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Merritt v. Fogel

July 23, 2010

MONROE MERRITT, PLAINTIFF,
v.
ALAN B. FOGEL, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Cercone

Magistrate Judge Bissoon

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendants‟ Motions to Dismiss (Docs. 84 and 88) be granted in part and denied in part.

II. REPORT

Plaintiff, Monroe Merritt, is an inmate confined at the State Correctional Institution at Greene, located in Waynesburg, Pennsylvania ("SCI-Greene"). Merritt alleges that he has been denied appropriate treatment for Hepatitis-C while incarcerated. His allegations span the time period from July 20, 1998, when he first requested "combination therapy," through complaints he made during July and August, 2007. Defendants‟ earlier motions to dismiss were granted (Doc. 70)*fn1, but the Court of Appeals reversed and remanded, specifically finding that Plaintiff had alleged a facially plausible claim that he was denied necessary medical treatment for non-medical reasons (Doc. 79-1, p. 8). Plaintiff filed an Amended Complaint (Doc. 82) and Defendants have again moved to dismiss (Docs. 84 and 88). Plaintiff has responded to the Defendants‟ motions (Doc. 97) and those motions are ripe.

A. Applicable Standard

Dismissal is appropriate under Federal Rule of Civil Procedure 12(b)(6) if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any "reasonable reading of the complaint" Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008). A complaint must be dismissed even if the claim to relief is "conceivable," because a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S., 129 S.Ct. 1937, 1949 (2009).

B. Analysis

1. Failure to Exhaust Administrative Remedies

No Section 1983 action may be commenced by a prisoner "until such administrative remedies as are available are exhausted." 42 U.S.C.A. § 1997e(a). An inmate is required to "avail[ ] himself of every process at every turn" in the applicable prison administrative process. Spruill v. Gillis, 372 F.3d 218, 227-28 (3d Cir. 2004). "[I]t is beyond the power of this court -- or any other -- to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000).

The "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 v. Nussle, 534 U.S. 516, 532 (2002). There are three steps in the Pennsylvania grievance process: (1) Initial Review pursuant to DC-ADM-804 Part VI.B of the inmate's filed grievance; (2) the first appeal from the Initial Review, or Appeal to Facility Manager pursuant to DC-ADM-804 Part VI.C; and (3) a final appeal, the Appeal to the Secretary's Office of Inmate Grievances and Appeals pursuant to DC-ADM-804 Part VI.D. Spruill, 372 F.3d at 232. An inmate's failure to comply with the procedural requirements of the prison's grievance system will result in a procedural default of the issue and will effectively bar the inmate from bringing his claim in federal court. Id. at 231. While a prisoner must comply with prison procedures, "compliance with the administrative remedy scheme will be satisfactory if it is substantial." Nyhuis, 204 F.3d at 77-78.

Defendants Diggs, Thorpe, Talabi, Harper, Prison Health Services, Inc., and America Service Group, Inc. assert that they were not named in Plaintiff‟s grievance proceedings and, accordingly, that Plaintiff failed to exhaust administrative remedies as to them. Plaintiff has attached to his Complaint three grievances he filed in 2007. While the above Defendants were not specifically named in those grievances, Defendants Diggs and Talabi were mentioned in the response to Grievance No. 186207 for the express purpose of justifying the decision to deny Plaintiff the requested treatment (Doc. 1, p. 24). Thus, prison authorities were clearly on notice that Plaintiff was challenging actions taken by Defendants Diggs and Talabi. Further, the Court does not believe it necessary for Plaintiff to name in his grievance the corporations that employ medical personnel who are alleged to have denied medical treatment so long as the institution is fairly put on notice, as it was here, that the actions of the employees of the corporations are at issue.

As for Defendans Thorpe (a Physician‟s Assistant) and Harper (a physician), these Defendants were not named in Plaintiff‟s grievances or the responses thereto. However, Plaintiff argues that he complied with the exhaustion requirement by putting the Department of Corrections on notice of the problem he was facing; i.e., a repeated refusal by ...


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