Walker et al v. Fisher et al

Filing 31

MEMORANDUM re. dfts' MOTION for Summary Judgment 13 (Order to follow as separate docket entry)Signed by Honorable Sylvia H. Rambo on 7/24/17. (ma)

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CEDRIC TYRONE WALKER,
Plaintiff
vs.
R. FISHER, et al.,
Defendants

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No. 1:16-CV-01326
(Judge Rambo)

MEMORANDUM
I.

Background
On June 27, 2016, Plaintiff Cedric Tyrone Walker, an inmate at the United

States Penitentiary at Lewisburg, Lewisburg, Pennsylvania (“USP-Lewisburg”)
filed the instant civil rights complaint, pro se, pursuant to 28 U.S.C. § 1331. (Doc
No. 1.) Named as Defendants are the following three correctional officers
employed at USP-Lewisbrug: R. Fisher, J. Romig, and N. Beaver. Walker Claims
that his rights under the Eighth Amendment were violated when Defendants
chained him to his bunk for several days and failed to provide him with food and
water. He further claims that Defendants placed him in handcuffs which cut off
blood circulation and caused “open wounds on [his] wrist[s]” and Defendants
threatened to tighten the handcuffs “even more” after he requested medical
assistance. (Id.)

On January 3, 2017, Defendants filed a motion for summary judgment.
(Doc. No. 13.) On January 17, 2017, Defendants filed a statement of material
facts, evidentiary materials and a supporting brief. (Doc. Nos. 14, 15.) Defendants
argue that Plaintiff has failed to exhaust his administrative remedies. The Court,
by Order dated March 21, 2017, directed Plaintiff to file a brief in opposition, a
response to Defendants’ statement of material facts or any evidentiary materials
contravening those submitted by Defendants. (Doc. No. 24.) Rather than filing a
response to Defendants’ statement of material facts,1 Plaintiff filed a declaration
(Doc. No. 16), requesting that this court dismiss or expunge from his record guilty
charges imposed upon him by the disciplinary hearing officer (“DHO”) at USPLewisburg, a document entitled “exhaustion of administrative remedies” (Doc. No.
21), wherein Plaintiff, without making an argument, merely cites case law and
prison grievance procedures relevant filing grievances, and a document entitled
“injunctive relief” (Doc. No. 22), wherein Plaintiff expounds on injunctive relief,
but again, makes no argument as to his entitlement to it.

1

Middle District of Pennsylvania Local Rules of Court provide that in addition to filing a brief in
response to the moving party’s brief in support, “[t]he papers opposing a motion for summary
judgment shall include a separate, short and concise statement of material facts responding to the
numbered paragraphs set forth in the statement [of material facts filed by the moving party] ..., as
to which it is contended that there exists a genuine issue to be tried.” See M.D. Pa. LR 56. 1. The
rule further states that the statement of material facts required to be served by the moving party
will be deemed to be admitted unless controverted by the statement required to be served by the
opposing party. See id. Because Plaintiff has failed to file a separate statement of material facts
controverting the statement filed by Defendants, all material facts set forth in Defendants’
statement (Doc. No. 14) will be deemed admitted.
2

Then, on April 3, 2017, Plaintiff filed a brief in opposition to Defendants’
motion for summary judgment. (Doc. No. 25.) Defendants filed a reply brief
(Doc. No. 26), and Plaintiff subsequently filed what he has entitled an “amended
brief in opposition to Defendants’ motion for summary judgment.” (Doc. No. 27.)
The motion for summary judgment, having been fully briefed by both parties, is
now ripe for disposition.
II.

Legal Standard
The Defendants have moved for summary judgment pursuant to Rule 56 of

the Federal Rules of Civil Procedure. Federal Rule of Civil Procedure 56(a)
requires the court to render 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). “[T]his standard provides that the mere
existence of some alleged factual dispute between the parties will not defeat an
otherwise properly supported motion for summary judgment; the requirement is
that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986).
A disputed fact is “material” if proof of its existence or nonexistence would
affect the outcome of the case under applicable substantive law. Anderson, 477
U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992).
An issue of material fact is “genuine” if the evidence is such that a reasonable jury
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could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257;
Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America,
927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the court
must view the facts and all reasonable inferences in favor of the nonmoving party.
Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail
Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862
F.2d 56, 59 (3d Cir. 1988). In order to avoid summary judgment, however, the
nonmoving party may not rest on the unsubstantiated allegations of his or her
pleadings. When the party seeking summary judgment satisfies its burden under
Rule 56 of identifying evidence which demonstrates the absence of a genuine issue
of material fact, the nonmoving party is required by Rule 56 to go beyond his
pleadings with affidavits, depositions, answers to interrogatories or the like in
order to demonstrate specific material facts which give rise to a genuine issue.
Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the motion
“must do more than simply show that there is some metaphysical doubt as to the
material facts.” Matsushita Electric Indus. Co. v. Zenith Radio, 475 U.S. 574, 586
(1986). When Rule 56 shifts the burden of production to the nonmoving party, that
party must produce evidence to show the existence of every element essential to its
case which it bears the burden of proving at trial, for “a complete failure of proof
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concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp.,
967 F.2d 846, 851 (3d Cir. 1992).
III.

Discussion

Defendants set forth that they are entitled to summary judgment on
Plaintiff’s claims because Plaintiff failed to fully exhaust the administrative
remedies available to him under the Bureau of Prison’s (“BOP”) procedures.
Failure to exhaust is an affirmative defense that must be pled by the defendant.
Jones v. Bock, 549 U.S. 199, 216 (2007). “In a motion for summary judgment,
where the movants have the burden of proof at trial, ‘they [have] the burden of
supporting their motion for summary judgment with credible evidence . . . that
would entitle [them] to a directed verdict if not controverted at trial.’ ” Foster v.
Morris, 208 F. App’x 174, 179 (3d Cir. 2006) (quoting In re Bressman, 327 F.3d
229, 237 (3d Cir. 2003) (internal quotations omitted)). If “the motion does not
establish the absence of a genuine factual issue, the district court should deny
summary judgment even if no opposing evidentiary matter is presented.” Id.
(quoting Nat’l State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1582 (3d
Cir. 1992) (internal quotations omitted)).
The BOP has established a multi-tier system whereby a federal prisoner
may seek formal review of any issue relating to any aspect of his confinement.
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(Doc. No. 15-1, Knepper Declaration.) Inmates must first informally present their
complaint to staff in an attempt to resolve the matter. (Id.) If informal resolution
is unsuccessful, the inmate then presents the issue to the Warden of the facility
within twenty (20) calendar days of the events giving rise to the complaint. (Id.)
An inmate who is not satisfied with the Warden’s response may appeal to the
Regional Director within twenty (20) calendar days. (Id.) If the response of the
Regional Director is not satisfactory, the inmate may then appeal to the BOP’s
Central Office within thirty (30) calendar days. (Id.) Furthermore, if an inmate
reasonably believes the issues on which he is filing is sensitive and his safety of
well-being would be placed in danger if the request became known, he may submit
his remedy directly to the appropriate Regional Director. (Id.) If, however, the
Regional Director finds the remedy is not sensitive, it will be rejected with a notice
indicating as such and directing the inmate to file at the institution level. (Id.)
In this case, Plaintiff’s alleged failure to properly pursue these administrative
remedies may have substantive significance for him since the Prison Litigation
Reform Act (“PLRA”) provides that “[n]o action shall be brought with respect to
prison conditions … 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. § 1197e(a); see Petrucelli v. Hasty, 605 F. Supp. 2d 410 (E.D. N.Y. 2009)
(providing that the PLRA’s exhaustion requirement applies to Bivens claims).
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While this exhaustion requirement is not a jurisdictional bar to litigation, this
requirement is strictly enforced by the Courts. The enforcement is mandated by a
fundamental recognition that § 1997e’s exhaustion requirement promotes
important public policies.
The United States Court of Appeals for the Third Circuit has noted:
Courts have recognized myriad policy considerations in favor of
exhaustion requirements. They include (1) avoiding premature
interruption of the administrative process and giving the agency a
chance to discover and correct its own errors; (2) conserving scarce
judicial resources, since the complaining party may be successful in
vindicating his rights in the administrative process and the courts may
never have to intervene; and (3) improving the efficacy of the
administrative process. Each of these policies, which Congress seems
to have had in mind in enacting the PLRA, is advanced by the acrossthe-board, mandatory exhaustion requirement in § 1997e(a).... [A] a
comprehensive exhaustion requirement better serves the policy of
granting an agency the “opportunity to correct its own mistakes with
respect to the programs it administers before it is haled into federal
court.” Moreover, “even if the complaining prisoner seeks only
money damages, the prisoner may be successful in having the [prison]
halt the infringing practice” or fashion some other remedy, such as
returning personal property, reforming personal property policies,
firing an abusive prison guard, or creating a better screening process
for hiring such guards. And when a prisoner obtains some measure of
affirmative relief, he may elect not to pursue his claim for damages. In
either case, local actors are given the chance to address local
problems, and at the very least, the time frame for the prisoner's
damages is frozen or the isolated acts of abuse are prevented from
recurring. An across-the-board exhaustion requirement also promotes
judicial efficiency.... Moreover, even if only a small percentage of
cases settle, the federal courts are saved the time normally spent
hearing such actions and multiple appeals thereto.... In cases in which
inmate-plaintiffs exhaust their remedies in the administrative process
and continue to pursue their claims in federal court, there is still much
to be gained. The administrative process can serve to create a record
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for subsequent proceedings, it can be used to help focus and clarify
poorly pled or confusing claims, and it forces the prison to justify or
explain its internal procedures. All of these functions help courts
navigate the sea of prisoner litigation in a manner that affords a fair
hearing to all claims.
Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000) (citations omitted). The Third
Circuit has further provided that there is no futility exception to § 1997e’s
exhaustion requirement. Id. Courts have typically required across-the-board
administrative exhaustion by inmates who seek to pursue claims in federal court.
Additionally, courts have imposed a procedural default component on this
exhaustion requirement, holding that inmates must fully satisfy the administrative
requirements of the inmate grievance process before proceeding into federal court.
Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Courts have concluded that inmates
who fail to fully, or timely, complete the prison grievance process are barred from
subsequently litigating claims in federal court. See e.g., Booth v. Churner, 206
F.3d 289 (3d Cir. 2000); Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008).
This broad rule favoring full exhaustion allows for a narrowly defined
exception. If the actions of prison officials directly caused the inmate's procedural
default on a grievance, the inmate will not be held to strict compliance with this
exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
However, case law recognizes a clear “reluctance to invoke equitable reasons to
excuse [an inmate's] failure to exhaust as the statute requires.” Davis v.
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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), and an inmate can defeat a claim of
failure to exhaust only by showing “he was misled or that there was some
extraordinary reason he was prevented from complying with the statutory
mandate.” Warman, 49 F. App'x at 368; see also Camp v. Brennan, 219 F.3d 279,
281 (3d Cir. 2000) (exhaustion requirement met where Office of Professional
Responsibility fully examined merits of excessive force claim and uncontradicted
correctional officers impeded filing of grievance).
In the absence of competent proof that an inmate was misled by corrections
officials, or some other extraordinary circumstances, inmate requests to excuse a
failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot
excuse a failure to timely comply with these grievance procedures by simply
claiming that his efforts constituted “substantial compliance” with this statutory
exhaustion requirement. Harris v. Armstrong, 149 F. App'x 58, 59 (3d Cir. 2005).
Nor can an inmate avoid this exhaustion requirement by merely alleging that the
DOC policies were not clearly explained to him. Warman, 49 F. App'x at 368.
Thus, an inmate's confusion regarding these grievances procedures does not,
standing alone, excuse a failure to exhaust. Casey v. Smith, 71 F. App'x 916 (3d
Cir. 2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is
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well established that ‘ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.’”) (citations omitted).
The Court finds that Defendants are entitled to summary judgment in their
favor on the grounds that Plaintiff has failed to satisfy the PLRA’s administrative
exhaustion requirement. Defendants have attached to their filings the declaration
of Jennifer Knepper, an attorney advisor at the USP-Lewisburg. (Doc. No. 15-1.)
In utilizing the SENTRY records, Knepper has identified all grievances filed by
Plaintiff. (Id.) She provides that all of his grievances were rejected. (Id.) More
specifically, those grievances identified with the subject matter of this instant
lawsuit were rejected by the Regional Office for not being first filed at the
institution level. (Id.) Knepper declares that Plaintiff was directed to re-file at the
institution level, but he failed to do so. (Id.)
The Court notes that in Plaintiff’s response to the summary judgment
motion, he does not dispute the factual underpinnings of the failure-to-exhaust
claim raised by Defendants. Rather, it appears to be Plaintiff’s contention that
Defendants hindered his ability to file his grievances. Specifically, Plaintiff
provides in his brief in opposition that Defendants provided him with the wrong
forms for filing his grievances, even though he specifically requested a form
grievance for the institution level. (Doc. No. 25 at 2.)

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In response, Defendants provide refuting evidence by way of two
declarations of two correctional officers specifically assigned to Plaintiff.
Correctional Counselor R. Bingaman declares that Plaintiff was assigned to him as
one of his inmates. (Doc. No. 26-1, Bingaman Declaration.) Bingaman further
provides that when requests for a BP-8 [institution level grievance] is received by
him from one of his assigned inmates, he provides the inmate with the form with
the date on which it was provided, and once the completed BP-8 form is
completed, Bingaman assigns it a number and enters it into his log book with the
date on which it was returned. (Id.) Bingaman declares that in reviewing his log
book, Plaintiff did not request any BP-8 forms from him. (Id.)
Similarly, Correctional Counselor J. Diltz declares that Plaintiff was
assigned to him as one of his inmates. (Doc. No. 26-1, Diltz Declaration.) Just as
Correctional Counselor Bingaman, Diltz follows the same standard practice of
recording BP-8 forms within his log book. (Id.) Diltz declares that in reviewing
his log book, Plaintiff did not provide him with any completed BP-8 forms. (Id.)
Diltz further provides that Plaintiff’s administrative remedy history indicates that
he filed several remedies while assigned to his caseload and that the forms
themselves indicate where they should be filed and that information is also
available to inmates by reviewing the Administrative Remedy Program Statement.
(Id.) Further, Diltz declares that if an inmate files a remedy at the wrong
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administrative level, the rejection notice directs the inmate where to properly refile.
(Id.)
The Court finds that Defendants have satisfied their burden under Rule 56 of
the Federal Rules of Civil Procedure in identifying evidence which demonstrates
the absence of a genuine issue of material fact. The record and evidence
demonstrates that Plaintiff has failed to properly exhaust his administrative
remedies. Despite being informed that his grievances should be filed at the
institution level, Plaintiff ignored those directives. Claiming confusion or
ignorance of the law will not exempt him from the exhaustion requirements. See
Warman, 49 F. App'x at 368 (an inmate cannot avoid the exhaustion requirement
by merely alleging that the DOC policies were not clearly explained to him);
Smith, 71 F. App'x 916 (An inmate's confusion regarding grievances procedures
does not, standing alone, excuse a failure to exhaust; Soares, 223 F.3d at 1220
(“[I]t is well established that ‘ignorance of the law, even for an incarcerated pro se
petitioner, generally does not excuse prompt filing.’”) (citations omitted).
IV.

Conclusion

For the foregoing reasons, Defendants’ motion for summary judgment will
be granted. An appropriate order follows.

Date July 24, 2017

s/Sylvia Rambo
SYLVIA H. RAMBO
United States District Judge
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