Stalker v. Bayonetto
| Decision Date | 09 August 2016 |
| Docket Number | CASE NO. 2:15-cv-14325 |
| Parties | SEAN STALKER, Plaintiff, v. MARIO BAYONETTO, and WILSON, Defendants. |
| Court | U.S. District Court — Eastern District of Michigan |
For the reasons stated below, I recommend that Defendants' Motion to Dismiss (Doc 13) be GRANTED and Plaintiff's complaint be DISMISSED with prejudice.
Plaintiff is a pro se prisoner currently incarcerated at the Federal Correctional Institution at Milan, Michigan ("FCI Milan"). ( The events that gave rise to the above entitled action occurred while Plaintiff was confined at FCI Milan. (Id. at ID 7.) Defendant Mario Bayonetto is a physician assistant ("PA Bayonetto") and Defendant Dr. George Wilson ("Dr. Wilson") is a staff physician at FCI Milan (collectively "Defendants"). (Doc. 13, at ID 47.) This matter was referred to the undersigned magistrate judge for all pretrial matters on December 21, 2015. (Doc. 5.)
Pursuant to the doctrine announced in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs when treating a skin infection in violation of the Eighth Amendment of the United States Constitution. (Doc. 1.) Plaintiff's complaint alleges that on October 2, 2015, an abscess began forming on Plaintiff's right forearm; it turned red and began to severely itch. (Id. at ID 7.) On October 5, 2015, PA Bayonetto refused to drain the abscess stating that it would "bust on its own." (Id.) PA Bayonetto believed the abscess was a bacterial infection and prescribed an antibiotic, but refused to prescribe 800 mg ibuprofen. (Id.) The abscess ruptured on October 6, 2015; the FCI Milan health services department was unable to treat Plaintiff, so he "was forced to himself clean and drain all leakage from the ruptured wound." (Id.)
On October 8, 2015, PA Bayonetto asked Dr. Wilson to examine the wound. (Id.) Plaintiff asked to be transported to an emergency room because he had been experiencing "a high-grade fever, cold sweats, and body aches" since October 6. (Id.) Dr. Wilson merely prescribed another antibiotic and stated that he wanted to "wait and watch" the wound for sixteen hours." (Id. at ID 7-8.) On October 9, 2015, Dr. Wilson and Dr. William Malatinsky independently examined Plaintiff's wound. (Id. at ID 8.) Dr. Malatinsky informed Plaintiff that he needed "immediate placement into isolation and to be taken to the emergency room." (Id.) At approximately 1:20 p.m. on October 9, 2015, Plaintiff was taken to the emergency room where physicians "cut open the wound, cleaned it, and administered antibiotics intravenously." (Id.) Plaintiff was informed that exploratory surgery would be necessary. (Id.) On October 15, 2015,PA Bayonetto "placed Plaintiff on a call-out" and prescribed 800 mg ibuprofen, which was dated October 5, 2015 and October 13, 2015. (Id. at ID 7.)
Plaintiff "contends that standard medical operating procedure for treatment of an infection such as occurred in the instant case would have been to make a small incision in the infected area, drain the infected area, and provide the inmate with the appropriate antibiotic." (Id. at ID 8.) Plaintiff further asserts that PA Bayonetto's delay "in making reasonable treatment determinations" resulted in hospital physicians making "a four []inch incision (accompanied by an additional ½-inch incision in an adjacent area) in the Plaintiff's forearm." (Id.) Plaintiff further asserts that FCI Milan was unable to take remedial measures thus it was not necessary for Plaintiff to file and pursue the availability of administrative remedies. (Id.) Plaintiff seeks $50,000 in compensatory damages and such other relief as the Court deems just and proper. (Id. at ID 9.)
On March 14, 2016, Defendants filed a motion to dismiss arguing that Plaintiff failed to exhaust administrative remedies, Plaintiff has failed to state a claim upon which relief can be granted, and Defendants are entitled to qualified immunity. (Doc. 13, at ID 46.) Plaintiff filed a response on March 28, 2016, (Doc. 15,) and Defendants filed a reply on April 13, 2016. (Doc. 16.) Accordingly, Defendants' motion to dismiss (Doc. 13.) is ready for report and recommendation without oral argument under Local Rule 7.1.
Congress passed the Prison Litigation Reform Act of 1995 ("PLRA") in response to a "sharp rise in prisoner litigation in the federal courts." Woodford v. Ngo, 548 U.S. 81, 83 (2006).By passing the PLRA, Congress attempted to ensure that "the flood of nonmeritorious [prisoner civil rights] claims [did] not submerge and effectively preclude consideration of the allegations with merit." Jones v. Bock, 549 U.S. 199, 202 (2007). Congress equipped the PLRA with several mechanisms designed to reduce the quantity and increase the quality of the claims that came to federal court. Id. A "centerpiece" of the PLRA was the "invigorated" exhaustion requirement: "No action shall be brought with respect to prison conditions under [§ 1983] . . . 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) (2000); see also Woodford, 548 U.S. at 84 ("A centerpiece of the PLRA's effort 'to reduce the quantity . . . of prisoner suits' is an 'invigorated' exhaustion provision." (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). Courts consider the PLRA's suits "brought with respect to prison conditions" to include "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, 534 U.S. at 532.
The Woodford Court held that the PLRA's exhaustion of administrative remedies requires (1) that no remedies currently remain available, and (2) that the remedies that had been available to the prisoner were "properly" exhausted. 548 U.S. at 93. Prior to Woodford there were conflicting interpretations of the PLRA's exhaustion requirement. Some circuits interpreted the exhaustion requirement to mean that plaintiffs must have no more administrative remedies available before bringing their cases to federal court. Id. Others interpreted it to mean that plaintiffs must have "properly" exhausted their available remedies by following the agency's procedural requirements such as "deadlines and other critical procedural rules." Id.
In finding that exhaustion of remedies required "proper" exhaustion, the Court was persuaded by the "striking" similarities between the language of the PLRA and the doctrine of exhaustion in administrative law. Id. at 102. It also considered the purposes behind the exhaustion requirement, reasoning that an interpretation that did not require proper exhaustion would render the PLRA "toothless"-enabling a prisoner to bypass prison remedies by simply disregarding or ignoring deadlines. Id. at 95. "Proper exhaustion" means that the plaintiff complied with the administrative "agency's deadlines and other critical procedural rules." Id. at 90. Complaints and appeals must be filed "in the place, and at the time, the prison's administrative rules require." Id. at 87 (quoting Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002)).
A plaintiff does not need to show proper exhaustion as a part of his or her complaint. Jones, 549 U.S. at 216. Rather, failure to properly exhaust remedies is an affirmative defense. Id. The court may take judicial notice of a prisoner's administrative grievances for purposes of determining a motion to dismiss under Fed. R. Civ. P. 12(b)(6). Bradfield v. Corr. Med. Servs., 2008 U.S. Dist. LEXIS 124550, at *9-14 (W.D. Mich. July 3, 2008).
The Bureau of Prisons ("BOP") administrative remedy process provided to federal inmates consists of four steps. 28 C.F.R. § 542, Subpt. B. First, an inmate must inform staff, who will attempt to informally resolve the issue. 28 C.F.R. § 542.13(a). Second, if informal resolution fails, an inmate must submit a formal written administrative remedy request (a Bp-9 request), within twenty days of the date on which the basis of the request occurred. 28 C.F.R. §542.14(a). Third, if the inmate is dissatisfied with the response he or she may file an appeal to the Regional Director (a BP-10) within twenty days of the response to the administrative remedy request. 28 C.F.R. § 542.15(a). Fourth, if the inmate is dissatisfied with the regional response, within thirty days, he or she may file a national appeal with the Office of General Counsel in Washington, D.C. (a BP-11). Id. "Appeal to General Counsel is the final administrative appeal." Vaughn v. Terris, No. 2:15-CV-10092, 2015 U.S. Dist. LEXIS 73596, 2015 WL 3605080, at *2 (E.D. Mich. June 8, 2015)
BOP administrative grievance records, which the court may take judicial notice of, indicate that Plaintiff has never filed a formal administrative remedy request regarding his medical care. Further Plaintiff admits that he did not file a formal complaint or any of the three appeals. (Doc. 1, at ID 4; Doc. 15, at ID 89.)
Plaintiff argues that this requirement should be waived because "all events leading to Stalker's ultimate physical injury and damage occurred within an approximate one week time frame, and, accordingly, the filing of administrative remedies during this period of time was a practical impossibility." (Doc. 15, at ID 89.) Essentially, Plaintiff argues that because he seeks only monetary relief, it would have been futile to seek a formal administrative remedy.
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