Flynn v. Department of Corrections et al

Filing 78

MEMORANDUM (Order to follow as separate docket entry)As discussed earlier, under Woodford prisoners are required to comply with grievance system procedural rules when exhausting their administrative remedies. Since the undisputed record establishes t hat Flynn' s failure to do so resulted in the rejection of his complaints of retaliation, a finding of non-exhaustion and entry of summary judgment under the well settled Spruill and Woodford standards is appropriate. Rema i ning Defendants ' request for summary judgment will be granted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 3/4/16. (cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

DONALD FLYNN,

Plaintiff

v.

CIVIL NO. 3:CV-12-1535

DEPARTMENT OF CORRECTIONS,
ET AL.,

(Judge Conaboy)

Defendants

Donald Flynn, an

confined at the State

Correctional Institution, Coal Township, Penn
Twp.), initiated this pro se civil
U.S.C.

§

(SCI-Coal

ac

pursuant to 42

1983.

By Memorandum and Order

ed

t 26, 2013, Defendants'

motion seeking partial dismissal was

Specifically,

dismissal was granted in favor of De

s Pennsylvania

Department of Corrections (DOC) and the

llowing DOC officials,

Secretary John Wetzel; Chief Grievance Off
Chief Hearing Examiner Robin Lewis.

Dorina Varner; and

Doc. 33, p. 18.

Dismissal

was also entered in favor of the following SCI-Coal TWp.
Defendants:

Hearing Examiner Kerns-Barrj Unit Manager Charles

Custer; Major Miller; Licensed Psychologist Manager (LPM) John
Sidler; Cam II Michael Corbacio; Correct
Deputy Superintendent Rhonda Ellet;

1

1
1

f

Richards; exMcCarty; Unit

Manager Williams; Correctional Officer Lahr; and C a i n
Scicchitano.
By Memorandum and Order dated February 3, 2015, Remaining
Defendants' motion for

su~oary

judgment was partially granted.

Summary judgment was granted in favor of Defendant Mail Room
Inspector Terese Jellen and favor of the Remaining Defendants with
respect to the POC conditions of confinement claims on the basis of
non-exhaustion of administrative remedies
Remaining Defendants are the following five SCI-Coal Twp.
offic

s:

Superintendent David Varano; Captain Charles Stetler;

Correctional Officer Nowell; as well as Lieutenants Shipe and R.E.
PI

iff's surviving claims contend

he was subjected

to retaliation by Defendants Stetler, Shipe, Long, and Varano
because he filed a grievance regarding JPay; and improper
confiscat

of legal materials by Defendants Nowell and Long.

Presently pending is Rema

Defendants' second motion

seeking entry of summary judgment.

Doc. 68.

The opposed

motion is ripe for consideration.
Discussion

Remaining Defendants contend that they are entit
of summary judgment on the grounds

d to entry

(I) Plaintiff failed to

exhaust his administrative remedies with respect to his retaliation
related allegations; and (2) Flynn did not suffer any injury to a
non-frivolous legal effort

respect to his claim

Defendants Nowell and Long confiscated his legal material.

2

Standard of Review

is proper if "the pleadings, the discovery

SUITmary j

and disclosure materials on file, and any affidavits show
there is no genuine issue as to any material fact and that the
movant is entitled to a j
P. 56(c); See also
Cir. 2001).

as a matter of law."

~~===-~-===~-=~~,

A factual

260 F.3d 228, 231 32 (3d

is "material" if it might a fect the

outcome of the suit under

applicable law.

Lobby, Inc., 477 U.S. 242, 248 (1986).
"genuine" only if there is a suffi
would allow a reasonable

t

A

factual dispute is

ent evidentiary basis

at

finder to return a verdict for

. at 248.

non-moving party.

. R. Civ.

The court must resolve all doubts

as to the existence of a

issue of material fact in favor of

the non-moving party.

, 260 F.3d at 232; see

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.
F.2d 1359, 1370 (3d C

Versarge v. Township of Clinton, 984

. 1993).

Once the moving

has shown that there is an absence of
of the non-moving party, t

evidence to support the c
moving party may not s
its complaint.
(1986) .

See

back and rest on the all

~~~~~~~~~~~~,

Instead, it must

affidavits, or by the depos
admissions on file,

s

non­

477 U.S. 317, 324

beyond the pleadings and
ions, answers to interrogator
specific facts showing that

3

in

[its] own
s, and
is

a genuine issue for trial."

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a party "fails to make a showing
sufficient to establish the existence of an element essential to
that party's case, and on which that party will bear the burden at
trial."

Celotex, 477 U.S. at 322-23.

- regardless of whether it is

"'Such affirmative evi

nce

or circumstantial - must

amount to more than a scintilla, but may amount to less (in the
evaluation

the court) than a preponderance.'"

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460 61 (3d Cir. 1989».
Access to the Courts

Plaintiff claims that his cell was searched on August 12,
2010 by De

Nowell allegedly

filing of a grievance.

retaliation for Flynn's

Doc. 1, p. 3.

Flynn indicates that

although he was told that the search was investigative,
bel

f that the search was retaliatory.

is his

During this search Flynn

contends that 243 pages of his legal materials were confiscated by
Remaining Defendants Nowell and Long.
Remaining Defendants assert that to the extent that
Plaintiff is asserting a denial of access to the courts claim
against Remaining Defendants Nowell and Long, said allegation must
fail because Flynn "does not identify any nonfrivolous, meritorious
underlying cause of action as having been impeded by the
confiscation of alleged legal materials."

4

Doc. 69, p. 8.

brief vaguely asserts that the destruction of

Plaintiff's oppos
his

rsonal

rse ef

rs has had an

Post Conviction ReI

fAct (PCRA)" petition which

Philadelphia County Court of Common pleas.
Prisoners enjoy a constitutional ri
to the law libraries, legal
...':!....!--=~:..:.:.,

a

o~

Pen~sylvania's

filed in tne

Doc. 7 5, p. 1.
of meaningful access

als, or legal services.

430 U.S. 817, 821-25 (1977).

Bounds

Inmates have a right to

send and receive legal mail which is uncontroverted and implicates
both First and Sixth Amendment concerns, through the right to
petition the government and the right of access to the courts.
"when legal mail is read by prison employees, the risk is of a
'chill,' rendering the prisoner unwilling or unable to raise
substant
employees."

legal issues critical of

prison or prison

Proudfoot v. Williams, 803 F. Supp. 1048, 1052 (E.D.

Pa. 1992).
The United States Supreme Court in Lewis v. Casey, 518 U.S.
343, 351-54 (1996), clarified that an inmate plaintiff, in order to
set forth a viable claim under Bounds, must demonstrate that a nonfrivolous legal claim had been frustrated or was being impeded.

A

plaintiff must also allege an actual injury to his litigation

1.
42 Pa. Cons. Stat. Ann. § 9541 et ~ The PCRA "permits
motions for post-conviction collateral relief for allegations of
error, including ineffect
assistance of counsel, unlawfully
induced guil
pleas, improper obstruction of rights to appeal by
Commonwea h officials, and violation of constitutional
provisions." Hankins v. Fulcomer, 941 F.2d 246, 251 (3d Cir.
1991).

5

efforts.

Under the standards mandated by

~~~,

in order for an

inmate to state a claim for interference with his legal work, he
must demonstrate that he has suffered actual injury.

See Oliver v.

Fauver, 118 F.3d 175, 177-78 (3d Cir. 1997) (concluding that Lewis
effectively requires a showing of actual injury where interference
with legal mail is alleged).
Following a careful review of the Complaint, it is clear to
this Court that Flynn has failed to adequately demonstrate that he
suffered any injury to a non-frivolous
under

claim as required

In response to Plaintiff's opposing brief the

Remaining Defendants have provided a copy of the docket from
Flynn's Philadelphia County PCRA proceeding.

See Doc. 76.

Based

upon a review of that docket, there is no indication that the
alleged interference by Remaining Defendants Nowell and Long caused
Flynn to suffer any adverse determination with respect to his PCRA
action or any other matter

was pursuing in federal or state

court.
Accordingly, this Court agrees that entry of summary
judgment should be granted in favor of Nowell and Long with respect
to any denial of access to the court claim.
Administrative Exhaustion

Plaintiff asserts that he filed a grievance on August 8,
2010 regarding the implementation of "the J-Pay system and refusing
to accept money orders."

Doc. 1, p. 3, i

2.

It is alleged that

Defendants Stetler, Shipe, Long, and Varano retaliated against him

6

for filing that grievance by placing him in the prison's Restricted
Housing unit (RHU) and issuing him a
refused to withdraw the grievance.

sconduct charge when he
He also contends that an August

12, 2010 cell search was also retaliatory.
Remaining Defendants claim ent

lement to summary judgment

with respect to the claim that he was subjected to retaliation
initiating a grievance regarding JPay because Flynn failed to
properly exhaust his administrative remedies.
Pla

iff's oppos

brief asserts that

his argument is meritless

because he fully exhausted Grievance # 332131.
Section 1997e(a) of t

See Doc. 69, p. 2.

See Doc. 75, p. 1.

le 42 U.S.C. provides:

No action shall be brought with respect to
prison conditions under Section 1979 of
the Revised Statutes of the United States
(42 U.S.C. 1983), or any other federal
law, by a
isoner confined in any jail,
prison, or other correctional facility
until such administrative remedies as are
available are exhausted.
Section 1997e(a) requires administrative exhaustion
"irrespect

of the forms of relief sought and offered through

administrative avenues.

u

~~~~~~~~~,

122 S.Ct. 983, 992

(2002); Booth v. Churner, 532 u.S. 731, 741 n. 6 (2001).
for monetary rel
requirement.

Claims

f are not excused from the exhaustion

Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000).

Dismissal of an inmate's claim is appropriate when a prisoner has
f

led to exhaust his available administrative remedies before

bringing a c

1 rights action.

Ahmed v. Sromovski, 103 F. Supp.

7

2d 838, 843 (E.D. Pa. 2000).

"Elxhaustion must occur prior to

filing suit, not while the suit is pending."

Cir. 2000)(cit

F.3d 1152, 2000 WL 167468, *2
Francis, 196 F.3d 641, 645 (6
States, 165

Tribe v. Harvey, 248

C

Freeman v.

. 1999)); Oriakhi v. United

. Appx. 991, 993 (3d Cir. 2006).

An inmate is not required to specifically plead or
demonstrate exhaustion in his or her complaint.
549 U.S. 199, 216 (2007);
Cir. 2002)(a
he has exhau

Jones v. Bock,

see also Ray v. Kertes, 285 F.3d 287 (3d

soner does not
administrat

to allege
remedies).

his complaint
, pursuant to

standards announced in Williams v. Runyon, 130 F.3d
Cir. 1997),
of non-exhaust
Supreme Court

568, 573 (3d

is the burden of a defendant asserting the defense
to plead and prove it. 2

The

States

Jones noted that the primary purpose of the
prison offic

exhaustion requirement is to al

Is to address

complaints before being subjected to suit, reducing litigation to
the extent complaints are satisfactorily resolved, and improving
litigation that does occur by leading to the preparation of a
useful record.
The administrative exhaustion mandate also implies a
procedural default component.
(3d Cir. 2004).
Appeals, a

Spruill v. Gillis 372 F.3d 218, 222

As explained by the Third Circuit Court of
default rule "prevents an end-run around the

2.
In Mitchell v. Horn, 318 F.3d 523, 529 (3d C . 2003), the
t similarly
United States Court of Appeals for the Third C
stated that "[flailure to exhaust administrative remedies is an
affirmative defense for the de
to plead."
8

exhaustion requirement."

. at 230.

It also ensures "prisoner

compliance with the specific requirements of the

evance system"

and encourages inmates to pursue their administrative grievances
"to the fullest."

Similarly, the Supreme Court has observed

that proper exhaustion of available administrative remedies is
mandatory, meaning that prisoners must comply with the grievance
system's procedural rules, incl

time limitations.

Woodford v.

Ngo, 548 U.S. 81 (2006).
The Court of Appeals for the Third Circuit has recognized
that "[t]here is no futil
requirement.

y

ion" to the exhaustion

Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002)

(citing Nyhuis, 204 F.3d at 75.

A subsequent decision by the Third

Circuit Court of Appeals reiterated its no futility exception by
rejecting an inmate's argument that exhaustion should be excused
because prisoner grievances were regularly rejected.
Smith, 186 Fed.

Appx. 271, 274 (3d Cir.

2006).

Hill v.

The Court of

Appeals has also rejected "sensitive' subject matter or 'fear of
retal

ion' as a basis for excusing a prisoner's failure to

exhaust."

Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110, 113 (3d Cir.

2008).
A Consolidated Inmate Grievance Review System has been
established by the Pennsylvania Department of Corrections ("DOC").3
Section V of DC-ADM 804 (effect

December 8, 2010) states that

"every individual committed to its custody shall have access to a

3. The DOC's grievance system has been pe
9

lly amended.

formal procedure through which to seek the resolution of problems
or other issues of concern arising during the course of
confinement."

See Doc. 29, p. 8.

It adds that the formal

procedure shall be known as the Inmate Grievance System and
provides a forum of review and two (2) avenues of appeal.

Section

VI ("Procedures") of DC-ADM 804 provides that, after attempted
informal resolution of the problem, a written grievance may be
submitted to the Facility Grievance Coordinator within fi

een (15)

working days after the events upon which the claims are based, but
allowances of extensions of time will be granted under certain
circumstances.
An appeal from the Grievance Coordinator's In

ial Review

decision may be made in writing within ten (10) working days to the
Facility Manager or Superintendent.
presented within fifteen

A final written appeal may be

(15) working days to the Secretary's

Office of Inmate Grievances and Appeals (SOIGA).

A prisoner, in

seeking review through the DOC grievance system, may include
reasonable requests for compensation or other legal reI
available from a court.

f normally

However, an improperly submitted grievance

will not be reviewed.
A declaration under penalty of perjury submitted by SCI-Coal
Twp. Superintendent's Assistant/Grievance Coordinator Trisha Kelley
acknowledges that Plaintiff filed Grievance # 332131 regarding his
allegations of retaliation including his assertion of retaliatory
placement in administrative custody.

See Doc. 71-1.

However, his

grievance was rejected at all administrative levels because issues
10

relating to placement in administrative custody and disciplinary
custody cannot be addressed through the grievance process.
Doc. 71-2, p. 1.

See

Rather, any such administrative custody appeals

are to initiated through the DOC ' s Administrative Custody
Procedures .
Accompanying copies of the grievance and responses confirm
that Grievance # 332131 raised claims regarding retaliatory
mistreatment and was not addressed on its merits because it raised
an issue pertaining to placement in administrative custody.
Rather, the gri eva nce was rejected at all levels of the
administrative review process.
As discussed earlier, under Woodford prisoners are required
to comply with grievance system procedural rules when exhausting
their administrative remedies.

Since the undisputed record

establishes that Flynn ' s failure to do so resulted in the reje ction
of his complaints of retaliation, a finding of non-exhaustion and
entry of summary judgment under the well settled Spruill and
Woodford standards is appropriate .

Rema i ning Defendants '

for summary judgment will be granted.

requ est

An appropriate Order will

enter.

DATED: MARCH

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