Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, M.D. Pennsylvania

May 16, 2005.

DIANE INCH, Physician Assistant-Lieutenant; CLEMENT FRIMPONG, Physician Assistant, Defendants.

The opinion of the court was delivered by: JAMES MUNLEY, District Judge


Presently before the Court for disposition is Magistrate Judge Thomas M. Blewitt's ("Magistrate Blewitt") Report and Recommendation, which proposes that we dismiss Plaintiff Sherwyn D. Freeman's ("Plaintiff") claims against Defendant Diane Inch ("Inch") and Defendant Clement Frimpong ("Frimpong"). Plaintiff has filed objections to the Report and Recommendation, making this matter ripe for disposition. For the reasons that follow, we will adopt Magistrate Blewitt's Report and Recommendation in part and reject it in part.


  Plaintiff is an inmate at the United States Penitentiary at Allenwood, Allenwood Pennsylvania ("USP-Allenwood"). Plaintiff filed the instant pro se action pursuant to Bivens v. Six Unknown Named Agents of Fed. Bur. of Narcotics, 403 U.S. 388 (1971)*fn2 advancing claims against Inch and Frimpong alleging that each denied him proper medical treatment, thus subjecting him to cruel and unusual punishment in violation of the Eighth Amendment of the United States Constitution. He avers that Inch and Frimpong, Physicians Assistants ("P.A.s") at USP-Allenwood, ignored his requests for medical attention for a painful ear infection, resulting in permanent hearing loss.

  Prior to filing suit, Plaintiff filed a grievance with the prison. Therein, he described in detail his complaint that Inch denied him medical treatment. In his grievance, the sole reference to prison medical personnel other than Inch stated, "Plaintiff also complained about his ear infection to the other P.A.s who delivered medication to the Special Housing Unit during the weekend of January 3 and 4, 2004, but was told by all of them that he would have to wait until Monday, January 5, 2004 for help." (Doc. 39, Pl. Ex. 4). Plaintiff included this reference in his initial grievance as well as in his appeals. Plaintiff fully exhausted the grievance process and all available appeals. (Doc. 35, Def. Ex. 1, Wallace Decl. at 3).

  The defendants filed a motion to dismiss, arguing that the claim against Inch should be dismissed because the Federal Torts Claims Act ("FTCA") is the exclusive remedy against her for personal injuries resulting from the performance of medical and related functions because she is a commissioned officer of the Public Health Service ("PHS"). The defendants did not advance the same argument with regards to Frimpong. Instead, they argued that the claim against Frimpong should be dismissed because Plaintiff failed to specifically name Frimpong in his grievances and his references to "other P.A.s" was insufficient to properly exhaust his remedies prior to filing suit.

  The Report and Recommendation suggests that we dismiss Plaintiff's claims for the reasons advanced by the defendants. Plaintiff has filed objections to Magistrate Blewitt's Report. Regarding his claim against Inch, Plaintiff argues: 1) that the Public Health Service Act does not exist; 2) the plain language of 42 U.S.C. § 233(a)-(b) does not require that the exclusive remedy against a PHS Employee is under the FTCA; and 3) a PHS employee is not immune from suit for constitutional violations. Regarding his claim against Frimpong, he argues: 1) the administrative grievance procedures do not require that he specifically name each defendant; and 2) his grievances were sufficient to place the prison officials on notice that he objected to Frimpong's conduct. For the reasons that follow, we will overrule Plaintiff's objections and dismiss his claim against Inch. We will sustain his objections regarding Frimpong, however, and remand this case for further consideration of this claim.


  As this case is brought pursuant to Bivens, we have jurisdiction under 28 U.S.C. § 1331, which provides, "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."


  In disposing of objections to a magistrate's report and recommendation, the district court must make a de novo determination of those portions of the report to which objections are made. 28 U.S.C. § 636 (b)(1)(C); see also Henderson v. Carlson, 812 F.2d 874, 877 (3d Cir. 1987). This court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate. The judge may also receive further evidence or recommit the matter to the magistrate with instructions. Id.


  The Report and Recommendation proposes that we dismiss Plaintiff's against Inch and Frimpong for different reasons. Therefore, we will address each defendant separately.


  The magistrate suggests that we dismiss Plaintiff's claim against Inch because the FTCA is his exclusive remedy for the wrongs she allegedly committed. We agree.

  Inch is a commissioned officer of the Public Health Service. (Doc. 35, Ex. 2 at 1). The FTCA is the exclusive remedy for injury relating to PHS officers' performance of medical functions within the scope of their duties. Cuoco v. Moritsugu, 222 F.3d 99, 107 (2d Cir. 2000).*fn3


The remedy against the United States provided by sections 1346(b) and 2672 of Title 28 [the FTCA] . . . for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim. 42 U.S.C. § 233(a).
  Therefore, Plaintiff cannot bring a Bivens claim against Inch to seek redress for his injury, but instead must bring a claim against the United States under the FTCA. Cuoco, 222 F.3d at 108.

  Plaintiff argues that the Public Health Services Act does not exist. Plaintiff is mistaken. See 42 U.S.C. § 233; Rust v. Sullivan, 500 U.S. 173, 178 (1991) (discussing the "Public Health Services Act"). On equally spurious footing is Plaintiff's argument that the plain language of 42 U.S.C. § 233(a) ("§ 233(a)") does not designate the FTCA as an exclusive remedy. See Carlson v. Green, 446 U.S. 14, 20 (1980) (noting that Congress explicitly stated in § 233(a) that it intended to make the FTCA the exclusive remedy for the covered claims). Finally, Plaintiff argues that § 233(a) cannot preempt his constitutional rights. Contrary to his assertion, § 233(a) does not prevent him from seeking remedies for the alleged constitutional violations, but merely provides that he must sue the United States, and not PHS officers, and must do so under a specific statute. Cuoco, 222 F.3d at 108 ("Congress could not, by the simple expedient of enacting a statute, deprive [the plaintiff] of her constitutional . . . rights, but that is not what § 233(a) does. It protects commissioned officers . . . by requiring that such lawsuits be brought against the United States instead."). Thus, we find that Congress has expressly provided in § 233(a) that Plaintiff's sole remedy for his alleged injury is a suit against the United States pursuant to the FTCA, and accordingly we will dismiss his Bivens claim against Inch.


  The defendants argue that Plaintiff's claim against Frimpong should be dismissed because Plaintiff procedurally defaulted during the administrative grievance process. They admit that he properly exhausted his administrative remedies regarding Inch, but they assert that while the grievances outlined a complaint against Inch, Plaintiff did not specifically identify Frimpong by name in the grievance process, and thus he never properly exhausted his available administrative remedies against Frimpong. For each step in the grievance process, Plaintiff described in detail his complaints against Inch, but also included the following sentence: "Plaintiff also complained about his ear infection to the other P.A.'s who delivered medication to the Special Housing Unit during the weekend of January 3 and 4, 2004, but was told by all of them that he would have to wait until Monday, January 5, 2004 for help." (Doc. 35. Def. Ex. 1, Wallace Decl. Attachment 1). Plaintiff contends that his reference to "other P.A.'s who delivered medication to the Special Housing Unit during the weekend of January 3 and 4, 2004" is sufficient to identify Frimpong for the purposes of filling out the proper forms to comply with the administrative remedies process. We agree, and for the following reasons, we find that Plaintiff's description sufficiently identified Frimpong to satisfy the grievance procedural requirements.

  "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) ("Section 1997e"). Thus, prior to filing a Bivens claim, a prisoner must exhaust the available administrative remedies. In additional to technically exhausting all administrative remedies, a prisoner must properly exhaust all administrative remedies by fairly presenting his claim in compliance with the procedures provided. Spruill v. Gillis, 372 F.3d 218, 228 (3d Cir. 2004). Failure to properly exhaust administrative remedies results in procedural default. Id. The issue presently before the Court is not whether Plaintiff actually exhausted his administrative remedies, indeed the parties agree that he did. The issue is appropriately framed as a procedural default question of whether Plaintiff properly presented his claim against Frimpong to satisfy the available procedural requirements.

  Section 1997(e) does not specify what procedures a prisoner must follow. Id. Thus, the determination of whether a prisoner has procedurally defaulted "is made by evaluating the prisoner's compliance with the prison's administrative regulations governing inmate grievances." Id. at 222. We should not impose requirements beyond those delineated in the prison grievance process, however, because "[a]s between crafting judge-made law on this subject and looking to the . . . prison grievance procedures, the latter will far better serve the policy and interests of [Section 1997e]." Id.

  Thus, in Spruill, the court analyzed whether the plaintiff, Robert Spruill, defaulted on his claim against a specific defendant, P.A. Brian Brown, because his grievances failed to identify Brown "by name or by description." Id. at 226. The plaintiff failed to refer in his grievances to any incident involving Brown. Id. The court looked to the relevant portion of the Grievance System Policy in the prison system where Spruill was incarcerated, which required that, "[t]he inmate shall include a statement of the facts relevant to the claim. The text of the grievance shall be legible, presented in a courteous manner, and the statement of facts shall not exceed two (2) pages. The inmate should identify any persons who may have information that could be helpful in resolving the grievance." Id. at 233. The court reasoned that "to the extent that Brown's identity is a `fact? relevant to the claim' — and it is — it was mandatory for Spruill to include it." Id. at 234. Thus, the court found that the plaintiff's failure to identify Brown by name or description constituted a procedural default. Id.

  The grievance procedures in the instant case are controlled by 28 C.F.R. § 542. (Doc. 35. Def. Ex. 1, Wallace Decl. at ¶ 4). The prison required that Plaintiff first file an Informal Resolution Attempt. (Doc. 35. Def. Ex. 1, Wallace Decl. at ¶ 4) (Id. citing 28 C.F.R. § 542). Thereafter, he was required to file an appeal with the warden of the institution. When that appeal was unsuccessful, he filed an appeal with the Regional Director. (Id. citing 28 C.F.R. § 542). Finally, when that appeal failed, he was required to file a final appeal to the Central Office of the Federal Bureau of Prisons. (Id. citing 28 C.F.R. § 542). The defendants admit that Plaintiff filled out the appropriate form for each of these steps and timely submitted it to the proper authority. (Id. at ¶ 5). They contend however, that he did not fill out the grievance forms with the requisite specificity.*fn4 A review of the grievance procedures demonstrates that Plaintiff's description of Frimpong did in fact provide the few details that were requested.


(1) The inmate shall obtain the appropriate form from CCC staff or institution staff (ordinarily, the correctional counselor).
(2) The inmate shall place a single complaint or a reasonable number of closely related issues on the form. If the inmate includes on a single form multiple unrelated issues, the submission shall be rejected and returned without response, and the inmate shall be advised to use a separate form for each unrelated issue. For DHO and UDC appeals, each separate incident report number must be appealed on a separate form.
(3) The inmate shall complete the form with all requested identifying information and shall state the complaint in the space provided on the form. If more space is needed, the inmate may use up to one letter-size (8 1/2 "by 11") continuation page. The inmate must provide an additional copy of any continuation page. The inmate must submit one copy of supporting exhibits. Exhibits will not be returned with the response. Because copies of exhibits must be filed for any appeal (see § 542.15(b)(3)), the inmate is encouraged to retain a copy of all exhibits for his or her personal records.
28 C.F.R. § 542.14.

  The sole guidance from this provision is that the inmate "shall place a single complaint or a reasonable number of closely related complaints on the form" and "shall complete the form with all requested identifying information." Id. (emphasis added) None of the forms that Plaintiff submitted at each of the four steps directed Plaintiff to specifically name each potential defendant. The informal resolution form, the first step, instructs inmates to "Briefly state ONE complaint below and list what efforts you have made to resolve your complaint informally and state the names of staff contacted." (Id.). This asks solely for names of those prison employees whom he contacted in an effort to informally resolve his complaint, but does not require the names of everyone involved in the underlying the complaint. This form provides no instruction regarding the requisite specificity of the statement of the complaint.

  Next, the form for submission to the warden, the first appeal, merely states "Part A-Inmate Request" and provides no further direction. (Id.). Similarly, the forms for submission to the Regional Director and the Central Office, the final two appeals, merely instruct, "Part A-Reason for Appeal." (Id.). Thus, the defendants have demonstrated solely that the prison grievance system instructed Plaintiff to provide a brief statement of his complaint and to state his reason for appealing the previous rejection.*fn5

  Thus, we must determine whether Plaintiff properly stated a complaint against Frimpong when he provided that, "Plaintiff also complained about his ear infection to the other P.A.'s who delivered medication to the Special Housing Unit during the weekend of January 3 and 4, 2004, but was told by all of them that he would have to wait until Monday, January 5, 2004 for help." While Plaintiff did not name Frimpong, he was not asked to, and instead provided a description of the events, along with details about the type of employees he was concerned with, and even specified when they were on duty to allow the prison to identify them and thus his complaint was not limited to Inch. Plaintiff then repeated this allegation three more times during the appeals process as part of his complaint. If this allegation is insufficient to place the prison administrators on notice that Plaintiff had a complaint against individuals other than Inch, as the defendants currently suggest, it is solely because the administrators ignored this sentence all four times that Plaintiff wrote it. Plaintiff's complaint consisted of a single page, so the sentence was not obscure or buried. Had the prison administrators expected greater detail, they could have requested it in the grievance forms or provided some guidance as to necessary details.

  We will not, indeed cannot, impose additional requirement beyond those delineated by the administrative procedures. The policy behind the exhaustion requirement is to return control of prisons to the wardens and allow the prison system to establish its own grievance system. Spruill, 372 F.3d at 231 ("the legislative history is clear that [section 1997(e)] was intended to return control of prisons to wardens; one aspect of this was a comprehensive program of returning control of the grievance process."). Furthermore, the court in Spruill specifically declined to impose judge-made requirements on the grievance system, and instead requires courts to hold prisoners solely to the standards annunciated by the prison grievance system. Id. "If we were to create our own common law on the subject, we would in effect be asking prisoners to both comply with the prison grievance procedures (to ensure that the prison will hear their grievances), while keeping an eye on a separate set of federal requirements (to ensure that they will preserve a remedy in federal court if it comes to it)." Id. Thus, if the prison administrators need more specific information to allow them to properly process grievances, they can change the forms to direct prisoners to specifically name every potential defendant or provide a more detailed description. We are not, however, in a position to wrest control from the wardens and impose such a requirement ourselves. Accordingly, we find that the prison grievance procedures asked solely for a statement of a complaint, and did not require that prisoners identify all potential defendants by name, and thus Plaintiff properly exhausted his administrative remedies against Frimpong. We find that Plaintiff has not procedurally defaulted on his claim against Frimpong, and we will remand the case for further consideration of this claim. An appropriate order follows. ORDER

  AND NOW, to wit, this 16th day of May 2005, it is hereby ORDERED that:

  1) the Report and Recommendation (Doc. 10) is ADOPTED in part and REJECTED in part. We adopt the portion dismissing the claims against Defendant Diane Inch, but reject the portion dismissing the claims against Defendant Clement Frimpong.

  2) The defendants' motion to dismiss (Doc. 30) is GRANTED as to Defendant Diane Inch, but is DENIED as to Defendant Clement Frimpong.

  3) This matter is REMANDED to the magistrate for consideration of Plaintiff's claims against Defendant Clement Frimpong.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.