United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (DOCS. 7 & 9)
Christina Reiss, Chief Judge United States District Court
This
matter came before the court for a review of the Magistrate
Judge's July 11, 2016 Report and Recommendation ("R
& R") (Doc. 9), in which he recommended that the
court grant the motion to dismiss filed by Defendant CCS.
Medical Services with leave to amend. (Doc. 7.) Neither party
has filed an objection to the R & R, and the time period
to do so has expired.
In his
Complaint, Plaintiff Jabbar Chandler alleged that
Defendant's employees at Southern State Correctional
Facility in Springfield, Vermont negligently cared for his
injured finger in January 2014, thereby leaving him unable to
work in his former employment as a barber. Plaintiff conceded
that the Vermont Department of Corrections ("DOC")
had a grievance procedure in place. However, he did not
utilize the grievance program because he did not believe it
could address his medical malpractice claim against non-DOC
contractors.
Defendant
moved to dismiss Plaintiffs Complaint for (1) failure to
exhaust his claims under the Prisoner Litigation Reform Act
("PLRA"), (2) lack of subject matter jurisdiction
and noncompliance with Vermont's pleading requirements
for medical malpractice claims, and (3) lack of proper
service of Defendant. Plaintiff did not oppose dismissal.
A
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may "accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge." 28 U.S.C. § 636(b)(1); accord
Cullen, 194 F.3d at 405. A district judge, however, is
not required to review the factual or legal conclusions of
the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed.
Thomas v. Am, 474 U.S. 140, 150(1985).
In his
ten page R & R, the Magistrate Judge carefully reviewed
the factual allegations and legal claims in both the
Complaint and the motion to dismiss and ultimately
recommended dismissal without prejudice of all claims against
Defendant. The Magistrate Judge noted that Plaintiffs claims
arose out of medical treatment provided to him while he was
incarcerated, and therefore the PLRA's exhaustion
requirement applied. See 42 U.S.C. § 1997e(a)
("No action shall be brought with respect to prison
conditions under [42 U.S.C. § 1983], 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"). Contrary to
Plaintiffs belief, the PLRA applies to prison contractors and
thus the exhaustion requirement applies. See Frier son v.
St. Francis Med Ctr., 2011 WL 3423930, at *6 n.16
(D.N.J. Aug. 4, 2011) ("The language of the PLRA . . .
cannot reasonably be read to exempt complaints about medical
treatment merely because such treatment was provided by
private medical service providers"); LaBombard v.
Burroughs-Biron, 2010 WL 2264973, at *7 n.3 (D. Vt. Aug.
30, 2010), adopted 2010 WL 2265004 (D. Vt. June 2,
2010) (applying PLRA's exhaustion requirements to a
private company that "assumed the DOC's
constitutional obligation to provide medical care to Vermont
prisoners, and may thus be held liable for constitutional
violations"). Because Plaintiff failed to follow
DOC's grievance program or establish an exception to the
exhaustion requirement, the Magistrate Judge properly
recommended dismissal of Plaintiff s Complaint. See Jones
v. Bock, 549 U.S. 199, 211 (2007) ("[t]here is no
question that exhaustion is mandatory under the PLRA").
The
Magistrate Judge further recommended that Plaintiffs
Complaint be dismissed for lack of subject matter
jurisdiction because his state law claims failed to present a
federal question or establish the minimum amount in
controversy required for diversity jurisdiction. See
Owens v. Bellevue Hosp. Ctr., 1996 WL 134227, at *1 (2d
Cir. Mar. 25, 1996) ("Allegations of medical malpractice
or negligent failure to provide treatment will not suffice to
support an action under 42 U.S.C. § 1983"). In the
event the court determined it has jurisdiction, the
Magistrate Judge concluded that Plaintiff failed to comply
with the filing requirements of Vermont's medical
malpractice statute.[1]
Finally,
the Magistrate Judge evaluated Defendant's argument that
Plaintiff failed to properly serve Defendant and concluded
that because Defendant had received adequate notice of
Plaintiff s Complaint as evidenced by its motion to dismiss,
dismissal should not be granted on this ground. (Doc. 9 at
8.) The Magistrate Judge recommended that Plaintiff be
granted leave to file an Amended Complaint. The court agrees
with the Magistrate Judge's well-reasoned conclusions and
hereby adopts the R & R in its entirety.
CONCLUSION
For the
foregoing reasons, the court hereby ADOPTS the Magistrate
Judge's R & R (Doc. 9) as the court's Order and
Opinion, and GRANTS Defendant's motion to dismiss on the
grounds that Plaintiff failed to satisfy the PLRA's
exhaustion requirement and establish the court's
jurisdiction or comply with Vermont's medical malpractice
pleading requirements. (Doc. 7.)
Plaintiff
is hereby GRANTED thirty (30) days from the date of this
Order to file an Amended Complaint. Any amended filing shall
be entitled "Amended Complaint" and shall consist
of numbered paragraphs containing short and plain factual
allegations, a short and plain statement of each legal claim
Plaintiff asserts, and a clear and concise statement of the
relief requested. See Fed. R. Civ. P. 8(a) (listing
required contents of a pleading that states a claim for
relief). In the Amended Complaint, Plaintiff must allege all
claims and name all defendants that Plaintiff intends to
include, as the Amended Complaint will take the place of the
original Complaint in all respects. He must allege facts
sufficient to establish either a federal question or
diversity jurisdiction and, if he seeks to file a medical
malpractice claim, he must comply with 12 V.S.A. §
1042(a) or allege facts that establish the requirements are
not applicable. Failure to file an Amended Complaint in the
time period provided shall result in the dismissal of all
claims with prejudice.
SO
ORDERED.
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