United States District Court, M.D. Pennsylvania
May 16, 2005.
SHERWYN D. FREEMAN, Plaintiff,
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
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
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
"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
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
(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
(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
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
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
3) This matter is REMANDED to the magistrate for
consideration of Plaintiff's claims against Defendant Clement