Millbrook v. Bledsoe et al

Filing 36

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable William J. Nealon on 3/17/2015. (bg)

UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA
KIM MILLBROOK,
Plaintiff
v.

WARDEN BLEDSOE, ET AL.,
Defendants

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CIVIL ACTION NO. 3:13-cv-2000
(Judge Nealon)

MEMORANDUM
Background
On July 25, 2013, Plaintiff, Kim Millbrook, an inmate presently confined at
the United States Penitentiary, Lewisburg, Pennsylvania (“USP-Lewisburg”),
initiated this civil rights action pursuant to 28 U.S.C. § 1331. (Doc. 1). Named as
Defendants are the following sixteen (16) USP-Lewisburg officials: ex-Warden B.
A. Bledsoe; Warden J. E. Thomas; Associate Warden D. Wilson; Counselors M.
Edinger and R. Bingaman; Lieutenants Jason Seeba, D. Dowkus, D. Knapp, P.
Carrasquillo, R. Johnson; T. Johnson and Scott; EMTs/Paramedics L. Potter,
Matthew Barth, and Gregory George; and Case Manager C. Hendrickson. (Id.).
Plaintiff asserts that his claims are based on events which occurred between April
12, 2012 and April 13, 2013 while he was housed in the USP-Lewisburg Special

Management Unit (SMU).1 See Doc. 1, ¶ V.
According to the Complaint, Plaintiff was transferred from F-Block to GBlock on April 12, 2012. See Doc. 1, ¶ 1. He asserts that Lieutenant Seeba
initiated his transfer to an SMU unit which housed sexual predators as retaliation
for his filing of lawsuits and grievances.2 Id. at ¶ 6. Millbrook contends that the
transfer was also improper because he had previously been physically and
sexually abused by both staff and other prisoners. Id. at ¶ 12.
Upon his arrival, Plaintiff was purportedly placed in a cell with inmate
Derrick Brown who immediately threatened to kill the Plaintiff in the presence of
Seeba. Although Inmate Brown made multiple sexual advances towards him,
Plaintiff’s subsequent requests for a cell transfer were denied by Defendants
Seeba and Warden Bledsoe. Plaintiff and Brown were eventually moved from GBlock to a D-Block cell. On July 12, 2012, Millbrook claims that he was
allegedly assaulted by Inmate Brown. It is asserted that although the attack was
In a prior action filed with this Court, Millbrook v. United States of America,
et al., Civil No. 3:CV-12-421, Plaintiff describes himself as having post traumatic
stress and bipolar disorder who was allegedly subjected to prior assaults by both staff
and other prisoners at both USP-Lewisburg and his prior place of confinement . See
id., Doc. 1, Section V, ¶ 29.
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During the actual transfer Plaintiff state that he was subjected to verbal
threats and harassment by non-defendant correctional staff members.
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witnessed by Lieutenant Johnson and Counselor Edinger, the prisoners were
allowed to remain in the same cell. See id. at ¶ 17.
The Complaint next generally contends that Defendant Edinger denied
Plaintiff opportunity to file administrative grievances as retaliation for previously
filing lawsuits against said Defendant. See id. at ¶ 20. On or about October 16,
2012, Plaintiff states that he was moved from F-Block back to G-block per a
directive from Lieutenant Seeba and a non-defendant correctional officer. Upon
his return to G-block, Plaintiff states that he was celled with Inmate Holmes. On
that same date, Seeba allegedly sprayed Plaintiff and Holmes with a chemical
agent without having just cause to initiate such action. See id. at ¶ 26. In
addition, the two (2) prisoners were denied adequate decontamination and medical
treatment after the incident. It is alleged that Holmes later told Plaintiff that
Seeba had wanted Holmes to beat up Millbrook for being a jailhouse snitch.
Plaintiff was subsequently moved back to F block where he was issued a
meritless misconduct charge. On October 16, 2012, Millbrook’s legal papers
were purportedly thrown away by a correctional officer because they were
contaminated by the chemical agent. See id. at ¶ 29. It is next alleged that
between November-December 2012, Warden Thomas failed to protect Plaintiff’s

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safety by not acting on the inmate’s requests for a transfer or placement in
protective custody. Millbrook adds that Thomas also refused to take action when
Plaintiff complained that he was being denied access to the grievance process.
See id. at ¶ 32.
On March 28, 2013, Lieutenant Johnson tried to force the Plaintiff into
accepting a cellmate. When Plaintiff refused, Lieutenants Johnson and Scott had
him placed into ambulatory restraints by a use of force team which was
accompanied by EMT Barth. The Complaint asserts that although the restraints
were applied too tightly, Barth approved of their placement. Plaintiff was than
moved to a G block cell which he describes as being excessively hot, bug
infested, and poorly ventilated. See id. at ¶ ¶39, 46.
After being in that cell, and while still in ambulatory restraints, Plaintiff
was visited by Lieutenants Johnson and Knapp who allegedly denied his request
for medical treatment and loosening of the restraints telling him only that he
would remain in restraints in the G Block cell until he agreed to accept a cell
mate. Millbrook adds that he was also visited by Associate Warden Wilson that
same day who likewise denied his requests for relief.
Later that evening, EMT George and Lieutenant Carrasquillo revived the

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Plaintiff after he had passed out. George allegedly stated that he should have let
the inmate die because of filing all those lawsuits. Thereafter, that same night,
Millbrook asserts that he was seen by EMT Potter and Lieutenant Dowkus who
also refused to loosen his restraints. See id. at ¶ 48. During the morning of
March 29, 2013, the Complaint contends that Lieutenant Knapp told Millbrook he
could either accept a violent prisoner with a history of mental and sexual issues,
Inmate Black, as his cellmate or remain in restraints. Millbrook agreed to accept
the cell mate. Black and Millbrook remained cell mates on G Block for
approximately one (1) month. During that same day, Counselor Bingaman
allegedly denied Plaintiff’s request for a cell transfer as well as his request for
grievance forms. The Complaint further maintains that unconstitutional
conditions of confinement existed on G Block. It is alleged that those cells lack
emergency alarm buttons, have poor illumination, and inmates are not provided
with cleaning supplies. See id. at ¶ 55.
The final claim raised in the Complaint maintains that the Plaintiff was
purportedly attacked by Inmate Black on April 13, 2013. Associate Warden
Wilson and Case Manager Hendrickson allegedly failed to take any action when
informed of the incident. The Complaint seeks injunctive and declaratory relief as

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well as compensatory and punitive damages.
Defendants have responded to the Complaint by submitting a motion to
dismiss and for summary judgment. See Doc. 19. A review of the docket shows
that Plaintiff has neither responded to the Defendants’ motion nor sought an
enlargement of time in which to do so. Accordingly, Defendants’ motion will be
deemed unopposed and will be granted.
Standard of Review
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 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
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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.”)
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.”
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 nonmoving 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 non-moving party may not simply

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sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). 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 (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. “‘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, 460-61 (3d Cir.
1989)).
Discussion
1.

Administrative Exhaustion

Defendants initially argue that Millbrook failed to exhaust his available
administrative remedies regarding any claim raised in the Complaint despite
having had the opportunity to do so. See Doc. 35, p. 19. They assert that because

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Plaintiff did not initiate any administrative grievances after January 13, 2011, his
pending claims which are based on events which transpired during 2012 through
2013 are clearly subject to dismissal on the basis of non-exhaustion. As noted
above, this argument is unopposed.
The Complaint indicates that Plaintiff should be excused from the
exhaustion requirement because his administrative remedies were made
unavailable. See Doc. 1, ¶ IV. Millbrook generally adds that Counselor Edinger
denied him “access to file any administrative remedies” out of retaliation for filing
prior lawsuits. See id. at Section V, ¶ ¶ 20, 55. Plaintiff also vaguely contends
that he told Warden Thomas that Counselor Aderhoff, Case Manager Nicholas,
and Unit Manager Knox were not making the administrative process available to
me. See id. at ¶ 32. In addition, Bingaman allegedly made the administrative
process unavailable by telling Plaintiff that he was not going to start filing
complaints against G Block employees. See id. at ¶ 56.
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.
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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 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, 549 U.S. 199, 219
(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).

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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. 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).
“There 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. 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).
The Court of Appeals has also rejected “sensitive’ subject matter or ‘fear of
retaliation’ as a basis for excusing a prisoner’s failure to exhaust.” Pena-Ruiz v.
Solorzano, 281 Fed. Appx. 110, 113 (3d Cir. 2008).
An inmate is not required to specifically plead or demonstrate exhaustion in
his or her complaint. See, Jones, 549 U.S. at 216; see also Ray v. Kertes, 285

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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 prove
it.3
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. See 28 C.F.R. §§ 542.10-542.19. 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.” See 28 C.F.R. § 542.14(a). The
Warden has twenty (20) 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 (BP10) to the Regional Director within twenty (20) calendar days of the date the
Warden signed the response. See 28 C.F.R. § 542.15. Finally, if the inmate is
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.”
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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 the non-exhaustion argument, Defendants have submitted a
declaration under penalty of perjury submitted by non-Defendant USP-Lewisburg
Attorney Advisor Michael Romano. See Doc. 34-1, Exhibit A. Romano states
that based on a review of the BOP’s computerized records although Millbrook
filed 101 grievances following his March 10, 2010 arrival at USP-Lewisburg, the
last grievance the inmate filed at the institutional level was received on January
13, 2011. See id. at ¶ 7.
A declaration under penalty of perjury submitted by Counselor M. Edinger
adds that while at USP-Lewisburg Plaintiff was assigned to at least six different
housing units. See Doc. 34-3, Exhibit B. More importantly, between May 27,
2012 and September 12, 2012 Edinger states that he acted as Plaintiff’s counselor
and as such was responsible for the distribution and tracking of any grievances by

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Millbrook. Edinger avers that Plaintiff “did not ask me for administrative
remedies while he was assigned to my case load. Id. at ¶ 8. The Defendant adds
that Plaintiff would have been provided with grievance forms “had he requested
them.” Id.
Also submitted is a declaration under penalty of perjury by Counselor
Bingaman who states that Millbrook was assigned to his case load between March
29, 2013 to September 20, 2013. See id. at Exhibit C, ¶ 3. Bingaman adds that
during said period Plaintiff “did not ask me for administrative remedies while he
was assigned to my caseload” and he would have been provided with such forms
had he requested them. Id. at ¶ 4.
Defendants have also provided a declaration under penalty of perjury by
USP-Lewisburg Unit Manager D. Knox, a non-defendant. See id. at Exhibit D.
Knox states that he served as Millbrook’s unit manager from October 18, 2011 to
April 12, 2012; May 25, 2012 through March 28, 2013; and January 7, 2014
through February 12, 2014. Unit Manager Knox adds that although he was
regularly available on a weekly basis to Plaintiff during those periods and had
spoken to Millbrook several times through those time frames the prisoner “has
never mentioned an alleged denial of access to the administrative remedy system

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to him.” Id. at ¶ 7.
A declaration by non-defendant Unit Manager S. Stover provides that he
served as Plaintiff’s unit manager between March 28, 2013 through September 13,
2013 and from January 2, 2014 through January 7, 2014. Unit Manager Stover
similarly avers that during their multiple conversations within those time periods
Millbrook never complained to him about an alleged lack of access to the
administrative remedy system. See id. at Exhibit E, ¶ 7. Another non-defendant,
Unit Manager J. Adami has likewise submitted a declaration under penalty of
perjury stating that he served as Millbrook’s unit manager from September 19,
2013 through January 2, 2014. Although he had regular contact and several
conversation with the Plaintiff during that period, Adami states that the inmate
never raised a complaint about denial of access to the administrative remedy
system. See id. at Exhibit F, ¶ 7.
In the addition to the above described declarations, it is noted that in his
Complaint Plaintiff acknowledges that he did not file a grievance concerning the
facts relating to his pending claims. See Doc. 1, ¶ IV. However, as discussed
above, Millbrook does raise contentions in his Complaint that he was denied
access to the administrative remedy process.

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Once the moving party has satisfied its burden of identifying evidence
which demonstrates an absence of a genuine issue of material fact, see Childers,
842 F.2d at 694, the nonmoving party is required by Federal Rule of Civil
Procedure 56(e) to go beyond the pleadings by way of affidavits, depositions,
answers to interrogatories or the like in order to demonstrate specific material facts
which give rise to a genuine issue. Celotex, 477 U.S. at 324.
Millbrook has not filed either an opposing brief nor an opposing statement
of material facts. In fact, the Plaintiff has not responded in any manner
whatsoever to the pending summary judgment motion nor has he sought an
enlargement of time in which to do so. In relevant part, Rule 56(e) states in
relevant part :
If a party fails to properly support an assertion of fact or fails to
properly address another party’s assertion of fact as required in Rule
56(c), the court may:
(2) consider the fact undisputed for purposes of the motion;
(3)
grant summary judgment if the motion and supporting
materials–-including the facts considered undisputed–-show
the movant is entitled to it;

When Rule 56(e) shifts the burden of proof to the nonmoving party, that party
must produce evidence to show the existence of every element essential to its case
which it bears the burden of proving at trial. Celotex, 477 U.S. at 324. If,
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however, "the evidentiary matter in support of the motion does not establish the
absence of a genuine issue, summary judgment must be denied even if no
opposing evidentiary matter is presented." Advisory Committee Notes to F.R.C.P.
56(e)(1963 Amend.).
Local Rule 56.1 similarly provides that all material facts set forth in the
statement of materials of facts required to be served by the moving party will be
deemed to be admitted unless controverted by the statement required to be served
by the opposing party.
Thus, a summary judgment motion may be granted if the Plaintiff fails to
establish the existence of an element essential to his case. Robertson v. Allied
Signal, Inc., 914 F.2d 360, 366 (3d Cir. 1990) citing Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986).
A review of the undisputed record, especially Plaintiff’s admissions of nonexhaustion in the Complaint (Doc. 1, ¶ IV) and the multiple declarations submitted
under penalty of perjury by both defendant and non-defendant prison officials,
shows that Defendants have satisfied their burden under Williams of establishing
that Millbrook’s allegations were not administratively exhausted and that there is
is no basis for a determination that exhaustion should be excused because the
administrative remedy procedure was unavailable to Millbrook.
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The Plaintiff has not opposed the summary judgment motion and has
acknowledge that his administrative remedies were not exhausted. Millbrook’s
vague assertions of being denied access to the administrative remedy process
which are set forth in the Complaint do not adequately demonstrated a proper
basis as to why he should be excused from the exhaustion requirement. Millbrook
has equally failed to satisfy his obligation of coming forward with affirmative
evidence to establish a genuine issue of material fact with respect to the issue of
whether he should be excused from compliance with the exhaustion requirement.
Pursuant to the standards set forth in Rule 56(e) and Local Rule 56.1, entry
of summary judgment in favor of Defendants on the basis of non-exhaustion of
administrative remedies is warranted.4 See DiGiacomo v. Singleton, 402 Fed.
Appx. 679, 681 (3d Cir. 2010)(in opposing summary judgment supported by
affidavits non-moving party may not rely on allegations in his own pleading but
rather by affidavits or as otherwise provided Rule 56(e) must set out specific facts
showing a genuine issue for trial); Clark v. Clabaugh, 20 F.3d 1290, 1294 (3d Cir.
1994)(Rule 56(e) makes clear that a nonmoving party is required to present more
than mere allegations in their pleadings when opposing a properly supported
In light of the Court’s determination of non-exhaustion a discussion as to the
merits of the remaining arguments raised by the pending summary judgment motion
will not be undertaken.
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summary judgment motion).5
Conclusion
For the foregoing reasons, Defendants’ motion for summary judgment will
be granted, and summary judgment will be entered in favor of Defendants.
A separate Order will be issued.
Dated: March 17, 2015
/s/ William J. Nealon
United States District Judge

This conclusion is underscored by the fact that as a seasoned pro se litigant,
Millbrook was aware of his obligation to respond to a summary judgment motion.
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