶ 7). Dunfee complains that Renaud and Patronick continued to harass and retaliate against him by unlawfully seizing material, including books, magazines, and photographs, from him, and by threatening to retaliate against him if he complained of their actions. (Id. at ¶¶ 8-14).
Dunfee filed the instant complaint on July 14, 2017 against Dr. Barry, Dr. Renaud, and Patronick. (Docket #1). Defendants filed the motion to dismiss, or in the alternative for summary judgment, on November 27, 2017. (Docket #12). On February 12, 2018, Dunfee filed an opposition and a motion for leave to file an amended complaint. (Dockets #18 and 19). Defendants filed their response to the motion to amend and a reply to Dunfee's opposition to the motion to dismiss on March 29, 2018. (Docket #22). On April 12, 2018, the court entered an order alerting Dunfee that it may elect to consider Defendants' motion as one for summary judgment, and permitting Dunfee to file any supplemental affidavits or other material in opposition to Defendants' motion by May 21, 2018. (Docket #24). The order also required Dunfee to file his proposed amended complaint by May 21, 2018. (Id.). On May 16, 2018, Dunfee filed his proposed amended complaint. (Docket #25). Defendants filed a supplemental opposition on May 29, 2018. (Docket #28).
Defendants have filed a motion to dismiss, or in the alternative, for summary judgment. A motion to dismiss under Rule 12(b)(6) and a motion for summary judgment under Rule 56 "share a functional nexus." Fleming v. Lind-Waldock & Co., 922 F.2d 20, 23 (1st Cir. 1990). The fundamental difference between the two motions is whether the court will consider "matters'outside' the pleadings." Id. "Under Rule 12(b)(6), the district court may properly consider only facts and documents that are part of or incorporated into the complaint; if matters outside the pleadings are considered, the motion must be decided under the more stringent standards applicable to a Rule 56 motion for summary judgment." Rivera v. Centro Medico de Turabo, Inc., 575 F.3d 10, 15 (1st Cir. 2009) (quoting Trans-Spec Truck Serv., Inc. v. Caterpillar, Inc., 524 F.3d 315, 321 (1st Cir. 2008)). There lies an exception to this rule "for documents the authenticity of which are not disputed by the parties; for official public records; for documents central to plaintiffs' claim; or for documents sufficiently referred to in the complaint." Id. (quoting Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).
In the instant case, because the motion is captioned in the alternative as one for summary judgment and includes supporting extrinsic materials and since Dunfee responded with his own extrinsic material, the court shall treat the motion as one for summary judgment. See McElheny v. Trans Nat'l Travel, Inc., 165 F. Supp. 2d 190, 194 (D.R.I. 2001) (quoting Patrick v. Mass. Port Auth., 141 F. Supp. 2d 180, 186 (D.N.H. 2001)); Davis v. United States, No. 98-557 T, 2000 U.S. Dist. LEXIS 2255, at *13 (D.R.I. Feb. 15, 2000).
Summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Once a party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who "may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial." Barbour v. Dynamics Research Corp., 63 F.3d 32, 37 (1st Cir. 1995) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Moreover, the Court is "obliged to []view the record in the lightmost favorable to the nonmoving party, and to draw all reasonable inferences in the nonmoving party's favor." LeBlanc v. Great Am. Ins. Co., 6 F.3d 836, 841 (1st Cir. 1993). Even so, the Court is to ignore "conclusory allegations, improbable inferences, and unsupported speculation." Sullivan v. City of Springfield, 561 F.3d 7, 14 (1st Cir. 2009) (quotation omitted).
Defendants argue that Dunfee's complaint must be dismissed because he has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"). (Docket #13 at 3). The PLRA precludes "a prisoner confined in any jail, prison, or other correctional facility" from bringing an action "with respect to prison conditions under [42 U.S.C. § 1983] or any other Federal law . . . until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). "[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). Because a plaintiff's failure to exhaust administrative remedies under the PLRA is an affirmative defense, it "must be raised and proved by the defense." Berrios v. Gonzalez-Rosario, 630 F.3d 7, 11 (1st Cir. 2010). "Dismissal, rather than a stay of proceedings, is appropriate where a defendant demonstrates that an inmate failed to exhaust his administrative remedies prior to filing suit." Rios v. United States, No. 14-40171-IT, 2016 U.S. Dist. LEXIS 40262, at *16 (D. Mass. Feb. 26, 2016) (Boal, M.J.) (citing Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002)).
"To exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Acosta v. United States Marshals Serv., 445F.3d 509, 512 (1st Cir. 2006) (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)). Title 28 of the Code of Federal Regulations sets forth a four-step grievance procedure for administrative remedies for inmates housed in federal prisons. Under this title, an inmate initiates the grievance procedure by presenting an issue of concern informally to staff, and staff must attempt to resolve the issue. 28 C.F.R. § 542.13(a). If the complaint is not or cannot be resolved informally, a prisoner must submit a formal written Administrative Remedy Request, on a BP-9 form, within twenty days of the event triggering his complaint. 28 C.F.R. § 542.14(a). If this second step does not provide satisfactory results, the inmate may file an Appeal, on a BP-10 form, to the appropriate Regional Director within twenty days of the date the Warden signed the response. 28 C.F.R. § 542.15(a). An inmate unsatisfied with the Regional Director's response may submit an Appeal, on a BP-11 form, to the General Counsel within 30 days of the date the Regional Director signed the response. Id. Appeal to the General Counsel is the final administrative appeal. Id. The General Counsel shall respond to the appeal within forty days of the day the appeal is filed, with the potential for a twenty day extension. 28 C.F.R. § 542.18. Staff shall respond in writing to all appeals. Id. If the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level. Id.
As an exhibit to their motion, Defendants submitted the declaration of Cheryl Magnusson, a legal assistant at the Consolidated Legal Center at FMC Devens, dated November 16, 2017. (Docket #13-1). Magnusson explained that the BOP maintains computerized records in a database called SENTRY. (Id. at ¶ 3). SENTRY contains a complete history of administrative remedy requests filed by federal inmates at any BOP facility and indicates whether a request was filed with the institution, Regional Office, or Office of General Counsel.(Id. at ¶ 5). Magnusson's review of SENTRY showed that Dunfee had filed ten requests for administrative remedy while in federal custody. (Id. at ¶ 7, pp 5-11). However, SENTRY demonstrates that none of these requests was received at the BOP's Office of General Counsel. (Id. at ¶ 11, pp 5-11).
Dunfee asserts that he did in fact file a BP-11 form with the General Counsel. (Docket #18 at ¶ 1). As an exhibit to his proposed amended complaint, Dunfee submitted a copy of a Central Office Administrative Remedy Appeal dated October 15, 2016. (Docket #25-1 at 8-9). Part A of the form - "Reason for Appeal" - has been completed by Dunfee; however, part B of the form - "Response" - is blank, as is Part C - "Reciept." (...
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