Abraham v. State of Delaware Department of Corrections et al

Filing 228

MEMORANDUM ORDER finding that plaintiff exhausted his administrative remedies. ORDER Setting Teleconference: plaintiff to initiate the call.( A Telephone Conference is set for 11/21/2013 at 05:00 PM before Judge Sue L. Robinson). See memorandum order for further details. Signed by Judge Sue L. Robinson on 11/6/2013. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

KENNETH ABRAHAM,
Plaintiff,

v.
LT. COSTELLO and
OFFICER CPL. MANN,
Defendants.

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) Civ. No. 07 -593-SLR
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MEMORANDUM ORDER
WHEREAS, this matter having come before the court to adjudicate the
affirmative defense asserted by defendants of whether plaintiff exhausted
administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42
U.S.C. § 1997e(a); and
WHEREAS, having held an evidentiary hearing on March 27, 2013, at which the
parties had the opportunity to present documentary evidence and testimony and,
subsequently, filed supplemental closing statements;
THEREFORE, at Wilmington this {pit- day of November, 2013, for the reasons
that follow, the court finds that plaintiff exhausted his administrative remedies:

1. Background. 1 Plaintiff alleges that on May 10,2007, he was assaulted by
defendants Officer Cpl. Mann and Lt. Costello at the Sussex Violation of Probation
facility ("SVOP"). (D.I. 2) Plaintiff did not file a grievance because the requisite form
was unavailable to him. Instead, plaintiff wrote letters to the SVOP Warden and to
DOC Commissioner Dan berg, informing them of the alleged assault. Commissioner
Danberg ordered an Internal Affairs ("lA") investigation into plaintiff's assertions.
Following the completion of the investigation, plaintiff, proceeding pro se, filed this
lawsuit pursuant to 42 U.S.C. § 1983.
2. Defendants moved for summary judgment, arguing, inter alia, that plaintiff
failed to exhaust his administrative remedies as required by the PLRA. (D.I. 98) By
opinion and order dated June 11, 2010, the court denied defendants' motion for
summary judgment finding that plaintiff was excused for his failure to exhaust
administrative remedies inasmuch as he was not provided grievance forms, despite his
repeated written and oral requests. (D.I. 105, 106)
3. Subsequently, the parties engaged in the exchange of discovery and a
member of the Federal Civil panel entered his appearance on behalf of plaintiff. On
August 10, 2011, a scheduling order was entered, setting deadlines for discovery,
dispositive motions, referral to mediation and a pretrial and trial date. (D.I. 136)

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This background is a summary of the court's previous articulations of the factual
background and procedural posture of the case. (D.I. 105, 178)
2

Piaintiff commenced his incarceration within the Delaware Department of
Correction ("DOC") on January 3, 2007. (D.I. 105)

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4. Following the completion of discovery, defendants filed a second motion for
summary judgment, asserting that plaintiff did not fully exhaust his administrative
remedies because he refused to cooperate with lA investigators. On May 17, 2012, the
court denied their motion, concluding there were genuine issues of material fact for a
jury to resolve on the issue of whether plaintiff exhausted. (0 .I. 178)
5. At the August 15, 2012 pretrial conference, the issue of exhaustion was
raised, again, and supplemental briefing was ordered. The jury trial set for August 27,
2012 was cancelled. (0.1. 177) The parties conducted additional depositions and
exchanged supplemental interrogatories. (0.1. 199, 200, 211) By order dated February
11, 2013, an evidentiary hearing was scheduled in order for the court, rather than a jury,
to decide whether plaintiff had exhausted his administrative remedies pursuant to the
PLRA. (0.1. 220)
6. PLRA. Congress enacted the PLRA in an effort to curb the number of
prisoner filings in the federal courts. Small v. Camden County, 728 F.3d 265, 268 (3d
Cir. 2013). The PLRA provides that "[n]o action shall be brought with respect to prison
conditions under section 1983 or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as available
are exhausted." 42 U.S.C. § 1997e(a); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir.
2003). Failure to exhaust is an affirmative defense that the defendant must plead and
prove. Jones v. Bock, 549 U.S. 199, 212 (2007). Moreover, the defendant must
demonstrate that the prisoner failed to exhaust each of his claims. /d. at 220-24.

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7. Exhaustion of administrative remedies under the PLRA is a question of law to
be determined by the judge, even if that determination requires the resolution of
disputed facts. Small, 728 F.3d at 269-271. In so doing, the court must first determine
whether administrative remedies were available to plaintiff. '"Availability may
sometimes turn on questions of fact' and 'available means capable of use, at hand."'
Smith, 728 F. 3d at 271 (citations omitted).

8. Next, the court must consider whether the inmate completed the
"administrative review process in accordance with the applicable procedural rules" that
are "defined not by the PLRA, but by the prison grievance process itself." Jones, 549
U.S. at 218. The Third Circuit has held that '"to complete the administrative review
process" means "substantial" compliance with the prison's grievance procedure. Spruill
v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004) (citing Nyhuis v. Reno, 204 F.3d 65, 77-78

(3d Cir. 2000)). Prison grievance procedures establish the yardstick for determining
what steps are required for exhaustion. Williams v. Beard, 482 F.3d 637, 639 (3d Cir.
2007).
9. There is no futility exception to the PLRA's mandatory exhaustion
requirement. Nyhuis v. Reno, 204 F.3d at 71. "Proper exhaustion demands
compliance with an agency's deadlines and other critical procedural rules because no
adjudicative system can function effectively without imposing some orderly structure on
the course of its proceedings." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006).
10. An inmate will not be held to strict compliance with this exhaustion
requirement, however, if the actions of prison officials directly caused or contributed to

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the inmate's procedural default on a grievance. Camp v. Brennan, 219 F.3d 279 (3d
Cir. 2000); Mack v. Curran, 457 Fed. Appx. 141, 145 (3d Cir. 2012) (unpublished) ("We
have recognized certain circumstances prevent the timely pursuit of the prison
grievance process, thereby making the administrative remedies unavailable"); Brown v.
Croak, 312 F .3d 109, 112 (3d Cir. 2002) (administrative remedies unavailable where
prison officials gave inmate erroneous instructions about grievance process). Prison
officials "may waive the exhaustion requirement if the ultimate administrative authority
fully examines the inmate's complaint on the merits, regardless of whether the
complaint complied with the prison grievance process." McKinney v. Guthrie, 309 Fed.
Appx. 586, 588 (3d Cir. 2009) (unpublished).
11. Evidentiary Hearing. At the March 27, 2013 evidentiary hearing,
defendants presented testimony from: (1) Corporal Matt Dutton, the Inmate Grievance
Chair ("IGC") at James T. Vaughn Correctional Center where plaintiff was transferred
on May 16, 2007; (2) Deputy Warden Robert May, the IGC at Central Violation of
Probation where plaintiff was housed from May 14-16, 2007; (3) Staff Lieutenant Dean
Blades, the IGC at SVOP where plaintiff was housed at the time of the alleged assault,
May 10, 2007, until May 14, 2007; and (4) plaintiff. (D.I. 226 at 3)
12. Inmate Grievance Procedure. Department of Correction Policy 4.4 ("the
Policy") establishes a three-level Inmate Grievance Procedure ("IGP"). (JX 1) The
stated purpose of the IGP is to "reduce tension in correctional facilities and to
effectively resolve the vast majority of cases" by affording inmates an avenue to resolve
any problems prior to filing in the court system. (!d. at DOC001192; D. I. 226 at 73)

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This administrative remedy must be followed for all grievances, except for those having
separate mechanisms for appeal. 3 (/d. at 11, 73; JX 1 at OOC001193) Copies of the
IGP "shall be available in each institutional housing unit, in each library, in each
counselor's office, and in each Inmate Grievance Chair ("ICG") office." (JX 1 at
OOC001193)
13. The Policy requires that an inmate file a Form 584 4 within seven calendar
days following the incident. (0.1. 226 at 84) The inmate must forward the form to the
IGC. (JX 1 at OOC001196) The Policy, also, does not state that any other writing,
besides Form 584, is acceptable to start the grievance process. (0.1. 226 at 83-84)
The seven-day filing deadline is mandatory, as the Policy does not provide for late
submissions. (/d. at 84)
14. In 2007, complaints about staff issues, including excessive force, were
considered non-grievable, e.g., there was no further action taken by the 1GB or the IGC.
(/d. at 31-32) Some staff issue grievances were accepted and others were returned to

the inmate with instructions to write to the Warden or a supervisor. (/d. at 33) The
decision to accept or return a grievance was entirely discretionary and not written in the
Policy. The Policy does not detail how non-grievable complaints about staff conduct,
such as excessive force, are to be handled or appealed. The Warden of the institution
would ultimately decide whether to initiate an investigation into the inmate's allegations

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0isciplinary, classification and parole are specifically excluded. (JX 1 at
OOC001193)
4

Form 584 is used for all grievances, except medical grievances which use Form
585. (0.1. 226 at 12) Unless otherwise specified, the focus of this discussion is on
Form 584.

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of staff misconduct. (!d. at 61-62; 39-42) The protocol for all incidents of excessive
force would be to initiate an investigation. (/d. at 62)
15. The Policy further provides that, if the IGC is unable to informally resolve the
problem, the unresolved grievance is referred to Level II administration. (JX 1 at
DOC001196) At Level II, the Resident Grievance Committee convenes a hearing and
forwards its recommendation to the Warden. If the grievance remains unresolved, it
proceeds to Level Ill, where the Bureau Grievance Officer conducts the final level of
review. (JX 1) If an inmate does not cooperate with an investigation into a grievance,
the grievance process would end. (D. I. 226 at 82)
16. SVOP. In the Sussex Community Corrections Center Offender Orientation
Manual, inmates are instructed to follow the IGP, except in matters related to
"[c]omplaints about staff conduct." (JX2 at 20) More specifically, staff complaints "are
to be hand delivered to the secure mailbox of the Warden in each unit in letter form for
investigation. They are not an issue for the grievance system." (/d.; D.l. 226 at 74, 88)
Inmates are not required to file a Form 584 when complaining about staff excessive
force. (D. I. 226 at 88, 90) Inmates are further advised that "[m]isuse, falsifications and
repeated use of the grievance system for which it was not intended will result in
Disciplinary Action." (JX2 at 20; D. I. 226 at 88-90)
17. At SVOP, IGC Blades had an informal policy of accepting grievances that
were submitted after the seven-day period. (0.1. 226 at 83-84) Blades also accepted
grievances that were written on something other than Form 584. Blades acknowledged
that the Policy did not grant him the authority to accept late or non-conforming forms,

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but did so at his discretion. This informal practice was not communicated either by
writing or verbally to all SVOP inmates.
18. Letters submitted in the Warden's mailbox went directly to the Warden. (/d.
at 88) The IGC would not review these letters. The Warden was responsible for
determining follow-up on the grievance. He might order an lA investigation or other
type of inquiry; rarely would the Warden refer the matter to the IGC. (/d. at 89-90)
19. Although the SVOP manual instructed otherwise, inmates would file
grievances for staff complaints, including excessive force. IGC Blades logged these
forms in the grievance log book and returned them to the inmate as non-grievable. (/d.
at 81) It was Blades' practice to return the form and instruct the inmate to write a letter
directly to the Warden and drop it in the Warden's secure mailbox. (!d. at 90)
20. At SVOP, grievance forms, as well as library requests, sick call slips and
visit requests, were stacked together in vertical boxes on racks located at the east and
west sides of the building. (/d. at 75) Certain inmates were responsible for replenishing
the supply of forms. The SVOP did not have a written procedure or schedule for
restocking or checking on the supply of forms. (/d. at 95)
21. Alleged Assault. Following the alleged assault on May 10, 2007, plaintiff
asked correctional officers, approximately five times, for a Form 584. 5 (/d. at 98-1 00)
Plaintiff also submitted two written requests for grievances forms. (!d. at 116) During
the seven-day filing period, plaintiff did not receive a Form 584. After the seven days
elapsed, plaintiff stopped asking for forms because he was told (by fellow inmates) that

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During his testimony, plaintiff did not identify the correctional officers.

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a late filed grievance would not be accepted or would be denied as untimely. (/d. at
137) Plaintiff was unaware of the informal practice of accepting non-conforming or
untimely grievances. (/d. at 138) Plaintiff reiterated that he did not file a grievance
because he could not obtain a Form 584. 6
22. Plaintiff wrote two letters about the incident to the SVOP Warden, dated May
10, 11 or 12. 7 (/d. at 120-126) The SVOP Warden did not reply to plaintiff.
23. Plaintiff also wrote to Commissioner Dan berg on May 11, 2007 (marked as
received on May 17, 2007). 8 (JX 21) In this letter, plaintiff advised that he put a "note
in Warden George's box requesting: (1) the address for [the United States Attorney for
the District of Delaware]; and (2) to file criminal charges against [defendants] Costello
and Mann." (/d. at DOC001360) He alleged that defendants "sprayed and physically
attacked [him] without provocation or cause." (/d.) By letter dated June 19, 2007,
Commissioner Danberg acknowledged receipt of plaintiff's letter and provided the
address for the United States Attorney. (/d. at DOC001364)
24. In a June 18, 2007 letter to Commissioner Danberg, plaintiff repeated his
request to speak with State Police or the FBI about the alleged assault. (/d. at
DOC001365) Commissioner Danberg replied to plaintiff on July 5, 2007, as follows:

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Contemporaneously, plaintiff wrote seven sick call slips requesting care for,
among other things: medication, prescription information, mental health consultation,
testing, internal bleeding and heart pain. (JX 30) Sick call slips are not considered
part of the grievance procedure. (D.I. 226 at 79) Plaintiff submitted one medical
grievance on May 14, 2007. (D. I. 226 at 79: JX 7)
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Piaintiff was unable to recall the exact date of the letters.

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This two page letter was written on the back sides of two sick call slips. (JX 21)

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I am in receipt of your letter dated June 191h.
We are reviewing your allegations; however, if you want to contact
the FBI or State Police, you are welcome to do so. I am not in a
position to require them to visit you.
(/d. at DOCOO 1367)

25. Two Internal Affairs investigators met with plaintiff on August 2, 2007. (0.1.
226 at 117) Plaintiff told the investigators that he had nothing to discuss with them or
add to the detailed letters about the alleged assault written to the SVOP Warden and
Commissioner Danberg. (/d. at 119) Plaintiff requested that the lA investigators
summon the FBI or State Police, as plaintiff was willing to discuss the incident with
them. As a result, the investigators ended the meeting. The investigators did not advise
plaintiff that this would be his only opportunity to speak with them or that the
investigation would terminate if plaintiff did not cooperate. (/d. at 126)
26. On September 20, 2007, Commission wrote plaintiff the following:
Your allegation of abuse by officers at SVOP dated May 11,2007 was
forwarded to Internal Affairs [on] June 271h for investigation.
After a very lengthy and thorough investigation, Internal Affairs finds (sic)
indicate that your allegations were unfounded.
(JX 21 at DOC001368)
27. Discussion. Having considered the record developed at the hearing
against the authority recited above, the court finds that plaintiff exhausted his
administrative remedies by writing letters to the SVOP Warden. It is undisputed that
the SVOP Manual specifically removes complaints about excessive force from the
grievance procedure and mandates that such complaints be submitted in letter form to

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the SVOP Warden. Blades' testimony further confirmed that this written policy was
followed and enforced.
28. The record reflects that defendants had notice of plaintiff's contention of
having mailed letters to the SVOP Warden, consistent with the procedure for excessive
force complaints outlined in the SVOP Manual. Defendants presented no evidence to
refute this contention. 9 Therefore, defendants have not carried their burden of
demonstrating that plaintiff failed to exhaust his administrative remedies pursuant to the

29. Moreover, the court finds no support in the record to demonstrate that
plaintiff's failure to cooperate with lA investigators thwarted their efforts to address the
problem before being sued in federal court. Specifically, the letters written by
Commissioner Danberg reflect that an lA investigation was initiated in response to
plaintiff's letter about the incident. After several months, the Commissioner wrote
plaintiff advising that his allegations were unfounded "after a very lengthy and thorough
investigation" by lA. Nothing in these letters suggest that plaintiff's meeting with lA or
his conduct with lA affected the investigation in any manner.
30. IT IS FURTHER ORDERED that a telephonic status conference shall be

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Aithough plaintiff requests attorney fees and costs for having to litigate an issue
that defendants knew or should have known was untenable, the court finds, at this
juncture, such an award unwarranted. (D.I. 224)
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ln light of this finding, it is unnecessary for the court to examine the alternative
arguments regarding whether plaintiff had access to Form 584 or whether plaintiff
should be excused from the exhaustion requirement.
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held on November 21, 2013 at 5:00p.m. with plaintiff's counsel initiating said call.

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