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Gambino v. Moubarek

United States District Court, D. Maryland

April 21, 2016

DAVID A. GAMBINO, Prisoner Identification
v.
DR. MOUBAREK, M.D., CAROL MILLER, HIT, KRISTI CRITES, CRNP, TOM GERA, RN, TODD C, PA-C, JODY AMERZUA, LRN, BOCH P, RN, VANMETER DENISE, RN, WARDEN STEWART, MCGAHEE TEQUILA, DMD, BLAINE SMITH, MD, and CARRIE HANSCOM, Director of Radiology, Defendants.

MEMORANDUM OPINION

THEODORE D. CHUANG, United States District Judge.

Plaintiff David A. Gambino, an inmate at the Federal Correctional Institution in Cumberland, Maryland ("FCI-Cumberland"), has filed suit alleging violations of the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act ("ADA"), 24 U.S.C. §§ 12101-12213 (2012), the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§2000bb to 2000bb-4 (2012), and the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-80 (2012), by twelve employees of FCI-Cumberland (collectively, "Defendants"). Pending is the Motion to Dismiss or, in the Alternative, Motion for Summary Judgment filed by counsel for the United States, who has entered an appearance on behalf of Defendants in their official capacities only. ECF No. 15. In addition, Defendants Blaine Smith, M.D. and Carrie Hanscom, by their private counsel, have filed a Motion to Dismiss, or in the Alternative, Motion for a More Definitive Statement ("the Smith/Hanscom Motion"). ECF No. 22. Gambino has also filed two motions that are now pending: a Motion for Leave to File Discovery, ECF No. 38, and a Motion for Injunctive Relief, ECF No. 47. No hearing is necessary to resolve the issues. See D. Md. Local R. 105.6. For the reasons set forth below, the United States' Motion is GRANTED, and the Smith/Hanscom Motion and Gambino's Motions are DENIED AS MOOT.

BACKGROUND

On July 28, 2015, Gambino filed a Complaint for injunctive and monetary relief. He asserts that Defendants exhibited deliberate indifference to his serious medical needs in violation of the Eighth Amendment by providing inadequate medical and dental care and depriving him of sufficient water during a hunger strike. He claims that Defendants' refusal to furnish certain medical devices, such as a cane, violated the ADA. He also argues that Defendants violated RFRA by denying him access to routine dental services such that he was forced to choose between the extraction of a tooth-which would be contrary to his religious beliefs-and the possibility of a life-threatening infection.

The United States' Motion argues that the FTC A claims should be dismissed for lack of subject matter jurisdiction, and that the Complaint overall should be dismissed or summary judgment granted in Defendants' favor because Gambino did not exhaust administrative remedies before filing suit as required by the Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e(a). The Smith/Hanscom Motion seeks dismissal based on a variety of legal theories, including the failure to exhaust administrative remedies.

DISCUSSION

I. Federal Tort Claims Act

The United States argues that to the extent that Gambino asserts claims under the FTCA, they should be dismissed for lack of subject matter jurisdiction. Under the FTCA, a plaintiff may not bring suit against the United States for damages arising from an injury caused by the negligent act or omission of a federal employee unless the plaintiff has first filed an administrative claim with the agency and the claim has been denied by the agency in writing. 28 U.S.C. § 2675(a). This requirement is jurisdictional. Kokotis v. U.S. Postal Service, 223 F.3d 275, 278 (4th Cir. 2000). Here, Gambino has not filed an administrative tort claim. Thus, any FTCA claims contained in the Complaint are dismissed.

II. Exhaustion of Administrative Remedies

The United States seeks dismissal or summary judgment based on Gambino's failure to exhaust administrative remedies. Gambino admits both in the Complaint and his Memorandum in Response to the United States' Motion ("Response") that he did not satisfy the PLRA's exhaustion requirements. He contends, however, that he should be excused from those requirements because Defendants have repeatedly sabotaged his attempts to utilize prison grievance procedures.[1]

A. Legal Standard

Exhaustion of administrative remedies is an affirmative defense, and Defendants bear the burden of proof. See Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). Both the United States and Gambino have submitted documents and declarations in support of their arguments regarding exhaustion. If the Court considers these documents, then it must treat the Motion as one for summary judgment. See Fed. R. Civ. P. 12(d). Although a party may move for summary judgment before the commencement of discovery, see Fed R. Civ. P. 56(b), "summary judgment [must] be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition." Harrods Ltd. v. Sixty Internet Domain Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 n.5 (1986)). Gambino has requested discovery from Defendants in the Complaint, his Response, and his Motion for Leave to File Discovery relating to his allegedly deficient medical treatment and his allegations of medical records fraud underlying his now-dismissed False Claims Act claim. He has not argued that discovery is necessary to gather information essential to opposing Defendants' arguments on exhaustion. Instead, Gambino has addressed exhaustion thoroughly in the Complaint, his Response, a declaration, and several exhibits. Consequently, the Court will consider exhaustion-related documents submitted by the parties and construe the United States' Motion as one for Summary Judgment. See Fed. R. Civ. P. 12(d); Moore, 517 F.3d at 725-26 (holding that a court may dismiss a prisoner's complaint "on exhaustion grounds so long as the inmate is first given an opportunity to address the issue").

Under Federal Rule of Civil Procedure 56(a), the Court grants summary judgment if the moving party demonstrates there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In assessing the Motion, the Court views the facts in the light most favorable to the nonmoving party, with all justifiable inferences drawn in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The Court may rely only on facts supported in the record, not on the assertions in the pleadings. Felty v. Grave-Humphreys Co., 818 F.2d 1126, 1128 (4th Cir. 1987).

The nonmoving party has the burden to show a genuine dispute on a material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). "A material fact is one that might affect the outcome of the suit under the governing law." Spriggs v. Diamond Auto Glass, 242 F.3d 179, 183 (4th Cir. 2001) (quoting Anderson, 477 U.S. at 248) (internal quotation marks omitted). A dispute of material fact is only "genuine" if sufficient evidence ...


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