Opinion
Case No. 18-cv-392-JL
03-02-2020
Patrick M. Vigneau v. Pamela C. Pedersen, M.D. et al.
cc: Terry L. Ollila, AUSA Patrick M. Vigneau, pro se
REPORT AND RECOMMENDATION
Patrick M. Vigneau, an inmate at the Federal Correctional Institution in Berlin, New Hampshire ("FCI Berlin"), has filed a complaint (Doc. No. 1), pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), against several FCI Berlin employees and four outside medical professionals, related to treatment he received at FCI Berlin after injuring his elbow in April 2016. Before the court is defendants John Doe #1 and John Doe #2's motion for summary judgment (Doc. No. 22), asserting that Vigneau failed to exhaust his administrative remedies concerning the events that form the basis of his claims against them. Vigneau objects (Doc. No. 23) and the defendants have replied (Doc. No. 26). The summary judgment motion has been referred to the undersigned magistrate judge for a Report and Recommendation. See LR 72.1. For the reasons that follow, the district judge should grant in part and deny in part the defendants' motion.
Summary Judgment Standard
"Summary judgment is warranted if 'there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.'" Luceus v. Rhode Island, 923 F.3d 255, 256-57 (1st Cir. 2019) (quoting Fed. R. Civ. P. 56(a)). Where the party moving for summary judgment bears the burden of proof on an issue, that party "must provide evidence sufficient for the court to hold that no reasonable trier of fact could find other than in its favor." Am. Steel Erectors, Inc. v. Local Union No. 7, Int'l Ass'n of Bridge, Structural, Ornamental & Reinforcing Iron Workers, 536 F.3d 68, 75 (1st Cir. 2008); see also Asociación de Suscripción Conjunta del Seguro de Responsabilidad Obligatorio v. Juarbe-Jiménez, 659 F.3d 42, 50 (1st Cir. 2011) (once defendant moving for summary judgment on affirmative defense produces "conclusive evidence" to establish defense, burden shifts to plaintiff to show that defense does not apply).
As to issues on which the nonmoving party bears the burden of proof, the party moving for summary judgment must first identify the portions of the record that show the absence of any genuine issue of material fact; then the burden shifts to the nonmoving party to demonstrate that a trier of fact could reasonably resolve that issue in the nonmoving party's favor. Flovac, Inc. v. Airvac, Inc., 817 F.3d 849, 853 (1st Cir. 2016). The nonmoving party's failure to make the requisite showing as to issues upon which it bears the burden of proof, by reference to materials of evidentiary quality, "entitles the moving party to summary judgment." Id.
Background
I. Facts Underlying Claims
Vigneau alleges that he broke a bone and tore a tendon in his elbow on April 8, 2016, when he fell while playing handball during his incarceration at FCI Berlin. He asserts that if timely treated, the bone and tendon could have been reattached in a relatively minor surgical procedure. According to Vigneau, however, FCI Berlin officials repeatedly failed to provide him with diagnostic testing or schedule a consultation with an orthopedic surgeon, resulting in a five-month delay before he finally received surgery. Vigneau alleges that due to this delay, the surgery was much more complicated than it otherwise would have been, ultimately requiring the surgeon to remove the fractured bone and reattach the tendon in a different place.
Vigneau also claims that both during the delay and after the surgery, FCI Berlin officials repeatedly refused to prescribe or provide him with pain medication sufficient to treat his severe pain. He alleges that FCI Berlin officials misreported his pain levels in treatment notes and on multiple occasions changed his priority level from "urgent" to "routine" despite the severity of his injuries and pain.
As particularly relevant to the pending motion, Vigneau further asserts that on April 29, 2016, two unnamed FCI Berlin officers, identified in the complaint as John Doe #1 and John Doe #2, restrained him in a way that caused him extreme pain due to his injuries while transporting him to a medical appointment and refused to remove the restraints even when a consulting doctor requested that they do so in order to facilitate diagnostic testing. As a result, he alleges, the doctor was unable to examine him on that date.
Vigneau filed multiple administrative complaints related to his treatment. Each of those complaints was denied on the basis that Vigneau was receiving adequate treatment.
II. Claims Asserted Against Doe Defendants
The court has construed Vigneau's complaint to assert the following claims for relief against defendants John Doe #1 and John Doe #2:
2. FCI Berlin corrections officers John Doe #1 and John Doe #2 restrained Vigneau and refused to remove his restraints during an appointment with a consulting physician, causing Vigneau extreme pain and preventing the physician from examining Vigneau, in violation of Vigneau's Eighth Amendment rights:
Mar. 26, 2019 Report and Recommendation (Doc. No. 7) (Mar. 26 R&R"), at 5 (numeration of claims in original). Defendants John Doe #1 and John Doe #2 now assert that they are entitled to summary judgment as to those claims because Vigneau failed to exhaust his administrative remedies, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a).A. not to be subjected to excessive force; and
B. to receive adequate medical care during his incarceration.
Discussion
I. Exhaustion
According to the PLRA, "[n]o 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). The PLRA's exhaustion requirement applies to Bivens actions. See Porter v. Nussle, 534 U.S. 516, 524 (2002). Claims for which administrative remedies have not been exhausted are subject to dismissal. See Medina-Claudio v. Rodríguez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002). "[F]ailure to exhaust is an affirmative defense under the PLRA." Jones v. Bock, 549 U.S. 199, 216 (2007); see also Ramos v. Patnaude, 640 F.3d 485, 488 (1st Cir. 2012). As such, it "must be raised and proved by the defense." Cruz Bérrios v. González-Rosario, 630 F.3d 7, 11 (1st Cir. 2010) (citing Jones, 549 U.S. at 216). Finally, "the 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, 534 U.S. at 532; see also Cruz Berríos, 630 F.3d at 11.
Whether an inmate has properly exhausted available remedies may be resolved on summary judgment. See Albino v. Baca, 747 F.3d 1162, 1172 (9th Cir. 2014) (en banc). Defendants bear the initial burden of showing that plaintiff failed to exhaust properly all generally available administrative remedies. See id. Then "the burden shifts to the prisoner to come forward with evidence showing that there is something in his particular case that made the existing and generally available administrative remedies effectively unavailable to him." Id. The ultimate burden of persuasion remains with the defendant. See id.
To prevail on an affirmative defense of failure to exhaust at summary judgment, "the defendant must show that no reasonable jury could find that [the plaintiff] exhausted the administrative remedies available to him before commencing [his] action." Polansky v. McCoole, No. 13-cv-458-JL, 2016 U.S. Dist. LEXIS 6476, at *8, 2016 WL 237096, at *3 (D.N.H. Jan. 20, 2016).
"[T]he PLRA exhaustion requirement requires proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 93 (2006). "[A] prisoner must file complaints and appeals in the place, and at the time, the prison's administrative rules require." Acosta v. U.S. Marshals Serv., 445 F.3d 509, 512 (1st Cir. 2006) (citation omitted).
A prisoner, however, is only required to exhaust those administrative remedies "available" to him or her. Ross v. Blake, 136 S. Ct. 1850, 1856 (2016). Circumstances in which a remedy may be considered unavailable include when "it operates as a simple dead end — with officers unable or consistently unwilling to provide any relief to aggrieved inmates," id. at 1859; when prison officials "thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation," id. at 1860; and when "rules are 'so confusing that . . . no reasonable prisoner can use them,'" id. at 1859 (citations omitted). Ultimately, "an inmate is required to exhaust those, but only those, grievance procedures that are 'capable of use' to obtain 'some relief for the action complained of.'" Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
In his complaint (Doc. No. 1), Vigneau identifies the Doe defendants as Bureau of Prison officers "responsible for ensuring [his] safety and well-being . . . ." Id. ¶¶ 18-19. He alleges that the Doe defendants caused him "extreme pain" when they transported him to a medical appointment on April 29, 2016, in a belly chain, handcuffs, and black-box, which "put[] tremendous strain on [Vigneau's] wrist and elbow that was broken." Id. ¶¶ 61-62. Vigneau also claims that the Doe defendants refused to remove his restraints during the medical appointment, thereby rendering a physical examination of his elbow impossible. Id. ¶¶ 161-67. Vigneau asserts that this conduct violated his Eighth Amendment right to be free from cruel and unusual punishment. Id.
A "black box" is a plastic device that attaches to handcuffs and blocks the keyholes to make escape more difficult. McMann v. Cent. Falls Det. Facility Corp., No. CIV.A. 12-12294-NMG, 2014 U.S. Dist. LEXIS 34429, at *2,2014 WL 1051145, at *1 (D. Mass. Mar. 17, 2014). --------
The parties agree that FCI Berlin's Administrative Remedy Program, codified at 28 C.F.R. § 542, Subpart B, is the means by which a federal inmate may seek review of an issue relating to any aspect of confinement. See Decl. of Cheryl Magnusson, (Doc. No. 22-2) ¶ 4. As relevant here, the program requires an inmate to first attempt informal resolution of a complaint with institutional staff. Id. If the inmate's informal resolution is unsuccessful, he must file a written complaint with the institutional staff. Id. If the inmate is dissatisfied with the response, he must submit an appeal on the appropriate form to the Regional Director. Id. If dissatisfied with the Regional Director's response, the inmate must then submit an appeal on the appropriate form to the BOP's Office of General Counsel ("OGC"). Id. Appeal to OGC is the final step in the administrative grievance process.
Relying on records of Vigneau's written complaints filed with the FCI Berlin Warden, the BOP's Regional Office and OGC, the Doe defendants do not dispute that Vigneau has exhausted his claims with respect to scheduling an MRI, the availability of appropriate medications to address his injury, and the timing of surgery. Defs'. Mem. (Doc. No. 22-1) at 5; Grievance Records (Doc. Nos 22-3, 22-4, 22-5). Defendants argue, however, that the same forms lack any mention of Vigneau's claim that the Doe defendants violated his rights in any way. Id. The Doe defendants are correct that Vigneau's written administrative complaints lack any complaints against them for either preventing his treatment or for excessive force. But in a sworn affidavit accompanying his objection to defendants' motion, Vigneau states that he "addressed the black boxing of my broken arm . . . with Warden Hazelwood . . . [who] assured me it would not happen to me again and it did not." Aff. Of Patrick M. Vigneau (Doc. No. 23-1) ¶ 5. Vigneau asserts that the Warden's informal resolution of Vigneau's complaint -- to Vigneau's satisfaction -- obviated the need for administrative appeal. Id.
In their reply (Doc. No. 26), the defendants address only the "preventing treatment" claim (No. 2(B)), reiterating the absence of any such claim in BOP administrative grievance records. The defendants do not, however, address Vigneau's assertion that the excessive force claim (identified above and in the Mar. 26 R&R as Claim 2(A)), was resolved informally, nor do they address whether such informal resolution constitutes a basis for excepting Vigneau from the general requirement of seeking further relief through the administrative grievance process, thereby satisfying Vigneau's exhaustion obligation.
With respect to Vigneau's "preventing treatment" claim (identified above and in the Mar. 26 R&R as Claim 2(B)) the court is persuaded that no reasonable juror could find that Vigneau exhausted his available administrative remedies. The only reference to the Doe defendants in the administrative grievances Vigneau completed is that on April 29, 2016, a surgeon asked them for the location of an MRI ordered three days earlier and "both officers stated they did not know." Pltf. Reply (Doc. No. 26), at 1 (excerpting Vigneau's May 25, 2016 grievance form). This bare assertion did not "afford corrections officials time and opportunity to address [his] complaints internally." Porter, 534 U.S. at 525. Accordingly, the defendants are entitled to summary judgment as to claim 2 (B) - that the Doe defendants prevented Vigneau from receiving adequate medical care. See Mar. 26 R&R at 5.
The Doe defendants are not, however, entitled to summary judgment on Vigneau's excessive force claim (Claim 2(A)). Vigneau's declaration suggests that he obtained favorable relief at the informal resolution stage when the Warden assured him that he would not be "black boxed" during his next medical transport, a factual assertion the defendants have not disputed. Although the First Circuit Court of Appeals has not weighed in on the question, several Courts of Appeals have held that "exhaustion" does not include appealing favorable decisions. See Q.F. v. Daniel, 768 F. App'x 935, 942 (11th Cir. 2019) (citing cases). As the Q.F. court noted, such a conclusion is consistent with the Supreme Court's observation that the adjective "'available' [in the PLRA] requires the possibility of some relief for the action complained of," so that "exhaustion is [not] required where the relevant administrative procedure lacks authority to provide any relief . . . in response to a complaint." Id. at 942 (quoting Booth, 532 U.S. at 738-39); see Harvey v. Jordan, 605 F.3d 681, 685 (9th Cir. 2010) ("An inmate has no obligation to appeal from a grant of relief, or a partial grant that satisfies him, in order to exhaust his administrative remedies.").
Here, the undisputed evidence demonstrates that Vigneau made an informal grievance to Warden Hazelwood which resulted in Vigneau receiving favorable relief. Vigneau was not, therefore, required to further exhaust that claim through the BOP's administrative grievance process, as he had already obtained all of the relief he could as to his "black box" complaint. Accordingly, the court finds that defendants have not met their burden to demonstrate that Vigneau failed to exhaust the administrative grievance procedures available to him as to that claim (Claim 2(A)). Defendants' summary judgment motion (doc. no. 25), therefore, should be denied as to that claim, without prejudice to defendants' ability to seek summary judgment on any other appropriate basis, in accordance with the deadlines set by the court in this matter.
Conclusion
For the foregoing reasons, it is recommended that the district judge GRANT IN PART the Doe defendants' motion for summary judgment (Doc. No. 22) for failure to exhaust administrative remedies only with respect to Claim 2(B) (preventing plaintiff from receiving adequate medical care); and otherwise DENY the motion, with respect to Claim 2(A) (excessive force).
Any objections to this Report and Recommendation must be filed within fourteen days of receipt of this notice. See Fed. R. Civ. P. 72(b)(2). The fourteen-day period may be extended upon motion. Failure to file objections within the specified time waives the right to appeal the district court's order. See Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir. 2016).
/s/_________
Andrea K. Johnstone
United States Magistrate Judge March 2, 2020 cc: Terry L. Ollila, AUSA
Patrick M. Vigneau, pro se