United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION, GRANTING DEFENDANTS'  MOTION TO DISMISS PLAINTIFF'S COMPLAINT, DENYING PLAINTIFF'S  MOTION TO REPLACE DEFENDANT GIDEL, AND DENYING PLAINTIFF'S  MOTION IN OPPOSITION
JUDITH E. LEVY, District Judge.
This matter is before the Court on Magistrate Judge Mona K. Majzoub's Report and Recommendation, issued on July 10, 2014 (Dkt. 38), in which the Magistrate Judge recommends the Court grant the Motion to Dismiss (Dkt. 28) filed by defendants Terris, Zestos, Pomaloy, Gidel, and Malatinsky, deny plaintiff Emmett Buffman's Motion in Opposition to Defendants' Motion to Dismiss (Dkt. 30), and deny as moot Buffman's Motion to Replace Defendant Stephen Gidel with Bureau of Prisons Director Charles A. Samuels (Dkt. 29). The basis for the recommendation is that Buffman failed to exhaust administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). Plaintiff timely filed objections to the report and defendants replied to those objections. (Dkt. 42, 44.)
For the reasons set forth below, the Court will adopt the Report and Recommendation and enter it as the findings and conclusions of this Court. Defendants' motion to dismiss will accordingly be granted, Buffman's motion in opposition will be denied, and Buffman's motion to replace defendant Gidel will be denied as moot.
I. Factual and procedural background
At all times relevant to the allegations in his complaint, Buffman was incarcerated at the Federal Correctional Institution in Milan, Michigan (FCI Milan). The individual defendants are the following Bureau of Prisons (BOP) employees working at FCI Milan at the time relevant to Buffman's allegations: Warden J.A. Terris; Health Services Administrator James Zestos; Medical Licensed Practitioners Restituto Pomaloy and Stephen Gidel; and Clinical Director William Malatinsky.
Buffman's claims against defendants relate to the allegedly improper medical treatment he received in February 2013. First, Buffman alleges that on February 13, 2013, Pomaloy failed to treat two boils on Buffman's body, sending Buffman instead to the optometrist. (Dkt. 1, Compl. 15.) Buffman alleges Pomaloy acted on the basis of personal animus towards him. ( Id. at 18.) Second, Buffman alleges that on February 20, 2013, Gidel attempted to treat one boil but neglected to treat the other. ( Id. at 16.) Third, Buffman alleges that on February 21, 2013, Gidel again failed to adequately treat his boils. ( Id. ) Fourth, Buffman alleges he was treated negligently by correctional officers on the way to and upon arrival at the hospital. ( Id. at 19.) Buffman alleges the purported failure to diagnose and treat his boils resulted in his hospitalization for a staph infection. ( Id. at 19-20.) Buffman seeks $1, 000, 000 in damages from all defendants. ( Id. at 21.)
On March 25, 2013, Buffman filed an administrative claim with the Federal Bureau of Prisons under the Federal Tort Claims Act, seeking $300, 000 in damages for personal injury. (Dkt. 1, Ex. 1 to Pl.'s Compl.) That claim was denied on August 22, 2013. ( Id. ) Buffman filed this suit on September 19, 2013, against defendants Terris, Zestos, Pomaloy, Gidel, and Malatinksy under Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and against the United States under the Federal Torts Claims Act (FTCA). (Dkt. 1, Compl.) Buffman brings claims for "Negligence, Abuse of Process, Acts Errors, Omissions, Deliberate Indifference, and Condoning or Acquiescing to other federal employees (or each other) from doing the above cited Tort's." ( Id. at 4.)
Buffman alleges Pomaloy's and Gidel's actions constituted deliberate indifference to a serious medical need. ( Id. at 6.) Buffman does not allege any personal participation by defendants Terris, Zestos, and Malatinsky in the actions giving rise to his claim for medical negligence.
The individual defendants all moved to dismiss on the grounds that the plaintiff failed to exhaust his administrative remedies by properly pursuing the grievance process at FCI Milan. (Dkt. 28, Defs.' Br. 6-10.) Buffman admits that he did not exhaust the administrative remedies available at FCI Milan. (Dkt. 1, Compl. 4.)
Defendants Terris, Zestos, and Malatinsky raise additional grounds for dismissal of Buffman's claims against them: Buffman does not allege their personal participation in a constitutional violation, and his claims are therefore barred by qualified immunity. (Dkt. 28, Defs.' Br. 10-14.)
The Magistrate Judge recommends granting defendants' motion based on Buffman's undisputed failure to exhaust administrative remedies, as required by the PLRA. She further recommends Buffman's motion in opposition and motion to replace defendant Gidel be denied as moot. Buffman objected to the report and recommendation, contending the Magistrate Judge did not construe the complaint in the light most favorable to Buffman, and again alleging that seeking administrative remedies would result in retaliation against him.
II. Standard of Review
District courts review de novo those portions of a report and recommendation to which a specific objection has been made. 28 U.S.C. § 636(b)(1)(C). " De novo review in these circumstances entails at least a review of the evidence that faced the magistrate judge; the Court may not act solely on the basis of a report and ...