GEORGE MACKIE v. BRUCE PATZNER & Others.

• Court: Massachusetts Appeals Court
• Decided: August 22, 2023
• Docket: 22-P-0451
• Status: Unpublished

Opinion

NOTICE: Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass. App. Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass. App. Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).

COMMONWEALTH OF MASSACHUSETTS

APPEALS COURT

22-P-451

GEORGE MACKIE

vs.

BRUCE PATZNER 1 & others. 2

MEMORANDUM AND ORDER PURSUANT TO RULE 23.0

Following an outbreak of scabies, a contagious skin

condition, at the Massachusetts Treatment Center at Bridgewater

(Treatment Center), the Department of Correction (DOC) took

several protective measures that included quarantining,

isolating, and inoculating inmates. The plaintiff, George

Mackie, an individual civilly committed under G. L. c. 123A,

filed a complaint in the Superior Court against the DOC and

others claiming that these measures violated State and Federal

law. On the defendants' motion, a Superior Court judge

dismissed the plaintiff's complaint for failing to exhaust

1 As is our custom, we take the defendant's name from the underlying complaint. 2 Anthony Janicki and David Duarte. available administrative remedies pursuant to G. L. c. 127,

§ 38F. We affirm.

Background. We accept as true the facts alleged in the

complaint and draw any reasonable inferences in favor of the

plaintiff. See Flagg v. AliMed, Inc., 466 Mass. 23, 26 (2013).

According to the complaint, in March of 2021, Block C2 inmates

at the Treatment Center experienced a scabies outbreak.

Facility officials, David Duarte and Anthony Janicki, responded

by placing inmates, including the plaintiff, in isolation for

three days and instructing inmates to pack all "porous property"

into soft lockers, which were then wrapped in plastic. The

facility physician, Dr. Bruce Patzner, prescribed Ivermectin to

the inmates without seeing them and without warning them of

potential side effects. The plaintiff took Ivermectin under

threat of being quarantined in the Restricted Housing Unit

(RHU), known as "The Hole." The complaint alleged that

Ivermectin is not approved by the Food and Drug Administration

to treat scabies. For the first three days of isolation, the

plaintiff and other inmates remained confined to their cells for

twenty-four hours per day. The next week, a quarantine

prohibited Block C2 inmates from interacting with inmates from

other cell blocks. During the quarantine, Janicki, responsible

for cell assignments, placed a symptomatic resident in a cell

with the plaintiff, who was not infected.

2 The plaintiff filed a complaint in the Superior Court

alleging six claims: (1) medical malpractice, (2) violation of

art. 10 of the Massachusetts Declaration of Rights, (3)

violation of the Eighth Amendment, (4) mental cruelty and mental

anguish, (5) violation of the Fourth and Fourteenth Amendments,

and (6) violation of G. L. c. 12, § 11I. The Superior Court

judge dismissed the complaint for failure to exhaust

administrative remedies pursuant to G. L. c. 127, § 38F.

Discussion. In 1999, the Legislature authorized the

Commissioner of Correction to establish a "grievance system" for

administrative review of inmate complaints. See St. 1999,

c. 127, § 133 (codified at G. L. c. 127, §§ 38E-38H). The

grievance system specifically includes inmates "in the custody"

of the Treatment Center, G. L. c. 127, § 38E (a), and the

Commissioner of Correction has established a comprehensive

grievance system as set forth in 103 Code Mass. Regs. §§ 491.01-

491.27 (2017). Civil actions by inmates face a significant

hurdle because "[a]n inmate shall not file any claim that may be

the subject of a grievance under section 38E unless the inmate

has exhausted the administrative remedy" that has been made

available. G. L. c. 127, § 38F. The Superior Court judge

concluded that the plaintiff did not clear this hurdle. We

review this conclusion de novo. See Flagg, 466 Mass. at 26.

3 Given the clear legislative mandate, we agree with the

Superior Court judge's conclusion that the plaintiff's claims

must be dismissed. "Before proceeding in court, the record must

affirmatively demonstrate that the plaintiff inmate has pursued

to final resolution any available administrative remedy or

procedure that might redress his claim or issue." Ryan v. Pepe,

65 Mass. App. Ct. 833, 834-835 (2006). The record here does not

show the plaintiff exhausted the available administrative remedy

as required by G. L. c. 127, § 38F. Therefore, the Superior

Court properly dismissed his complaint.

On appeal, the defendant contends that the grievance system

contemplated by G. L. c. 127, §§ 38E and 38F, is "limited to

those serving criminal sentences" and does not include persons

such as the plaintiff who have been committed as sexually

dangerous persons. We disagree. The language of the governing

statute makes clear that the grievance system is available to

Treatment Center inmates: "The commissioner shall promulgate

regulations to establish a fair, impartial, speedy and effective

system for the resolution of grievances filed against the

department, its officers or employees, by inmates who are

committed to, held by or in the custody of the department in a

state, county, or federal correctional facility, or the

Massachusetts treatment center." G. L. c. 127, § 38E. See also

103 Code Mass. Regs. § 491.01 (2017) ("It is the policy of the

4 Department of Correction (Department) that every individual

committed to its custody shall have access to an internal

grievance mechanism that provides a forum for the fair and

impartial resolution of legitimate inmate complaints"). Because

the grievance system was available to the plaintiff, and the

record does not show an exhaustion of this administrative

remedy, the Superior Court judge properly dismissed the

complaint.

Finally, the plaintiff makes a passing reference to the

Prisoners Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. He

contends, without elaboration, that the PLRA does not extend to

civilly committed inmates. Such a bare reference to this

statute does not rise to the level of appellate argument and

provides "an insufficient basis for this court reasonably to

consider" a claim for relief. Kellogg v. Board of Registration

in Med., 461 Mass. 1001, 1003 (2011); Mass. R. A. P. 16 (a) (4),

as appearing in 481 Mass. 1628 (2019).

Judgment affirmed.

By the Court (Vuono, Hand & Hodgens, JJ. 3),

Clerk

Entered: August 22, 2023.

3 The panelists are listed in order of seniority.