Shafer v. Suloga et al

Filing 19

MEMORANDUM (Order to follow as separate docket entry) re 14 MOTION to Dismiss pursuant to FRCP 12(b)(6) filed by Suloga Signed by Honorable A. Richard Caputo on 5/15/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL SHAFER,

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Plaintiff
v.
DR. SULOGA, et al.,
Defendants

CIVIL NO. 3:CV-13-2519
(Judge Caputo)

MEMORANDUM
I.

Introduction
Plaintiff Michael Shafer, an inmate formerly housed at the Lackawanna

County Prison (LCP),1 in Scranton, Pennsylvania, filed this civil rights action
pursuant to 42 U.S.C. § 1983 against Dr. Zaloga2 and the Warden of LCP alleging
he was denied proper medical care while housed at LCP. (Doc. 1, Compl.) Mr.
Shafer seeks monetary relief. (Id.)
On January 20, 2014, Dr. Zaloga filed a motion to dismiss the Complaint
based on Mr. Shafer’s failure to exhaust his available administrative remedies and
failure to file a certificate of merit concerning medical negligence claims. See Doc.
14, Mot. to Dismiss. On February 3, 2014, Dr. Zaloga filed a timely brief in support

1

Mr. Shafer is currently housed at the Mahanoy State Correctional Institution (SCIMahanoy), in Frackville, Pennsylvania.
2

Zaloga.

Although identified as Dr. Suloga, the proper spelling of this defendant’s name is

of his motion to dismiss. (Doc. 16, Mot. to Dismiss Br.) To date, Mr. Shafer has
failed to file an opposition brief or request an enlargement of time to do so.3
For the reasons that follow, Dr. Zaloga’s motion to dismiss will be granted
and the case will be dismissed.

II.

Standard of Review
Federal Rule of Civil Procedure12(b)(6) provides for the dismissal of a

complaint, in whole or in part, for failure to state a claim upon which relief can be
granted. See Fed. R. Civ. P. 12(b)(6). In considering a Rule 12(b)(6) motion the
Court’s role is limited to determining whether a plaintiff is entitled to offer evidence in
support of his or her claims. See Semerenko v. Cendant Corp., 223 F.3d 165, 173
(3d Cir. 2000). The Court does not consider whether a plaintiff will ultimately prevail.
See id. A defendant bears the burden of establishing that a plaintiff’s complaint fails
to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir.
2000).
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).
Additionally, pro se litigants are to be granted leave to file a curative amended

3

The court sent Mr. Shafer a copy of our Standing Practice Order which outlines
the rights and responsibilities of litigants. Via that order, Mr. Shafer was advised of his
opportunity to oppose Dr. Zaloga’s motion to dismiss. See Doc. 2, Standing Practice Order,
ECF p. 6. Additionally, Mr. Shafer warned that if he failed to oppose such a motion, the
court would deem the motion unopposed. Id.

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complaint even when a plaintiff does not seek leave to amend, unless such an
amendment would be inequitable or futile. See DelRio-Mocci v. Connonlly Prop.,
Inc., 672 F.3d 241, 251 (3d Cir. 2012). However, a complaint that sets forth facts
which affirmatively demonstrate that the plaintiff has no right to recover is properly
dismissed without leave to amend. Grayson v. Mayview State Hospital, 293 F.3d
103, 106 (3d Cir. 2002).

III.

Allegations of the Complaint
At approximately 11:55 a.m., on November 13, 2012, while housed at the

LCP, Mr. Shafer cut off the tip of one of his fingers. (Doc. 1, Compl.) He was not
taken to the outside hospital until 9 p.m. that night. At the hospital, Mr. Shafer
learned he also had broken the finger. The hospital physician allegedly referred him
to a hand surgeon which the “county doctor would not allow [him] to see.” (Id., ECF
p. 3.) Additionally, Mr. Shafer alleges that he was not provided with any “medication
for 7 months” while housed at the LCP even though he suffers from chronic
obstructive pulmonary disease, peripheral artery disease, cardiovascular disease,
atrial fibrillation, and a herniated lumbar disc.
Mr. Shafer admits that while there is a grievance procedure available at his
present institution (then SCI-Camp Hill),4 he did not fully exhaust his available
administrative remedies concerning the claims presented in his Complaint because
he is at a “diffent (sic) prison”. (Id., ECF p. 2.)

4

See Id., ECF p. 6 and p. 8.

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IV.

Discussion
The Prison Litigation Reform Act (PLRA) requires that prisoners exhaust their

administrative remedies before bringing suit. 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). 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. The "filing [of] an untimely or
otherwise procedurally defective administrative grievance or appeal" does not satisfy
the PLRA's exhaustion requirement. Id. Failure to substantially comply with
procedural requirements of the applicable prison's grievance system will result in a
procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).
Further, the PLRA "completely precludes a futility exception to its mandatory
exhaustion requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The
Supreme Court has clearly stated that "there is 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). Likewise, the Third Circuit Court of Appeals has stated that "there appears
to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA's
exhaustion requirement by exhausting administrative remedies after the filing of the
complaint in federal court." Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d

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Cir. 2006)(not precedential). Finally, 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 plead and proven by the Defendants. Brown v.
Croak, 312 F.3d 109, 111 (3d Cir. 2002).
Dr. Zaloga argues that Mr. Shafer failed to exhaust his administrative
remedies, and, therefore, his Complaint should be dismissed. In support of his
argument, Dr. Zaloga points to Mr. Shafer’s admission in the Complaint that he did
not exhaust his administrative remedies with respect to any of his claims. See Doc.
1, Compl., ECF p. 2. Given the opportunity to oppose Dr. Zaloga’s motion, or
possibly explain why he failed to exhaust his administrative remedies, or clarify what
exhaustion efforts (if any) he attempted while housed at the LCP regarding his
claims, Mr. Shafer has failed to do so.5 Thus, the record before the Court as to Mr.
Shafer’s failure to exhaust his administrative remedies as to his medical care at LCP
in November 2012 is uncontested. Accordingly, the Court will grant Dr. Zaloga’s
motion to dismiss based on Mr. Shafer’s failure to properly exhaust his
administrative remedies before filing this action.

5

The Court notes that Dr. Zaloga properly served Mr. Shafer with a copy of his
motion to dismiss and supporting brief at his present location, SCI-Mahanoy. See Docs. 141 and 16-1.

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V.

Conclusion
For the foregoing reasons, Dr. Zaloga’s motion to dismiss is granted.

Additionally, because Mr. Shafer does not contest his failure to exhaust his
administrative remedies as to the claims raised in the Complaint, any claim against
the Warden of LCP would likewise be subject to dismissal. Finally, because no
amendment could cure the procedural defect in this case, Plaintiff will not be
granted leave to file an amended complaint. See Oriakhi v. United States, 165 F.
App’x at 993 (prisoner may not fulfill the PLRA's exhaustion requirement by
exhausting administrative remedies after the filing of the complaint in federal court).
An appropriate Order follows.

/s/A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: May

15

, 2014

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