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KENNEDY v. MENDEZ

United States District Court, M.D. Pennsylvania


October 7, 2004.

ANDREW KENNEDY, Plaintiff,
v.
JAKE MENDEZ, et al., Defendants.

The opinion of the court was delivered by: A. RICHARD CAPUTO, District Judge

MEMORANDUM

Presently before the Court is Defendants' Motion to Dismiss and for Summary Judgment (Doc. 16), Magistrate Judge J. Andrew Smyser's Report and Recommendation (Doc. 30), and Plaintiff's Objection to Magistrate Report and Recommendation Dated January 15, 2004. (Doc. 31.) On August 13, 2003, Plaintiff, an inmate at United States Penitentiary at Allenwood (hereinafter USP-Allenwood) filed the present action. The Complaint raised claims under the Federal Tort Claims Act (hereinafter FTCA), 20 U.S.C. § 26714, et seq., and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. 403 U.S. 388 (1971). Plaintiff claims that while incarcerated at USP-Allenwood he has not received proper medical treatment for abdominal pain, anal pain, knee pain, and a positive purified protein derivative (PPD) test.*fn1

On November 17, 2003, Defendants filed Defendants' Motion to Dismiss and for Summary Judgment. Magistrate Judge Smyser issued a Report and Recommendation to the Court on January 15, 2004, containing six recommendations: (1) dismiss the constitutional claims against the United States, (2) dismiss the Bivens claims against the United States; (3) dismiss the Bivens claims against the individual Defendants in their official capacities; (4) dismiss the Bivens claims regarding Plaintiff's knee for failure to exhaust administrative remedies; (5) dismiss the FTCA claims regarding Plaintiff's knee injury and positive PPD status for failure to exhaust administrative remedies; and (6) deny the remainder of the motion. Plaintiff raises a single objection to the recommendations: the Court should stay the action instead of dismissing the Bivens claims regarding Plaintiff's knee. (Doc. 31.)

  Where objections to the magistrate judge's report are filed, the Court must conduct a de novo review of the contested portions of the report, see Sample v. Diecks, 885 F.2d 1099, 1106 n. 3 (3d Cir. 1989) (citing 28 U.S.C. § 636(b)(1)(C)), provided the objections are both timely and specific. See Goney v. Clark, 749 F.2d 5, 6-7 (3d Cir. 1984). In making its de novo review, the Court may accept, reject, or modify, in whole or in part, the factual findings or legal conclusions of the magistrate judge. See 28 U.S.C. § 636(b)(1); Owens v. Beard, 829 F. Supp. 736, 738 (M.D. Pa. 1993). Uncontested portions of the report may be reviewed at a standard determined by the district court. See Thomas v. Arn, 474 U.S. 140, 154 (1985); Goney, 749 F.2d at 7. At very least, the Court should review uncontested portions for clear error or manifest injustice. See, e.g., Cruz v. Chater, 990 F. Supp. 375, 376-77 (M.D. Pa. 1998).

  The Prison Litigation Reform Act (hereinafter PLRA) requires prison inmates to exhaust administrative remedies before bringing an action in federal court challenging conditions of confinement. 42 U.S.C. § 1997e(a). This requirement is not a jurisdictional bar — it serves as an affirmative defense for defendants. Ray v. C.O. Kertes, 285 F.3d 287, 292, 295 (3d Cir. 2002). Plaintiff does not challenge the finding that he has failed to exhaust his administrative claims. He only challenges what the appropriate response by the Court should be. Plaintiff argues that instead of dismissing the unexhausted Bivens claims, the Court should stay the proceedings. Staying of an action pending PLRA exhaustion is not without precedent. See Cruz v. Jordan, 80 F. Supp. 2d 109, 123 (S.D.N.Y. 1999). Defendants contend that the Supreme Court's holding in Porter v. Nussle, 534 U.S. 516 (2002), requires the Court to dismiss unexhausted claims. I disagree. In Porter, the Court only held that there are no exceptions to the PLRA exhaustion requirement. Id. at 532. Staying of the present action would not create an exception to the exhaustion requirement, it would merely enforce the exhaustion requirement through a different procedural mechanism. Ultimately, the congressional intent of the exhaustion requirement is still served because the administrative process will fully review the matter before it is reviewed by a court. C.f. Cruz, 80 F. Supp. 2d at 122 (discussing a stay as consistent with congressional goal of permitting administrative remedies before judicial remedies).

  Plaintiff makes a compelling argument that a stay is the appropriate action in this case. The Court first notes that the litigation process is nearly completed, with discovery already ended and the motions deadline pending. The Court also notes that Plaintiff has exhausted the administrative remedies available for his gastroenterological complaints, thus, the claims related to those complaints will survive in this action. Although the unexhausted claims are not directly related to his gastroenterological problems, all of his claims relate to Defendants' failure to provide proper medical care. Given that some of Plaintiff's claims will survive, and the unexhausted claims are related to the surviving claims, the interest of judicial economy is strongly served by litigating all of the claims within a single action, rather than piecemeal.

  After consideration of Magistrate Judge Smyser's Report and Recommendation and the objections filed by Plaintiff, I will modify the Report and Recommendation insofar as I will stay proceedings pending Plaintiff's exhaustion of administrative remedies*fn2 for the unexhausted Bivens claims instead of dismissing the claims. This stay is conditioned upon Plaintiff's good faith pursuance of administrative appeals. Failure of Plaintiff to actively pursue the administrative process will result in a review of the stay and potential dismissal of the claims upon motion of Defendants.

  An appropriate Order will follow. ORDER

  Now this 7th day of October, 2004, upon review of Magistrate Judge J. Andrew Smyser's Report and Recommendation (Doc. 30) IT IS HEREBY ORDERED THAT:

(1) The Report and Recommendation is MODIFIED.
(2) Defendant's Motion to Dismiss and for Summary Judgment (Doc. 16) is GRANTED in part and DENIED in part.
(a) All Bivens claims against the United States are DISMISSED.
(b) All Bivens claims against the individual Defendants in their official capacities are DISMISSED.
(c) Plaintiff's claims arising under the Federal Tort Claims Act regarding his knee injuries and his positive PPD status are hereby DISMISSED for lack of jurisdiction.
(d) Defendant's motion is otherwise DENIED.
(3) This action is STAYED pending Plaintiff's exhaustion of administrative remedies.
(4) The Clerk of the Court shall mark this case CLOSED for statistical purposes.


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