Knight v. Lowry et al
Filing
38
MEMORANDUM AND ORDER granting in part and denying in part 22 Motion to Dismiss; granting 28 Motion for Extension of Time to File. it is ordered that:1. The defendants motion to dismiss (Doc. 22) is granted in part and denied in part.2. The claim s against the defendants in their official capacities are hereby dismissed as barred by the doctrine of sovereign immunity. 3.All claims against Superintendent Nish are dismissed due to Mr. Knights failure to state a claim against him. 4. Mr. Knigh ts Eighth Amendment claim of deliberate indifference is dismissed with prejudice due to his failure to exhaust his available administrative remedies. 5.The sole remaining claim is Mr. Knights Eighth Amendment claim of excessive use of force against C O Black and CO Lowry.6.CO Black and CO Lowry are granted twenty-one (21) days from the date of this Order to file an Answer to the Complaint.7.Mr. Knights Motion for Extension of Time (Doc. 28) is granted.8.Within ten (10) days from the date of this Order Mr. Knight shall provide the Court with the sufficient information for the Marshal to effect service on CO Freechan, CO Leval and CO Herchik. 9.Plaintiffs failure to comply with 8 of this Order will result in the dismissal of this action against the unserved defendants (Freechan, Leval, Herchik and Does) pursuant to Fed. R. Civ. P. 4(m). Signed by Honorable A. Richard Caputo on 3/7/12 (jam, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE H. KNIGHT, II,
:
:
:
:
:
:
:
:
:
Plaintiff
v.
CO LOWRY, et al.,
Defendants
CIVIL NO. 3:CV-10-2168
(Judge Caputo)
MEMORANDUM
I.
Introduction
Plaintiff, Lawrence Knight, is a state prisoner proceeding pro se with this civil
rights action pursuant to 42 U.S.C. § 1983. This case is currently proceeding on a
supplemented complaint. Doc. 1, Compl. and Doc. 11, Supplement. Mr. Knight
avers that he was assaulted by Corrections Officer (CO) Black, CO Lowry, CO Sam
Herchik, and other unidentified officers on December 29, 2008, while housed at the
State Correctional Institution at Waymart (SCI-Waymart), in Waymart,
Pennsylvania. He further alleges that some officers failed to protect him from harm
by other officers, and all were deliberately indifferent to his medical needs following
the assault. Superintendent of SCI-Waymart, Joseph Nish is also named as a
defendant. Mr. Knight, who suffers from a serious heart condition, asserts that he
continues to suffer from various physical and psychiatric medical problems following
the assault including, but not limited to, a broken neck, numbness in his arms and
post-traumatic stress. Docs. 1 and 11.
Pending before the Court is defendants’ motion to dismiss (Doc. 22) based
on the Eleventh Amendment, Mr. Knight’s failure to allege the personal involvement
of Superintendent Nish, and Plaintiff’s failure to exhaust his administrative remedies
with respect to the various assaults and denial of medical care. Mr. Knight filed an
opposition brief (Doc. 31).1 Defendants have not filed a reply brief. Based on the
discussion set forth below, the motion will be granted in part and denied in part.
Also pending is Mr. Knight’s Motion for Extension of Time to File Residence
of Defendants (doc. 28). That motion is ripe and will also be considered.
II.
Standard of Review
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
Fed. R. Civ. P. 12(b)(6). On a motion to dismiss, “[w]e ‘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.’” Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010) (quoted
case omitted). In general, when ruling on a motion to dismiss pursuant to 12(b)(6),
a court may only consider documents that are attached to or submitted with the
Complaint, and matters of public record. Pryor v. Nat’l Collegiate Athletic Ass’n, 288
1
Although labeled as a “Rebuttle (sic) Brief,” by Mr. Knight, there is no doubt that
his filing is meant to be his brief in opposition to the Defendants’ motion to dismiss. See
Doc. 32. Therefore, it will be deemed as such. We note that although filed untimely, and
without receiving an enlargement of time to file his brief out of time, the Court will accept Mr.
Knight’s pro se opposition brief (doc. 32) as timely filed.
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F.3d 548, 560 (3d Cir. 2002). However, “documents whose contents are alleged in
the complaint and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered.” Pryor, 288 F.3d at 560
(citation omitted); see also U.S. Express Lines, Ltd. v. Higgins, 281 F.3d 383, 388
(3d Cir. 2002) (“Although a district court may not consider matters extraneous to the
pleadings, a document integral to or explicitly relied upon in the complaint may be
considered without converting the motion to dismiss into one for summary
judgment.”) (internal quotation omitted).
In resolving a motion to dismiss pursuant to Rule 12(b)(6), a district court’s
“inquiry is normally broken into three parts: (1) identifying the elements of the claim,
(2) reviewing the complaint to strike conclusory allegations, and then (3) looking at
the well-pleaded components of the complaint and evaluating whether all of the
elements identified in part one of the inquiry are sufficiently alleged.” Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011)(citing Ashcroft v. Iqbal, 556 U.S. 662,
,
129 S.Ct. 1937, 1947-50, 173 L.Ed.2d 868 (2009)).
To survive a motion to dismiss, a complaint must allege sufficient facts, if
accepted as true, that state “a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d
929 (2007). “A claim has facial plausibility when a plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Iqbal, 556 U.S. at
, 129 S.Ct. at 1949. “Threadbare
recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Id. at
, 129 S.Ct. at 1949. The court is “ ‘not bound
to accept as true a legal conclusion couched as a factual allegation.’ ” Id. at
,
129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. at 1965); see also
PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d Cir. 2010). Even though pro se
complaints must be liberally construed and Fed. R. Civ. P. Rule 8 provides that a
complaint need only contain “a short and plain statement of the claim,” a plaintiff is
required to set forth “more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Iqbal, 556 U.S. at
, 129 S.Ct. at 1949. If a party opposing a motion
to dismiss does not “nudge [his] claims across the line from conceivable to plausible,
[the] complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.
Finally, pro se pleadings are held to a less stringent standard than formal
pleadings drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct.
2197, 2200, 167 L.Ed.2d 1081 (2007); Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.
2009). However, under no circumstance is a court required to accept bald
assertions, unwarranted inferences, or sweeping legal conclusions cast in the form
of factual allegations. See In re Rockefeller Ctr. Props., Inc. Sec. Litig., 311 F.3d
198, 215 (3d Cir. 2002); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 n. 8
(3d Cir. 1997). Pro se litigants are to be granted leave to file a curative amended
complaint even when a plaintiff does not seek leave to amend, unless such an
amendment would be inequitable or futile. See Fletcher–Harlee Corp. v. Pote
Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir. 2007). However, a complaint
that sets forth facts which affirmatively demonstrate that the plaintiff has no right to
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recover is properly dismissed without leave to amend. Grayson v. Mayview State
Hospital, 293 F.3d 103, 106 (3d Cir. 2002).
III.
Allegations in the Complaint
A.
Excessive Use of Force and Denial of Medical Care Claims.
On December 29, 2008, Mr. Knight was sitting in the day room at SCIWaymart,when another inmate commented to him about “taking back a walkman
radio that plaintiff was given permission to use by the owner.” Doc. 11, Supplement
to the Compl. at CM/ECF p. 4.2 Mr. Knight replied that he “should have broken [the
other inmate’s] jaw the day before.” Id. Overhearing this comment, CO Lowry
ordered Plaintiff to a quiet room. Id. Upon complying with this order, Mr. Knight was
pat searched by CO Lowry. Id. Plaintiff told CO Lowry that “he had a conflict with
him” as he had filed a grievance against him the day before for acting
inappropriately with a mentally retarded inmate. Id. In response to this statement,
CO Lowry allegedly slammed Mr. Knight to the floor and sat on top of him. Id. CO
Herchik and CO Black responded to the scene. Id. CO Herchik placed his knee on
Plaintiff’s right hand while CO Black placed his knee into the palm of Plaintiff’s left
hand. Id. An unidentified officer crossed Plaintiff’s legs and sat on them. Id.
Another unidentified officer arrived on the scene and asked, “is this the one who
likes little boys.” Id. CO Herchik responded “No, little girls.” Id. Unknown officers
2
Unless otherwise noted, all citations to the record reflect the docket number and
page number assigned by the electronic case filing system (CM/ECF) rather than the page
numbers of the original documents.
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then punched Mr. Knight in the left eye, broke his neck, repeatedly punched him in
the side of his head, and stuffed a towel into his mouth cutting off his oxygen. Id. at
CM/ECF p. 5. CO Herchik warned the unidentified officer that Plaintiff had a bad
heart. Id. The unidentified officer then proceeded to punch Plaintiff directly above
his heart “trying to dislodge [his] five stents”. Id.
Mr. Knight was then placed in waist restraints and strapped to a soft back
board and taken to an elevator. Id. Plaintiff alleges that during transport, the
defendants deliberately dropped him on his face and head causing him further
injuries. Id. While in the elevator, one of the unidentified defendants began kicking
Plaintiff’s feet. Id. He was then taken to another quiet room and placed in four point
restraints. Id. Eventually, the block counselor and “another lady” came to see Mr.
Knight and advised him to calm down and stop crying. Id. A physician then entered
the room, never examined Plaintiff, but said he was “okay”. Id. The doctor ignored
his complaints of a broken neck and claims that he was experiencing another heart
attack. Id.
Plaintiff was held in four point restraints in the quiet room for two hours until
an unidentified Sergeant removed the restraints and moved Plaintiff to quiet room
on different block. Id. at CM/ECF p. 6. An CO named “Jimmy” entered the quiet
room and commenced hitting him in the head while another unknown officer pinned
him to the floor. Id. When the unidentified Sergeant came back to the block, Mr.
Knight advised him of the most recent assault by CO Jimmy. Id. The Sergeant then
ordered CO Jimmy off of the unit “so there would be no further problems.” Id.
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Although Mr. Knight told the Sergeant of his injuries, he was not rendered any
medical treatment. Id.
A few days later Mr. Knight was “recommitted involuntarily” to SCI-Waymart’s
forensic mental health treatment facility. Id. About a week later, he was transferred
to SCI-Rockview’s Mental Health Unit (MHU).3 Once there he advised SCIRockview staff of the assaults that took place at SCI-Waymart as well as his
untreated medical ailments, including his broken neck. Id. During his 30 day stay at
SCI-Rockview, Mr. Knight was refused medical treatment for his injuries. Id. at
CM/ECF pp. 6-7.
Mr. Knight was later transferred to SCI-Greensburg, in Greensburg,
Pennsylvania. Id. at CM/ECF p. 7. Plaintiff immediately told SCI-Greensburg staff
of the violent December assaults at SCI-Waymart and sought medical treatment for
his ongoing complaints of continuous pain due to his broken neck, migraines, and
numbness in his fingers. His complaints were ignored for three to four days but
eventually staff took x-rays of his neck but failed to provide him with any medical
care at that time because his “broken neck began to heal”. Id.
Mr. Knight claims he continues to suffer from permanent nerve damage as a
result of the assaults and the denial of medical care. Id. His ongoing injuries
include neck pain, migraines and numbness in both arms. He seeks monetary
damages as well as additional diagnostic testing of his neck and perceived nerve
injuries. Id.
3
SCI-Rockview is located in Bellefonte, Pennsylvania. A MHU is a small licensed
inpatient mental health unit that licensed by the Department of Public Welfare.
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B.
Exhaustion of Administrative Remedies (as alleged
by Plaintiff)
Mr. Knight states he filed a grievance the day before he was assaulted. Doc.
11, Suppl.. Plaintiff alleges he filed a grievance related to the December 29, 2008,
assaults before he was transferred to SCI-Rockview’s MHU. Id. at CM/ECF pp. 7-8.
He avers SCI-Waymart officials never responded to this grievance. Id. at CM/ECF
p. 8. Plaintiff states he also filed a grievance about the December 29, 2008,
assaults while housed at SCI-Rockview. Id. However, he was advised by SCIRockview officials that “they had no authority in the matter.” Id. Mr. Knight also
states that “on or about 1-7-09 [he] filed a grievance” regarding the actions
complained of in his Complaint. Doc. 1, Compl. at CM/ECF p. 3. He alleges his
request was denied and that he did not seek further review of the request “because
all procedures in the DOC are broken.” Id.
C.
Exhaustion of Administrative Remedies (as
demonstrated by Exhibits Submitted by the Parties)
On December 28, 2009, Mr. Knight filed three grievances which Joseph
Vinansky, the Grievance Coordinator at SCI-Waymart, consolidated under one
grievance number, 255661.4 See Doc. 30-1 at CM/ECF p. 4, Vinansky Decl. at ¶
13. Grievance Coordinator Vinansky noted that “these three grievances all related
4
The Court notes that Defendants have submitted four (4), not three (3),
grievances were consolidated by Mr. Vinansky under grievance number 255661. See Doc.
30-1 at CM/ECF pp. 22-25. For ease of reference the Court will refer to individual parts of
the consolidate grievance 255661 as 255661A, 255661B, 255661C, and 255661D. See
Doc. 30-1 at CM/ECF pp. 22-25.
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to the December 29, 2008 incidents for which Knight received misconducts.” Id.
Grievance 255661A states that Mr. Knight was “openly shown insubornation (sic) &
threats by C/O Lowry” who sought to protect a snitch. Plaintiff stated he no longer
felt safe at the facility. See Doc. 30-1 at CM/ECF p. 22, Grev. 2255661A.
Grievance 255661B, Id. at CM/ECF p. 23, complains that officers on the 6-2 shift
were having inappropriate physical contact with inmates. Plaintiff also complained
that he was physically assaulted an inmate “snitch” that CO Lowry was protecting.
Id. In the third of the collective 255661 grievances Mr. Knights seeks a transfer to
SCI-Rockview after complaining he was not receiving proper mental health
treatment from his present treatment team. See Id. at CM/ECF p. 24, Grev.
2255661C. The fourth grievance included in the 255661 packet relates to staff
refusing to give him his heart medication when he experienced chest pain. Id. at
CM/ECF p. 25, Grev. 255661D. On December 31, 2008, Grievance Coordinator
Joseph Vinansky, returned the grievances without addressing them, because
the issues [Mr. Knight] addressed are directly related to a
series of incidents that occurred on December 29, 2008.
On this date, [Plaintiff] threatened other inmates and
assaulted staff ... [Mr. Knight] also [was] issued
misconducts for [his] actions. [He] will have the
opportunity to present [his] case before a Department of
Corrections Hearing Examiner. If [he} disagree[s] with
the Hearing Examiner’s decision, [he has] the option to
file an appeal through SCI-Waymart’s Program Review
Committee.
Id. at CM/ECF pp. 26-27.
On December 29, 2008, Mr. Knight was issued three misconducts. See Doc.
30-3. The first, misconduct A778526, was issued by CO Lowry for assault,
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threatening another person, using abusive, obscene or inappropriate language, and
failure to obey an order. At a January 2, 2009, misconduct hearing, Mr. Knight was
found guilty of assault, threatening another person, and failure to obey an order. Id.
at CM/ECF pp.4-5. The second misconduct, A332550, was issued by CO Leval for
events that occurred in the “hallway” and “tie down room”. Id. at CM/ECF p. 6. CO
Leval charged Mr. Knight with assault, threatening another person, using abusive,
obscene or inappropriate language, and destroying, altering, tampering with or
damaging property. Id. His misconduct hearing was held January 2, 2009, and he
was found guilty of assault, and destroying, altering, tampering with or damaging
property. Id. at CM/ECF p. 7. The third and final misconduct issued to Mr. Knight
that day was issued by CO Shiffer several hours after the first two. Id. at CM/ECF p.
8 and p. 11. In misconduct B091420, Mr. Knight was charged with threatening
another person, using abusive, obscene or inappropriate language, possession of
contraband, lying to an employee and failure to report the presence of contraband.
Id. This misconduct was issued after the search team’s search of Mr. Knight’s cell
and property yielded property and letters belonging to other inmates in his
possession. Id. Plaintiff received his misconduct hearing on January 2, 2009, in
conjunction with his other misconduct hearings. He was found guilty of all charges
relating to the third misconduct. Id. at CM/ECF p. 10. Notably, Mr. Knight “did not
wish to enter a plea” at each misconduct hearing, rather he pled “no contest” to all
charges. Id. at CM/ECF pp. 5, 7, and 9.
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While at SCI-Rockview, Mr. Knight filed 3 new grievances and misconduct
hearing appeals challenging the results of all 3 misconduct hearings. See Doc. 30-1
at CM/ECF pp. 28-34. All documents were dated January 10, 2009. Id. at CM/ECF
pp. 28-33. The first new grievance contests Mr. Vinansky’s consolidation of his
various December 28, 2008, grievances under one grievance number, 255661. Id.
at CM/ECF p. 28. He states in this grievance that he “waited to file this instant
grievance because [he] was in fear for [his] life at SCI Waymart.” Id. The next
grievance relates to his January 6, 2009, discovery of missing legal property. Id. at
CM/ECF p. 29. The third grievance relates to the December 29, 2008, assault by
SCI-Waymart corrections officers and was filed by Mr. Knight “to preserve such for
1983 actions”. Id. at CM/ECF p. 30. He notes that he “waited to file this grievance
because C/O’s already tried to kill [him] & [he] was in fear for [his] life until this time
& date that I’m housed in Rockview’s MHU.” Id. All of these documents were
received by Jeffrey Rackovan, SCI-Rockview’s Superintendent Assistant.5 Id. at
CM/ECF p. 34. On February 11, 2009, Mr. Rackovan forwarded the 6 pages of
grievances and misconduct appeals to Mr. Knight and advised him that they must be
sent by him to SCI-Waymart. Id. On March 4, 2011, Superintendent of SCIWaymart, Joseph Nish, upheld the initial grievance decision relating to grievance
255661 and noted that the appeal was untimely. Id. at CM/ECF p. 35. There is no
record of Mr. Knight appealing Superintendent Nish’s decision to the Secretary’s
Office of Inmate Grievances and Appeals. Doc. 30-1 at CM/ECF p. 35, Vanansky
5
The record is not clear as to the date of Mr. Knight’s transfer from SCIWaymart to SCI-Rockview.
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Decl. at ¶ 17. Likewise, Mr. Knight did not appeal any of his misconduct appeals to
final review. Doc. 30-4 at CM/ECF p. 2, Lewis Decl. at ¶ 12.
III.
Discussion
A.
Mr. Knight May Not Maintain Claims for Damages
Against Prison Officials in their Official Capacities.
The Eleventh Amendment bars all suits against a state and its agencies in
federal court that seek monetary damages. See Pennhurst v. Halderman, 465 U.S.
89, 99-100, 104 S.Ct. 900, 907, 79 L.Ed.2d 67 (1984); A.W. v. Jersey City Public
Schools, 341 F.3d 234, 238 (3d Cir. 2003). Likewise, suits brought against state
officials acting in their official capacities are to be treated as suits against the
employing government agency, and as such, are also barred by the Eleventh
Amendment. See Hafer v. Melo, 502 U.S. 21, 25-27, 112 S.Ct. 358, 361-62, 116
L.Ed.2d 301 (1991); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71, 109
S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Pennsylvania has expressly withheld
consent and has not waived its Eleventh Amendment immunity. See 42 PA. CONS.
STAT . ANN . § 8521-22. However, claims for prospective injunctive relief to end an
ongoing violation of federal law against state officials in their official capacities are
not precluded by the Eleventh Amendment. See Iles v de Jongh, 638 F.3d 169, 177
(3d Cir. 2011). Furthermore, state officials sued in their individual capacities are
“persons” within the meaning of Section 1983. See Hafer, 502 U.S. at 31, 112 S.Ct.
at 364-65. Thus the Eleventh Amendment does not bar suits for monetary damages
brought under Section 1983 against state officials in their individual capacities. Id.
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Accordingly, to the extent Mr. Knight is suing the Defendants in their official
capacities for monetary damages, these claims are subject to dismissal with
prejudice. This finding, however, does not preclude Mr. Knight’s claim for
prospective injunctive relief against the Defendants in their official capacities or his
claim for monetary damages against the Defendants in their personal capacities.
2.
Lack of Personal Involvement of Superintendent Nish
A Section 1983 claim cannot be premised on a theory of respondeat superior
and that in order to establish liability for deprivation of a constitutional right, a party
must show personal involvement by each defendant. Iqbal, 556 U.S.
, 129 S.Ct.
at 1948; Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010). “It is
uncontested that a government official is liable only for his or her own conduct and
accordingly must have had some sort of personal involvement in the alleged
unconstitutional conduct.” Argueta v. U.S. I.C.E., 643 F.3d 60, 71-72 (3d Cir. 2011).
This personal involvement can be shown where a defendant personally directs the
wrongs, or has actual knowledge of the wrongs and acquiesces in them. See Rode
v. Dellarciprete, 845 F.2d 1195, 1207(3d Cir. 1988); A.M. ex rel. J.M.K. v. Luzerne
County Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir.2004) (noting that “a
supervisor may be personally liable under § 1983 if he or she participated in
violating the plaintiff's rights, directed others to violate them, or, as the person in
charge, had knowledge of and acquiesced in his subordinates' violations”). A
defendant “cannot be held responsible for a constitutional violation which he or she
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neither participated in nor approved.” C.H. e rel. Z.H. v. Oliva, 226 F.3d 198, 201202 (3d Cir. 2000).
Defendants contend that as Mr. Knight failed to mention Superintendent Nish
in the Complaint (Doc. 1) or his supplement (Doc.11) and therefore, he is entitled to
dismissal from the action. Doc. 30, Defs.’ Mot. to Dismiss Brf. at CM/ECF pp. 9-10.
Mr. Knight counters that “Superintendent Nish is forcefully in charge of all operations
at the facility (SCI Waymart), and is also forcefully responsable (sic) for all
subordnants (sic) that operate as employee’s within the facility for proper and legal
operation of the facility on a daily basis ...” and that “Nish clearly failed to control his
subordnants (sic)” and that “he is the Supreme controller and facility manager.”
Doc. 32, Pl.’s Opp’n Brf. at CM/ECF pp. 19-20. Mr. Knight has failed to plead that
Superintendent Nish was personally involved in the alleged constitutional violations,
by his own individual actions. Mr. Knight clearly names Superintendent Nish as a
defendant based on his supervisory role as the facility manager. Accordingly, in the
absence of any such allegations against Superintendent Nish, defendants’ motion to
dismiss as to this Defendant will be granted.
3.
Mr. Knight’s Alleged Failure to Exhaust his
Administrative Remedies.
Pursuant to the Prison Litigation Reform Act (PLRA), before a prisoner may
bring a civil rights action pursuant to 42 U.S.C. § 1983, or any other federal law, he
must exhaust all available administrative remedies. See 42 U.S.C. § 1997e; Porter
v. Nussle, 534 U.S. 516, 524, 122 S.C. 983, 988, 152 L.Ed.2d 12 (2002). “[T]here is
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no question that exhaustion is mandatory under the PLRA and that unexhausted
claims cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 212, 127 S.C.
910, 918-19, 166 L.Ed.2d 798 (2007). The exhaustion requirement of the PLRA is
one of “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 84, 126 S.C. 2378,
2383, 165 L.Ed.2d 368 (2006). This means that the prisoner plaintiff must have
completed “the administrative review process in accordance with the applicable
procedural rules, including deadlines, as a precondition to bringing suit in federal
court.” Id. Additionally, the PLRA “completely precludes a futility exception to its
mandatory exhaustion requirement.” Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir.
2000).
A prisoner, however, need not exhaust every administrative remedy, only
those which are available to him. Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.
2000); accord Brown v. Croak, 312 F.3d 109, 112-113 (3d Cir. 2002). “A grievance
procedure is not available even if one exists on paper if the defendant prison
officials somehow prevent a prisoner from using it.” Mitchell v. Horn, 318 F.3d 523,
529 (3d Cir. 2003).
A prisoner is not required to allege that administrative remedies have been
exhausted. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). Failure to exhaust available
administrative remedies is an affirmative defense. Id. As such, it must be pleaded
and proven by the Defendant. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). In
Ray, the Third Circuit Court of Appeals held that while exhaustion is an affirmative
defense, it may be raised in a motion to dismiss. See Ray, 85 F.3d at 295, n. 8.
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Within the Pennsylvania Department of Corrections, there are several
different administrative remedy processes available to inmates which collectively
provide an inmate a route to challenge every aspect of their confinement. Each
administrative remedy process is designed to address specific issues which may
arise within the prison. One administrative remedy may not be substituted for
another. Each policy clearly spells out any mandates, or exceptions, with respect to
issues that must be addressed , or conversely, excluded from consideration, under
the policy.
DC–ADM 801, the Inmate Discipline Policy, provides an administrative
procedure for inmates found guilty of a misconduct to challenge the finding.
See Doc. 30-4 at CM/ECF pp. 4-42. DC-ADM 801 offers a three-phase review
procedure consisting of a first level appeal to the Program Review Committee (PRC)
to be filed within 15 days of the misconduct hearing. Id. at CM/ECF p. 22. Within 7
days of receipt of the PRC’s decision, the inmate may file a second level appeal to
the Superintendent/Facility Manager who shall respond to the appeal within seven
working days. Id. at CM/ECF p. 23. Finally, within 7 days of receipt of the Facility
Manager’s decision, the inmate’s final level of appeal is to the Office of Chief
Counsel. Id. at CM/ECF p. 24. The Chief Hearing Examiner’s Office shall respond
to the misconduct appeal to final review within seven working days. Id.
DC-ADM 804, is the Inmate Grievance System Policy, and is used to address
issue related to an inmate’s conditions of confinement claims other than those
related to inmate discipline/misconducts (DC-ADM 801) and/or administrative
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custody procedures (DC-ADM 802). See Doc. 30-1 at CM/ECF pp. 6-21. The
grievance policy consists of three separate stages. First, the prisoner is required to
timely submit a written grievance for review by the facility manager or the regional
grievance coordinator within fifteen days of the incident, who responds in writing
within ten business days. Second, the inmate must timely submit a written appeal to
intermediate review within ten working days, and again the inmate receives a written
response within ten working days. Finally, the inmate must submit a timely appeal
to the Central Office Review Committee within fifteen working days, and the inmate
will receive a final determination in writing within thirty days. See Booth v. Churner,
206 F.3d 289, 293 n. 2 (3d Cir. 1997), aff'd. 532 U.S. 731, 121 S.Ct. 1819, 149
L.Ed.2d 958 (2001).
The Defendants argue that Mr. Knight has failed to exhaust his administrative
remedies as to his claims of excessive use of force by corrections officers or their
alleged deliberate indifference to his medical needs. Doc. 30, Defs.’ Mot. to Dismiss
Brf. at CM/ECF pp. 10-14. Based on the indisputably authentic document presented
by the parties on the issue of Mr. Knight’s exhaustion of administrative remedies, the
Court will dismiss Mr. Knight’s Eighth Amendment claims of deliberate indifference
against the Defendants as he failed to administratively exhaust that issue prior to
filing this suit. According to a grievance form submitted by Mr. Knight, he “waited to
file this grievance because C/O’s already tried to kill me and I was in fear for my life
until this time & date that I’m housed in Rockview’s MHU.” Doc. 30-1 at CM/ECF p.
30. The date of that grievance is January 10, 2009, and only asserts that he was
assaulted on December 29, 2008. There is absolutely no mention that he was
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denied medical care by any corrections official or member of the medical
department in that grievance. Although this Court certainly does not condone any
delay in providing prisoners with necessary medical treatment, prisoners are
required to follow, and exhaust, the administrative procedures provided to them.
Thus, defendants have affirmatively carried their burden to demonstrate that Mr.
Knight did not exhaust his claims that defendants were deliberatly indifferent to his
serious medical needs as there is no mention of the medical issues in his grievance
concerning the December 29, 2008, assault. In accordance with the PLRA, failure
to exhaust administrative remedies necessarily requires that his Eighth Amendment
claims of deliberate indifference be dismissed.
The same is not true with respect to Mr. Knight’s excessive use of force
claim. Defendants primarily rely on the declaration of Joseph Vinansky to support
their assertion that Mr. Knight failed to properly exhaust his administrative remedies
with respect to this claim. The Court, however, after examination of the exhibits
submitted in support of Mr. Vinansky’s declaration is perplexed as to how they
support their assertion of non-exhaustion. Mr. Knight asserts he was assaulted on
December 29, 2008. The grievances which Grievance Coordinator Vinansky
consolidated and rejected as being related to misconducts Plaintiff received on
December 29, 2008, were all submitted on December 28, 2008, a day before the
assault and resulting misconducts. Furthermore, upon reading the grievances
consolidated under 25561, it is clear that they do not make mention of Mr. Knight
being assaulted by any corrections officer while housed at SCI-Waymart. See Doc.
30-1 at CM/ECF pp. 22-25. How Mr. Vinansky construed and rejected the
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grievances because they attempted “to raise issues that were subject of” the
misconducts Plaintiff received on December 29, 2008, is unclear at best. The Court
finds no relevance of the exhaustion of the grievances consolidated under 255661
and Mr. Knight’s exhaustion of the claims presented in this action. The fact that the
Facility Manager denied the appeal of grievance 255661 as untimely, or that Mr.
Knight did not appeal the grievance to final review is equally irrelevant as they are
unrelated to the issues relating to the assault. Thus, the defendants have failed to
carry their burden to demonstrate Mr. Knight’s failure to exhaust his administrative
remedies with regards to the excessive use of force claim based on the procedural
history of grievance 255661.
Next, Defendants assert that to the extent Mr. Knight raises the excessive
use of force claim in his challenge of his two related assault misconducts he
received on December 29, 2008, (Doc. 30-3 at CM/ECF p. 4 and 6), he failed to
appeal these misconducts “to [the] PRC.” Defendants have submitted documents
demonstrating that Mr. Knight did appeal both assault misconducts. See Doc. 30-1
at CM/ECF pp. 32-33. Defendants submissions in support of their motion
demonstrate that they received these documents, see Doc. 30-1 at CM/ECF p.4,
Vinansky Decl. at ¶ 15, but yet defendants do not affirmatively demonstrate that the
misconduct appeals were ever processed by the facility manager. See Doc. 30-1, at
CM/ECF p. 35. Thus, there are unresolved issues before the Court as to the
availability of the DC-ADM 804 administrative remedy process for Mr. Knight to
comply with the PLRA’s exhaustion requirement.
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Our inquiry does not stop here as both Defendants and Mr. Knight have
submitted a grievance dated January 10, 2009, which clearly raises the excessive
use of force claim stemming for the events at SCI-Waymart on December 29, 2008.
Doc. 30-1 at CM/ECF p. 30.6 Defendants acknowledge receipt of this document
from Mr. Knight but erroneously identified it as “his appeal of grievance 255661".
Doc. 30-1 at CM/ECF p. 4 and p. 30. However, this document does not reference
grievance 25561, nor does it relate to any of the issues raised in that consolidated
grievance. Thus, this grievance was received, but not processed by the DOC.
Although Defendants suggest that the grievance was not received until March 4,
2009, by SCI-Waymart officials and thus may be untimely under DC-ADM 801
and/or DC-ADM 804, this assertion alone does not prove Mr. Knight is responsible
for failing to exhaust his administrative remedies. Both administrative remedy
processes do not automatically reject a grievance or appeal simply because it is
untimely. Both DC-ADM 801, see Doc. 30-4 at CM/ECF p. 23, and DC-ADM 804,
see Doc. 30-1 at CM/ECF p. 12, suggest extensions of time for filing are permitted in
some circumstances. However, as there is no evidence that Mr. Knight’s January
10, 2009, grievance (Doc. 30-1 at CM/ECF p. 29) was ever processed and/or
rejected as either a grievance or a misconduct, it is unknown whether Plaintiff could
have obtained an enlargement of time to properly exhaust his excessive use of force
6
The Court notes that 12 days elapsed between December 29, 2008 and January
10, 2009. Thus, assuming for the sake of this argument only, if this document was properly
filed pursuant to DC-ADM 804, with the Facility Grievance Coordinator at the facility where
the grievance occurred, it was timely filed within the 15 working days after the event upon
which the claim is based. See Doc. 30-1 at CM/ECF p. 11.
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claim.
If the actions of prison officials directly caused, or contributed to, Mr. Knight’s
procedural default of his grievance (Doc. 30-1 at CM/ECF p. 29), he cannot be held
to strict compliance with the exhaustion requirement. See Camp v. Brennan, 219
F.3d 279 (3d Cir. 2000). In this case, it is undisputed that Mr. Knight’s grievance
dated January 10, 2009, was never processed by SCI-Waymart officials. It was
erroneously considered an appeal of grievance 255661 which related to events
occurring prior to December 29, 2008. Consequently, defendants have not met their
burden p roving the affirmative defense of failure to exhaust administrative remedies
with respect to the excessive use of force claim. Accordingly, Defendants’ motion to
dismiss Plaintiff’s Eighth Amendment excessive use of force claim will be denied.
B.
Motion for Enlargement of Time to File Address of
Sam Herchik.
More than 7 months after filing the Complaint, the Court issued an order
directing Mr. Knight to identify his John Doe defendants and provide their
addresses, and that of CO Sam Herchik, for the purpose of effecting original service
upon them. See Doc. 23. Mr. Knight was given 20 days to provide this information
to the Court or face the dismissal of these defendants pursuant to Fed. R. Civ. P.
4(m). Id. Approximately 14 days later, on July 28, 2011, Mr. Knight filed a Motion
for Enlargement of Time to provide the Court with the address of CO Herchik, as
well as the identity of the 4 John Doe defendants. See Doc. 28, Mot. for Extension
of Time. In his motion he identifies two John Doe defendants as CO Freechen and
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CO Leval but fails to provide their address, or that of CO Herchik. In support of his
request for an enlargement of time Mr. Knight notes that he has filed a motion for
appointment of counsel, and that if granted, counsel would be able locate the
necessary information. Id. However, the Court denied Mr. Knight’s third motion for
appointment of counsel on July 15, 2011. See Doc. 25. Mr. Knight would have
received notice of the Court’s denial of his request counsel shortly after he filed his
Motion fo Enlargement of Time to provide the identification and residency
information on the unserved defendants.
When a complaint has not been served upon a defendant within 120 days
after the complaint is filed, Fed. R. Civ. P. 4(m), requires the court, after giving
Plaintiff the appropriate notice, to dismiss the action against that defendants.7
Under such circumstances, dismissal of the complaint for failure to comply with Rule
4(m) is appropriate.
The Court’s order of July 20, 2011, gave Mr. Knight adequate notice of our
intention to dismiss the claims against the John Doe Defendants and CO Herchik on
the basis of lack of service under Rule 4(m) and an opportunity to respond.
Although in his motion for an extension of time Mr. Knight identifies 2 of his 4 John
Doe Defendants, he does not provide their addresses (or that of CO Herchik), or a
reason for his failure to name CO Freechan and CO Leval within the 120 day time
frame. Although an additional 7 months have passed since the filing of his motion
for enlargement to supply this information to the Court, he has not done so.
7
If, however, the Plaintiff shows good cause for the failure, the time for making
service may be extended for an appropriate period.
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However, perhaps Mr. Knight was awaiting this Court’s resolution of his motion for
enlargement before providing such information to the Court. Therefore, out of an
abundance of caution for the claims of this pro se litigant, the Court will direct Mr.
Knight to provide the names and address of all unserved defendants, and show
good cause why CO Freechan and CO Leval were not named within 120 days of his
filing of the complaint. No further enlargements will be granted with respect to the
unidentified and unserved defendants.
An appropriate Order will follow.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: March 7th
, 2012
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LAWRENCE H. KNIGHT, II,
Plaintiff
v.
CO LOWRY, et al.,
Defendants
:
:
:
:
:
:
:
:
:
CIVIL NO. 3:CV-10-2168
(Judge Caputo)
ORDER
AND NOW, this
7th
day of March, 2012, it is ordered that:
1.
The defendants’ motion to dismiss (Doc.
22) is granted in part and denied in part.
2.
The claims against the defendants in their
official capacities are hereby dismissed as
barred by the doctrine of sovereign
immunity.
3.
All claims against Superintendent Nish are
dismissed due to Mr. Knight’s failure to
state a claim against him.
4.
Mr. Knight’s Eighth Amendment claim of
deliberate indifference is dismissed with
prejudice due to his failure to exhaust his
available administrative remedies.
5.
The sole remaining claim is Mr. Knight’s
Eighth Amendment claim of excessive use
of force against CO Black and CO Lowry.
6.
CO Black and CO Lowry are granted
twenty-one (21) days from the date of this
Order to file an Answer to the Complaint.
7.
Mr. Knight’s Motion for Extension of Time
(Doc. 28) is granted.
8.
Within ten (10) days from the date of this
Order Mr. Knight shall provide the Court
with the sufficient information for the
Marshal to effect service on CO Freechan,
CO Leval and CO Herchik.
9.
Plaintiff’s failure to comply with ¶ 8 of this
Order will result in the dismissal of this
action against the unserved defendants
(Freechan, Leval, Herchik and Does)
pursuant to Fed. R. Civ. P. 4(m).
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
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