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White v. Spaulding

United States District Court, D. Massachusetts

May 31, 2019




         Plaintiff Clarence Johnel White is a prisoner at FMC Devens. He has filed a document captioned as a “Memorandum of Law in Support of Plaintiff's Emergency Motion for Preliminary Injunction & TRO” (“Memorandum”). He did not file an underlying complaint or motion or pay the filing fee. For the reasons stated below, the Court will deny the request for a temporary restraining order and direct White to file a complaint if he wishes to proceed with this action and either pay the filing fee or move to proceed in forma pauperis.

         I. Factual Background

         White alleges that he was transferred to FMC Devens in December 2018 to undergo surgery for a replacement of his right hip. According to White, he suffers from right hip bone-on-bone osteoarthritis. He states that in 2017, when he was incarcerated at FCI Seagoville in Texas, an orthopedic surgeon recommended that he undergo total hip replacement surgery. However, a physician at FMC Devens, Dr. Murray, allegedly refused to allow him to receive the surgery or even to have a consultation with an orthopedic specialist. White further alleges that Dr. Murray believes that he is malingering when he reports that the right hip osteoarthritis causes excruciating pain that interferes with his daily activities.

         According to White, he learned on March 26, 2019, that his request for a consultation with an orthopedic specialist had been denied. He further represents that it was not until May 16, 2019, that he learned that his request for surgery had been denied and that Dr. Murray had concluded that he would be transferred back to the FCI Seagoville without any further medical care at FMC Devens. He alleges that he informed Dr. Murray that his conduct constituted deliberate indifference, to which Dr. Murray allegedly responded, “[T]hen file a grievance and file suit on me.” Mem. at 4.

         White asks that this Court order that he remain at FMC Devens until he receives appropriate treatment for his hip, including treatment for the “unnecessary and wanton pain the Plaintiff is suffering while awaiting possible corrective surgeries.” Id. at 7.

         II. Discussion

         A. Filing of a Complaint

         As a preliminary matter, this action has not been properly commenced because plaintiff has not filed a complaint. See Fed. R. Civ. P. 3. A court cannot grant a motion for relief of any kind without an underlying complaint that contains a statement of the court's jurisdiction, “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and a demand for relief. See Fed. R. Civ. P. 8(a). If plaintiff wishes to pursue this action, he must file a complaint.[1]

         B. Request for a Temporary Restraining Order

         For the limited purposes of addressing the request for a temporary restraining order (“TRO”), based on the factual allegations in the memorandum, a TRO is not warranted. A TRO may only issue on an ex parte basis if “immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition” and the person seeking the temporary restraining order “certifies in writing any efforts made to give notice and the reasons why it should not be required.” Fed.R.Civ.P. 65(b)(1). Here, plaintiff has not certified his efforts to give notice to the defendants of his motion for emergency relief or explained why such notice should not be required.

         Moreover, even assuming for present purposes that plaintiff has adequately pleaded deliberate indifference by Dr. Murray, he has not shown a likelihood of success of the merits of the claim. The Prison Litigation Reform Act of 1995 mandates that an inmate exhaust “such administrative remedies as are available” before bringing suit to challenge prison conditions. 42 U.S.C. § 1997e(a); see also Ross v. Blake, ___U.S.___, 136 S.Ct. 1850, 1858 (2016) (holding there is no “special circumstances” exception to the PLRA exhaustion requirement).

         In light of the short period of time between the dates of the alleged misconduct and the mailing of the memorandum, it appears nearly impossible that plaintiff has exhausted his administrative remedies. Under Bureau of Prisons regulations, the administrative remedy process consists of (1) the prisoner's attempt an informal resolution; (2) the prisoner's submission of an Administrative Remedy Request on a BP-9 form, and the Warden's response; (3) an appeal to the Regional Director on a BP-10 form, and the Regional Director's response; and (4) an appeal to the BOP General Counsel on a BP-11 form. See 28 C.F.R. §§ 542.13-542.15. Plaintiff alleges that he did not learn until May 16, 2019 that the surgery was denied and that he would be transferred back to FCI Seagoville without receiving medical treatment at FMC Devens. His signature on the memorandum is dated May 20, 2019. The clerk received the memorandum on May 22, 2019. It is hard to imagine that plaintiff completed all four levels of administrative exhaustion in a five-day period.

         C. ...

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