WALKER v. REGAN et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 1/9/18. 1/10/18 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED.(jpd, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
SHAWN T. WALKER,
FRANK REGAN et al.,
JANUARY 9, 2018
Mr. Walker’s case has a voluminous procedural history before this Court. However, the
operative issue should be construed narrowly. With the Court’s June 8, 2015 opinion, Mr.
Walker received leave to file his fifth amended complaint to attempt to allege a “claim that the
unsanitary conditions of his cell violated the Eighth Amendment.” June 8, 2015 Mem. Op. at 16
(Doc. No. 65). In response to the amended complaint, the defendants filed the instant motions to
The sole remaining issue is whether Mr. Walker can state a claim under the Eighth
Amendment’s prohibition on cruel and unusual punishments by alleging that the sewage system
at the prison often backs up when other inmates flush their toilets. Mr. Walker’s claims fall into
two categories: First, Mr. Walker claims that the singular incident he complained about suffices
as cruel and unusual punishment. Second, Mr. Walker claims he is living under the auspices of a
pervasive pattern that violates the Eighth Amendment.
For the reasons that follow, Mr. Walker’s Eighth Amendment claim based on the single
2013 incident is dismissed with prejudice because it fails as a matter of law. Mr. Walker’s claim
of a pervasive pattern is dismissed as well, given that Mr. Walker’s pervasive claim lacks any
grievance report. Mr. Walker’s pervasive pattern claim is dismissed without prejudice so that he
may endeavor to exhaust his administrative remedies. Mr. Walker’s attempts to amend his
complaint to add new parties are also dismissed for the same reasons stated above.
Given that the only remaining claims are the retaliation claims against Mr. Regan, the
case will proceed with these claims. Jones v. Bock, 549 U.S. 199, 221 (2007) (holding that in the
context of the Prison Litigation Reform Act (PLRA, 42 U.S.C ¶ 1997e), “if a complaint contains
both good and bad claims, the court proceeds with the good and leaves the bad”). Mr. Walker
may exhaust his administrative remedies as to the pervasive Eighth Amendment claims, and file
them in a separate action after he has exhausted his claims.
Alleged Facts By Mr. Walker 1
Mr. Walker is serving a life sentence at SCI-Graterford for his conviction of first degree
murder and aggravated assault in 1992. In 2013, the toilet in Mr. Walker’s cell in D block at
Graterford continually backed up with human waste from other inmates, apparently when they
flushed their toilets. These toilets are located in the individual cells where the inmates sleep. In
accordance with the prison’s grievance procedures, Mr. Walker filed a grievance that stated (in
its entirety) that “human waste keeps backing up in my toilet.” In the grievance, it seems that Mr.
Walker wrote down the wrong cell number. The prison plumbers promptly addressed and fixed
the issue in the cell listed on the grievance, albeit the wrong cell. After the issue was not fixed in
his own cell, Mr. Walker appealed his grievance, and the grievance was remanded to the facility
manager to have the issue fixed in Mr. Walker’s cell. Mr. Walker’s toilet was fixed 12 days after
the grievance was remanded, and Mr. Walker never filed another grievance or appealed his 2013
While all parties agree that the facility manager corrected the issue at the time, Mr.
Walker claims that the issue has nevertheless persisted. Mr. Walker also alleges that this is a
The facts recounted here come from Mr. Walker’s Fifth Amended Complaint and are assumed true for
purposes of this analysis. More detailed background and facts were recounted in this Court’s June 8, 2015
systemic plumbing issue throughout the D cell block. In addition to Mr. Walker’s own
statements, he submitted five affidavits from members of the D block indicating that their toilets
routinely back up, that they require cleaning, and they continually smell of fecal matter.
In evaluating a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (internal quotation
marks and citation omitted). But the Court “need not accept as true unsupported conclusions and
unwarranted inferences.” Doug Grant, Inc. v. Greate Bay Casino Corp., 232 F.3d 173, 183-84
(3d Cir. 2000) (citations and internal quotation marks omitted). To survive a motion to dismiss,
the plaintiff’s complaint must plead “factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). That is, the “[f]actual allegations must be enough to raise a right to relief above
the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The question is not
whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to
cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (citation and
internal quotation marks omitted). Thus, assessment of the sufficiency of a complaint is “a
context-dependent exercise” because “[s]ome claims require more factual explication than others
to state a plausible claim for relief.” W. Penn Allegheny Health Sys., Inc. v. UPMC, 627 F.3d 85,
98 (3d Cir. 2010).
Mr. Walker alleges that his cell was unsanitary to such an extent that it violated the
Eighth Amendment’s prohibition on cruel and unusual punishments. In a change from his fourth
amended complaint, Mr. Walker now emphasizes a continual pattern within the Graterford
prison block that continued after his initial 2013 grievance. Accordingly, the Court construes Mr.
Walker’s pro se pleading as bringing two categories of claims: First, that his toilet issue in 2013
was an Eighth Amendment violation, and second, that there was (and is) a continuing pattern of
toilets backing up, which rises to the level of an Eighth Amendment violation.
To state a claim against an individual under § 1983, a plaintiff must show that the
defendant (1) was a person who (2) under the color of state law (3) caused a (4) deprivation of
constitutional rights. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). Under the
Eighth Amendment, Mr. Walker must allege “that he has been deprived of the minimal civilized
measure of life’s necessities. This includes proving that the deprivation suffered was sufficiently
serious, and that a prison official acted with deliberate indifference in subjecting him to that
deprivation.” Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997). The named defendants must
have known that an inmate “face[d] a substantial risk of serious harm and” must have
“disregarde[d] that risk by failing to take reasonable measures to abate it.” Farmer v. Brennan,
511 U.S. 825, 847 (1994).
“Unsanitary conditions can be cruel and unusual,” Allah v. Bartkowski, 574 F. App’x
135, 138 (3d Cir. 2014), but the mere presence of an unsanitary condition at a given point in time
does not rise to the level of an Eighth Amendment violation. “It is questionable if having . . . a
toilet that backs up sometimes is really an ‘atypical and significant hardship in relation to the
ordinary incidents of prison life.’” Burkholder v. Newton, 116 F. App’x. 358 (3d Cir. 2004)
(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). “Courts have found that the Eighth
Amendment is not violated in much more harsh conditions.” Id. See Peterkin v. Jeffes, 855 F.2d
1021, 1026–28 (3d Cir. 1988) (forcing an inmate to sleep on a dirty mattress on the floor did not
violate the Eighth Amendment); Blizzard v. Watson, 892 F. Supp. 587, 591, 598 (D. Del.
1995) (dismissing an Eighth Amendment claim where the plaintiff claimed he was awakened “by
urine splashing on his leg from a prisoner using the toilet near his bed”); Wilson v. Schomig, 863
F. Supp. 789, 794–95 (N.D. Ill. 1994) (cited favorably by the Third Circuit Court of Appeals,
and ruling that an inmate’s claim that he was forced to sleep on urine and feces-stained mattress
in dirty, roach-infested, leaky cell was not enough to make out an Eighth Amendment claim
without a showing of physical harm).
Mr. Walker’s claim that a toilet backed up in 2013 does not rise to the level of an Eighth
Amendment violation. The complaint alleges that Mr. Walker notified the prison officials, and
once his own error in identifying the cell was corrected, the problem was promptly fixed. There
is no evidence that this was intentional, and a single instance of increased water pressure on the
toilet does not rise to the level of “cruel and unusual” punishment, given that Mr. Walker must
show the prison officials’ “deliberate indifference in subjecting him to that deprivation.” Griffin,
112 F.3d at 709. Mr. Walker’s amended complaint similarly fails to draw the requisite
connection between the named defendants and the alleged deprivation, as this Court directed in
the June 8, 2015 memorandum opinion. Mr. Walker does not allege that this 2013 incident was
done intentionally, or that any official knew of the situation and failed to take steps to remedy it
within a reasonable time. On the contrary—the pleadings show that the prison rectified the
problem once Mr. Walker corrected the key error he made on his form. This claim is therefore
Persistent Sanitation Issues
The Court is bound to construe pro se pleadings liberally. Thus, the Court observes that
Mr. Walker also makes a claim that this is a continuing issue. While prison conditions need not
be utopic, they must adhere to “civilized standards of humanity and decency.” Griffin v. Vaughn,
112 F.3d 703, 709 (3d Cir. 1997). At a minimum, prison officials should make reasonable efforts
to ensure that the prison itself is maintained in a manner that is in keeping with basic minimum
standards of living in America. The chamber pot is a thing of the past, and forcing inmates to
sleep with their heads next to a toilet continually filled with feces is neither sanitary nor in
keeping with the Eighth Amendment, given that it is not “reasonably related to legitimate
penological interests.” DeHart v. Horn, 227 F.3d 47, 51 (3d Cir. 2000) (quoting Turner v. Safley,
482 U.S. 78, 89 (1987)). Toilets backing up from time to time is an unpleasant fact of everyday
life, but a toilet that a person cannot freely move away from, and which is continually filled with
fecal matter, can present a seriously unsanitary condition that may implicate the Eighth
Mr. Walker has alleged that this is a potential issue sufficient for him to make it past the
motion to dismiss, but he has failed to exhaust his administrative remedies. The PLRA requires
that no “action shall be brought with respect to prison conditions under section 1983 [by a
prisoner] until such administrative remedies as are available are exhausted.” 42 U.S.C. §
1997e(a). Exhaustion of administrative remedies must be analyzed in a motion to dismiss. Booth
v. Churner, 532 U.S. 731 (2001) (upholding a district court’s dismissal of a complaint for failure
to exhaust administrative remedies); Small v. Camden Cty., 728 F.3d 265, 271 n.5 (3d Cir. 2013)
(“exhaustion determinations [should] be made before discovery or with only limited discovery”).
However, “failure to exhaust is an affirmative defense the defendant must plead and prove; it is
not a pleading requirement for the prisoner-plaintiff.” Small, 728 F.3d at 268; see also Jones v.
Bock, 549 U.S. 199, 212, 216–17 (2007).
The Department of Corrections has a grievance system in place with multiple levels of
appeal. The defendants here have presented evidence that Mr. Walker never filed a new
grievance after his 2013 grievance was honored and corrected, nor did he file an appeal of that
grievance indicating that the problem persisted. Mr. Walker himself does not dispute this, given
that the complaint details only his 2013 grievance. Mr. Walker’s claim of a continuing violation
is therefore dismissed because Mr. Walker must first exhaust his administrative remedies.
Exhaustion requirements exist to allow the proper agency to rectify the problem before
the courts are forced to step in. There is little evidence on the record to show that Graterford
personnel knew that this was an ongoing problem, or that the initial actions taken in 2013 did not
fix the problem. Mr. Walker’s grievance must give the prison notice that the actions they have
taken are insufficient to fix the problem. His one-sentence 2013 grievance, which states in its
entirety that “human waste keeps backing up in my toilet” is insufficient to inform prison
officials that this is a persistent issue throughout the prison block. If Mr. Walker wishes to pursue
his claim, he must file a grievance with specificity, including (to the extent reasonable) how
often this is (or was) an issue, how long the issue has been extant, what steps have been taken to
correct it, and if those steps were unsuccessful. Only then would prison officials properly be on
notice of an unresolved (or potentially unresolvable) persistent issue so that Mr. Walker’s
administrative remedies may be deemed exhausted. Though Mr. Walker’s complaint is
dismissed, it is dismissed without prejudice so that he may exhaust his administrative remedies.
Booth v. Churner, 532 U.S. 731 (2001) (holding that dismissal of a complaint for failure to
exhaust administrative remedies is without prejudice).
For the reasons discussed above, the Court dismisses any claims stemming solely from
Mr. Walker’s 2013 grievance, with leave for Mr. Walker to exhaust his administrative remedies
regarding an alleged persistent unsanitary condition. The instant case will proceed with the
claims against Officer Regan. An appropriate order follows.
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE
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