Plaintiff JUSTAN ADAMS represented by JUSTAN ADAMS 61732 MAINE STATE PRISON 807 CUSHING RD WARREN, ME 04864 PRO SE
Defendant DAVID MILLER Officer, represented by DIANE SLEEK ASSISTANT ATTORNEY GENERAL STATE HOUSE STATION 6 AUGUSTA, ME LEAD ATTORNEY, ATTORNEY TO BE NOTICED
Defendant NANCY DOE Mail Clerk Defendant JANICE DOE Mail Clerk
Defendant DAVID ALLEN SMU Unit Manager represented by DIANE SLEEK LEAD ATTORNEY, ATTORNEY TO BE NOTICED
Defendant DR BANISH represented by ROBERT C. HATCH THOMPSON & PORTLAND, LEAD ATTORNEY, ATTORNEY TO BE NOTICED
Defendant DR BARTONE represented by ROBERT C. HATCH LEAD ATTORNEY, ATTORNEY TO BE NOTICED
In this action, Plaintiff Justan Adams, proceeding pro se, seeks to recover damages from Defendants David Miller, David Allen, Dr. Bannish, Dr. Bartone, and two other individuals who are described as mail clerks and identified only by first name, for alleged deprivations of Plaintiff’s constitutional rights during Plaintiff’s incarceration at the Maine State Prison. The matter is before the Court on the Motion to Dismiss of Defendants Miller and Allen (ECF No. 24) and the Motion to Dismiss of Defendants Bannish and Bartone (ECF No. 32).
Following a review of the pleadings, and after consideration of parties’ arguments,  as explained below, the recommendation is that the Court deny the Motion to Dismiss of Defendants Miller and Allen, and grant the Motion to Dismiss of Defendants Bannish and Bartone.
The facts set forth herein are derived from Plaintiff’s Complaint (ECF No. 1). Plaintiff’s allegations are deemed true when evaluating Defendants’ motions to dismiss. Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir. 1998).
Although Plaintiff suggests that three separate events form the basis of his complaint (August 2013, September 2013, and October 2013), Plaintiff’s allegations are limited to an incident that purportedly occurred in August 2013. In particular, Plaintiff contends that on or about August 19, 2013, while escorting Plaintiff to the showers, Officer David Miller shoved him toward a shower. Plaintiff responded with an expletive. “Unit manager” David Allen was present and instructed Plaintiff to be quiet. After a further exchange, Miller or Allen sprayed pepper spray on Plaintiff’s head and in his face. According to Plaintiff, Miller and Allen then “had medical see me to clean me up.” Plaintiff alleges that he should have received a shower to clean off the pepper spray, but Allen refused. Plaintiff did not receive a shower thereafter for nine consecutive days. Plaintiff maintains that his skin was burning throughout this time and he could not sleep and felt miserable and terrible. (PageID # 3-4.) Plaintiff also asserts that he “was given meds” that caused chest pain and that “mental health said I had to take them to go up in level to go next door but I told him it gives me chest pain [and] he did not care.” (PageID # 6.)
On the Pro Se Civil Complaint form, Plaintiff responded “no” in response to the question, “Have the claims which you made in this civil action been presented through any type of administrative procedure within any state or federal government agency?” (Id.) In his explanation for his negative response, Plaintiff wrote, “Because it does nothing for us at all because filing a grievance all they do is say we do not have grievance at all.” (Id.) Despite Plaintiff’s assertions on the form, in Plaintiff’s February 20, 2014, letter response to the motion to dismiss, Plaintiff asserted that he did use the prison grievance procedure (ECF No. 29).
A. Standard of Review