Almuhsin v. Warden of Dauphin C.P.
MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Yvette Kane on 3/7/17. (rw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
WARDEN OF DAUPHIN COUNTY
PRISON, et al.,
On March 1, 2016, Plaintiff Ayyub Almuhsin, an inmate at
the Dauphin County Prison, Harrisburg, Pennsylvania filed a
complaint under 42 U.S.C. § 1983 against (1) the Warden of the
Dauphin County Prison,1 (2) Isaiah Rotan Rotan (“Rotan”), an
inmate at the Dauphin County Prison, and (3) several unnamed
correctional officers. (Doc. Nos. 1 & 1-1.)
In the complaint
Almuhsin alleges that on November 13, 2015, he was stabbed four
times with a homemade shank by Rotan, and that the correctional
officers who intervened subjected Plaintiff to excessive force.
Almuhsin further alleges that the correctional officers were
negligent in failing to search all inmates before they left their
cells for recreation, and that had they done so, they would have
discovered the shank. Id.
With respect to the claim of excessive
use of force, Almuhsin contends that after the stabbing he was
bleeding and compliant with all of the correctional officers’
Almuhsin did not provide the name of the Warden.
commands; although he did not resist, after applying handcuffs and
placing him on the ground, the correctional officers sprayed him
with “pepper spray” and then “dragged” him “down to administrative
lock down” where they punched, kicked and kneed him while in
handcuffs and bleeding from his wounds. (Id.)
The complaint does not allege any personal involvement
by the Warden of the Dauphin County Prison.
compensatory damages in a total amount of $62,000.00. Id.
with the complaint, Almuhsin filed a motion for leave to proceed
in forma pauperis under 28 U.S.C. § 1915. (Doc. No. 2.)
The court screened the complaint pursuant to the Prison
Litigation Reform Act (the "PLRA"), Pub. L. No. 104-134, 110 Stat.
1321 (April 26, 1996), granted Almuhsin leave to proceed in forma
pauperis and dismissed the complaint as it related to Almuhsin’s
claims against the Warden and inmate Rotan.2
Almuhsin’s failure to protect and excessive force claims leveled
against unidentified correctional officers were dismissed with
leave to file an amended complaint.
The reasons are fully set
forth in the Court’s memorandum dated March 18, 2016. (Doc. No.
Section 1915(e)(2) provides:
(2) Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case at
any time if the court determines that (A) the allegation of
poverty is untrue; or (B) the action or appeal (i) is
frivolous or malicious; (ii) fails to state a claim on which
relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
On May 6, 2016, Almuhsin filed an amended complaint
naming two correctional officers, Timothy Brown and Randy Pope.
(Doc. No. 10.)
Upon review of the amended complaint pursuant to
the PLRA, the court permitted the excessive force claims against
Brown to go forward.
However, the failure to protect claim
leveled again Pope was insufficient for the reasons set forth in
the memorandum of March 18, 2016.
In sum, there were no
allegations in the amended complaint from which it could be
concluded that Pope was aware of facts from which it could be
inferred that Rotan posed a danger to Plaintiff and that Pope
actually drew that inference and disregarded the risk.
Consequently, the amended complaint was dismissed as it relates to
Pope without further leave to file a second amended complaint.
On July 1, 2016, Defendant Brown, the only remaining
defendant in this action, waived service of the amended complaint
and on July 26, 2016, filed a motion to dismiss the amended
complaint. (Doc. No. 22.)
In the motion Brown contends, inter
alia, that Almuhsin did not exhaust his administrative remedies.
For the reasons set forth below, Brown’s motion to dismiss will be
Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a
complaint for “failure to state a claim upon which relief can be
Under Rule 12(b)(6), we 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.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir.2009) (quoting Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir.2008)).
While a complaint need only contain “a short
and plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), and
detailed factual allegations are not required, Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d
929 (2007), a complaint must plead “enough facts to state a claim
to relief that is plausible on its face.”
Id. at 570, 550 U.S.
544, 127 S.Ct. 1955 at 1974, 167 L.Ed.2d 929.
standard is not akin to a ‘probability requirement,’ but it asks
for more than a sheer possibility that a defendant has acted
Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937,
1949, 173 L.Ed.2d 868,
(2009) (quoting Twombly, 550 U.S. at 556,
127 S.Ct. at 1965.) “[L]abels and conclusions” are not enough,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court
not bound to accept as true a legal conclusion couched as a
factual allegation.’” Id., 127 S.Ct. at 1965 (quoted case
In resolving the motion to dismiss, we thus “conduct a
two-part analysis.” Fowler, supra, 578 F.3d at 210. First, we
separate the factual elements from the legal elements and
disregard the legal conclusions. Id. at 210-11.
“determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “‘plausible claim for
relief.’” Id. at 211 (quoted case omitted).
Although the court is generally limited in its review to
the facts contained in the complaint, it may also consider matters
of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case. Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir.1994);
see also In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,
1426 (3d Cir.1997).
Defendant Brown contends that Almuhsin’s amended
complaint should be dismissed for his failure to exhaust available
In the amended complaint Almuhsin stated
that he exhausted his administrative remedies by filing charges
against inmate Rotan. However, Almuhsin was required to exhaust
his administrative remedies with respect to his claim against
Almuhsin in his brief in opposition to Brown’s
motion to dismiss did not address Brown’s exhaustion argument.
The complaint as stated was filed on March 1, 2016, and
the amended complaint on May 6, 2016. Although Almuhsin was
released from the Dauphin County Prison in September, 2016 (Doc.
Nos. 26, 27), that fact does not relieve him of the PLRA
exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 210 (3d
Cir. 2002)(“Although Ahmed would have been free of the strictures
of the PLRA if he had filed a timely complaint after his release
from prison, he is bound by the PLRA because his suit was filed on
July 29, 1998, almost three years before he was released from
prison.”); Johnson v. Allegheny County Court of Common Pleas, --F. App’x ---, ---, 2016 WL 5956689, at *1 n.1 (3d Cir. Oct. 4,
2016)(“Johnson was incarcerated at the time he filed the complaint
below, but was released a few months later. The PLRA applied
notwithstanding Johnson’s post-suit release.”);
Montgomery County Correctional Facility, 525 F. App’x 170, 176 (3d
Cir. May 7, 2013)( “[A] plaintiff’s status as a prisoner for
purposes of the PLRA is judged as of the time he files his
original complaint. At that time, Defreitas only complied with the
exhaustion requirement with respect to his claims for the yard,
gym, and weight room. Accordingly, the District Court did not err
in concluding he could only proceed with those exhausted claims,
and summary judgment in favor of Appellees was proper on the other
claims.”); Miller v. Price, 2016 WL 1089155, at *6 (M.D.Pa. Mar.
21, 2016)(“[T]he PLRA exhaustion requirement does not apply to
prisoners who file a timely complaint after release from prison,
but does apply to prisoners who file a complaint while in prison
and are subsequently released.”)(Caputo, J.); Bookwalter v. Keen,
2015 WL 6157191, at *2 (M.D.Pa. Oct. 19, 2015)(same)(Caldwell,
J.); George v. Hogan, 2008 WL 906523, at *4 (M.D.Pa Mar. 31,
2008)(“[T]he court finds that Plaintiff is subject to the PLRA’s
exhaustion requirement if he was ‘a prisoner confined in any jail,
prison, or correctional facility’ on August 10, 2006, the date on
which he brought the instant claim.”).
In pertinent part, the PLRA provides:
No 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 available are
42 U.S.C. § 1997e(a). Under the PLRA, exhaustion of administrative
remedies is required for all actions concerning prison conditions
brought under federal law.
See 42 U.S.C. § 1997e(a); Woodford v.
Ngo, 126 S.Ct. 2378 (2006).
The “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); Booth v. Churner, 532 U.S. 731, 741 n. 6
(2001) (“[A]n inmate must exhaust irrespective of the forms of
relief sought and offered through administrative avenues.”). “[I]t
is beyond the power of [any] court ... to excuse compliance with
the exhaustion requirement.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d
The PLRA also mandates that inmates “properly” exhaust
administrative remedies before filing suit in federal court.
Woodford, 126 S.Ct. at 2387.
“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.”
Id. at 2386.
Failure to substantially
comply with procedural requirements of the applicable prison’s
grievance system will result in a procedural default of the claim.
Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).
This court in the past has taken judicial notice of
Dauphin County Prison’s grievance procedures.
Funk v. DeRose,
2012 WL 6966712, at *8 (M.D.Pa. Nov. 28, 2012) report and
recommendation adopted, 2013 WL 393868 (Jan. 31, 2013); see also
Shakuur v. Costello, 230 F.App’x 199, 201 (3d Cir. 2007)(taking
judicial notice of Philadelphia Prison System’s grievance
procedures). This court has explained the Dauphin County grievance
procedure as follows:
The grievance appeal process that Dauphin County Prison
inmates are required to follow, as set forth in the
Inmate Handbook, involves four (4) steps: (1) the
submission of a grievance for review and determination
by the Warden; (2) an appeal of any decision to the
Chairman of the Dauphin County Prison Board of
Inspectors; (3) an appeal of the Chairman's decision to
the full Dauphin County Prison Board of Inspectors; and
(4) an appeal from the Prison Board's decision to the
Dauphin County Solicitor.
Sawyers v. Brown, 2014 WL 407337, at *2 (M.D.Pa. Feb. 3, 2014).
The burden of demonstrating exhaustion rests with Almuhsin.
Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000).
A review of the
record reveals that Almuhsin has failed to demonstrate that he has
exhausted his claims. Almuhsin did not exhaust his available
administrative remedies with respect to the claims asserted
As stated by the Third Circuit, “it is beyond the power
of this court-or any other-to excuse compliance with the
exhaustion requirement, whether on the ground of futility,
inadequacy or any other basis.” Nyhuis, 204 F.3d at 73 (quotation
omitted). The Supreme Court of the United States reiterated this
tenet when it affirmed the Third Circuit's holding in Booth.
Consequently, this Court is required to follow the Supreme Court's
directive in Booth and grant Brown’s motion to dismiss for
failure to have exhausted his available administrative
An appropriate order will be entered.
3. In Spruill, the United States Court of Appeals for the Third
Circuit addressed the issue of whether the defendants in Spruill
properly identified their motion as one for dismissal pursuant to
Fed.R.Civ.P. 12(b)(6). The Court noted that “[g]iven that the
exhaustion issue turns on the indisputably authentic documents
related to Spruill's grievances, we hold that we may also
consider these without converting it to a motion for summary
judgment. Id. at 223. (citing Steele v. Fed. Bureau of Prisons,
355 F.3d 1204, 1212 (10th Cir. 2003)). See also Brown v. Croak,
312 F.3d 109, 111(3d Cir. 2002)(“In appropriate cases, failure to
exhaust may be raised as the basis for a motion to dismiss”); Ray
v. Kertes, 285 F.3d 287, 293 n.5(3d Cir. 2002) (motions to
dismiss may be pursued on failure to exhaust grounds in certain
circumstances). Accordingly, the averments of Almuhsin in the
amended complaint and the court’s right to take judicial notice
of the grievance procedures of Dauphin County Prison authorize
this court to consider Brown’s motion to dismiss without
converting the motion to a motion for summary judgment.
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