Shaw v. Pierce et al
Filing
76
MEMORANDUM OPINION. Signed by Judge Maryellen Noreika on 12/2/2020. (dlw)
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GEORGE B. SHAW,
Plaintiff,
v.
SGT. ROBERT MOCK,
Defendant.
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C.A. No. 17-00076-MN
MEMORANDUM OPINION
Adam J. Waskie, Andrea Brooks, David E. Wilks, WILKS LAW, LLC, Wilmington, DE; Julie M.
O’Dell, SMITH, KATZENSTEIN & JENKINS, LLP, Wilmington, DE – Attorneys for Plaintiff
Rebecca Song, STATE OF DELAWARE, DEPARTMENT OF JUSTICE, Wilmington, DE – Attorney for
Defendant
December 2, 2020
Wilmington, Delaware
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NOREIKA, U.S. DISTRICT JUDGE:
Plaintiff George B. Shaw (“Shaw”) filed an action pursuant to 42 U.S.C. § 1983, alleging
violation of the Eighth Amendment. (D.I. 44). Presently before the Court is the motion of
Defendant Sgt. Robert Mock (“Mock”) for summary judgment. (D.I. 66). The motion has been
fully briefed. (D.I. 67; D.I. 70; D.I. 74). Mock filed a concise statement of facts in support of his
motion. (D.I. 68). Shaw filed a response to Mock’s statement (D.I. 71) and a counterstatement of
facts (D.I. 72) in opposition to summary judgment. For the reasons set forth below, the motion for
summary judgment is DENIED.
I.
BACKGROUND
A.
Factual Background
Shaw is an individual who, during the relevant time period, was incarcerated in the Security
Housing Unit (“SHU”) of the James T. Vaughn Correctional Center (“JTVCC”) in Smyrna,
Delaware. (D.I. 68 ¶ 1). On October 20, 2016, correctional officers, including Mock, responded
to the SHU, where an inmate had broken a sprinkler and was yelling for other inmates to “flood
the tier.” (Id. ¶ 2; D.I. 44 ¶ 12). Shaw yelled, “flood it.” (D.I. 68 ¶ 2). In response, Mock said to
Shaw, “Shut up, you snitch,” several times in front of approximately twenty-five inmates. (Id.
¶ 3).
That evening, in response to the incident, Shaw filed a grievance form, requesting a transfer
and an immediate investigation by Internal Affairs. (D.I. 68 ¶ 4; D.I. 67-1, Ex. A). On
October 24, 2016, the grievance form was returned to Shaw and marked “unprocessed,” along with
a “Return of Unprocessed Grievance” form. (D.I. 68 ¶ 4; D.I. 67-2, Ex. B). The “Return of
Unprocessed Grievance” form provides two reasons for the rejection. (D.I. 67-2, Ex. B). First,
the form states that “[r]equests are not processed through the grievance procedure,” and advises
the grievant to “[c]orrespond with the appropriate Office to secure the information that is
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requested.” (Id.). Second, the form instructs the grievant, “[t]o request that the actions of staff
personnel be investigated write to your Unit Commander with that request. If you receive no
response or are dissatisfied with the response of your Unit Commander you may appeal that
decision to the Operations Superintendent and ultimately to the Warden.” (Id.).
On the night that Shaw’s grievance was returned unprocessed, Shaw wrote a letter to
Captain Marcello Rispoli (“Captain Rispoli”) requesting action against Mock’s “campaign of
harassment” against Shaw. 1 (D.I. 68 ¶ 5; D.I. 72 ¶ 7). Around this time, Shaw also wrote a letter
to Internal Affairs Agent Stanley Baynard (“Agent Baynard”), detailing the incident in which
Mock called Shaw a snitch. (D.I. 68 ¶ 5; D.I. 72 ¶ 8). Shaw handed both letters to a correctional
officer to send via in-house mail because Shaw was unable to leave his cell to place the letters in
the grievance box. (D.I. 68 ¶ 5; D.I. 72 ¶ 9).
After receiving no response from the letters to Captain Rispoli or Agent Baynard, Shaw
attempted to identify the Operations Superintendent by asking inmates and correctional officers.
(D.I. 72 ¶ 11). One correctional officer told Shaw that there was only a warden, two deputy
wardens, and two majors. (Id.). Upon receiving this information and within a week of receiving
the unprocessed grievance, Shaw wrote a letter to Deputy Warden James Scarborough (“Deputy
Warden Scarborough”) detailing the incident during which Mock called Shaw a “snitch.” (D.I. 68
¶¶ 5–6). Shaw also handed this letter to a correctional officer. (Id. ¶¶ 5, 7).
1
Captain Rispoli was Shaw’s Unit Commander, according to Shaw’s First Supplemental
Answers to Defendant’s First Set of Interrogatories. These supplemental answers are
excerpted in Mock’s reply brief in support of his motion for summary judgment but were
not provided to the Court. (See D.I. 74 at 2).
2
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At his deposition, Shaw stated that he may have also written to Warden David Pierce
(“Warden Pierce”) about the incident several weeks after it had occurred. (Id. ¶ 10). Shaw stated
that he handed this letter to a correctional officer to deliver. (Id.).
B.
Procedural History
On January 27, 2017, ninety-nine days after filing his grievance, Shaw filed a Complaint
pursuant to 42 U.S.C. § 1983 against thirteen officials alleging violations of his constitutional
rights. (D.I. 3). The Court dismissed all claims except Shaw’s allegations against Mock relating
to the “snitch” incident. (D.I. 14 at 13). Shaw filed an Amended Complaint alleging only a
violation of the Eighth Amendment against Mock in relation to the “snitch” incident. (D.I. 44).
On July 3, 2019, Mock filed a motion to dismiss the Amended Complaint, arguing that
Shaw had not exhausted his administrative remedies under the Prison Litigation Reform Act of
1995 (“PLRA”), 42 U.S.C. § 1997e. (D.I. 48). The Court denied the motion to dismiss and ordered
limited discovery on the issue of whether Shaw exhausted his available administrative remedies.
(D.I. 56). Following completion of the limited discovery, Mock filed the instant motion for
summary judgment. (D.I. 66).
II.
LEGAL STANDARDS
Summary judgment shall be granted “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). “Facts that could alter the outcome are ‘material,’ and 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. Fed. Kemper Life Assurance Co., 57 F.3d
300, 302 n.1 (3d Cir. 1995) (internal citations omitted). 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, 585 n.10 (1986). If the moving party carries its burden, “the
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nonmoving party must come forward with specific facts showing that there is a genuine issue for
trial.” Id. at 587 (internal quotation marks, citation, and emphasis omitted). The court will “draw
all reasonable inferences in favor of the nonmoving party, and it may not make credibility
determinations or weigh the evidence.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000). “The mere existence of some alleged factual dispute between the parties,” however,
“will not defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986) (emphasis omitted). “If the [nonmoving party’s]
evidence is merely colorable, or is not significantly probative, summary judgment may be
granted.” Id. at 249–50 (internal citations omitted).
III.
DISCUSSION
The parties largely agree about the facts. Mock states that, after receiving the unprocessed
grievance form, Shaw wrote letters to Captain Rispoli, Agent Baynard, and Deputy Warden
Scarborough. 2 (D.I. 68 ¶ 5). Mock states, and Shaw does not substantively dispute, 3 that Shaw
did not write a letter to the Operations Superintendent. (Id. ¶ 12). Similarly, Mock states, and
Shaw does not substantively dispute, 4 that the operative Department of Corrections (“DOC”)
2
Ostensibly to cast doubt that Shaw sent the letters, Mock notes that Shaw did not keep
copies of these letters and could not identify or describe the correctional officers to whom
he handed the letters to be delivered. (D.I. 68 ¶¶ 5, 6, 7). Shaw challenges this inference,
stating that he was unable to make copies of the letters because he lacked funds and could
not access the law library while housed in the SHU, and he could not remember to which
correctional officer he handed his letters because he had submitted several grievances in
this manner. (D.I. 71 ¶¶ 5, 6, 7). At this stage, drawing all reasonable inferences in favor
of the nonmoving party, the Court infers that Shaw sent these letters.
3
Shaw claims that he attempted to identify the Operations Superintendent but, upon being
told there was only a warden, two deputy wardens, and two majors, wrote to Deputy
Warden Scarborough. (D.I. 71 ¶ 12).
4
Shaw argues that his grievance was not subject to the 180-day limit for resolving
grievances because it was returned as unprocessed. (D.I. 71 ¶ 13).
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policy provides JTVCC staff 180 days to complete the grievance process, whereas Shaw filed his
suit just over ninety days after the “snitch” incident. 5 (Id. ¶ 13). Notwithstanding the parties’
substantial agreement as to these issues, the Court finds that on the facts presented, Mock has not
met his burden of proving that Shaw failed to exhaust administrative remedies as required by the
PLRA.
Under the PLRA, “[n]o action shall be brought with respect to prison conditions under
[federal law] by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). This 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust administrative remedies
is an affirmative defense, which must be pleaded and proven by the defendant. Ray v. Kertes, 285
F.3d 287, 295 (3d Cir. 2002).
The PLRA requires proper exhaustion, meaning that “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). The prison’s grievance procedures “supply the yardstick” for the applicable procedural
rules required for proper exhaustion of administrative remedies. Williams v. Beard, 482 F.3d 637,
639 (3d Cir. 2007) (internal quotation marks omitted). If prison authorities thwart an inmate’s
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There is a dispute about whether Shaw wrote a letter to Warden Pierce about the “snitch”
incident. Shaw stated that he may have at his deposition, and Mock argues that Shaw’s
deposition testimony is contradicted by all other evidence. In any event, Shaw does not
argue that a genuine issue of material fact over whether Shaw sent a letter to Warden Pierce
precludes summary judgment. Instead, he argues that summary judgment is improper
because Mock has not proven that Shaw failed to exhaust all administrative remedies.
(D.I. 70 at 5–8).
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efforts to pursue an administrative remedy, that remedy is not “available” for purposes of
exhaustion analysis. See Rahim v. Holden, 882 F. Supp. 2d 638, 642 (D. Del. 2012) (denying
motion to dismiss because defendants did not show failure to comply with prison’s grievance
procedure when inmate was notified that his issue was “non-grievable”); Brown v. Croak, 312 F.3d
109, 111–12 (3d Cir. 2002) (reversing dismissal based on unresolved factual question of whether
prison officials informed inmate that administrative remedies were not “available” until
termination of pre-grievance investigation, and then indefinitely delayed completion of the
investigation).
Mock details Shaw’s failure to exhaust administrative relief as follows:
Plaintiff did not provide evidence of compliance [with] []DOC’s
Policy 4.4 prior to filing suit in this matter. He claims he wrote
several Prison Officials, but he could not provide any detail
regarding the correspondence and he did not keep a copy of any of
the letters. Furthermore, Mr. Shaw could not say, for certain, if he
wrote the Warden about this incident and admitted he never wrote
the Operations Superintendent. Mr. Shaw’s own testimony
confirms he failed to exhaust the administrative remedies outlined
in Policy 4.4, despite his filing suit within 180 days of the incident.
(Id. at 7–8). In his reply brief, Mock clarifies Shaw’s failure to exhaust, stating: “Even if this
Court were to disregard Policy 4.4 and the 180-day requirement, Plaintiff still did not exhaust his
Administrative Remedies . . . [because] [t]he evidence produced, or lack of evidence, demonstrates
that Shaw did not write to Warden Pierce.” (D.I. 74 at 5–6). Mock’s argument that Shaw did not
satisfy the exhaustion requirement of the PLRA fails for several reasons.
First, Mock improperly places on Shaw the burden of pleading and proving exhaustion.
Mock argues that Shaw “did not provide evidence,” “could not provide any detail,” and “did not
keep a copy of any of the letters,” and asks the Court to consider Plaintiff’s lack of evidence as the
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basis to grant summary judgment. It is, however, Mock’s burden to plead and prove that Shaw
failed to exhaust all administrative remedies before seeking relief from the Court.
Second, Mock has failed to explain what steps Shaw was required take to satisfy exhaustion
under the PLRA.
Mock presumes, without explaining, that DOC Policy 4.4 governed the
administrative remedies available to Shaw. (See D.I. 67 at 7 (“Prison grievance procedures, like
DDOC’s Policy 4.4, provide the ‘yardstick’ for determining what steps are required for
exhaustion.”)). In a relatively recent case in this District, the court analyzed the three-step nonemergency grievance resolution procedure of DOC Policy 4.4 and stated that:
At step one, an inmate must submit a Grievance Form within seven
days of the incident. The Inmate Grievance Committee (“IGC”)
collects the Grievance Form and inputs the grievance information
into an electronic database. Grievance information is forwarded to
the employees involved in the grievance. Employees are given
fourteen days to respond to the inmate’s grievance. If the inmate
accepts the grievance reply, the grievance is resolved. If the reply
is rejected, the grievance procedure moves on to step two.
Biggins v. Addogoh, C.A. No. 12-1666-GMS ¶ 1 n.1 (D. Del. June 23, 2015) (order granting
summary judgment) (internal citations omitted). In step two, the grievance is reviewed by a
committee or expert. Id. If the inmate does not accept the result of the review, at step three, the
inmate submits an appeal and the Bureau Chief issues a final decision. Id. The Policy also states:
“The maximum period between initial Grievance receipt and Bureau Chief final decision shall not
exceed 180 calendar days.” (D.I. 67-4, Ex. D at 4 (emphasis added)).
Here, Shaw filed a grievance on the day of the “snitch” incident. Four days later, the
grievance was returned unprocessed along with the “Return of Unprocessed Grievance” form
signed by the “Inmate Grievance Chairperson.” The rejection form instructs Shaw to take further
action and gives no indication that the grievance would be forwarded to the named prison officials,
in accordance with the three-step non-emergency grievance resolution process. Thus, Shaw’s
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grievance does not appear to be governed by Policy 4.4 or subject to the 180-day grace period for
the Bureau Chief’s final decision. Mock has therefore failed to show how Shaw’s initiating the
present action within 180 days of his grievance constitutes circumvention of administrative
remedies.
Nor has Mock explained why Shaw’s correspondence with prison officials constitutes
noncompliance with the “Return of Unprocessed Grievance” form. The rejection form first
instructs Shaw to contact the “appropriate Office” but does not state what that office is. Second,
the form instructs Shaw to write, in order, to the Unit Commander, the Operations Superintendent,
and the Warden. It is Mock’s burden to explain how Shaw was to comply with this potentially
contradictory guidance, as the “yardstick” for measuring proper exhaustion under the PLRA.
Mock, however, has not explained why his arguments ignore the first set of guidance that removes
Shaw’s “request” from the grievance procedure, or how Shaw’s failure to write to the Operations
Superintendent constituted failure to exhaust when he was unable to ascertain the identity of the
“Operations Superintendent” from correctional officers. See Brown, 312 F.3d at 112–13 (3d Cir.
2002) (reversing dismissal when plaintiff alleged that failure to comply with grievance procedure
was due to misinformation received from prison officials). This Court has previously noted that
the “return of unprocessed grievance” instructions in use at JTVCC are “confusing at best.”
Rahim, 882 F. Supp. 2d at 643. Mock has not met his burden of proving that Shaw failed to exhaust
his administrative remedies as outlined in the “Return of Unprocessed Grievance” form.
IV.
CONCLUSION
For the foregoing reasons, Defendant Sgt. Robert Mock’s Motion for Summary Judgment
(D.I. 66) is DENIED.
An appropriate order follows.
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