Wolters v. UNITED STATES OF AMERICA
Filing
68
MEMORANDUM (Order to follow as separate docket entry)Based upon an application of Lightfoot to the undisputed record, since there is evidence presented by Plaintiff to show that the BOP received an administrative tort claim regarding his alleged sexu al assault while at the USP-Lewisburg, the Defendants request for entry of summary judgment with respect to the FTCA portion of the Complaint will also be granted. An appropriate Order will enter. See Memorandum re 39 MOTION for Summary Judgment filed by Andrew Wolters, 32 MOTION to Dismiss or in the alternative MOTION for Summary Judgment filed by UNITED STATES OF AMERICA Signed by Honorable Richard P. Conaboy on 8/26/14. (cc)
IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
ANDREW WOLTERS,
:
:
Plaintiff
:
:
v.
: CIVIL NO. 3:CV-13-1601
:
UNITED STATES OF AMERICA,
: (Judge Conaboy)
ET AL.,
:
:
Defendants
:
________________________________________________________________
MEMORANDUM
Background
This pro se action which asserts both Bivens1-type civil
rights and Federal Tort Claims Act (FTCA) claims was initiated
by Andrew Wolters during his confinement at the United States
Penitentiary, Lewisburg, Pennsylvania (USP-Lewisburg).2
Named as Defendants are the United States of America and
three USP-Lewisburg officials: Warden Thomas; Lieutenant Randy
Johnson; Counselor Matt Edinger; as well as various John Doe
1
Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (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 court to obtain an
award of monetary damages against the responsible federal
official." Butz v. Economou, 438 U.S. 478, 504 (1978).
2
Wolters has notified this Court that he was transferred to
the McCreary United States Penitentiary, Pine Knot Kentucky. See
Doc. 61.
1
correctional officials.
Plaintiff states that he was subjected to a sexual assault
by correctional officers including Lieutenant Johnson and
Counselor Edinger or about September 27, 2011.
Wolters also
claims that Johnson used racial slurs during the purported
attack.
Thereafter, Plaintiff claims that he was denied proper
medical treatment for his resulting serious medical injuries
which included an anal fissure.
The Complaint also include vague claims of retaliation
including assertions that chemical agents are being sprayed into
his cell; he has been issued false misconducts; suffered loss of
personal property and legal documents; and denial of medical
treatment for a lung infection and shortness of breath.
Defendants have responded to Plaintiff’s action by filing a
motion to dismiss or in the alternative for summary judgment.
See Doc. 32.
Plaintiff thereafter filed a cross motion for
summary judgment.
See Doc. 39.
Discussion
Motion to Dismiss
Defendants’ pending dispositive motion is supported by
evidentiary materials outside the pleadings.
Federal Rule of
Civil Procedure 12(d) provides in part as follows:
If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleading are
2
presented to and not excluded by the court,
the motion must be treated as one for
summary judgment under Rule 56. All parties
must be given reasonable opportunity to
present all the material that is pertinent
to the motion.
Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials
accompanying the Defendants' motion.
Thus, their motion will be
treated as solely seeking summary judgment.
See Latham v.
United States, 306 Fed. Appx. 716, 718 (3d Cir. 2009)(when a
motion to dismiss has been framed alternatively as a motion for
summary judgment such as in the present case, the alternative
filing “is sufficient to place the parties on notice that
summary judgment might be entered.”)
Plaintiff’s Cross Summary Judgment Motion
M.D. Pa. Local Rule 7.5. requires that a party who files a
pretrial motion must submit a brief in support of said motion
within fourteen (14) days of its being filed with the court.3
If a supporting brief is not timely filed, “such motion shall be
deemed to be withdrawn.”
A review of the docket shows that
Plaintiff has not submitted a brief in support of his pending
summary judgment motion nor has he requested an extension of
3
M.D. Pa. Local Rule 7.4 clearly states that the briefing
schedule of Local Rule 7.5 is applicable to motions for summary
judgment.
3
time in which to do so.
M.D. Pa. Local Rule 56.1. requires a party seeking entry of
summary judgment to submit a separate, short, and concise
statement of the material facts.
Once again a review of the
docket shows that Wolters has not filed the required statement
of material facts nor sought an enlargement of time in which to
do so.
Moreover, Wolters’ pending motion fails to sets forth any
viable argument as to why summary judgment should be entered in
his favor as a matter of law.
Since Plaintiff has failed to
submit a supporting brief as required by Local Rule 7.5 or a
statement of material facts as required by Local Rule 56.1, and
his motion offer no basis whatsoever as to why Wolters is
entitled to entry of summary judgment, his cross motion seeking
entry of summary judgment (Doc. 82) will be deemed withdrawn.4
Rule 56(f)
Plaintiff’s cross summary judgment also vaguely indicates
that Defendants’ summary judgment motion should be denied
pursuant to federal Rule of Civil Procedure 56 (f) because he
has not had “access to discovery.”
4
Doc. 39, p. 2.
While the motion includes a discussion as to the applicable
standards for summary judgment motions, it does not set forth any
discernible argument as to why Plaintiff is entitled to summary
judgment with respect to the merits of any of his claims as a
matter of law.
4
The Supreme Court has recognized that premature motions for
summary judgment should be dealt with pursuant to the provisions
of Federal Rule of Civil Procedure Rule 56 if the opposing party
has not made full discovery.
326 (1986).
Celotex v. Catrett, 477 U.S. 317,
Specifically, Rule 56(d) provides that when facts
are unavailable to the nonmovant:
If a nonmovant shows by affidavit or
declaration that, for specified reasons, it
cannot present facts essential to justify
its opposition, the court may;
(1)
(2)
(3)
defer
allow
or to
issue
considering the motion or deny it;
time to obtain affidavits or declarations
take discovery; or
any other appropriate order.
Fed. R. Civ. P. 56(d).
Thus, a district court has discretion to
decide whether a party's summary judgment motion is ripe.
Sames
v. Gable, 732 F.2d 49, 51 (3d Cir. 1984).
In order to preserve the issue for appeal, Rule 56(d)
requires the opposing party to a motion for summary judgment to
file an affidavit or declaration outlining the reasons for the
party's opposition.
See Galgay v. Gil-Pre Corp., 864 F.2d 1018,
1020 n.3 (3d Cir. 1988).
If an opposing party makes a Rule
56(d) motion without an affidavit, the Third Circuit Court of
Appeals has stated that the opposing party "must still `identify
with specificity what particular information is sought; how, if
5
uncovered, it would preclude summary judgment; and why it has
not previously been obtained.'"
Surin v. Virgin Islands Daily
News, Inc., 21 F.3d 1309, 1314 (3d Cir. 1994) (quoting
Lunderstadt, 855 F.2d at 71).
The opposing party, however, must
be specific and provide all three types of information required.
In the present matter, Wolters has not submitted a proper
Rule 56(d) declaration.
Plaintiff clearly has the right to
undertake discovery for the purpose of presenting relevant
factual evidence in opposition to the summary judgment arguments
and supporting facts being offered by the Defendants.
However,
because the pro se Plaintiff has not filed a proper Rule 56(d)
motion including the required declaration and has not indicated
what discovery materials he requires to oppose the pending
summary judgment motion his informal request will be denied.
Defendants’ Summary Judgment Motion
Defendants assert that they are entitled to entry of
summary judgment on the grounds that Plaintiff failed to exhaust
his available administrative remedies with respect to both his
Bivens and FTCA claims.
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”
6
Fed. R.
Civ. P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228,
231-32 (3d Cir. 2001).
A factual dispute is “material” if it
might affect the outcome of the suit under the applicable law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A
factual dispute is “genuine” only if there is a sufficient
evidentiary basis that would allow a reasonable fact-finder to
return a verdict for the non-moving party.
Id. at 248.
The
court must resolve all doubts as to the existence of a genuine
issue of material fact in favor of the non-moving party.
Saldana, 260 F.3d at 232; see also Reeder v. 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.
Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d
Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations
in its complaint.
324 (1986).
See Celotex Corp. v. Catrett, 477 U.S. 317,
Instead, it must “go beyond the pleadings and by
[its] own affidavits, or by the depositions, answers to
interrogatories, and admissions on file, designate specific
facts showing that there is a genuine issue for trial.”
Id.
(internal quotations omitted); see also Saldana, 260 F.3d at 232
7
(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.”
U.S. at 322-23.
Celotex, 477
“‘Such affirmative evidence – regardless of
whether it is direct or circumstantial – must amount to more
than a scintilla, but may amount to less (in the evaluation of
the court) than a preponderance.’”
Saldana, 260 F.3d at 232
(quoting Williams v. Borough of West Chester, 891 F.2d 458, 46061 (3d Cir. 1989)).
Section 1997e(a) of title 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
prisoner confined in any jail, prison, or
other correctional facility until such
administrative remedies as are available are
exhausted.
Section 1997e(a) requires administrative exhaustion
“irrespective of the forms of relief sought and offered through
administrative avenues.”
Porter v. Nussle, 122 S.Ct. 983, 992
(2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001).
Claims
for monetary relief are not excused from the exhaustion
requirement.
Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000).
Dismissal of an inmate’s claim is appropriate when a prisoner
8
has failed to exhaust his available administrative remedies
before bringing a civil rights action.
Ahmed v. Sromovski, 103
F. Supp. 2d 838, 843 (E.D. Pa. 2000).
“[E]xhaustion must occur
prior to filing suit, not while the suit is pending.”
Tribe v.
Harvey, 248 F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000)(citing
Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)); Oriakhi
v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
The United States Supreme Court in Jones v. Bock, 127 S.Ct.
910, 923 (2007), stated that the primary purpose of the
exhaustion requirement is to allow “a prison to address
complaints about the program it administers 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.”
Id.
The administrative exhaustion mandate also implies a procedural
default component.
Spruill v. Gillis 372 F.3d 218, 222 (3d Cir.
2004).
As explained by the Third Circuit Court of Appeals, a
procedural default rule “prevents an end-run around the
exhaustion requirement.”
Id. at 230.
It also ensures “prisoner
compliance with the specific requirements of the grievance
system” and encourages inmates to pursue their administrative
grievances “to the fullest.”
Id.
9
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, including 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 futility exception” to the exhaustion
requirement.
Brown v. Croak, 312 F.3d 109, 112 (3d cir. 2002)
(citing Nyhuis, 204 F.3d at 75.
A more recent 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.
Hill v. Smith, 186 Fed.
Appx. 271, 274 (3d Cir.
2006).
An inmate is not required to specifically plead or
demonstrate exhaustion in his or her complaint.
Bock, 549 U.S. 199, 216 (2007);
See Jones v.
see also Ray v. Kertes, 285
F.3d 287 (3d Cir. 2002)(a prisoner does not have to allege in
his complaint that he has exhausted administrative remedies).
Rather, pursuant to the standards announced in Williams v.
Runyon, 130 F.3d
568, 573 (3d Cir. 1997), it is the burden of a
defendant asserting the defense of non-exhaustion to plead and
10
prove it.5
Consequently, any failure by Plaintiff to allege or
establish compliance with the exhaustion requirement is not by
itself a sufficient basis for entry of dismissal under the
criteria established in Jones and Williams.
Bivens
The BOP has a well established
three (3) step
Administrative Remedy Program whereby a federal prisoner may
seek review of any aspect of his imprisonment.
542.10-542.19.
See 28 C.F.R. §§
After attempting to informally resolve the
issue, a BOP inmate can initiate the first step of the grievance
process by submitting
“a formal written Administrative Remedy
Request, on the appropriate form (BP-9),” within twenty (20)
calendar days “following the date on which the basis for the
Request occurred.”
twenty (20)
See
28 C.F.R. § 542.14(a).
The Warden has
calendar days from the date the Request or Appeal
is filed in which to respond.”
See
28 C.F.R. § 542.18.
If not
satisfied with the Warden's response, an inmate may appeal (step
two) on the appropriate form (BP-10) to the Regional Director
within twenty (20) calendar days of the date the Warden signed
the response.
See
28 C.F.R. § 542.15.
5
Finally, if the inmate
In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”
11
is dissatisfied with the Regional Director's response, that
decision may then be appealed (step three) on the appropriate
form (BP-11) to the General Counsel within thirty (30) calendar
days from the date the Regional Director signed the response.
Id.
Additionally, “[i]f the inmate does not receive a response
within the time allotted for reply, including extension, the
inmate may consider the absence of a response to be a denial at
that level.”
Id.
In support of their Bivens non-exhaustion argument,
Defendants have submitted a declaration under penalty of perjury
by USP-Lewisburg Attorney Advisor Michael Romano who states that
a review of the BOP’s computerized records systems reveals that
as of November 27, 2013, Plaintiff initiated 238 grievances
while incarcerated.
Five of those grievances regarded his USP-
Lewisburg confinement.
See Doc. 36-1, ¶ 6.
Romano avers that
four of those grievances were rejected and the fifth which
apparently regarded a sexual assault was still pending at the
regional level.
Moreover, that pending administrative appeal
was not received at the regional level until months after the
initiation of this action.
The undisputed evidence submitted by the Defendants
satisfies their burden of establishing that Plaintiff did not
fully exhaust his available BOP administrative remedies prior to
12
initiating this action.
Accordingly the request for entry of
summary judgment with respect to the Bivens portion of this
action on the basis of non-exhaustion will be granted.
FTCA
The FTCA provides a remedy in damages for the simple
negligence of employees of the United States.
v. Muniz, 374 U.S. 150, 150 (1963).
See United States
Under the FTCA, sovereign
immunity is waived against persons suing the federal government
for the commission of various torts.
See Simon v. United
States, 341 F. 3d 193, 200 (3d Cir. 2003).
an FTCA claim must show:
A plaintiff pursuing
(1) that a duty was owed to him by a
defendant; (2) a negligent breach of said duty; and (3) that the
negligent breach was the proximate cause of the plaintiff's
injury/loss.
Mahler v. United States, 196 F. Supp. 362, 364
(W.D. Pa. 1961).
The only proper Defendant for purposes of an
FTCA claim is the United States of America.
See 28 U.S.C. §
2679(d).
In support of their non-exhaustion argument, Defendants
rely upon the previously discussed declaration under penalty of
perjury by Attorney Advisor Romano.
Attorney Romano
acknowledges that Plaintiff filed a single administrative tort
claim with the BOP regarding an alleged sexual assault.
However, that attack purportedly occurred on January 31, 2011
13
while Wolters was confined at USP-Lee.
See id. at ¶ 9.
According to Romano, Wolters did not initiate an administrative
tort claim regarding a USP-Lewisburg sexual assault.
Plaintiff’s Complaint indicates that he filed two
administrative tort claims with the BOP’s regional Counsel but
that the Regional Counsel claimed he never received either of
those alleged filings.
In
See Doc. 1, ¶ II.
Lightfoot v. U.S., 564 F.3d 625 (3d Cir. 2009), the
Third Circuit Court of Appeals held that the requirement of
presenting an administrative tort claim “means more than merely
mailing the claim.”
Id. at 628.
presenting there must be receipt.
It added that mailing is not
See id. Furthermore, “a
plaintiff must demonstrate that the Federal agency was in actual
receipt of the claim.”
Id.
Plaintiff has not submitted any
evidence whatsoever which would support his self serving claim
that he filed a proper administrative tort claim.
Based upon an application of Lightfoot to the undisputed
record, since there is evidence presented by Plaintiff to show
that the BOP received an administrative tort claim regarding his
alleged sexual assault while at the USP-Lewisburg, the
Defendants’ request for entry of summary judgment with respect
to the FTCA portion of the Complaint will also be granted.
14
An
appropriate Order will enter.6
S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge
DATED; AUGUST 26, 2014
6
In the event Plaintiff can present evidence showing that he
complied with either the Bivens or FTCA exhaustion requirements or
should be excused from those mandates, he may file a motion for
reconsideration within fourteen (14) days of the date of this
Memorandum.
15
16
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