Daniels v. Pitkins et al

Filing 62

MEMORANDUM (Order to follow as separate docket entry)Based upon an application of the well settled administrative exhaustion standards and the undisputed supporting evidence presented by Defendant Leahy, she has satisfied her burden of demonstrating that the substance of the Plaintiffs surviving claims was not encompassed within any grievance filed to final administrative review by Daniels. Moreover, the Plaintiff has not provided the Court with any sufficient basis upon which it could be concl uded that he is entitled to be excused from the exhaustion requirement. Accordingly, Defendant Leahy is entitled to entry of summary judgment on the basis of non-exhaustion of administrative remedies. An appropriate Order will enter. re 44 MOTION for Summary Judgment filed by Maria Leahy Signed by Honorable Richard P. Conaboy on 2/17/17. (cc)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
WILLIAM M. DANIELS JR.,

:
:
Plaintiff
:
:
v.
: CIVIL NO. 3:CV-14-2383
:
DAVID PITKINS, ET AL.,
: (Judge Conaboy)
:
Defendants
:
________________________________________________________________
MEMORANDUM
Background
This pro se civil rights action was initiated in the Centre
County Court of Common Pleas by William M. Daniels, Jr., an
inmate presently confined at the State Correctional Institution,
Albion, Pennsylvania (SCI-Albion). Following submission of an
amended complaint, This matter was removed to this Court
pursuant to 28 U.S.C. §§ 1441 (a).

See Doc. 1, ¶ 9. By Order

dated June 26, 2015, Plaintiff’s objections to the removal were
denied.

See Doc. 19.

Daniels’ action regards events which allegedly transpired
during his prior confinement at the Benner State Correctional
Institution, Bellefonte, Pennsylvania (SCI-Benner).
are the following

Defendants

SCI-Benner employees: Superintendent David

Pitkins, Deputy Superintendents Tammy Ferguson and Leo Glass,
Counselor Bobbi Jo Salamon, and Security Lieutenant L. W.
Hoffman who are all employed at SCI-Benner, by the Pennsylvania

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Department of Corrections (DOC Defendants).

Also named as a

Defendant is Physician’s Assistant (PA) Maria Leahy, who was
contracted to provide medical care to SCI-Benner inmates.
The Amended Complaint concerns conduct taken by prison
officials following an April 25, 2014 SCI-Benner encounter
between Plaintiff and a female visitor.

Specifically, it is

alleged that because Daniels was suspected of swallowing
contraband after being kissed by his visitor he was strip
searched by a non-defendant, Lieutenant Green, and placed in a
POC1 dry cell for almost an entire week where he was allegedly
subjected to unconstitutional conditions of confinement as well
as other violations of his constitutional rights.
By Memorandum and Order dated August 19, 2015, Defendant
Leahy’s motion to dismiss was partially granted.

See Doc. 10.

Specifically, it was determined that Leahy was entitled to entry
of dismissal with exception of the allegation that she failed to
protect Plaintiff from unconstitutional conditions of
confinement.2

See Doc. 24.

Presently pending is Leahy’s motion

seeking entry of summary judgment.

1

See Doc. 44.

The opposed

Presumably a Psychiatric Observation Cell (POC).

2

Plaintiff’s claims that Leahy: was deliberately indifferent
to the prisoner’s medical needs; violated the inmate’s equal
protection rights; engaged in unconstitutional verbal harassment;
were dismissed. The memorandum also determined that Plaintiff was
not entitled to compensatory damages for his claim of suffering
emotional distress.
2

motion is ripe for consideration.
Discussion
With respect to the remaining claim against Defendant
Leahy, the Amended Complaint alleges that on or about April 26,
2014 Leahy went to Plaintiff’s POC cell to check his vital signs
and was asked to do something about the unsanitary conditions of
his confinement. She purportedly told Daniels that there was
nothing she could do.

According to the Amended Complaint, Leahy

allegedly acted with deliberate indifference by allowing
Plaintiff to continue to suffer extreme deprivations while in
the POC cell.

See id. at ¶ 28.

Defendant Leahy claims entitlement to summary judgment on
the grounds that: (1) Plaintiff failed to exhaust his
administrative remedies, and (2) the Amended Complaint fails to
allege a viable failure to protect claim.
Standard of Review
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).

3

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
(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

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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)).
Administrative Exhaustion
Defendant Leahy asserts that based on information provided
by the DOC during discovery, Plaintiff did not file any
administrative grievances against Leahy or anyone else which
“had been appealed to the final level of review.”
7.

Doc. 45, p.

Plaintiff’s opposing brief counters that he did file and

administratively appeal a grievance against Defendant Leahy.
See Doc. 48-1, p. 3.

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).
for monetary relief are not excused from the exhaustion

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Claims

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).
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
prove it.3

The United States Supreme Court in Jones noted that

the primary purpose of the exhaustion requirement is to allow
prison officials to address complaints before being subjected to
suit, reducing litigation to the extent complaints are

3

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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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.
222 (3d Cir. 2004).

Spruill v. Gillis 372 F.3d 218,

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).

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 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.
2006).

Hill v. Smith, 186 Fed.

Appx. 271, 274 (3d Cir.

The Court of Appeals has also rejected “sensitive’

subject matter or ‘fear of retaliation’ as a basis for excusing

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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 DOC.4

Section V of DC-ADM 804 states that

“every individual committed to its custody shall have access to
a 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 fifteen (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 Initial Review
decision may be made in writing within ten (10) working days to
the Facility Manager or Superintendent.

A final written appeal

may be presented within fifteen (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

4

The DOC’s grievance system has been periodically amended.
8

relief normally available from a court.

However, an improperly

submitted grievance will not be reviewed.
Defendant Leahy asserts that Plaintiff failed to file a
final administrative appeal with SOIGA regarding his pending
claim against Leahy.

The Moving Defendant asserts that as part

of the discovery process in this case, she subpoenaed
Plaintiff’s entire SOIGA file.

In response to that subpoena,

Leahy received a January 7, 2015 e-mail from SOIGA employee
Carla King.

The e-mail clearly states that Daniels did not file

any grievance appeals to SOIGA.

A copy of King’s e-mail has

been submitted tp this Court for consideration.

See Doc. 11-1.

Plaintiff’s opposing brief initially contends that he did
file a grievance against PA Leahy and pursued an administrative
appeal through the DOC’s final level of review.
p. 3.

See Doc. 48-1,

His opposing brief subsequently acknowledges that the

SOIGA appeal of his grievance against PA Leahy was rejected
because his transfer to another correctional facility prevented
him from providing SOIGA with requested documentation.
p. 5.

See id.,

He concludes that because his inability to perfect his

SOIGA appeal was due to interference by prison officials, the
non-exhaustion argument should be denied.
Attached to Plaintiff’s opposing brief is a copy of a July
15, 2014 response to a SOIGA appeal of Grievances 508943 and
508222 which was initiated by Daniels.

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The response directs

Plaintiff to provide copies of his underlying grievances and
earlier responses.

Also provided is a rejection of Grievance

508222 dated May 6, 2014 by the SCI-Benner Grievance Coordinator
which rejects that grievance as exceeding the two page limit and
as being improper because it seeks review of an inmate
misconduct charge.

See id. at p. 18.

Since documents provided

by the Plaintiff show that Grievance 50822 was related to an
appeal of a disciplinary charge it lacks relevance to the issue
of whether Plaintiff properly exhausted a grievance regarding
Leahy’s alleged failure to protect him from unsanitary
conditions of his POC.
Plaintiff has also provided a copy of a May 12, 2014
rejection of Grievance 508943 by the SCI-Benner Grievance
Coordinator.

See id. at p. 19.

This rejection similarly states

that Grievance 508493 likewise improperly sought relief with
respect to an inmate disciplinary charge.

A review of

Plaintiff’s own supporting submissions shows that he has not
created an issue of material fact as to the question of whether
Defendant Leahy is entitled to entry of summary judgment on the
basis of non-exhaustion.

The SOIGA rejection cited by Daniels’

opposing brief regards two grievances which sought relief with
respect to a disciplinary charge.

Leahy’s alleged failure to

protect is completely unrelated to the validity of any
misconduct charge filed against the Plaintiff.

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Based upon an application of the well settled
administrative exhaustion standards and the undisputed
supporting evidence presented by Defendant Leahy, she has
satisfied her burden of demonstrating that the substance of the
Plaintiff’s surviving claims was not encompassed within any
grievance filed to final administrative review by Daniels.
Moreover, the Plaintiff has not provided the Court with any
sufficient basis upon which it could be concluded that he is
entitled to be excused from the exhaustion requirement.
Accordingly, Defendant Leahy is entitled to entry of summary
judgment on the basis of non-exhaustion of administrative
remedies.5

An appropriate Order will enter.6

S/Richard P. Conaboy
RICHARD P. CONABOY
United States District Judge

DATED: FEBRUARY 17, 2017

5

In light of this determination, discussion of the remaining
summary judgment argument is not warranted.
6

If Plaintiff can provide proof that any of his remaining
claims against PA Leahy have been exhausted or if he can present
specific facts showing that he was prevented from compiling with
the exhaustion requirement with respect to those claims, he may
file a reconsideration motion within fourteen (14) days of the date
of this memorandum.
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