Beers v. NH State Prison, Warden et al

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Timothy Beers
v. 	Case No. 20-cv-968-LM
Warden, New Hampshire
State Prison, et al.
REPORT AND RECOMMENDATION
Defendant Dr. Thomas Groblewski has moved for a judgment
under Federal Rule of Civil Procedure 12(c) on the asserted
grounds that the plaintiff, Timothy Beers, an inmate at the New
Hampshire State Prison for Men (“NHSP”) who is proceeding
without an attorney, (1) failed to exhaust his administrative
remedies before commencing this action and (2) failed to state
an Eighth-Amendment inadequate-medical-care claim – the sole
claim asserted against Dr. Groblewski – in the addended
complaint. 	This motion (Doc. No. 23) should be denied.
Under Rule 12(c), a party may move for judgment on the
pleadings at any time “[a]fter the pleadings are closed,”
provided that the motion does not delay trial. 	Fed. R. Civ.
P. 12(c). 	“[C]losing of the pleadings within the meaning of
Rule 12(c) is not determined by each district court’s imposition
of a deadline for amendment of the pleadings, or lack thereof.”
Georges River Tidewater Ass’n v. Warren Sanitary Dist., No. 00-
92-P-H, 2000 WL 891969, at *1-2, 2000 U.S. Dist. LEXIS 8972, at
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*4 (D. Me. June 28, 2000); accord Rezende v. Ocwen Loan
Servicing, LLC, 869 F.3d 40, 44 (1st Cir. 2017). 	Rather, “[a]
party may move under Rule 12(c) once the defendant has filed his
answer.” 	Rezende, 869 F.3d at 44.
Here, neither Dr. Groblewski nor any other defendant has
filed an answer to Beers’s complaint. 	Accordingly,
Dr. Groblewski’s Rule 12(c) motion is procedurally improper and
could be denied on this basis. 	Nevertheless, even if
Dr. Groblewski had filed the instant motion through a more
appropriate procedural vehicle, such as a motion under Federal
Rule of Civil Procedure 12(b)(6), his motion would still fail to
show that a dismissal is warranted.
A Rule 12(c) motion to dismiss that tests the plausibility
of a complaint (like Dr. Groblewski’s instant motion) is
“generally accorded the same treatment” as a motion under Rule
12(b)(6). 	Aponte-Torres v. Univ. of Puerto Rico, 445 F.3d 50,
54-55 (1st Cir. 2006); see also Rios-Campbell v. U.S. Dep’t of
Com., 927 F.3d 21, 24 (1st Cir. 2019). 	Under both rules, the
court determines whether, stripped of legal conclusions, the
factual content in the complaint and the inferences reasonably
drawn therefrom, when taken as true, state a plausible claim for
relief over which this court has jurisdiction to consider. 	See
Yan v. ReWalk Robotics Ltd., 973 F.3d 22, 31 (1st Cir. 2020);
Guilfoile v. Shields, 913 F.3d 178, 186 (1st Cir. 2019). 	A
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claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). 	If, however, “the
factual allegations in the complaint are too meager, vague, or
conclusory to remove the possibility of relief from the realm of
mere conjecture, the complaint is open to dismissal.” 	S.E.C. v.
Tambone, 597 F.3d 436, 442 (1st Cir. 2010).
Here, Dr. Groblewski’s arguments fail to demonstrate that
Beers’s allegations are deficient under the Rule 12 sufficiency
standard. 	First, with respect to Dr. Groblewski’s
administrative exhaustion defense: 	A failure to exhaust is an
affirmative defense which the plaintiff has no obligation to
address in his or her complaint. 	Zenon v. Guzman, 924 F.3d 611,
616 (1st Cir. 2019). 	Though such defenses may be raised in a
motion to dismiss, dismissal is appropriate only if “the facts
establishing the defense” are “‘clear on the face of the
plaintiff’s pleadings,” id. (quoting Santana-Castro v. Toledo-
Davila, 579 F.3d 109, 113-14 (1st Cir. 2009)), and “there is ‘no
doubt’ that the plaintiff’s claim is barred by the raised
defense,”1 id. (quoting Blackstone Realty LLC v. F.D.I.C., 244
1 When appropriate, the court may also consider “matters
fairly incorporated within [the complaint,] and matters
susceptible to judicial notice.” 	Zenon, 924 F.3d at 616
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F.3d 193, 197 (1st Cir. 2001)). 	Dr. Groblewski’s motion,
however, relies on facts outside of the four corners of Beers’s
pleadings – specifically, facts asserted in defendant-provided
declarations – to argue that Beers did not properly “shepherd”
his grievances through the prison’s “entire grievance process.”2
Dr. Groblewski’s Mot. for JMOL Mem. (Doc. No. 23-1, at 4-6)
(citing Susca Decl. (Doc. No. 23-2, ¶¶ 2-13)). 	The court cannot
consider such evidence “without converting the [Rule 12] motion
into a motion for summary judgment.” 	See Zenon, 924 F.3d at
616. 	Additionally, Dr. Groblewski’s motion fails to address
Beers’s allegations, taken as true in this procedural posture,
that he grieved his medical issues to prison officials at
multiple supervisory levels. 	Given these flaws,
Dr. Groblewski’s exhaustion defense should be rejected without
prejudice to his ability to reraise them at a more procedurally
appropriate time.
For similar reasons, the district court should reject
Dr. Groblewski’s second argument that Beers’s complaint fails to
state an Eighth-Amendment inadequate-medical-care claim based on
(quoting In re Colonial Mortg. Bankers Corp., 324 F.3d 12, 15
(1st Cir. 2003)).
2 Though Susca recognizes in her declaration that Beers has
“filed documents at various levels within the Department of
Corrections,” Susca Decl. (Doc. No. 23-2, ¶ 13), and quotes
specific documents, see, neither she nor Dr. Groblewski have
submitted those documents, precluding the court from assessing
for itself the content of Beers’s grievances, and limiting
Beers’s ability to fully respond to her assertions.
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a failure to provide Beers with properly working hearing aids
(“Claim 1(a)”) and certain prescription medications (“Claim
1(b)”). 	In short, Dr. Groblewski contends that Beers’s
complaint – which generally alleges that Dr. Groblewski was
responsible for Beers’s medical care, that Dr. Groblewski was
involved in reviewing Beers’s hearing aids and prescription
issues, and that Dr. Groblewski did not resolve Beers’s hearing
and prescription issues – fails to show that Dr. Groblewski
participated in any deprivation of adequate medical care.
Additionally, Dr. Groblewski argues that his conduct, as alleged
by Beers, evidences that he was helping Beers with, and was not
indifferent to, Beers’s medical concerns.
But in construing whether Beers’s pro se complaint states a
plausible claim for relief, the court must construe Beers’s
allegations liberally. 	Additionally, the court must accept all
his well-pleaded factual allegations as true and view all
reasonable inferences in Beers’s, not Dr. Groblewski’s, favor.
Under this pleading standard, Beers’s allegations support the
reasonable inference that Dr. Groblewski – the only licensed
medical doctor, alleged by Beers, to be responsible for his
medical care – participated in the alleged deprivation of care
at issue for Claims 1(a) and 1(b) beyond a purely supervisory
role. 	Additionally, Beers’s filings are unclear as to whether
he continues to experience any ongoing deliberate indifference
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for either his hearing or his prescription issues, even though
he has allegedly received new hearing aids (which may or may not
work). 	Accordingly, Dr. Groblewski has failed to show that
Beers’s allegations are insufficient to state a plausible claim
for relief. 	The district judge should therefore reject
Dr. Groblewski’s sufficiency challenge of Claims 1(a) and (b).
Conclusion
For the foregoing reasons, the district judge should deny
Dr. Groblewski’s motion for judgment on the pleadings. 	Any
objections to this Report and Recommendation must be filed
within fourteen days of receipt of this notice. 	See Fed. R.
Civ. P. 72(b)(2). 	The fourteen-day period may be extended upon
motion. 	Failure to file objections within the specified time
waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
_______________________________
Andrea K. Johnstone
United States Magistrate Judge
December 15, 2021
cc: 	Timothy C. Beers, pro se
Nathan W. Kenison-Marvin, Esq.
Stephen J. Soule, Esq.
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