Frye v. Wilt et al

Filing 40

MEMORANDUM (Order to follow as separate docket entry) For the foregoing reasons, the defendants' motion for summary judgment on the basis of Fryes purported failure to exhaust administrative remedies is DENIED. Signed by Magistrate Judge Martin C. Carlson on 12/15/2017. (ktt)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEVON FRYE,
Plaintiff,

v.
SGT. NATHANIEL WILT, et al.,

Defendants.

: CIVIL NO. 1:16-CV-780
:
:
: (Magistrate Judge Carlson)
:
:
:
:
:
:
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MEMORANDUM OPINION
I.

Introduction
The Prison Litigation Reform Act, 42 U.S.C. § 1997 (“PLRA”) requires that

prisoners present their claims through an administrative grievance process prior to
seeking redress in federal court. Specifically, the Act provides that: “No action
shall be brought with respect to prison conditions under [§ 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.” 42 U.S.C. §
1997e(a). In this prisoner civil rights case the parties present us with a legal
question regarding the application of the PLRA's exhaustion requirement. On one
hand, the plaintiff Devon Frye asks us to find that the exhaustion requirement does
not apply to the claims asserted in his complaint because those claims regard
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sexual abuse, or alternatively to excuse his failure to exhaust prison grievances and
find that the grievance process was unavailable to him. (Doc. 36.) On the other
hand, the defendants ask that we dismiss this case based upon Frye’s
acknowledged failure to pursue prison grievances. (Doc. 28.)
This legal dispute is further complicated by the fact that Pennsylvania
Department of Corrections (“DOC”) policies seem to prescribe several paths for
inmate grievances, describing one grievance procedure in DC-ADM 804, the
DOC’s general grievance procedure, while prescribing another process in a
separate policy, DC-ADM 008, for allegations regarding sexual assault. Thus, we
are presented with an administrative and regulatory grievance structure that
appears to potentially provide for parallel sexual assault grievance procedures.
Now pending before this court is a bifurcated motion for summary judgment
filed by the defendants which highlights these legal issues and procedural
ambiguities by seeking judgment in their favor based upon Frye’s alleged failure
to exhaust his administrative remedies at any time prior to bringing this action.
(Doc. 26.) For the reasons set forth below and based on the circumstances
surrounding Frye’s case, we find that the defendants have not met their burden of
showing that Frye’s claims are subject to dismissal on the grounds of
nonexhaustion and therefore the defendants’ motion for summary judgment will be
denied.
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II.

Background and Statement of the Case
Plaintiff Devon Frye suffered a vicious sexual assault at the hands of

cellmate Brian White in the early morning hours of July 23, 2014, while he was in
the custody of the DOC at the State Correctional Institution at Rockview (“SCIRockview”), in Centre County, Pennsylvania. (Doc. 1, ¶¶ 2, 21.) Frye alleges that
White was a convicted rapist who previously had been disciplined by prison staff
for assaulting a cellmate. (Doc. 1, ¶¶ 9, 20.) White first requested to be celled with
Frye on July 16, 2014, but that request was initially denied by defendant Pasquale,
the Unit Manager at SCI-Rockview. (Doc. 1, ¶¶ 8-10.) Two days later, White
submitted another request to be celled with Frye, unbeknownst to Frye himself,
which was approved by defendant Sergeant Nathaniel Wilt. (Doc. 1, ¶ 11.) Frye
alleges that Wilt failed to inform and consult Pasquale about this second request, in
violation of prison policy. (Doc. 1, ¶¶ 12-13.) Shortly after being placed in White’s
cell, Frye asked Wilt for a new cell assignment on the grounds that White was
becoming aggressive towards him and that he was not made aware of White’s
second cell assignment request. (Doc. 1, ¶ 15.) Wilt denied Frye’s request on the
basis of a prison policy that purportedly prohibited inmates from receiving new
cell assignments twice within a 90 day period. (Doc. 1, ¶ 16.) On the second day
that White and Frye were celled together, White was increasingly aggressive
towards Frye, both by becoming physically confrontational and making sexual
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advances. (Doc. 1, ¶ 17.) In response to these actions by White, Frye again
requested to be reassigned to a new cell, which was again denied by Wilt. (Doc. 1,
¶¶ 18-19.)
Less than a week after being placed in White’s cell, Frye was violently
attacked and sexually assaulted by White. The attack on the morning of July 23,
2014 began with White punching and choking Frye, and continued with White
covering Frye’s mouth, throwing him down on the bed, pulling off his clothing,
and raping him. (Doc. 1, ¶ 21.) Frye alleges that he yelled for help throughout the
incident, but no prison staff responded until over an hour later. (Doc. 1, ¶ 22.) In
April of 2015, White pleaded guilty to raping Frye and was sentenced to a term of
4-8 years in prison. (Doc. 1, ¶ 23.)
Frye commenced this action on May 9, 2016, asserting claims against DOC
officials Superintendent Steven Glunt, Sergeant Wilt, Unit Manager Pasquale, and
a John Doe Corrections Officer for their alleged deliberate indifference to Frye’s
safety in violation of the Eighth Amendment. (Doc. 1.) Specifically, Frye asserts
that he was incarcerated under conditions that posed a substantial risk of serious
harm to him as a feminine-appearing, openly-homosexual male when he was
forced to cell with a known rapist and violent prisoner. (Doc. 1, ¶¶ 31-33.) Frye
also brings a common law tort claim for reckless disregard of safety against all
defendants. (Doc. 1, ¶¶ 40-43.)
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The defendants filed a partial motion to dismiss Frye’s initial complaint on
June 20, 2016 (Doc. 7), which was granted on November 22, 2016. (Doc. 15.) Frye
filed the instant amended complaint on October 27, 2016 (Doc. 13), which the
defendants answered on December 1, 2016. (Doc. 17.) Among the affirmative
defenses listed in the answer, the defendants claimed that Frye was “prohibited and
barred from proceeding on his claims due to his failure to exhaust his
administrative remedies.” (Doc. 17, at 8.)
On June 2, 2017, the defendants filed a motion for leave to file bifurcated
motions for summary judgment, seeking to separately contest administrative
exhaustion and Frye’s claims on the merits. (Doc. 24.) Along with the motion for
bifurcation, the defendants filed the first of their bifurcated motions for summary
judgment, which is now pending before this court, within which the defendants
argue that they are entitled to judgment in their favor because Frye failed to
exhaust administrative remedies prior to filing the instant claim. (Doc. 33.) This
court granted the motion for bifurcation on June 8, 2017 (Doc. 33), and the issue of
administrative exhaustion has been fully briefed. Accordingly, this first motion for
summary judgment is now ripe for disposition.

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III.

Discussion
A.

Administrative Exhaustion Under the PLRA

The Prison Litigation Reform Act, 42 U.S.C. § 1997 (“PLRA”) requires
prisoners to present their claims through an administrative grievance process prior
to seeking redress in federal court. Specifically, the Act provides that: “No action
shall be brought with respect to prison conditions under [§ 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.” 42 U.S.C. §
1997e(a). In accordance with the PLRA, prisoners must comply with exhaustion
requirements with respect to any claim that arises in the prison setting, regardless
of the relief sought. 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.”); 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.”).
As the statute’s language makes clear, the exhaustion of available
administrative remedies prior to filing suit is mandatory. See Ross v. Blake, 136 S.
Ct. 1850, 1853 (2016) (“That mandatory language means a court may not excuse a
failure to exhaust[.]”); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (“[I]t is
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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.”) (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95
(S.D.N.Y. 1998)). An inmate who fails to exhaust administrative remedies is
subsequently barred from litigating that claim in federal court. See Ghana v.
Holland, 226 F.3d 175, 184 (3d Cir. 2000).
Moreover, the exhaustion requirement of the PLRA is one of “proper
exhaustion.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to comply with the
procedural requirements of the available grievance system will result in a claim
being deemed procedurally defaulted. Id. at 90; Spruill v. Gillis, 372 F.3d 218,
227-32 (3d Cir. 2004). An inmate cannot circumvent the PLRA’s exhaustion
requirement by failing to properly exhaust the prison’s administrative review
process, or by waiting until such remedies are no longer available to him.
Woodford, 548 U.S. at 95. However, the Supreme Court has recently recognized a
narrow exception to the exhaustion requirement built into the statutory language of
the PLRA; a prisoner need not exhaust administrative remedies prior to filing a
claim if the remedies are not available to the inmate. See Ross, 136 S. Ct. at 1853;
see also Berry v. Klem, 283 F. App'x 1, 4-5 (3d Cir. 2008) (“[W]e made clear . . .
that the PLRA requires exhaustion of all available remedies, not all remedies.”).
Likewise, where an inmate “fail[s] to receive even a response to the grievances
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addressing . . . incidents, much less a decision as to those grievances, the
[administrative remedy] process [i]s unavailable to him.” Small, 728 F.3d at 273.
In this regard, case law recognizes a clear “reluctance to invoke equitable
reasons to excuse [an inmate's] failure to exhaust as the statute requires.” Davis v.
Warman, 49 F. App'x 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust
will only be excused “under certain limited circumstances.” Harris v. Armstrong,
149 F. App'x 58, 59 (3d Cir. 2005). In Ross, the Supreme Court of the United
States articulated three circumstances where a prison’s administrative procedures
are “unavailable” to inmates. Specifically, the Supreme Court noted that
administrative remedies are not available where: 1) the administrate procedure
operate “as a simple dead end— with officers unable or consistently unwilling to
provide any relief to aggrieved inmates”; 2) the administrative scheme is “so
opaque that it becomes, practically speaking, incapable of use”; and 3) “prison
administrators thwart inmates from taking advantage of a grievance process
through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 185960 (citing Booth v. Churner, 532 U.S. 731, 738, 741 n.6 (2001)). As to the second
circumstance, the Supreme Court instructed that “[w]hen rules are so confusing
that no reasonable prisoner can use them, then they are no longer available.” Ross,
136 S. Ct. at 1860 (quotation omitted). The Supreme Court further noted that
“Congress has determined that the inmate should err on the side of exhaustion”
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where “an administrative process is susceptible of multiple reasonable
interpretations,” however, where a remedy becomes “essentially ‘unknowable’—
so that no ordinary prisoner can make sense of what it demands — then it is also
unavailable.” Id.; see also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002)
(holding that prisoner with failure to protect claim was entitled to rely on
instruction by prison officials to wait for outcome of internal security investigation
before filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)
(holding that exhaustion requirement was met where Office of Professional
Responsibility fully examined merits of excessive force claim and correctional
officers impeded filing of grievance).
Pennsylvania inmates, including those at SCI-Rockview, ordinarily must
exhaust administrative remedies in accordance with a three-tiered grievance system
set forth by the DOC in DC-ADM 804. (Doc. 27, ¶¶ 7, 8, 11; Doc. 29-1); see
Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). This grievance process is
summarized in an Inmate Handbook, which is provided to each inmate. (Doc. 27, ¶
8.) Pursuant to DC-ADM 804, inmates must first file grievances with the Facility
Grievance Coordinator at the facility where the events that give rise to the
complaint occurred. If the inmate is dissatisfied with the initial review of his
grievance, he may appeal the decision to the Facility Manager (i.e., the
Superintendent). Upon receiving a decision from the Superintendent, the inmate
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may file an appeal with the Secretary's Office of Inmate Grievances and Appeals
(“SOIGA”) within 15 working days of the Superintendent's decision. DC-ADM
804. “Proper exhaustion in Pennsylvania requires completion of a three-part
procedure; initial review, appeal, and final review.” Garcia v. Kimmell, 381 F.
App'x 211, 213 n.1 (3d Cir. 2010) (citing Spruill, 372 F.3d at 232)). Again,
compliance with the DOC's administrative grievance process is mandatory prior to
bringing suit in federal court, and the failure to do so will result in that suit being
subject to dismissal pursuant to the clear terms of the PLRA. Nyhuis, 204 F.3d at
73.
However, the DOC also provides other grievance processes relating to
specific institutional concerns. For example, at various times, DOC regulations
have prescribed separate processes for raising complaints regarding sexual
assaults, DC-ADM 008, administrative custody status, DC-ADM 802, and
allegations of inmate abuse, DC-ADM 001. Thus, there appear to potentially be
several parallel tracks for inmates to follow when raising concerns that may be
governed both by the broad grievance policy and by more specific grievance
processes. Indeed, with respect to the inmate abuse policy statement, DC-ADM
001, the legal significance of these parallel grievance paths has been thoroughly
discussed and, “while the court of appeals ‘has not considered whether a
Pennsylvania prisoner can exhaust his administrative remedies through DC–ADM
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001, nor what steps would be necessary under that procedure,’ a number of district
courts ‘have found that allegations of abuse do not have to be filed through all
three levels of the DOC's grievance system pursuant to DC-ADM 804, if the
inmate reports the abuse pursuant to DC-ADM 001.’” Robinson v. Tennis, No.
3:11-CV-1724, 2017 WL 4479349, at *6 (M.D. Pa. Sept. 8, 2017) (quoting Victor
v. Lawler, 565 F. App’x. 126, 129 (3d Cir. 2014); Boyer v. Malet, No. 3:CV-160149, 2016 WL 4679013, at *3 (M.D. Pa. Sept. 7, 2016)), report and
recommendation adopted, No. 3:11-CV-1724, 2017 WL 4478009 (M.D. Pa. Oct. 6,
2017).
Because it is an affirmative defense, a defendant has the burden of pleading
and proving the nonexhaustion of available administrative remedies. Jones v.
Bock, 549 U.S. 199, 216 (2007); Brown v. Croak, 312 F.3d 109, 111 (3d Cir.
2002). “Proof of the defense of failure to exhaust must be made by a
preponderance of the evidence.” Cooper v. Martucchi, No. CIV.A. 15-267, 2015
WL 4773450, at *1 (W.D. Pa. Aug. 12, 2015). Whether an inmate has exhausted
administrative remedies is a question of law to be determined by the court, even if
that determination requires the resolution of disputed facts. See Small v. Camden
County, 728 F.3d 265, 270-71 (3d Cir. 2013) (“[T]he District Court did not err by
acting as the fact finder because exhaustion constitutes a preliminary issue for

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which no right to a jury trial exists.”); see also Drippe v. Tobelinski, 604 F.3d 778,
781 (3d Cir. 2010).
B.

The Defendants Have Not Established that Frye Failed to Exhaust
Available Administrative Remedies

Turning to the case at bar, there is no dispute that the defendants raised the
exhaustion issue as an affirmative defense in their answer, and that this motion for
summary judgment is timely. There is also no dispute that Frye never exhausted
his administrative remedies through DC-ADM 804 before filing suit, as Frye
concedes that he did not file a complaint through the prison grievance system prior
to commencing the instant action. (Doc. 27, ¶ 22; Doc. 36, ¶ 22.) Frye instead
argues that effective remedies were not truly available to him because the DOC’s
applicable policies were so convoluted. (Doc. 36, at 10.) In support of this
contention, Frye claims that the various DOC policies that address sexual abuse
appear to exempt sexual abuse allegations from DC-ADM 804’s grievance process,
or at best provide conflicting and parallel procedures for how the allegations
should be reported. (Doc. 36, at 10-11.)
As the Supreme Court has recently noted:
[A]n administrative scheme might be so opaque that it becomes,
practically speaking, incapable of use. In this situation, some
mechanism exists to provide relief, but no ordinary prisoner can
discern or navigate it. . . . When rules are so confusing that no
reasonable prisoner can use them, then they're no longer available.

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Ross v. Blake, 136 S. Ct. 1850, 1859 (2016) (internal quotation omitted). In Ross,
the Supreme Court further explained that “when a remedy is . . . essentially
“unknowable”—so that no ordinary prisoner can make sense of what it demands—
then it is also unavailable. Accordingly, exhaustion is not required.” Ross, 136 S.
Ct. at 1859–60 (citing Goebert v. Lee Cnty., 510 F.3d 1312, 1323 (11th Cir. 2007);
Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008) (“Remedies that rational
inmates cannot be expected to use are not capable of accomplishing their purposes
and so are not available”)). In a similar vein, exhaustion is unavailable where
“officials . . . devise procedural systems (including the blind alleys and quagmires
just discussed) in order to ‘trip up all but the most skillful prisoners.’” Ross, 136 S.
Ct. at 1860 (quoting Woodford v. Ngo, 548 U.S. 81, 102 (2006)). In light of this
case law and the opaque DOC policies in place with respect to the reporting of
sexual abuse, Frye asserts that exhaustion was unavailable to him.
Frye specifically argues that DOC policy DC-ADM 008, which implements
the “Prison Rape Elimination Act,” creates an exception to the grievance
requirement that relieves inmates of the responsibility to grieve claims “regarding”
sexual abuse. (Doc. 36, at 10.) DC-ADM 008 provides, in pertinent part, that: “An
allegation of sexual abuse, sexual harassment or retaliation by other inmates or
staff for reporting sexual abuse and sexual harassment, and staff neglect or
violation of responsibilities that may have contributed to such incidents can be
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reported by several means: verbal, written, anonymous, or by a third party.” (Doc.
29-6 at 29 (emphasis added).) While the language of DC-ADM 008 is permissive
in terms of providing several different methods by which sexual abuse-related
allegations may be reported, DC-ADM 804 § 1(A)(2) clearly states that the DOC’s
Inmate Grievance System “is not meant to address incidents of an urgent or
emergency nature including allegations of sexual abuse as defined in D[OC] policy
DC-ADM 008, ‘Prison Rape Elimination Act.’” (Doc. 29-1, at 7 (emphasis in
original).) DC-ADM 804 § 1(A)(6) further reiterates that “[a] grievance regarding
sexual abuse will not be addressed through the Inmate Grievance System and must
be addressed through Department policy DC-ADM 008.” (Doc. 29-1, at 8
(emphasis added).) Frye thus contends that because his claims against the
defendants pertain to their alleged deliberate indifference to the serious risk that he
would be sexually assaulted by White, those claims all “regard” sexual abuse and
he therefore was not permitted to grieve the claims under DC-ADM 804. (Doc. 36,
at 9-12.) Moreover, Frye argues that to the extent that the DOC’s policies outlined
in the Inmate Handbook, DC-ADM 008, and DC-ADM 804 conflict with one
another, these inconsistencies rendered the grievance procedure unavailable
because it “was clearly not understandable to a normal inmate.” (Doc. 36, at 11.)
For their part, the defendants stake a more categorical view. They maintain
that DC-ADM 804 was the exclusive grievance procedure available to Frye.
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Accordingly, under the defendants’ view, the claims Frye asserts in this complaint
needed to be grieved under DC-ADM 804. (Doc. 28, at 5-7; Doc. 37, at 3-9.)
Specifically, the defendants contend that Frye’s claims regarding their alleged
failure to protect him from rape at the hands of another inmate do not constitute
“sexual abuse” as defined in DC-ADM 008. (Doc. 37, at 6.) Because Frye’s claims
against the defendants were not claims of “sexual abuse,” the defendants assert that
the PREA’s exception to the DC-ADM 804 grievance requirement did not apply.
(Doc. 37, at 6.) The defendants further argue that even if the DOC’s various
policies caused Frye confusion, any ambiguity in terms of the proper procedure to
follow was not substantial enough to warrant excusing Frye’s failure to grieve
these claims pursuant to DC-ADM 804. (Doc. 37, at 7-8); see also Ross, 136 S. Ct.
at 1859 (“When an administrative process is susceptible of multiple reasonable
interpretations, Congress has determined that the inmate should err on the side of
exhaustion.”).
The defendants urge this court to narrowly construe the realm of claims
“regarding” sexual abuse, so as to exclude the failure to protect claims that Frye
now asserts. However, this argument, in our view, fails for two reasons. First, as a
factual matter, and construing the facts in a light most favorable to Frye, it appears
that the plaintiff was voicing a concern to staff that he feared he would be raped by

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White. As a matter of fact it is difficult to see how a potential rape claim could not
be seen as an issue “regarding” sexual abuse.
Moreover, as a legal matter at least one federal court within Pennsylvania
has expressed skepticism of this narrow interpretation of which claims “regard”
sexual abuse. In Bucano v. Austin, the United States District Court for the Western
District of Pennsylvania declined to dismiss a plaintiff’s claims that prison officials
were deliberately indifferent to the risk that she would be sexually abused where
the plaintiff failed to fully exhaust administrative remedies pursuant to DC-ADM
804. CV 15-67 ERIE, 2017 WL 4563948, at *8 (W.D. Pa. Oct. 13, 2017). The
court found that the plaintiff could not be penalized for failing to follow the
procedural requirements of DC-ADM 804 because the defendants told her that her
claims “related to” sexual abuse and therefore fell under the PREA. Bucano, 2017
WL 4563948, at *8. Although Frye does not allege that prison administrators
actively misrepresented the grievance process to him here, we nonetheless find the
wording of DC-ADM 008 to be so opaque—particularly as to which types of
claims “regard” sexual abuse and therefore do not need to be grieved under DCADM 804—that the administrative remedy scheme with regard to these types of
claims is, “practically speaking, incapable of use.” Ross, 136 S. Ct. at 1859-60.
Indeed, at least one court within the Middle District of Pennsylvania has previously
found that DOC’s failure to resolve the ambiguity between DC-ADM 804’s
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traditional grievance requirement and the special rules for abuse claims has
resulted in “systemic confusion” that renders the administrative remedy process
unavailable. Moore v. Lamas, No. 3:12-CV-223, 2017 WL 4180378, at *10, 18-20
(M.D. Pa. Sept. 21, 2017); see  Ross, 136 S. Ct. at 1860 (“When rules are so
confusing that no reasonable prisoner can use them, then they are no longer
available.”).
This court also notes that a broader interpretation of which claims “regard”
sexual assault is entirely in keeping with the PREA, in that the PREA’s
implementing regulations make clear that the DOC “shall provide multiple
internal ways for inmates to privately report sexual abuse and sexual harassment,
retaliation by other inmates or staff for reporting sexual abuse and sexual
harassment, and staff neglect or violation of responsibilities that may have
contributed to such incidents.” 28 C.F.R. § 115.51(a) (emphasis added). Given
that allegations of prison staff negligence and indifference contributing to sexual
abuse were considered to be within the ambit of the PREA, and that the DOC
promulgated DC-ADM 008 to implement federal PREA standards, we find that
DC-ADM 008’s reference to claims “regarding” sexual abuse encompasses claims
that prison staff were deliberately indifferent to a serious risk of sexual assault.
(Doc. 29-6, at 12.)
Further, we acknowledge that a treatment of the PLRA’s exhaustion in this
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context that recognizes DC-ADM 804 and DC-ADM 008 as two independent
parallel paths—either of which may be used to satisfy administrative exhaustion
requirements—is entirely in accord with the approach taken by many courts,
including this court, when construing the DOC’s general grievance procedure, DCADM 804, with its inmate abuse reporting policy, DC-ADM 001. In this factually
similar setting, we have held that full compliance with one of these parallel
procedures satisfies the legal exhaustion requirements imposed by the PLRA. See
Robinson v. Tennis, No. 3:11-CV-1724, 2017 WL 4479349, at *6 (M.D. Pa. Sept.
8, 2017), report and recommendation adopted, No. 3:11-CV-1724, 2017 WL
4478009 (M.D. Pa. Oct. 6, 2017) (collecting cases).
Although the defendants have argued in their briefs that Frye’s failure to
protect claims should be treated differently than other claims involving allegations
of sexual abuse, they have not contended that claims falling within the scope of
DC-ADM 008 also need to be grieved under DC-ADM 804. Nor have the
defendants argued that Frye failed to comply with DC-ADM 008’s grievance
process. Likewise, although Frye has argued that he could properly exhaust this
claim under DC-ADM-008, he has not specifically averred that he took steps to
fully comply with DC-ADM 008’s grievance procedure. Therefore, this issue is not
presently before us, and we will deny this summary judgment motion without
prejudice to further litigation of the question of whether Frye fully complied with
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DC-ADM 008. Instead, having concluded that Frye’s claims against the defendants
“regarded” sexual abuse under DC-ADM 008, we note that “filing an Official
Inmate Grievance pursuant to DC-ADM 804 is not required for inmates alleging
sexual harassment and/or sexual abuse.” Bucano v. Austin, No. CV 15-67 ERIE,
2017 WL 4563948, at *4 (W.D. Pa. Oct. 13, 2017) (citing McCain v. Wetzel, 2012
WL 6623689, at *6 (M.D. Pa. Oct. 26, 2012); Knauss v. Shannon, 2010 WL
569829, at *7 (M.D. Pa. Feb. 12, 2010)). While it is undisputed that Frye failed to
exhaust administrative remedies under DC-ADM 804, “DC-ADM 804 is not the
only way to exhaust administrative remedies” regarding claims of inmate sexual
abuse—to the extent that DC-ADM 804 is even available as a remedy to address
sexual abuse claims at all. McCain v. Wetzel, No. 1:12-CV-00789, 2012 WL
6623689, at *6 (M.D. Pa. Oct. 26, 2012), report and recommendation adopted, No.
1:12-CV-0789, 2012 WL 6623688 (M.D. Pa. Dec. 19, 2012); see Moore v. Lamas,
No. 3:12-CV-223, 2017 WL 4180378, at *10 (M.D. Pa. Sept. 21, 2017) (“[T]he
Court concludes DC-ADM 001 was an appropriate administrative remedy which
an inmate could use to exhaust claims of abuse pursuant to the PLRA during the
relevant time period.”). By relying exclusively on the fact that Frye did not file a
grievance pursuant to DC-ADM 804, the defendants did not address whether Frye
exhausted administrative remedies by any other means in light of DC-ADM 008.
See Moore v. Lamas, No. 3:12-CV-223, 2017 WL 4180378, at *18-20 (M.D. Pa.
19

Sept. 21, 2017). This court therefore finds that the defendants have not established
by a preponderance of the evidence that Frye failed to exhaust administrative
remedies. Thus, Frye will be permitted to proceed on his deliberate indifference
claims against the defendants.
IV.

Discussion
For the foregoing reasons, the defendants’ motion for summary judgment on

the basis of Frye’s purported failure to exhaust administrative remedies is
DENIED.
An appropriate order will follow.
So ordered this 15th day of December, 2017.

/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge

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