GEORGE MACKIE v. BRUCE PATZNER & Others. ( 2023 )

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
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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.
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