Njos v. Argueta et al

Filing 191

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Edwin M. Kosik on 05/26/2015. (emksec, )

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
_______________________________
:
SCOTT J. NJOS,
:
:
Plaintiff,
:
:
Civil Action No. 3:12-CV-1038
v.
:
:
(Judge Kosik)
S. ARGUETA, et al.
:
:
Defendants.
:
_______________________________
MEMORANDUM
Before the court are Plaintiff’s Objections to the Report and Recommendation
of Magistrate Judge Joseph F. Saporito, Jr. filed on May 5, 2015 (Doc. 180). For the
reasons which follow, we will adopt the Report and Recommendation of the
Magistrate Judge.

BACKGROUND
Plaintiff, Scott Njos, an inmate confined at the United States PenitentiaryLewisburg, Lewisburg, Pennsylvania, filed the instant civil rights action pursuant to 28
U.S.C. §1331 on June 1, 2012. This case has had an extensive procedural history.
The remaining claims are based on an excessive use of force by Defendants Argueta
and Prutzman1. There also remains an outstanding issue on the exhaustion of
administrative remedies involving the excessive use of force claims.
On July 25, 2014, Defendants filed a Motion for an Evidentiary Hearing and
Supporting Brief with regard to the exhaustion issue (Docs. 124 and 125). An
evidentiary hearing on the exhaustion issue was held on May 19, 2015.
On April 24, 2015, Plaintiff filed an “Emergency Motion for Conditional
1

Defendant Gemberling was added as a Defendant on December 3, 2014. There is an
outstanding Motion to Dismiss filed by Defendant Gemberling challenging Plaintiff’s denial of access to
court claim (Doc. 144).

Voluntary Dismissal” (Doc. 162) and a Brief in Support thereof (Doc. 163). A Brief in
Opposition to the Motion was filed by Defendants on April 28, 2015 (Doc. 170). On
May 5, 2015, the Magistrate Judge filed a Report and Recommendation (Doc. 180),
recommending that Plaintiff’s Emergency Motion for Conditional Voluntary Dismissal
be denied. Plaintiff filed a Reply Brief (Doc. 181) on May 11, 2015. On May 14,
2015, Plaintiff filed a Letter and Objections to the Report and Recommendation
(Docs. 182 and 183).

DISCUSSION
When objections are filed to a Report and Recommendation of a Magistrate
Judge, we must make a de novo determination of those portions of the Report to
which objections are made. 28 U.S.C. §636(b)(1)(C); see Sample v. Diecks, 885 F.2d
1099, 1106 n.3 (3d Cir. 1989). In doing so, we may accept, reject or modify, in whole
or in part, the findings or recommendations made by the Magistrate Judge. 28 U.S.C.
§636(b)(1); Local Rule 72.3. Although our review is de novo, we are permitted by
statute to rely upon the Magistrate Judge’s proposed recommendations to the extent
we, in the exercise of sound discretion, deem proper. United States v. Raddatz, 447
U.S. 667, 676 (1980); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
From the onset of this action, there has been an issue of whether Plaintiff has
exhausted his administrative remedies prior to filing the instant action. Specifically,
Defendants have argued that Plaintiff has failed to exhaust his administrative
remedies. In response, Plaintiff has asserted that he started the administrative
remedies process, but withdrew his administrative filings in response to threats made
by a correctional officer and the resulting fear. He thus asserted that he exhausted
the administrative remedies that were available to him. Because there were issues of
fact, including issues of credibility, an evidentiary hearing was scheduled by the
Magistrate Judge.
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After the Magistrate Judge scheduled the evidentiary hearing, Plaintiff filed his
Emergency Motion for Conditional Voluntary Dismissal. In his Brief in support of the
Motion, Plaintiff asserts that after his fear of the threats subsided, he filed a new
Administrative Grievance concerning the 2012 events and that these claims were
properly exhausted on September 17, 2013. Plaintiff proposes the following
conditions for voluntary dismissal:
(1) That the court dismiss without prejudice and instantly refile the
complaint on the same day; and
(2) That the court consider the “degree of permanence” to be when
Central Office refused to provide relief (#720162- Sep. 17, 2013)
concerning the excessive use of force and threats of death and crippling
by Defendants; and
(3) That Plaintiff be granted equitable tolling during exhaustion of
administrative remedies;
In opposition to Plaintiff’s Motion, Defendants argue that the evidentiary
hearing on the exhaustion issue should proceed. The evidentiary hearing was held
on May 19, 2015.
On May 5, 2015, the Magistrate Judge filed a Report and Recommendation
(Doc. 180). In the Report and Recommendation, the Magistrate Judge discusses
Fed. R. Civ. P. 41(a)(2) and finds that the conditions proposed by Plaintiff are
inappropriate for a Rule 41(a)(2) dismissal. The Magistrate Judge also finds that the
conditions are proposed only for the benefit of Plaintiff and will not alleviate any
prejudice to the Defendants. The Magistrate Judge then relates the extensive history
in this case. Moreover, the Magistrate Judge points out that Plaintiff claims to have
completed exhaustion of his Administrative remedies in September 2013 and that he
waited more than eighteen months after completing his administrative remedies
before filing his motion.
Following the filing of the Report and Recommendation, Plaintiff filed a Reply
Brief (Doc. 181), a Letter to the Magistrate Judge (Doc. 182) and Objections to the
Report and Recommendation (Doc. 183). In his Letter to the Magistrate Judge and in

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his Objections, Plaintiff makes reference to the Local Rules of Court and the
Magistrate Judge’s filing his Report and Recommendation prior to Plaintiff having an
opportunity to file a Reply Brief.
Because we will make a de novo review of the matters raised in the Report and
Recommendation, we will consider the Plaintiff’s Reply Brief. In the Reply Brief,
Plaintiff argues that he has a denial of access to the court claim against Defendant
Gemberling because of the alleged threats he made to Plaintiff regarding his
administrative filings. Specifically, Plaintiff asserts that Lewis v. Casey, 518 U.S. 343
(1996) applies to administrative filings and that he has shown an actual injury. While
Plaintiff attempts to analogize the administrative remedy process with the right of
access to the court requirements discussed in Casey, we do not agree.
In Lewis v. Casey, supra., the Supreme Court dealt with the right of access to
the courts and the requirement of an actual injury as a prerequisite to bringing a
denial of access to the court claim. The PLRA, which mandates that prisoners
exhaust internal prison grievance procedures before filing suit, was enacted by
Congress in an effort to curb the number of prisoner filings in federal court. Casey
dealt with what the State must provide to inmates in order to ensure that inmates have
a reasonable and adequate opportunity to present claimed violations of fundamental
Constitutional rights to the courts.
Plaintiff also argues that his case falls into an exception to the general rule that
exhaustion of administrative remedies is a question of law to be determined by the
judge. Small v. Camden County, 728 F. 3d 265 (3d Cir. 2013). Plaintiff asserts that
the issue of exhaustion in his case is protected by the Seventh Amendment and
should be decided by a jury. However, as the court stated in Small, 728 F. 3d at 270,
a judge may resolve factual disputes relevant to the exhaustion issue without the
participation of a jury. Moreover, a district court may act as the fact finder in resolving
the exhaustion issue because exhaustion constitutes a preliminary issue for which no
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Seventh Amendment right to a jury trial exists2.
As we noted above, the Magistrate Judge held an evidentiary hearing on the
exhaustion issue on May 19, 2015. The Magistrate Judge is awaiting transcription of
the proceedings and submissions by the parties.
Because we find that the exhaustion issue is properly before the Magistrate
Judge for consideration, we will adopt the Report and Recommendation of the
Magistrate Judge and we will deny Plaintiff’s Emergency Motion for Conditional
Voluntary Dismissal (Doc. 162). An appropriate Order will follow.

2

While Plaintiff argues that the facts on the exhaustion issue are bound up with the merits of the
underlying claims, we disagree. However, even if a possible overlap exists, the exhaustion issue can be
decided by a judge first. See, Pavey v. Conley, 544 F. 3d 739 (7th Cir. 2008).

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