Gonzalez v. Wentzel et al

Filing 49

MEMORANDUM (Order to follow as separate docket entry)Based upon those considerations, the motion to dismiss will be denied. An appropriate Order Signed by Honorable Richard P. Conaboy on 2/18/16. (See Memo)(cc)

IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

GABRIEL GONZALEZ,
Plaintiff
CIVIL NO.

v.
JOHN WENTZEL,

3:CV-15-184

-(LED

(Judge Conaboy)

ET AL.,

Rf\.\lTON

Defendants

1 g 2D16
-

MEMORANDUM

---~"7'--- -t

Background

This pro se civil rights action pursuant to 42 U.S.C. § 1983
was filed by Gabriel Gonzalez

(Plaintiff),

an inmate presently

confined at the State Correctional Institution, Coal Township,
Pennsylvania

(SCI-Coal Twp.).

February 10, 2016,

By Memorandum and Order dated

Defendant Doctor Michael Moclock's motion for

summary judgment was granted.

Remaining Defendants are Secretary

John Wetzel of the Pennsylvania Department of Corrections

(DOC)

and

Superintendent Vincent Mooney and of SCI-Coal Twp. (hereinafter
Commonwealth Defendants).
Gonzalez generally alleges that he has "multiple cronic
[sic]

care issues" and pain which are not being "properly

addressed" by the SCI-Coal Twp. Medical staff.

Doc.

1,

~

IV.

The

Plaintiff contends that although he was previously determined to be
eligible for a handicapped cell, SCI-Coal Twp.

1

RN Supervisor

Yackiel improperly denied his request for such continued placement
on the grounds that he is not handicapped.

1

The Complaint and

attached exhibits generally conclude that the Defendants have
violated his constitutional rights as well as
Disabilities Act (ADA).

Gonzalez seeks

the Americans with

unctive relief including

placement in a handicapped accessible cell and evaluation by an
outside physi

an.

Presently pending is the Commonwealth Defendants' motion to
dismiss.

See Doc. 26.

The motion is ripe for consideration.
Discussion

Standard of Review

Federal Rule of Civil Procedure 12(b) (6) provides for the
di

ssal of complaints that fail to state a claim upon which

relief can be granted.

A court in addressing a motion to dismiss

must "accept as true all factual allegations in the complaint and
all reasonable inferences that can be drawn therefrom, and view
them in the light most favorable to the plaintiff."

Kanter v.

Barella, 489 F.3d 170, 177 (3d Cir. 2007) (quoting Evancho v.
423 F.3d 347,350 (3dCir. 2005}).
A complaint must set forth facts that, if true, demonstrate
a plausible

Fed. R. Civ. P. 8 (a) (stating that

ght to relief.

the complaint should include "a short and plain statement of the
claim showing that the pleader is entitled to relief")
Corp. v. Twombly, 550 U.S. 544, 555 (2007).

i

This requirement

"calls for enough facts to raise a reasonable expectation that

1.
Plaintiff acknowledges that due to a back condition, he has
been designated for lower bunk, lower tier placement.
2

discovery will reveal evidence of" the necessary elements of the
plaintiff's cause of action.

Id. at 556.

A complaint must contain

"more than an unadorned, the-defendant-unlawfully-harmed-me
accusation." Ashcroft v. Iqbal, 556 U.S. 662 , 678

(2009).

"Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements do not suffice." Id.

Legal

conclusions must be supported by factual allegations and
complaint must state a plausible claim for relief.

The reviewing court must determine whether

id. at

complaint

"contain[s] either direct or inferential allegations respecting all
the material elements necessary to sustain recovery under some
viable legal theory."

. at 562; see also Phillips v. County of

Allegheny, 515 F.3d 224, 234

(3d Cir. 2008) (in order to survive a

motion to dismiss, a plaintiff must allege in his comp

int "enough

facts to raise a reasonable expectation that discovery will reveal
evidence of the necessary element[sJ" of a particular cause of
action) .

Finally, it is noted that

afforded liberal construction.

See

Q£Q

se pleadings must be

Haines v. Kerner,

404 U.S.

519, 520 (1972).
Administrative Exhaustion

sole argument for dismissal raised by the Commonwealth
Defendants is that Plaintiff failed to exhaust his available
administrative remedies.

See Doc. 28, p. 1.

The Commonwealth

Defendants correctly note that attached to Plaintiff's Complaint is
2. "Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
al
tions in the complaint are true (even if doubtful in fact)."
Twombly, at 555.
3

a copy of an administrative grievance filed by Gonzalez wherein he
asks to be assigned to a handicapped cell.

They contend that since

this grievance does not name or allege personal involvement by
either Secretary Wetzel or Superintendent Mooney entry of dismissal
on the basis of non-exhaustion is appropriate.
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 reI
administrative avenues."

f sought and offered through

Booth v. Churner, 532 U.S. 731, 741 n. 6

(2001); see also Porter v. Nussle, 534 U.S. 516, 529-532

(2002).

The Third Circuit Court of Appeals in Mitchell v. Horn r 318 F.3d
523, 529 (3d Cir. 2003), held that "[f]ailure to exhaust
administrative remedies is an affirmative defense for the defendant
to plead."

285 F.3d 287

See also

(3d Cir. 2002) (a

prisoner does not have to allege in his complaint that he has
exhausted administrative remedies).
defendant asserting the

Rather, it is the burden of a

fense to plead and prove it; Williams v.

Runyon, 130 F.3d 568, 573 (3d Cir. 1997).
Entry of dismissal is appropriate when a prisoner litigant
has failed to exhaust his available administrative remedies before
bringing a civil rights action.

See generally Ahmed v. Sromovski,

103 F. Supp. 2d 838, 843 (E.D. Pa. 2000).
prior to filing suit, not while the s
4

"[E]xhaustion must occur

t is pending."

==~~,

248 F.3d 1152, 2000 WL 167468, *2

Cir. 2000) (citing

(

196 F.3d 641, 645 (6th

r.

1999));

Appx. 991, 993 (3d

r.

2006).

United States, 165

The United States Supreme Court in Jones v. Bock, 127 S.Ct.
910, 923 (2007), stat

that the primary pu

se of the exhaustion

requirement is to allow "a prison to address complaints about
administers before being subjected to suit, reducing
tion to the extent complaints are satis

ily resol

improving litigation that does occur by leading to the
ration of a useful

"

Id.

The

ies a procedural

mandate also

strative
fault component.

372 F.3d 218, 222 (3d Cir. 2004).
explained by the Third Circuit Court of Appeals, a
s an end-run around the exhaustion

default rule "
irement."

Id. at 230.

It also ensures"

soner compliance

the specific requirements of the grievance system" and

e

ue their administrative grievances "to

s inmates to

the fullest."

Id.

S

larly, the Supreme Court has observed that

r exhaustion of available administrat
ory, meaning that

grievance

soners must comply with t

s procedural rules,
Ngo, 548 U.S. 81

es is

uding time limitat

Woodford v.

(2006).

The Court of Appeals for the Third Circuit has recognized
that "[tlhere is no futility exception" to the
irement.

312 F.3d 109, 112 (3d

Nyhuis, 204 F.3d at 75.

t
r. 2002)

A subsequent decision by the Third

Circuit Court of Appeals reite

its no futili

5

ion by

rejecting an inmate's argument that exhaustion shou

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 fai
exhaust-"

to

281 Fed. Appx. 110, 113 (3d Cir.

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

(effect

"every individual committed to

December 8, 2010) states that
s 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
Doc. 29, p. 8.

confinement."

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.
VI

Section

("Procedures") of DC-ADM 804 provides that, after attempted

informal resolution of the problem, a written grievance may be
submitted to the Fa
working days a

lity Grievance Coordinator within fifteen (15)

er 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

3.

The DOC's grievance system has been periodically amended.
6

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 relief normally
available from a court.

However, an improperly submitted grievance

will not be reviewed..
The Third Circuit Court of Appeals has recognized that under
the DOC's administrative review system a prisoner's grievance
should identify specific persons, if practicable.
F.3d at 234.

Spruill, 372

The Court of Appeals explained that an unexplained

failure to identify a responsible prison official in a grievance
constitutes a procedural default of the claim.

It also noted that

the prison's grievance process could excuse such a procedural
de

It by identifying the unidentified person and acknowledging

that they were fairly within the compass of the prisoner's
grievance.

However, in

Jones, 549 U.S. at 219, the United States

Supreme Court established that "exhaustion is not per se inadequate
simply because an individual later sued was not named in the
grievances."
It is initially noted that the Commonwealth Defendants have
submitted a declaration under penalty of perjury by DOC Grievance
Of

cer Helen Shambaugh in support of their pending motion to

dismiss.

See Doc. 28 2.

The Third Circuit Court of Appeals overturned the granting
of a motion to dismiss for non-exhaustion of administrative
remedies which was premised upon copies of an inmate's grievances
and appeals, declarations from grievance coordinators, and the
DOC's responses to administrative grievances on the basis that

7

those documents were

dentiary mate

considered on a motion to dismiss.
Appx. 1, 3 (3d Cir. 2008).

als that could not be

See Berry v. Klem, 283 Fed.

As recognized in Berry, the supporting

declaration of Shambaugh submitted by the Commonwealth Defendant is
clearly a matter outside of the Complaint and as such is not
properly submitted in support of a motion to dismiss.

4

Second, as acknowledged by the Commonwealth Defendants,
Plaintiff filed and exhausted an administrative grievance regarding
the same complaints about his medical care, which underlie this
action.

It is noted that since the substance of Gonzalez's pending

claims against the Commonwealth Defendants were encompassed within
that grievance the failure of the pro se Plaintiff to specifically
identify Secretary Wetzel and Superintendent Mooney in his
grievance may be excused.

Diaz v. Palakovich, 448 Fed. Appx.

211, 217 (3d Cir. 2011) (recognizing that procedural default that
may have resulted from failing to name prison official in fully
exhausted grievance can be excused).

Based upon those

considerations, the motion to dismiss will be denied. s

An

appropriate Order will enter.

Iitd-clA~o~(f~-Distric~~United States

DATED: FEBRUARY

1~2016

4. Commonwealth Defendants offer no explanation as to why they did
not file a motion to dismiss or in the alternative for summary
judgment or a motion for summary judgment.
5. This Court offers no opinion at this juncture as to whether the
Complaint adequately alleges personal involvement in
unconstitutional acts by either Commonwealth Defendant.
8