United States Court of Appeals
For the First Circuit
No. 05-1733
PABLO ACOSTA,
Plaintiff, Appellant,
v.
UNITED STATES MARSHALS SERVICE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. George Z. Singal,* U.S. District Judge]
Before
Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lipez, Circuit Judge.
Alan Joel Finkel for appellant.
T. David Plourde, Assistant United States Attorney, with whom
Thomas P. Colantuono, United States Attorney, was on brief for
appellees.
April 19, 2006
*
Of the District of Maine, sitting by designation.
BOUDIN, Chief Judge. On October 19, 1999, Pablo Acosta
was arrested on federal drug and firearm charges (he later pled
guilty to cocaine distribution) and held without bail. During his
pre-trial detention, the United States Marshals Service lodged him
in several county jail facilities with which it contracts; he also
spent time in two federal facilities. Acosta suffered health
problems and sued. This appeal is from the dismissal of that
action.
Because the case was dismissed at the pleading stage, we
accept as true the facts stated in Acosta's complaint, Mass. Sch.
of Law at Andover, Inc. v. Am. Bar Ass'n, 142 F.3d 26, 40 (1st Cir.
1998)--although the grounds for the dismissal were largely
procedural. The sequence of Acosta's alleged medical troubles can
be briefly summarized as follows (bearing in mind that the charges
of negligence are also only allegations):
• Acosta housed in the Hillsborough County (New
Hampshire) Department of Corrections, where a
doctor negligently prescribed the medication Elavil
for arm pain due to over-tight handcuffs;
• Acosta transferred to the Cumberland County (Maine)
Jail, where an unnamed doctor "abruptly terminated"
his Elavil prescription;
• Acosta transferred to the Merrimack County (New
Hampshire) House of Corrections, where he suffered
a seizure allegedly caused by the Elavil treatment
and its abrupt termination, causing him to fall
from a top bunk and fracture his skull;
• Acosta treated for the skull fracture at the
private Dartmouth-Hitchcock Medical Center, where
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due to improper treatment he suffered a seizure
just prior to being discharged;
• Acosta transferred to a federal facility, FMC
Rochester, where under the care of Dr. Thomas
Clifford he suffered a fall, broke a finger, and
was mistreated;
• Acosta transferred to Strafford County (New
Hampshire) House of Corrections, where a new foot
injury was initially ignored by the prison staff
and then mistreated by a private physician, Dr.
Mark Geppert, leading to permanent impairment;
• Acosta transferred to another federal facility, FCI
Raybrook, where a staff doctor improperly treated a
skin rash.
On February 12, 2002, while still at FCI Raybrook, Acosta
filed a standard-form "Claim For Damage, Injury, or Death" with the
New Hampshire office of the Marshals Service, seeking $1 million in
damages. He listed the accident as having occurred at 11:30 p.m.
on February 16, 2000--the date of the skull fracture incident
(which occurred in the afternoon)--and identified the Merrimack
facility as the situs. He attached several medical records, an
excerpt from his pre-sentence report, and a letter to a lawyer.
The letter referred to several of the other episodes.
On February 13, 2003, Acosta lodged a complaint in
federal district court in New York, later transferred to and filed
in the federal district court in New Hampshire and thereafter
amended. The amended complaint charged as defendants, among
others, the United States, the Marshals Service, the federal Bureau
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of Prisons, county jails in Maine and New Hampshire, Dartmouth-
Hitchcock Medical Center, and Drs. Geppert and Clifford.
Acosta alleged claims under 42 U.S.C. § 1983 (2000),
under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680
(2000) ("FTCA"), and for negligence under state law based on
diversity of citizenship. The episodes set forth above were
recounted, together with generalized claims of conspiracy and
somewhat more specific claims of negligence. Although Acosta
initially proceeded pro se, the amended complaint was co-signed by
counsel.
Eventually, after transfer of the case to the federal
district court in Maine, motion practice and two recommendations
and reports by the magistrate judge,1 the district court on April
8, 2005, dismissed the complaint. Most of the federal claims were
dismissed for failure to exhaust administrative remedies; several
others, for failure to state a claim. Finally, the court declined
to exercise supplemental jurisdiction over the state-law negligence
claims.
Our review, save as to dismissal of the state law claims,
is de novo. See Mass. Sch. of Law, 142 F.3d at 40. We begin with
1
One dealt with federal claims against the state entities and
employees, Dartmouth-Hitchcock, and a private physician (Dr.
Geppert), and also with the state-law negligence claims against
them. The other addressed the claims against the federal entities
such as the Marshals Service, and the claim against a physician
practicing at FMC Rochester (Dr. Clifford).
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the civil rights claims under section 1983 against county
facilities and personnel, which were dismissed for failure to meet
the exhaustion requirement of the Prison Litigation Reform Act of
1995 ("PLRA"). Pub. L. No. 104-134, 110 Stat. 1321 (codified as
amended in scattered sections of 18 U.S.C., 28 U.S.C., and 42
U.S.C.). That statute pertinently provides:
No action shall be brought with respect to
prison conditions under section 1983 of this
title, 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.
42 U.S.C. § 1997e(a).
"Prison conditions" under this provision include
individual instances of medical mis- or non-treatment,2 and Acosta
does not claim to have sought any administrative remedy--except for
his above described complaint filed with the Marshals Service on
February 12, 2002. Because we have treated section 1997e(a) as an
affirmative defense, Casanova v. Dubois, 304 F.3d 75, 77-78 (1st
Cir. 2002), Acosta might have argued that the burden was upon the
defendants to show that there were available (albeit unexhausted)
remedies.
2
See Porter v. Nussle, 534 U.S. 516, 532 (2002) ("[T]he PLRA's
exhaustion requirement applies to all inmate suits about prison
life, . . . whether they allege excessive force or some other
wrong."); see also, e.g., Witzke v. Femal, 376 F.3d 744, 751 (7th
Cir. 2004).
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Instead (perhaps because such remedies usually exist)
Acosta has argued that he fulfilled any such exhaustion requirement
by sending his claim form to the Marshals Service. This will not
wash: the claims as to the counties had to be directed to the
county facilities responsible for the supposed wrongdoing. Cf.
Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.) ("To exhaust
remedies, a prisoner must file complaints and appeals in the place,
and at the time, the prison's administrative rules require."),
cert. denied, 537 U.S. 949 (2002). Otherwise, the ordinary
purposes served by such requirements--to provide timely notice of
the claim and an avenue for redress short of litigation, see
McCarthy v. Madigan, 503 U.S. 140, 145 (1992); Ezratty v. Puerto
Rico, 648 F.2d 770, 774 (1st Cir. 1981)--could not be served.
Nothing in Acosta's brief explains how filing a claim with the
Marshals Service could constitute adequate notice to a Maine or New
Hampshire entity or otherwise encourage administrative resolution
of the matter.
The district court also relied upon section 1997e(a) in
dismissing the claim against Dr. Clifford, the doctor serving at
FMC Rochester. Being at best a federal actor, he was not subject
to suit at all under section 1983, see Soldevila v. Sec'y of
Agric., 512 F.2d 427, 429 (1st Cir. 1975); but the district court
treated the civil rights claim against him as a Bivens action, see
Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
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U.S. 388 (1971). The agency responsible for federal prisons is the
Bureau of Prisons, not the Marshals Service, and Acosta relies only
on the notice he provided to the latter.
The Marshals Service appears to have treated the
complaint to it as directed only to the events that occurred while
Acosta was housed at the Merrimack County facility; this was
certainly the explicit incident referred to in the "basis for
claim" and it is far from clear that a package of attachments
referring obliquely to other incidents could fairly be treated as
stating separate claims as to them. In any event, no claim was
filed with the Bureau of Prisons, so the claim against Dr. Clifford
was not exhausted. See 28 C.F.R. § 542.10-.19 (2005) (regulations
governing the Administrative Remedy Program for inmates in
facilities operated by the Bureau of Prisons).
One might argue that notice to one federal agency is
notice to another, but this would be unrealistic. The argument
might be stronger here because the Bureau and the Marshals Service
are both components of the Department of Justice, but both are
themselves large organizations.3 In all events, to litigate based
on whether notice was in fact received, or likely to be received,
3
The federal defendants aver, without contradiction from
Acosta, that "[t]he USMS and the BOP are distinct in terms of their
bureaucratic organization, personnel, day-to-day operations,
oversight, practices, procedures and mission, although their
responsibilities may occasionally interact," and cite several
portions of the Code of Federal Regulations for support. See 28
C.F.R. §§ 0.95 et seq.; id. §§ 0.111 et seq.; id. §§ 500 et seq.
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by some other agency is a recipe for turning a threshold procedural
requirement into a litigation morass of its own.
A second, different set of Acosta's claims was dismissed
for failure to exhaust but under a different exhaustion provision.
In the second count of his complaint, Acosta alleged claims against
the federal government under the Federal Tort Claims Act. A key
provision of the FTCA, 28 U.S.C. § 1346(b), allows certain civil
actions against the United States based on
the negligent or wrongful act or omission of
any employee of the Government while acting
within the scope of his office or employment,
under circumstances where the United States,
if a private person, would be liable to the
claimant in accordance with the law of the
place where the act or omission occurred.
"Employee" includes "officers or employees of any federal
agency" and "persons acting on behalf of a federal agency in an
official capacity," 28 U.S.C. § 2671, but "federal agency" within
the meaning of the statute "does not include any contractor with
the United States." Id. The statute also contains an exhaustion
requirement,4 which has been viewed as "a non-waivable
jurisdictional requirement" limiting the suit to claims fairly made
to the agency. Santiago-Ramirez v. Sec'y of Dep't of Def., 984
F.2d 16, 18, 19-20 (1st Cir. 1993).
4
"An action shall not be instituted [pursuant to the FTCA] .
. . unless the claimant shall have first presented the claim to the
appropriate Federal agency and his claim shall have been finally
denied by the agency in writing and sent by certified or registered
mail." 28 U.S.C. § 2675(a).
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Although the complaint's FTCA count was wholly imprecise
as to who or what was charged, Acosta says that it should be read
as charging the United States with liability for negligent or
otherwise wrongful acts of the Marshals Service and the Bureau of
Prisons. The district court read the administrative claim made to
the Marshals Service as limited to the Merrimack incident and
therefore deemed the other FTCA claims barred by failure to
exhaust.
In all events, the administrative claim--having been sent
to the Marshals Service and not the Bureau of Prisons--excludes the
small group of allegations based on treatment within the federal
facilities (operated by the Bureau), and we therefore focus upon
the claims against the Marshals Service and anyone for whom it
might be responsible, namely, the county facilities in which the
Marshals Service lodged Acosta. The district court held that
claims against the United States based on the conduct of the county
facilities were barred by the FTCA's independent contractor
exemption, which is quoted above.
This exemption excludes liability where the negligent
treatment of a federal prisoner is the fault only of a non-federal
facility holding the prisoner under contract with the Marshals
Service. Logue v. United States, 412 U.S. 521, 530-32 (1973); see
also Larsen v. Empresas El Yunque, Inc., 812 F.2d 14, 14-15 (1st
Cir. 1986). Acosta does not dispute this premise; he argues that
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pertinent state law could make an entity in the position of the
Marshals Service liable for its own decision, if negligent, to
entrust someone in its hands to an incompetent independent entity.
See Arthur v. Holy Rosary Credit Union, 656 A.2d 830, 834 (N.H.
1995).
Whether such negligent selection of an independent
contractor might be actionable under the FTCA is an interesting
question but one we need not decide. No such claim is fairly made
out by Acosta's administrative filing with the Marshals Service,
however many incidents it may be read to embrace. There is nothing
whatever in the filing to suggest that the Marshals Service knew,
or should have known, that its contract with any particular local
facility was peculiarly hazardous to prisoners.
As a fallback argument, Acosta seeks to have the federal
action stayed while he makes attempts to satisfy the PLRA and FTCA
exhaustion requirements. Medina-Claudio v. Rodríguez-Mateo, 292
F.3d 31, 35-36 (1st Cir. 2002), forecloses this argument as to the
PLRA; the FTCA's exhaustion requirement is, as already noted,
jurisdictional, Santiago-Ramirez, 984 F.2d at 18. Certainly there
is no requirement that the case be stayed rather than dismissed.
The claims against Dartmouth-Hitchcock and Dr. Geppert
appear on their face to be claims against private actors and not
against federal or state actors subject to civil rights liability
under section 1983 or Bivens. Acosta does not persuasively argue
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to the contrary. In any event, we agree with the district court
that even if these defendants were official actors, personal
liability would exist under federal law only for constitutional
violations (e.g., deliberate indifference to serious medical
needs), which are not plausibly alleged, and not for mere
negligence. See Daniels v. Williams, 474 U.S. 327, 330-33 (1986);
Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
The only fact Acosta alleged as to Dartmouth-Hitchcock is
that someone there overmedicated him with Dilantin; as for Dr.
Geppert, the only fact alleged is that he failed to properly
diagnose the severity of Acosta's foot injury. We are not required
to credit Acosta's bare and conclusory assertion that Dartmouth-
Hitchcock and Dr. Geppert were deliberately indifferent to his
serious medical needs. See In re Credit Suisse First Boston Corp.,
431 F.3d 36, 45 (1st Cir. 2005). Acosta's companion "conspiracy"
claims are pure boilerplate, unsupported by any factual
allegations.
Of course, negligence claims under state law can be
asserted directly against private actors. As to such claims, the
district court declined to exercise supplemental jurisdiction and
dismissed them without prejudice. (The complaint alleged diversity
as an independent basis for such claims, but Acosta has not pursued
this alternative basis for his claim.) This is common practice
when federal claims fail at the pleading stage, see 28 U.S.C. §
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1367(c)(3); Cannarozzi v. Fiumara, 371 F.3d 1, 7 (1st Cir. 2004),
and despite Acosta's briefly stated objection on appeal, we see no
abuse of discretion.
There is no doubt that the web of exhaustion and related
requirements may on occasion frustrate legitimate claims. But
these requirements are a response both to legitimate concerns about
timely notice to the agency and to past abuses by prisoners (of
which the conspiracy claims in this case appear to be a good
example). In all events, the exhaustion requirements are
legislative and must be respected.
Affirmed.
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