United States District Court, E.D. Kentucky, Southern Division
MEMORANDUM OPINION AND ORDER
K. CALDWELL, CHIEF JUDGE
Roscoe Chambers is an inmate confined at the United States
Penitentiary (“USP”)- Lewisburg in Lewisburg,
Pennsylvania. Proceeding without an attorney, Chambers has
filed a civil rights action pursuant to Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971).
After Chambers' complaint was screened by the Court
pursuant to 28 U.S.C. § 1915(e)(2), 1915A, the sole
remaining claim pending in this case is a claim that
Defendant Dr. William Hardy acted with deliberate
indifference to Chambers' medical needs in violation of
his constitutional rights while Chambers was confined at
United States Penitentiary-McCreary
(“USP-McCreary”) in Pine Knot, Kentucky. [R. 1,
Hardy, through counsel, has filed a motion to dismiss or, in
the alternative, motion for summary judgment, [R. 22] to
which Chambers has filed a response. [R. 28] Dr. Hardy has
not filed a reply and the time for doing so has expired.
Thus, this matter has been fully briefed and is ripe for
the factual details provided in Chambers' complaint are
sparse, he alleges that, while he was incarcerated at
USP-McCreary, Dr. Hardy, identified as USP-McCreary's
physician, operated on Chambers' foot without his
permission and neglected to send Chambers for knee
replacement. [R. 1 at p. 3]. Based on these allegations,
Chambers asserts a claim that Dr. Hardy acted with deliberate
indifference to his medical needs in violation of the Eighth
Amendment of the United States Constitution.
motion, Dr. Hardy argues that Chambers' complaint should
be dismissed because: (1) Chambers has failed to exhaust his
administrative remedies; (2) his complaint is untimely; (3)
Chambers' complaint fails to allege a claim of
constitutional dimension; and (4) Dr. Hardy is shielded from
liability by qualified immunity. [R. 22-1]
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the
sufficiency of the plaintiff's complaint. Gardner v.
Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir.
2014). When addressing a motion to dismiss, the Court views
the complaint in the light most favorable to the plaintiff
and accepts as true all ‘well-pleaded facts' in the
complaint. D'Ambrosio v. Marino, 747 F.3d 378,
383 (6th Cir. 2014). Because Chambers is proceeding without
the benefit of an attorney, the Court reads his complaint to
include all fairly and reasonably inferred claims. Davis
v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir.
Dr. Hardy moves both to dismiss and for summary judgment,
attaching and relying upon declarations extrinsic to the
pleadings in support of his motion. [R. 22] Thus, the Court
will treat Dr. Hardy's motion to dismiss the complaint as
a motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure. Fed.R.Civ.P. 12(d); Wysocki v.
Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th
Cir. 2010). See also Ball v. Union Carbide Corp.,
385 F.3d 713, 719 (6th Cir. 2004) (where defendant moves both
to dismiss and for summary judgment, plaintiff is on notice
that summary judgment is being requested, and the court's
consideration as such is appropriate where the nonmovant
submits documents and affidavits in opposition to summary
motion under Rule 56 challenges the viability of another
party's claim by asserting that at least one essential
element of that claim is not supported by legally-sufficient
evidence. Fed.R.Civ.P. 56(a); Celotex Corp. v.
Catrett, 477 U.S. 317, 324-25 (1986). A party moving for
summary judgment must establish that, even viewing the record
in the light most favorable to the nonmovant, there is no
genuine dispute as to any material fact and that the party is
entitled to a judgment as a matter of law. Loyd v. St.
Joseph Mercy Oakland, 766 F.3d 580, 588 (6th Cir. 2014).
The burden then shifts to the nonmoving party to “come
forward with some probative evidence to support its
claim.” Lansing Dairy, Inc. v. Espy, 39 F.3d
1339, 1347 (6th Cir.1994). However, if the responding
party's allegations are so clearly contradicted by the
record that no reasonable jury could adopt them, the court
need not accept them when determining whether summary
judgment is warranted. Scott v. Harris, 550 U.S.
372, 380 (2007). The Court must grant summary judgment if the
evidence would not support a jury verdict for the responding
party with respect to at least one essential element of his
claim. Ford v. Liberty Lobby, Inc., 477 U.S. 242,
complaint alleges that Dr. Hardy was deliberately indifferent
to his serious medical needs in two respects: (1) he operated
on Chambers' foot without his permission; and (2) he
neglected to send Chambers for knee replacement. [R. 1 at p.
3]. However, with respect to his claim regarding the
allegedly improper operation on his foot, Chambers did not
properly and timely exhaust his administrative remedies as
required by federal law. Under the Prison Litigation Reform
Act of 1995 (“PLRA”), a prisoner wishing to
challenge the circumstances or conditions of his confinement
must first exhaust all available administrative remedies. 42
U.S.C. § 1997e(a); Jones v. Bock, 549 U.S. 199,
211 (2007) (“There is no question that exhaustion is
mandatory under the PLRA and that unexhausted claims cannot
be brought in court.”); Fazzini v. Northeast Ohio
Correctional Center, 473 F.3d 229, 231 (6th Cir. 2006);
Campbell v. Barron, 87 Fed.Appx. 577, 577 (6th Cir.
2004). Administrative remedies must be exhausted prior to
filing suit and in full conformity with the agency's
claims processing rules. Woodford v. Ngo, 548 U.S.
81, 92-94 (2006).
federal Bureau of Prisons (“BOP”) employs a
multi-tiered administrative grievance process. The BOP's
Inmate Grievance System requires a federal prisoner to first
seek informal resolution of any issue with staff. 28 C.F.R.
§ 542.13. If a matter cannot be resolved informally, the
prisoner must file an Administrative Remedy Request Form
(BP-9 Form) with the Warden, who has 20 days to respond.
See 28 C.F.R. §§ 542.14(a) and 542.18. If
the prisoner is not satisfied with the Warden's response,
he may use a BP-10 Form to appeal to the applicable Regional
Director, who has 30 days to respond. See 28 C.F.R.
§§ 542.15 and 542.18. If the prisoner is not
satisfied with the Regional Director's response, he may
use a BP-11 Form to appeal to the General Counsel, who has 40
days to respond. See 28 C.F.R. §§ 542.15
and 542.18. See also BOP Program Statement 1300.16.
Because “[p]roper exhaustion demands compliance with an
agency's deadlines and other critical procedural
rules..., ” Woodford, 548 U.S. at 90, the
prisoner must file the initial grievance and any appeals
within these time frames.
even according to Chambers, the only administrative remedy
requests relevant to this lawsuit that he completely
exhausted are Administrative Remedy Nos. 849291 and 854754.
[R. 28, Resp. at p. 3; R. 22-2, Exh. 1: Decl. of Carlos
Martinez, Attachments D and E, at p. 84-97]. However, both of
these administrative remedy requests relate to the allegedly
inadequate medical treatment provided for ...