West v. Emig et al

Filing 69

MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 11/27/2018. (dlw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
CHRISTOPHER H. WEST,
Plaintiff,
V.

MARI( EMIC and JEFFREY
CARROTHERS,
Defendants.

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C.A. No. 13-2103 (MN)

MEMORANDUM OPINION
Stephen A. Hampton, GRADY & HAMPTON, LLC, Dover, DE; Nicholas Casamento, CASAMENTO
& RATASIEWICZ, P.C., Media, PA-Attorneys for Plaintiff
Stuaii B. Drowos, Deputy Attorney General, STATE OF DELAWARE DEPARTMENT OF JUSTICE,
Wilmington, DE - Attorneys for Defendants

November 27, 2018
Wilmington, Delaware

I.

BACKGROUND
Plaintiff Christopher H. West ("Plaintiff' or "Mr. West") is a prisoner incarcerated at the

James T. Vaughn Correctional Center ("JTVCC") in Smyrna, Delaware. (D.I. 1). Prior to his
incarceration at JTVCC, Mr. West was housed at the Howard R. Young Correctional Institution
("HRYCI") in Wilmington, Delaware. (Id.). On December 30, 2013, Mr. West filed a Complaint
against Defendants Mark Emig, Deputy Warden ofHRYCI, and Jeffrey Carrothers, 1 who held the
rank of Major and was the former Operations Security Superintendent for JTVCC (jointly
"Defendants"), alleging violations of the Eighth Amendment of the United States Constitution
pursuant to 42 U.S.C. § 1983. (Id. at 2). The Complaint raises issues with Mr. West's conditions
of confinement when he was denied a mattress at times: ( 1) between September 2011 and February
2012, while he was incarcerated at HRYCI, and (2) between April 2013 and June 2013, while he
was incarcerated at JTVCC. (Id. at 3).
It is undisputed that Plaintiff was placed on Psychiatric Close Observation ("PCO") during

these periods after he "exhibited self-injurious tendencies and demonstrated a propensity for eating
unusual, inedible non-food items such as pens, pencils, plastic straws, plastic cutlery, batteries,
and even bedding materials." (D.I. 66 at ,r,r 4-6). It is also undisputed that Plaintiffs mattress was
temporarily removed from his cell following an incident where he ripped open the mattress and
ingested its foam padding. (D.I. 68 at ,r 15).
In his Complaint, Plaintiff alleges that he fully exhausted his available administrative
remedies regarding his claims because he "tried to file a grievance twice," which resulted in
Mr. West being "denied for being on psychological observation" and later "denied for time." (D.I.

Both Mr. Emig and Mr. Carrothers have now retired. (D.I. 66 at ,r,r 2-3).

1 at 2). A review of the Delaware Automated Correction System, however, did not indicate any
grievances filed by Plaintiff between September 2011 and February 2012 or between April 2013
and June 2013. (D.I. 66 at ,r,r 19-21).
Defendants filed a Motion for Summary Judgment on January 5, 2015. (D.I. 20). On
July 24, 2015, the Court granted-in-part and denied-in-part Defendants' motion, finding that
certain allegations against Defendants were barred by the Eleventh Amendment, but that Plaintiff
had "introduced sufficient evidence to raise a genuine dispute of material facts" as it related to the
Eight Amendment claims. (D.I. 34. at 5, 10). The Court added that "[i]f the defendants can present
the court with affidavits or other evidence either discrediting West's allegations or providing an
alternate position, the court will consider a motion by the defendants that seeks leave to file a
renewed motion for summary judgment." (Id. at 11). Following the Court's decision, the parties
engaged in discovery. Though Plaintiff had originally filed this action pro se, he obtained legal
representation on August 11, 2017. (D.I. 53).
Defendants filed a Renewed Motion for Summary Judgment on August 20, 2018. (D.I. 66).
Defendants argue they are entitled to judgment as a matter of law because ( 1) Plaintiff failed to
exhaust available administrative remedies prior to filing this suit; (2) Plaintiffs claims are barred
by qualified immunity; (3) Defendants have no liability in their supervisory capacity; and/or (4)
Plaintiff has failed to establish a violation of the Eighth Amendment. (Id.). On September 4, 2018,
Plaintiff responded to Defendants' motion. (D.I. 67). As discussed below, Defendants' motion is
granted based on Plaintiffs failure to exhaust available administrative remedies prior to the
institution of this suit. 2

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In light of its grant of summary judgment for failure to exhaust administrative remedies,
the Court does not reach a decision on the other grounds for summary judgment asserted.
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II.

LEGALSTANDARDS
"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."
Fed. R. Civ. P. 56(a). The moving party bears the burden of demonstrating an absence of a genuine
issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,586 n.10
(1986). The movant can meet this burden by "citing to particular parts of materials in the record,
including depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials." Fed. R. Civ. P. 56(c)(l)(A). If a moving party has sufficiently carried
its burden, a nonmovant must "come forward with specific facts showing that there is a genuine
issue for trial." Matsushita 475 U.S. at 587. The Court may not make credibility determinations
but must instead "draw all reasonable inferences in favor of the nonmoving party." Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
To defeat a motion for summary judgment, the nonmoving paiiy must "do more than
simply show that there is some metaphysical doubt as the material facts." Matsushita, 475 U.S. at
586. A factual dispute is only genuine where "the evidence is such that a reasonable jury could
return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48
(1986). The "mere existence of some alleged factual dispute between the paiiies will not defeat
an otherwise properly supported motion for summary judgment." Id.

III.

DISCUSSION
Under the Prison Litigation Reform Act ("PLRA"), "[n]o action shall be brought with

respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are

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available are exhausted." 42 U.S.C. § l 997e(a). The requirement for exhaustion of administrative
remedies is absolute, except when such a remedy is unavailable. See Ross v. Blake, ---U.S.---, 136
S. Ct. 1850, 1856 (2016) ("[T]he remedies must indeed be 'available' to the prisoner. But aside
from that exception, the PLRA's text suggest no limits on an inmate's obligation to exhaust irrespective of any 'special circumstances."'). An administrative remedy is unavailable where "(1)
despite what regulations or guidance materials may promise, it operates as a simple dead end with
officers unable or consistently unwilling to provide any relief to aggrieved inmates; (2) an
administrative scheme is so opaque that it becomes incapable of use; or (3) when prison
administrators thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation." Resop v. Deallie, C.A. No. 15-626 (LPS), 2017 WL 3586863
at *2 (D. Del. Aug. 18, 2017) (citing Ross, 136 S. Ct. at 1859-60). Failure to exhaust administrative
remedies is an affirmative defense that must be pleaded and proved by a defendant. Ray v. Kertes,
285 F.3d 287, 295-96 (3d Cir. 2002).
Exhaustion of administrative remedies requires that "a prisoner must complete the
administrative review process in accordance with the applicable procedural rules, including
deadlines, as a precondition to bring suit in federal court." Woodford v. Ngo, 548 U.S. 81, 88
(2006). A prison's administrative review and grievance procedures "'supply the 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)). Perfect overlap
between grievance and a complaint is not required, but there must be a shared factual basis from
the two. See Jackson v. Ivens, 244 Fed. App'x. 508, 513 (3d Cir. 2007) (unpublished) (citing
Woodford, 548 U.S. at 95).

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In evaluating Defendants' renewed motion for summary judgment, the Court has reviewed
Plaintiffs Complaint (D.I. 1), the papers submitted in support of and opposition to the motion
(D.I. 66, 67, & 68), the declarations of the two Defendants (D.I. 66, Exhibits A & B), depositions
of the Defendants (D.I. 67, Exhibits A & C), and affidavits from Delaware Department of
Corrections ("DDOC") employees who searched grievance records (D.I. 66 Exhibits, D & M).
Under DDOC Policy 4.4, a prisoner must file a grievance on "form #584" within seven
days of an incident. (D.I. 67 at 3). The administrative procedures provide a multi-level grievance
and appeal process. (D.I. 66 at ,r 20). Plaintiff alleged in his Complaint that he had exhausted all
administrative remedies. (DJ. 1 at 2). He now, however, argues that he "falls into the exception
of the Prison Litigation Reform Act" given his "inability to file a grievance pursuant to Department
of Corrections Policy 4.4 due to inaccessibility to any writing materials and due to his mental
observation status." (D.I. 67 at 5). 3
A recent case in this District in instructive. In Wood v. Russell, 255 F. Supp. 3d 498
(D. Del. 2017), appeal dismissed, No. 17-2427, 2017 WL 6759100 (3d Cir. Sept. 13, 2017), the
district court found that, viewed in the light most favorable to the plaintiff, the evidence suggested
that the inmate "was thwarted in his efforts to exhaust his administrative remedies." Id. at 509. In
contrast to the situation here, in Wood, the inmate "asked every officer who came to his cell for

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Plaintiff is apparently asse1iing that the restriction of writing utensils during PCO status,
and the time restrictions for filing, thwarted his ability to utilize the grievance process and
made it unavailable. Ross, 136 S. Ct. at 1859-60. There is no evidence that DDOC Policy
4.4 itself "operates as a simple dead end - with officers unable or consistently unwilling to
provide any relief to aggrieved inmates." Id. at 1853. To the contrary, the unrefuted
evidence from Defendants is that Plaintiff never sought relief or requested assistance in
filing a grievance while he was under PCO status. (D.I. 66 at ,r22; D.I. 67, Exhibit A at pp.
24:12-18, 49:2-10, Exhibit Cat pp. 35:8-14, 55:4-8). Moreover, Defendant Emig stated
that such a request would have "absolutely" been honored. (D.I. 67, Exhibit A at 49:2-10).
Nor is there any evidence that DDOC Policy 4.4 is "so opaque that it becomes, practically
speaking, incapable of use." Ross, 136 S. Ct. at 1853-4.
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grievance forms only to be given excuses why they did not bring any or why they did not have
them." 4 Here, it is undisputed that Defendants came in contact with Plaintiff, but Plaintiff failed
to raise an issue about his access to a mattress with them. (D.I. 67, Exhibit A at pp. 24:12-18,
49:2-10; Exhibit Cat pp. 35:8-14, 53:23-54:4, 55:4-8). Moreover, it is uncontroverted that in his
PCO I status, Plaintiff would have had constant supervision with notes made every 15 minutes
regarding his status and under PCO II status and below he would have had a check-in every 15
minutes as well as access to a writing utensil. (D.I. 67, Exhibit Cat 68:10-19). Still, there is no
evidence in the record that Plaintiff raised an issue with any of the observers. Moreover, there is
no evidence that Plaintiff requested a #5 84 grievance form - from Defendants or any other DDOC
employee - nor does Plaintiff respond that he made such a request. Plaintiffs failure to do so
suggests that his own inaction is to blame for his failure to exhaust, rather than unavailability of
grievance procedures.

Finally, Plaintiff does not dispute Defendants' assertion that between

September 2011 and February 2012, there were times that Plaintiff was not on PCO status and thus
would have had unlimited access to writing utensils and presumably could have filed grievances.
(D.I. 66 at~ 20).
The reasonable finding based on the record before the Court is that Plaintiff failed to
exhaust his administrative remedies. No evidence suggests that Plaintiff sought to pursue his
grievances through the administrative procedure, and there is no evidence that prison
administrators thwarted his ability to take advantage of the grievance procedures. Thus, Plaintiffs

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In Wood, evidence suggested that the plaintiff had requested grievance forms on thirty-nine
separate occasions. 255 F. Supp. 3d at 508 n.9. In contrast, here, there is no suggestion
that even one such a request was made during the alleged deprivation. The failure by
Plaintiff to raise his grievance at all belies the allegation that the grievance process was
unavailable.
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claims are procedurally deficient, and the Court will grant Defendants' motion for summary
judgment. An appropriate order will follow.

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