OPINION AND ORDER ADOPTING IN PART MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (Docs. 30 & 32)
CHRISTINA REISS, Chief District Judge.
This matter came before the court on the objection of Plaintiff William Lefebvre (Doc. 35) to the Magistrate Judge's Report and Recommendation ("R & R") filed on July 31, 2013 (Doc. 32).
Plaintiff's complaint, which alleges a violation of 42 U.S.C. § 1983, arises out of his allegations that certain prison officials within the Vermont Department of Corrections (the "Vermont DOC" or "DOC") failed to protect him from multiple assaults by another prisoner and that those officials subsequently failed to protect Plaintiff from ongoing emotional distress resulting from those assaults. Defendants are Adam Mickel, the Living Unit Supervisor; Joshua Rutherford, the Chief of Security; and Mark Potanas, the Superintendent, who were all employed at the correctional facility where Plaintiff was incarcerated when the assaults occurred. Plaintiff claims that he reported the instances of sexual assault to Defendants to no avail, and that he filed multiple grievances to which Defendants failed to adequately respond.
The R & R recommends that Defendants' motion to dismiss (Doc. 30) be granted primarily because Plaintiff has failed to exhaust his administrative remedies within the Vermont DOC, as required by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e (the "PLRA"). The court agrees with this conclusion and therefore does not address the adequacy or plausibility of Plaintiff's Eighth Amendment claims.
Plaintiff is self-represented. Defendants are represented by Vermont Assistant Attorney General David R. McLean.
I. Factual Background.
Plaintiff's original Complaint outlined his allegations concerning multiple sexual assaults perpetrated by his cellmate, Bubba Lake, between November 10, 2011 and November 14, 2011, and the response of prison officials thereafter. At that time, Plaintiff was incarcerated at the Southern State Correctional Facility (the "SSCF").
According to Plaintiff's Complaint, on November 10, 2011, Lake was moved into Plaintiff's cell, and sometime after Lake started pressing Plaintiff to perform oral sex on him. Plaintiff alleges that Lake continued to ask and that Plaintiff told Lake "no" but that the "more [Plaintiff] said no the angr[ier] [Lake] got." (Doc. 5 at 8.) Plaintiff alleges that Lake then "started to poke" him when he was lying on his bunk and that Lake would not stop when Plaintiff told him to do so. Id. at 8-9. Lake then allegedly told Plaintiff that "the only way he would leave [Plaintiff] alone" was if Plaintiff performed oral sex on him. Id. at 9. Because Plaintiff felt he would be physically hurt if he did not "cooperate, " he capitulated to Lake's demands and performed oral sex on him. Id. Plaintiff was "really scared." Id. Plaintiff alleges "the same thing happened again despite [him]] constantly saying no." Id.
Two nights later, Plaintiff alleges that Lake again starting poking him when he was lying on his bunk. Lake then allegedly asked Plaintiff to allow Lake to engage in anal sex, and Plaintiff said no. Lake "continued to ask and [Plaintiff] continued to say no." Id. at 10. Lake then "started getting mad and punching the walls, " which "really scared" Plaintiff. Id. When Plaintiff asked Lake if he "had to, " Lake replied "yes" or Plaintiff "would get hurt." Id. Lake then directed Plaintiff to get out of his bunk, stand by the door, and bend over, and Lake then started to perform anal sex on Plaintiff.
On November 14, 2011, Plaintiff reported that he had been the victim of a sexual assault to "Yard Officer COI Hayes, " who allegedly told Plaintiff to return to his unit and that he would report the sexual assault to "CSS Mickel, " the Living Unit Supervisor at the SSCF. Id. at 7. Approximately thirty minutes later, Defendant Mickel called Plaintiff in to speak with him. Plaintiff informed Defendant Mickel that he "was a victim of sexual assault and feared for [his] safety." Id. Following his meeting with Defendant Mickel, Plaintiff was taken to meet with "SOS Rutheford, " to whom he reported that he had been "sexually assaulted by Bubba Lake on three different [occasions]." Id. at 7-8. Defendant Rutherford, who Plaintiff refers to as "Rutheford, " is the Chief of Security at the SSCF.
After Plaintiff reported the sexual assaults to Defendant Rutherford, he was "sent to see Ruth Kibby from mental health." Id. at 11. He allegedly told her that he feared for his safety and that he felt like he was not going to be taken seriously. He was then taken to medical, where a nurse denied his request to be taken to the hospital, allegedly stating "there was no point  because [Plaintiff] had already shower[e]d and brushed [his] teeth." Id. Plaintiff was sent back to the Gulf unit, where inmates harassed him "for going to the [correctional officers] for help." Id. at 12. Plaintiff was moved later that same day to the Hotel unit. Plaintiff alleges that he tried to call the inmate hotline but that it was not working.
The next day, Plaintiff alleges that he told "a detective" that he had been sexually assaulted. During this time, the cell where the assaults occurred was apparently "taped off as a crime scene." Id. At some time later, Plaintiff was moved back to the cell where the assaults occurred, despite his protestations to the "C/O" that he did not want to return to that cell. He was allegedly told that he would be placed in "Fox" if he did not return to his cell. Plaintiff alleges that he "felt like every time [he] asked for help [he] was punished for doing the right thing." Id. at 13.
Later in the month of November, Plaintiff "was moved to Alpha pending a major DR" and then to "Fox" after "being found guilty." Id. Plaintiff's allegations do not explain the reason for his disciplinary violation or whether it was related to his reporting of the alleged sexual assaults. Because Lake was in Fox, Plaintiff requested to stay in Alpha, but he was told he would be "physically" moved if he refused. Id. Lake then went back to population, and Plaintiff filed an emergency grievance to prevent his own return to population because he "was scared for [his] safety" and "afraid of retaliation from staff and inmates." Id. Plaintiff was told "it was not an emergency issue." Id. at 13-14. Plaintiff was also told "nothing" could be done because "it was in the hands of the state police" and that he would be issued a "DR" if he refused to move. Id. at 14.
Following his move to the Hotel unit, Plaintiff alleges that he was "still constantly being [harassed] by other inmates" and that he was "scared [to] ask for help" since he was repeatedly "told there was nothing that could be done." Id. He again attempted to call the inmate hotline but it was not working. On December 23, 2011, Plaintiff was moved "back to Fox pending a major DR." Id. In March 2012, "COII Brown" informed Plaintiff he would be moving to the Gulf unit, which Plaintiff protested because Lake was also housed in the Gulf unit. Id. at 14. Plaintiff stayed in Fox for another week, which he claims was in retaliation. Without specifying when, Plaintiff alleges that he "wrote to prisoner rights regarding this issue and got no response." Id. at 15.
On July 11, 2012, Plaintiff filed an "Offender/Inmate Grievance Submission Form, " which he titled in his own handwriting as "Emergency." (Doc. 5-1 at 2.) He explained his grievance as follows:
While I was on rec they brought Bubba Lake to Fox. I was the victim of rape by him last November.... I feel like I am being punished.... I now have to relive the trauma all over again. This is not right. I am now having flashbacks all ...