Cooper v. Seeba et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 3/9/18. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN COOPER,
Plaintiff
v.
LT. JASON SEEBA, et al.,
Defendants

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1:16cv2073
(Judge Munley)

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MEMORANDUM
I.

Background1
Pro se Plaintiff John Cooper (“Cooper” or “Plaintiff”), at all times

relevant an inmate confined at the United States Penitentiary in
Lewisburg, Pennsylvania, commenced this Bivens,2 28 U.S.C. § 1331,
action on October 7, 2016.3 (Doc. 1). After an inmate advised

1

On February 5, 2018, this matter was reassigned from the Honorable
William W. Caldwell to the undersigned.
2

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403
U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Bivens stands for the proposition
that “a citizen suffering a compensable injury to a constitutionally protected interest
could invoke the general federal-question jurisdiction of the district courts to obtain
an award of monetary damages against the responsible federal official.” Butz v.
Economou, 438 U.S. 478, 504, 98 S.Ct. 2893, 2909 - 10, 57 L.Ed.2d 895 (1978).
3

Cooper presently resides at the United States Penitentiary in Victorville,
California. See https://www.bop.gov/inmateloc/ (last visited March 8, 2018).

Defendants he would injure any cellmate, Defendants placed Cooper in
the cell. The other inmate assaulted Cooper who required
hospitalization for his injuries. (Id.) Cooper names the following USPLewisburg employees as Defendants: Senior Officer Specialist Matthew
Hess; Case Manager Franz Klosner; Senior Officer Specialist Zachary
Edinger; and Correctional Counselor James Diltz.4 Presently pending
before the Court is Defendants’ motion to Dismiss the Complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6) and for Summary
Judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 21).
For the reasons that follow, the Court will grant Defendants’ motion for
summary judgment.

II.

Summary Judgment Standard of Review
Summary judgment is proper where “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). The court must
determine “whether the pleadings, depositions, answers to
4

Plaintiff also identified Lt. Jason Seeba and Corrections Officer (“CO”)
Seagraves as Defendants. However, the Court has been unable to serve these
defendants. (Doc. 18). Cooper has failed to provide accurate or updated
information sufficient to allow the Court to serve these individuals. Accordingly, the
Court will dismiss all claims against Lt. Seeba and CO Seagraves pursuant to Fed.
R. Civ. P. 4(m).

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interrogatories, admissions on file, and affidavits show that there is no
genuine issue of material fact and whether the moving party is therefore
entitled to judgment as a matter of law.” MacFarlan v. Ivy Hill SNF, LLC,
675 F.3d 266, 271 (3d Cir. 2012) (citing Celotex Corp. v. Catrett, 477
U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986)). “[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, 106 S.Ct. 2505, 2509 - 10, 91 L.Ed.2d 202
(1986).
“A genuine issue is present when a reasonable trier of fact,
viewing all of the record evidence, could rationally find in favor of the
non-moving party in light of his burden of proof.” Doe v. Abington
Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) (internal citations
omitted). Material facts are those that “might affect the outcome of the
suit under the governing substantive law.” Scheidemantle v. Slippery
Rock Univ. State Sys. of Higher Educ., 470 F.3d 535, 538 (3d Cir.
2006). Where contradictory facts exist, the court may not make
credibility determinations or weigh the evidence. See Reeves v.

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Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 - 51, 120 S.Ct.
2097, 2110, 147 L.Ed.2d 105 (2000) (internal quotation marks and
citations omitted); Paradisis v. Englewood Hosp. Med. Ctr., 680 F. App’x
131, 135 (3d Cir. 2017). In reviewing a motion for summary judgment,
the Court must view all facts and draw all reasonable inferences “in the
light most favorable to the party opposing the motion.” Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (internal quotation
marks omitted).
To prevail on summary judgment, the moving party must
affirmatively identify those portions of the record that demonstrate the
absence of a genuine issue of material fact. Santini v. Fuentes, 795
F.3d 410 (3d Cir. 2015) (citing Celotex, 477 U.S. at 323, 106 S.Ct.
2553). “A party asserting that a fact cannot be or is genuinely disputed
must support the assertion by citing to particular parts of materials in the
record ... or showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party
cannot produce admissible evidence to support the fact.” FED. R. CIV. P.
56(c)(1)(A) - (B). To withstand summary judgment, the non-moving
party must “go beyond the pleadings” and “designate ‘specific facts
showing that there is a genuine issue for trial.’” Celotex, 477 U.S. at 324,

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106 S. Ct. at 2553 (citation omitted); see also Jones v. United Parcel
Serv., 214 F.3d 402, 407 (3d Cir. 2000). The non-moving party “may not
rest on speculation and conjecture in opposing a motion for summary
judgment.” Ramara, Inc. V. Westfield Ins. Co., 814 F.3d 660, 666 (3d
Cir. 2016). He cannot satisfy this burden with an affidavit or declaration
that sets forth “opinions or conclusions” rather than “specific facts.” Blair
v. Scott Specialty Gases, 283 F.3d 595, 608 (3d Cir. 2002) (internal
quotation marks omitted).
In deciding the merits of a party's motion for summary judgment,
the Court’s role is not to evaluate the evidence and decide the truth of
the matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249, 106 S.Ct. at 2511. Credibility
determinations are the province of the factfinder. Big Apple BMW, Inc.
v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

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III.

Statement of Undisputed Material Facts5
The Federal Bureau of Prisons (“BOP”) has established an

Administrative Remedy Program for inmates to resolve concerns related
to their confinement. (Doc. 25, Defs.’ Statement of Material Facts
(“DSMF”), ¶ 1; see 28 C.F.R. § 542.10 et seq.). As a first step, the
prisoner ordinarily must seek to resolve the issue informally with prison
staff using a BP-8 form. (DSMF at ¶ 2, citing 28 C.F.R. § 542.13(a)). If
the informal complaint does not resolve the dispute, the prisoner may file
a formal administrative remedy request at the institution of confinement
using a BP-9 form. The inmate must submit the BP-9 form within twenty
calendar days following the date on which the basis of the grievance
occurred, except where the prisoner demonstrates a valid reason for
delay. (DSMF at ¶ 3, citing 28 C.F.R. § 542.14). If the Warden denies
the BP-9 request, the inmate may file an appeal with the Regional

5

Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” Pa. M.D. Local Rule 56.1. A
party opposing a motion for summary judgment must file a separate statement of
material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issue of trial. See id. Unless otherwise
noted, the factual background herein derives from the Defendants’ Rule 56.1
statement of material facts. (Doc. 25). Cooper filed a brief in opposition to
Defendants’ motion; however, he did not file a response to Defendants’ statement of
material facts. See Doc. 34. Accordingly, the Court deems the facts set forth by
Defendants to be undisputed. See Pa. M.D. Local Rule 56.1.

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Director using a BP-10 form. The BP-10 must be submitted within
twenty calendar days of the date the Warden responded to the BP-9,
with the exception again where there are valid reasons for delay.
(DSMF at ¶ 4, citing 28 C.F.R. § 542.15(a)). As a last step, where the
prisoner is not satisfied with the Regional Director’s response, he or she
may submit an appeal to the BOP Office of General Counsel, located in
the Central Office, using a BP-11 form. The inmate must submit the BP11 within thirty calendar days of the date the Regional Director’s
response to the BP-10, with the same exception for valid reasons for
delay. (DSMF at ¶ 5, citing 28 C.F.R. § 542.15(a)). An appeal to the
Central Office constitutes the final level of administrative review. (DSMF
at ¶ 6, citing 28 C.F.R. § 542.15(a)). An inmate is not deemed to have
exhausted his administrative remedies until he has pursued his
grievances through all levels and Central Office decides it on its merits.
(DSMF at ¶ 7, citing 28 C.F.R. §§ 542.10 – 542.19).
The Administrative Remedy Program instructs that the absence of
a response within the time allotted for reply, including any extensions, is
considered a denial of the inmate’s request at that level. (DSMF at ¶ 8,
citing 28 C.F.R. § 542.18). Inmates may request access to copies of

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responses “from the location where they are maintained…” (DSMF at ¶
9, citing 28 C.F.R. § 542.19).
When an inmate demonstrates a valid reason for his delay in
submitting an administrative request or appeal, the BOP can extend the
time limits for his submission. (DSMF at ¶ 10, citing 28 C.F.R. §
542.15(a)). Valid reasons for a delay in submitting a request or appeal
may include an extended period in-transit during which the inmate was
separated from the documents necessary to prepare his appeal or an
indication by the inmate and verified by staff, that a response to the
inmate’s request for copies of dispositions of administrative remedies
and appeals requested under 28 C.F.R. § 542.19 was delayed. (DSMF
at ¶ 11, citing 28 C.F.R. §§ 542.14(b), 542.15(a)).
Cooper filed twenty-one administrative remedies while
incarcerated in the BOP. (DSMF at ¶ 12, citing Doc. 24-1, Declaration
of Erin Odell (“Odell Decl.”), ¶ 7; Id., pp. 5 – 16, Administrative Remedy
Generalized Retrieval). On August 25, 2015, Cooper filed
Administrative Remedy Identification Number 833209-F1 at the
institutional level alleging that staff put him at risk of assault. (DSMF at
¶ 13, citing Odell Decl. at ¶ 8). The Warden responded to the
administrative remedy on August 28, 2015. (DSMF at ¶ 14, citing Odell

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Decl. at ¶ 8). On September 14, 2015, Cooper filed Administrative
Remedy Identification Number 833209-R1 with the Regional Office.
(DSMF at ¶ 15, citing Odell Decl. at ¶ 9). The Regional Director denied
the appeal on October 14, 2015. (DSMF at ¶ 16, citing Odell Decl. at ¶
9). Cooper did not file an administrative remedy appeal to the Central
Office. (DSMF at ¶ 17, citing Odell Decl. at ¶ 10).

IV.

Discussion
The Prison Litigation Reform Act (“PLRA”) requires prisoners to

exhaust their administrative remedies before filing suit in court. 42
U.S.C. § 1997e(a). The PLRA “mandates that an inmate exhaust …
administrative remedies … before bringing suit to challenge prison
conditions.” Ross v. Blake, _____U.S. _____, _____, 136 S.Ct. 1850,
1854 - 555, 195 L.Ed.2d 117 (2016) (quotation omitted); see also Booth
v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001)
(same).
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, 122 S.Ct. 983, 992, 152

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L.Ed.2d 12 (2002). The exhaustion requirement applies equally to
inmate civil-rights claims brought under 42 U.S.C. § 1983 or Bivens. Id.
at 524, 122 S.Ct. at 988.
A prisoner need only exhaust “available” remedies. 42 U.S.C. §
1997e(a); Ross, ____ U.S. at ____, 136 S.Ct. at 1855. An
administrative remedy is “‘available’ [if it] is ‘capable of use for the
accomplishment of a purpose’ ”. Id. at ____, 136 S.Ct. at 1858 – 59
(quoting Booth, 532 U.S. at 737, 121 S.Ct. at 1823). The Supreme
Court in Ross outlined three circumstances when an administrative
remedy is unavailable and the prisoner’s duty to exhaust available
remedies “does not come into play.” Id. at ____, 136 S.Ct. at 1859.
(1) ‘it operates as a simple dead end—with
officers unable or consistently unwilling to
provide any relief to aggrieved inmates’; (2) it is
‘so opaque that i[t] becomes, practically
speaking, incapable of use,’ such as when no
ordinary prisoner can discern or navigate it; or (3)
‘prison administrators thwart inmates from taking
advantage of a grievance process through
machination, misrepresentation, or intimidation.’
Shumanis v. Lehigh Cty., 675 F. App’x 145, 148 (3d Cir. 2017) (quoting
Ross, _____ U.S. at _____, 136 S.Ct. at 1859 – 60).
The PLRA also mandates “proper exhaustion” of all the agency’s
deadlines and other procedural rules pertaining to its administrative

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remedy process. Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378,
2387, 165 L.Ed.2d 368 (2006). “‘[P]rison grievance procedures supply
the yardstick’ for determining what steps are required for exhaustion.”
Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting Spruill v.
Gillis, 372 F.3d 218, 230 (3d Cir. 2004)). “[T]o properly exhaust
administrative remedies, prisoners must ‘complete the administrative
review process in accordance with the applicable procedural rules’” as
they are “defined … by the prison grievance process itself.” Jones v.
Bock, 549 U.S. 199, 218, 127 S.Ct. 910, 922 - 23, 166 L.Ed.2d 798
(2007) (quoting Ngo, 548 U.S. 88, 126 S.Ct. at 2384).
“[I]t is the prison’s [administrative remedy] requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” Id. at 218, 127
S.Ct. at 923. Failure to comply substantially with the procedural
requirements of the applicable prison's grievance system will result in a
procedural default of the claim. Spruill, 372 F.3d at 227 – 32; see also
Williams, 482 F.3d at 639 (inmate “procedurally defaulted” when he
failed to comply with the requirements of the prison’s grievance
procedures).

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Finally, “exhaustion is a question of law to be determined by a
judge, even if that determination requires the resolution of disputed
facts.” Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013).
Defendants move for summary judgment as to Cooper’s Eighth
Amendment failure-to-protect claim on the grounds that Cooper failed to
exhaust his administrative remedies. (Doc. 24, Defs.’ Br. in Supp. Mot.
Summ. J.) The undisputed record confirms that while Cooper
commenced the administrative review process concerning his Eighth
Amendment claim, he failed to properly pursue it to final review.
It is undisputed that Cooper filed a BP-8 (informal resolution form),
BP-9 (administrative remedy at the institutional level), and a BP-10 (an
administrative remedy appeal to the Regional Office). (See Docs. 1, p.
2 and 25, DSMF ¶¶ 13 – 15). The Regional Director denied the appeal
on October 14, 2015. (Doc, 25, ¶ 16). In an effort to excuse compliance
with the exhaustion requirement, and overcome summary judgment,
Cooper indicates, “in this action the [administrative] remedy was not
available, due to an out of custody writ to Arizona C.C.A., and
Hospitalization, as well as head injury and mental health disability.”
(Doc. 34, Pl.’s Opp’n Br., p. 2).

None of these conclusory statements is

sufficient to establish the unavailability of the administrative process,

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which requires an inmate to demonstrate that prison administrators
thwarted him from taking advantage of the grievance process through
machinations, misrepresentation, or intimidation. Ross, _____ U.S. at
_____, 136 U.S. at 1860.
First, Cooper’s reliance on Robinson v. Supt. Rockview SCI, 831
F.3d 148 (3d Cir. 2016) to suggest the unavailability of the BOP’s
administrative remedy system based on his professed failure to receive
a copy of the Regional Director’s response to his appeal is misplaced.
The Third Circuit Court of Appeals held in Robinson that a prison’s
failure to timely respond to an inmate’s properly filed grievance renders
the institution’s remedies “unavailable”. Id. at 153. However, that is not
what happened in this case. The undisputed fact is that on September
14, 2015, Cooper appealed the Warden’s denial of his appeal to the
Regional Director and the Regional Director issued a timely response on
October 14, 2015, denying the appeal. (Doc. 25, DSMF ¶ 15). The fact
that Cooper did not receive the response does not demonstrate that
prison officials interfered or thwarted his ability to use the BOP’s
administrative remedy process as in Robinson. Additionally, the
undisputed record clearly indicates that the BOP’s administrative
remedy process stalls in the event an inmate does not receive a

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response to their administrative remedy or appeal within the requisite
period. The BOP Administrative Remedy Program provides that in such
a scenario, the inmate may consider the absence of a response to be a
denial of his request at that level. (Doc. 25, DSMF ¶ 8). Furthermore,
even though transferred to Arizona, a non-BOP facility, Cooper could
have followed BOP policy and request a copy of the Regional Director’s
response from that office. (DSMF ¶ 9). His attempt to obtain a copy of
his appeal from his local counselor (Diltz) does not demonstration his
compliance with the Administrative Remedy Policy that instructs him to
obtain a copy of that document from the Regional Office. (Id.)
Additionally, Plaintiff could have requested an extension to file his
appeal to Central Office explaining his transfer to Arizona. (DSMF ¶¶ 10
– 11). Cooper’s failure to follow of the opportunities provided by the
BOP’s Administrative Remedy Process to advance his grievance
through the system when an inmate does not receive a timely response
to his administrative remedy or appeal does not demonstrate the
“unavailability” of the process but rather his abandonment of his
administrative remedy.
To the extent Cooper claims the BOP Administrative Remedy
Process was “unavailable” to him because of a hospitalization, head

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injury or mental health issues, these conclusory allegations are also
unsupported by the record. A party opposing summary judgment must
come forth with “affirmative evidence, beyond the allegations of the
pleadings,” in support of its right to relief. Pappas v. City of Lebanon,
331 F. Supp.2d 3131, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e). This
evidence must be adequate, as a matter of law, to sustain a judgment in
favor of the non-moving party on the claims. See Anderson, 477 U.S. at
250 – 57, * U.S. at *; Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 487 – 89, 106 S.Ct. 1348, *, 89 L.Ed.2d 538 (1986); see
also Fed. R. Civ. P. 56(c), (e). Cooper fails to meet this burden as he
did not submit any evidence in support of his contention that he suffers
from a debilitating mental health condition, head trauma or long term
hospitalization that would have impeded his ability to properly exhaust
his available administrative remedies. To be clear, to the extent he
suffered any impediment after the assault, Cooper stayed one day in the
hospital following the assault and yet managed to properly and timely
complete three of the four steps of the BOP’s administrative remedy
process. Finally, as noted above, Cooper fails to submit any evidence to
support his assertion that upon “returning to FBOP custody, later, all
inquiry into the administrative remedy were for not.” (Doc. 34, p. 3). As

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such, Cooper has failed to meet his burden with respect to the
administrative exhaustion of his Bivens claim. Defendants therefore are
entitled to entry of summary judgment.

BY THE COURT:
Dated: March 9, 2018

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN COOPER,
Plaintiff
v.
LT. JASON SEEBA, et al.,
Defendants

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1:16cv2073
(Judge Munley)

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ORDER
AND NOW, to wit, this 9th day of March 2017, upon consideration
of the Defendants’ motion (Doc. 21) for summary judgment pursuant to
Federal Rule of Civil Procedure 56, and for the reasons set forth in the
Court’s Memorandum of the same date, it is hereby ORDERED that:
1.

Defendants’ motion (Doc. 21) for summary
judgment is GRANTED.

2.

The Clerk of Court is directed to ENTER
judgment in favor of Defendants Hess, Klosner,
Edinger and Diltz.

3.

The Complaint against Defendants Seeba and
Seagraves is DISMISSED pursuant to Federal
Rule of Civil Procedure 4(m).

4.

The Clerk of Court is directed to CLOSE this
case.

5.

Any appeal from this order is deemed frivolous
and not in good faith. See 28 U.S.C.
§1915(a)(3).
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

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