Hernandez v. Phelps et al

Filing 107

OPINION AND ORDER; defendant Donovan's motion for summary judgment 83 is DENIED; defendant Attorney General is terminated; defendant Dr. Cathy Kionke has not been served; Plaintiff to Show Cause by 4/24/2013 why defendant Dr. Cathy Kionke should not be dismissed; PLEASE SEE OPINION AND ORDER FOR ADDITIONAL DETAILS.. Signed by Judge Noel L. Hillman on 3/25/2013. (bkb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

ROBERT G. HERNANDEZ,
Plaintiff,
v.
CPL. R. DONOVAN, et al.,
Defendants.

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CIVIL NO. 10-726(NLH)(JS)

OPINION

APPEARANCES:
Robert G. Hernandez
SBI# 643521
James T. Vaughn Correctional Center
1181 Paddock Road
Smyrna, DE 19977
Pro se plaintiff
Katisha D. Fortune
Department of Justice
820 N. French Street, 6th Floor
Wilmington, DE 19801
[phone]
On behalf of defendant Cpl. R. Donovan
HILLMAN, District Judge
Plaintiff, Robert G. Hernandez, a pro se litigant who
is presently incarcerated, filed this action pursuant to 42
U.S.C. § 1983.

Defendant Corporal Richard E. Donovan, II, filed

a motion for summary judgment on grounds that plaintiff failed to
exhaust his administrative remedies.

(D.I. 83)

For reasons

explained below, the motion for summary judgment will be denied.
I. BACKGROUND
Plaintiff Hernandez filed a complaint alleging
violations of his civil rights pursuant to 42 U.S.C. § 1983.

The

Court reviewed the original complaint and dismissed all claims
except an excessive force claim against defendant Donovan and a
dental needs claim against Dr. Cathy Kionke.1

Hernandez alleges

that on May 26, 2010, he and Donovan engaged in an altercation
when Donovan grabbed his shirt and maced him, and Hernandez
pushed Donovan’s arm away.

As a result, Hernandez was charged

with assault and housed in maximum security.
II. JURISDICTION
Donovan alleges that Donovan used excessive force in
violation of his constitutional rights.

Therefore, this

Court exercises subject matter jurisdiction pursuant to 28 U.S.C.
§ 1331 (federal question jurisdiction).
III.

DISCUSSION

“The court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a).

Fed.

The moving party bears the burden of proving

that no genuine issue of material fact exists.

See Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n.10
(1986).

“Facts that could alter the outcome are ‘material,’ and

1

Despite two attempts, Dr. Kionke has not been served. She
is no longer employed at the VCC. (See D.I. 59.) In addition,
in the Second Amended Complaint Hernandez incorrectly names the
Attorney General of the State of Delaware as a defendant,
apparently based upon service requirements. See 10 Del. C. §
3103(c). The Clerk of Court is directed to terminate the
Attorney General of the State of Delaware as a defendant.
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disputes are ‘genuine’ if evidence exists from which a rational
person could conclude that the position of the person with the
burden of proof on the disputed issue is correct.”

Horowitz v.

Federal Kemper Life Assurance Co., 57 F.3d 300, 302 n.1 (3d Cir.
1995) (internal citations omitted).

If the moving party has

demonstrated an absence of material fact, the nonmoving party
then “must come forward with ‘specific facts showing that there
is a genuine issue for trial.’”

Matsushita, 475 U.S. at 587

(quoting Fed. R. Civ. P. 56(e).

The Court will “view the

underlying facts and all reasonable inferences therefrom in the
light most favorable to the party opposing the motion.”
Pennsylvania Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.
1995).

The mere existence of some evidence in support of the

non-moving party, however, will not be sufficient for denial of a
motion for summary judgment; there must be enough evidence to
enable a jury reasonably to find for the nonmoving party on that
issue.
(1986).

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
If the nonmoving party fails to make a sufficient

showing on an essential element of its case with respect to which
it has the burden of proof, the moving party is entitled to
judgment as a matter of law.

See Celotex Corp. v. Catrett, 477

U.S. 317, 322 (1986).

3

Here, Donovan seeks summary judgment on the grounds
that Hernandez failed to exhaust his administrative remedies.2
The Prison Litigation Reform Act (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 are available are exhausted.”

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U.S.C. § 1997e(a); see Porter v. Nussle, 534 U.S. 516, 532 (2002)
(“[T]he PLRA's exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or
particular episodes, and whether they allege excessive force or
some other wrong.”).

Donovan has the burden of pleading and

proving failure to exhaust administrative remedies as an
affirmative defense in a § 1983 action.

Ray v. Kertes, 285 F.3d

287, 295-96 (3d Cir. 2002).
Exhaustion means proper exhaustion, that is, “a
prisoner must complete the administrative review process in
accordance with the applicable procedural rules, including
deadlines, as a precondition to bringing suit in federal court.”
Woodford v. Ngo, 548 U.S. 81, 88 (2006).

See also Nickens v.

Department of Corr., 277 F. App’x 148, 152 (3d Cir. 2008)
(unpublished).

“‘[P]rison grievance procedures supply the

2

Donovan previously sought, and was denied without
prejudice, dismissal on the same grounds. (See D.I. 39, 72, 73.)
4

yardstick’ for determining what steps are required for
exhaustion.”

Williams v. Beard, 482 F.3d 637,639 (3d Cir. 2007)

(quoting Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004)).
A futility exception to the PLRA’s mandatory exhaustion
requirement is completely precluded.

Banks v. Roberts, 251 F.

App’x 774, 776 (3d Cir. 2007) (unpublished) (citing Nyhuis v.
Reno, 204 F.3d 65, 71 (3d Cir. 2000)).

The exhaustion

requirement is absolute, absent circumstances where no
administrative remedy is available.
227-28; Nyhuis, 204 F.3d at 67.

See Spruill, 372 F.3d at

A grievance procedure is not

available, even if one exists on paper, if the defendant prison
officials somehow prevent a prisoner from using it.
Hom, 318 F.3d 523 (3d Cir. 2003).

Mitchell v.

If prison authorities thwart

the inmate’s efforts to pursue the grievance, administrative
remedies may be presumed exhausted, as no further remedies are
“available” to him.
Cir. 2002).

Brown v. Croak, 312 F.3d 109, 112-13 (3d

Finally, prison authorities 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.
See McKinney v. Guthrie, 309 F. App’x 586, 587 (3d Cir. 2009)
(unpublished) (citing Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.
2000)).

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Delaware Department of Correction administrative
procedures provide for a multi-tiered grievance and appeal
process.

(D.I. 83, ex. A.)

First, the prisoner must file a

grievance within seven days with the Inmate Grievance Chair for
an attempt at informal resolution; second, if unresolved, the
grievance is forwarded to the Grievance Resolution Committee for
a determination, which is forwarded in turn to the Warden; and
third, the Bureau Grievance Officer conducts the final level of
review.

(Id.)
Attached to Donovan’s motion is the affidavit of

Kendall Hickman, the Inmate Grievance Chairperson for the
Delaware Department of Correction (“DOC”).

The Hickman affidavit

attests that the inmate grievance procedure for all DOC
institutions is governed by Bureau of Prisons Policy 4.4 (“Policy
4.4") which is attached to the affidavit.

Hickman also attests

that he reviewed all records of grievances and appeals filed by
Hernandez and confirms that Hernandez never filed a grievance
concerning the May 26, 2009 incident involving Donovan.
Hernandez responds that Hickman has held only his
position since February 2010, and that Hickman’s affidavit does
not indicate whether or not Hernandez submitted a grievance.
Hernandez attests that he requested a pen and grievance forms
from prison staff while he was housed in the Behavior
Modification Unit at the Sussex Correctional Institution

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(“SCI”).3

Donovan is unaware of whether Hernandez requested a

pen and grievance form.

(D.I. 88, Ex A.)

In his sworn

Declaration, Hernandez states that while at the SCI, he submitted
three grievances regarding the acts of Donovan: one on May 27,
2009, one on May 29, 2008, and the last on May 30, 2009, all
within the seven day limit as required by the DOC regulations.
On June 1, 2009, Hernandez was transferred to isolation for 45
days.

On June 3, 2009, Hernandez was transferred to the James T.

Vaughn Correctional Center (“VCC”), where he remains to date.
Hernandez received no responses to his grievances prior to his
transfer.

While Policy 4.4 sets forth a mechanism for resolution

of grievances upon institutional transfer, there remain issues of
fact as to whether Hernandez’s grievances ever processed or
transferred with him to the VCC.

(See D.I. 83, ex. A, Policy 4.4

at 7.)
The Court views the fact in the light most favorable to
Hernandez.

See Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508,

51112 (3d Cir. 1994) (factual inferences “should be drawn in the
light most favorable to the non-moving party, and where the
non-moving party’s evidence contradicts the movant's, then the
non-movant's must be taken as true” (quoting Big Apple BMW, Inc.
v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992))).

3

Hernandez was housed at the SCI from May 25, 2009 to June
3, 2009. (See D.I. 86 ¶ 2.)
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There is conflicting evidence as to whether Hernandez submitted
grievances regarding his altercation with Donovan.

Donovan

provided his affidavit and that of Hickman, as well as a summary
of Hernandez’s recorded grievances, which indicate no such
grievances were filed.

(D.I. 83, ex. A; D.I. 88, ex. B.)

Conversely, Hernandez submitted his sworn affidavit that he
submitted grievances on three separate occasions complaining of
the actions of Donovan.

Hernandez’s affidavit suffices to create

an issue of material fact as to whether he exhausted his
administrative remedies available to him.4

See Matthes v. MCP

Hosp. of Phila., 2010 WL 2348699, at *1 n.3 (E.D. Pa. June 9,
2010) (noting a dispute between prison records and a prisoner
affidavit regarding the filing of grievances creates a material
issue of fact).

Because there remain genuine issues of fact with

regard the exhaustion, the Court will deny the motion for summary
judgment.
IV.

CONCLUSION

For the reasons set forth above, Donovan’s motion for
summary judgment will be denied.

In addition, Hernandez will be

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We make no finding in this regard, and there is no other
evidence to suggest it, but taking Hernandez’s evidence as true
raises the specter that prison officials either did not submit
his grievances for processing, or transfer them with Hernandez to
the VCC, thus, thwarting Hernandez’s attempts to pursue the
grievance process.
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ordered to show cause why Dr. Kionke should not be dismissed as a
defendant for failure to serve pursuant to Fed. R. Civ. P. 4(m).
An appropriate Order accompanies this Opinion.

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey
Dated: March 25, 2013

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UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE

ROBERT G. HERNANDEZ,
Plaintiff,
v.
CPL. R. DONOVAN, et al.,
Defendants.

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CIVIL NO. 10-726(NLH)(JS)

ORDER

HILLMAN, District Judge
For the reasons expressed in this Court’s Opinion
entered today, it is this _25th_ day of March, 2013,
ORDERED that defendant Corporal Richard E. Donovan,
II’s motion for summary judgment (D.I. 83) is DENIED; and it is
further
ORDERED that the Clerk of Court is directed to
terminate the Attorney General of the State of Delaware as a
defendant; and it is further
ORDERED that the Complaint in the above-captioned case
was filed on August 26, 2010 and defendant Dr. Cathy Kionke has
not been served; and it is finally
ORDERED that on or before ___April 24___ , 2013,
plaintiff shall SHOW CAUSE why defendant Dr. Cathy Kionke should

not be dismissed for failure to serve process within 120 days of
filing the Complaint, pursuant to Fed. R. Civ. P. 4(m).

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

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