Moneyham v. Potter et al

Filing 63

MEMORANDUM (Order to follow as separate docket entry) re Report and Recommendation of Magistrate Judge SaporitoSigned by Honorable James M. Munley on 9/14/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ANTHONY MONEYHAM,
Plaintiff

:
No. 3:15cv436
:
:
(Judge Munley)
v.
:
:
(Magistrate Judge Saporito)
L. POTTER, et al.,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Before the court for disposition is Magistrate Judge Joseph M. Saporito’s
report and recommendation (hereinafter “R&R”) which proposes granting the
defendants’ motion for summary judgment. (Doc. 60). Plaintiff Anthony
Moneyham (hereinafter “plaintiff”), a federal prisoner incarcerated at United
States Penitentiary Lewisburg (hereinafter “USP-Lewisburg”), filed the instant
lawsuit asserting constitutional tort claims against several Bureau of Prisons
(hereinafter “BOP”) employees. For the following reasons, we will adopt
Magistrate Judge Saporito’s R&R and grant summary judgment for the
defendants.
Background
Plaintiff, a pro se inmate currently incarcerated at USP-Lewisburg, initiated
this action on February 24, 2015. (Doc. 1, Compl.). Plaintiff alleges a First
Amendment retaliation claim pursuant to Bivens v. Six Unknown Named Agents

of the Federal Bureau of Narcotics, 403 U.S. 388 (1971). Plaintiff averred in his
complaint that two emergency medical technicians and a prison officer physically
assaulted him on February 21, 2015, in retaliation for his refusal to end a hunger
strike that plaintiff started to protest the discontinuation of his prescription
medication. (Doc. 1, Compl.).
On March 12, 2015, after this action had been initiated, plaintiff submitted
his first Administrative Remedy Request with USP-Lewisburg in which he
informed the prison administration of his alleged assault. (Doc. 13, at 8).
Between March 12, 2015, and July 7, 2015, plaintiff completed the process for
exhausting his administrative remedies. (Doc. 55-1, at 56). His appeal was
denied and the BOP’s General Counsel closed plaintiff’s file. (Id.)
Defendants moved to dismiss plaintiff’s complaint (Doc. 18), and on June
27, 2016, we adopted Magistrate Judge Saporito’s recommendation and
dismissed plaintiff’s complaint for failure to exhaust administrative remedies prior
to filing suit. (Doc. 35). We further directed plaintiff to file an amended complaint
to properly assert a constitutional tort claim within twenty-one (21) days limited to
the assertion of a Bivens claim arising from the alleged assault on February 21,
2015. (Id.)
Plaintiff filed an amended complaint on July 18, 2016. (Doc. 37, Am.
Compl.). In addition to the three defendants named in the original complaint, the
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amended complaint names five additional defendants, each of whom allegedly
participated in the February 21, 2015 assault. (Id. at 2). On July 21, 2016,
Magistrate Judge Saporito recommended that plaintiff’s complaint be dismissed
sua sponte with respect to one of the newly added defendants, “C. Brininger,” for
failure to state a claim upon which relief can be granted. (Doc. 41). We adopted
Magistrate Judge Saporito’s recommendation on August 30, 2016, and
dismissed plaintiff’s claim against Defendant C. Brininger. (Doc. 47). We
provided plaintiff with twenty-one (21) days to file an amended complaint to
properly plead a cause of action against Defendant C. Brininger. (Id.) On
September 16, 2016, plaintiff filed a second amended complaint naming
Defendant C. Brininger. (Doc. 48).
Defendants filed a motion to dismiss the complaint1 or, in the alternative, a
motion for summary judgment on December 2, 2016. (Doc. 53). On August 3,
2017, Magistrate Judge Saporito, after reviewing the record, recommended that
defendants’ motion for summary judgment be granted after finding that plaintiff
failed to properly exhaust all available administrative remedies prior to bringing
this action. (Doc. 60). In his R&R, Magistrate Judge Saporito further found that
the court lacks the authority to excuse this failure based on plaintiff’s subsequent
1

The law provides that it is the court’s obligation to liberally construe a pro se
litigant’s pleadings. See generally Mala v. Crown Bay Marina, Inc., 704 F.3d 239,
244-46 (3d Cir. 2013). As such, the first and second amended complaints, taken
together, constitute the operative complaint in this action. (Doc. 37; Doc. 48).
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exhaustion of administrative remedies. Plaintiff filed timely objections to the R&R,
and defendants filed a brief in response. (Doc. 61; Doc. 62). This matter is now
ripe for disposition.
Legal Standard
In disposing of objections to a magistrate judge’s R&R, the district court
must make a de novo determination of those portions of the report against which
objections are made. 28 U.S.C. § 636(b)(1)(c); see also Sullivan v. Cuyler, 723
F.2d 1077, 1085 (3d Cir. 1983). Absent objections to the report and
recommendation, a district court should still "afford some level of review to
dispositive legal issues raised by the report." Henderson v. Carlson, 812 F.2d
874, 878 (3d Cir. 1987).The law describes this level of review as "reasoned
consideration." Id. Absent a clear error on the face of the record or a manifest of
injustice, we may adopt the recommendation by the magistrate judge. FED. R.
CIV. P. 72(b) 1983 Advisory Committee Notes; see also 28 U.S.C. § 636(b)(1);
Sullivan, 723 F.2d at 1085.
The court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge. Henderson, 812 F.2d at 977.
The district court judge may also receive further evidence or recommit the matter
to the magistrate judge with instructions. Id.

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Discussion
Magistrate Judge Saporito recommends granting defendants’ motion for
summary judgment based on plaintiff’s failure to properly exhaust all available
administrative remedies prior to bringing suit. Magistrate Judge Saporito found
that because plaintiff only exhausted his administrative remedies after filing suit,
we lack the authority to excuse plaintiff’s failure. In plaintiff’s response to
Magistrate Judge Saporito’s R&R, entitled “Plaintiff Objection to Magistrate
Judge Report and Recommendation,” plaintiff acknowledges Magistrate Judge
Saporito’s findings, yet plaintiff does not dispute them. (Doc. 61). Plaintiff does
not contest that he failed to exhaust his administrative remedies, nor does he
contest that his failure should not be excused. Rather, plaintiff appears to raise
an entirely new argument contesting Magistrate Judge Saporito’s classification of
plaintiff’s claim as a Bivens claim.2
Our role is to make a de novo determination on the portions of the report or
specific proposed findings to which objection is made. 28 USCS § 636(b)(C).

2

Claims brought directly under the Constitution against federal officials have
become known as "Bivens claims." Vanderklok v. United States, -- F.3d --, 2017
WL 3597711, at *5 (3d Cir. Aug. 23, 2017). Because plaintiff brought a First
Amendment retaliation claim against the defendants, his claim is construed by
the court as a Bivens claim. However, even if we were to analyze plaintiff’s claim
as an FTCA claim, which plaintiff may be suggesting, Magistrate Judge
Saporito’s findings would still result in dismissal of plaintiff’s claim for failure to
exhaust administrative remedies prior to bringing suit under 42 U.S.C. §
1997e(a).
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However, in this case we are presented with a document filed by plaintiff that,
despite its title, does not contain objections to either of Magistrate Judge
Saporito’s findings. As such, we review the record with reasoned consideration,
looking for clear error on its face or a manifest of injustice. We find neither.
The law provides that “no action shall be brought with respect to prison
conditions under federal law by a prisoner confined in any jail, prison, or other
correctional facility until all available administrative remedies are exhausted.” 42
U.S.C. § 1997e(a). Use of force by a prison official on a prisoner is considered a
“prison condition” for the purposes of the Prison Litigation Reform Act. Booth v.
Churner, 206 F.3d 289 (3d Cir. 2000).
“The determination of whether a prisoner has ‘properly’ exhausted a claim .
. . is made by evaluating the prisoner’s compliance with the prison’s
administrative regulations governing inmate grievances, and the waiver, if any, of
such regulations by prison officials.” Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir.
2004). Proper exhaustion requires the prisoner to complete the administrative
review process in accordance with the applicable procedural rules. Jones v.
Bock, 549 U.S. 199, 218 (2007). Exhaustion must occur prior to filing suit, not
while the suit is pending. See Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31,
36 (1st Cir. 2002) (holding that belated exhaustion will not save a complaint from
dismissal); Neal v. Goord, 267 F.3d 116, 121-22 (2d Cir. 2001) (affirming
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dismissal of inmate's complaint because he failed to exhaust his administrative
remedies on each of his claims, although some were exhausted during pendency
of his litigation); Perez v. Wisconsin Dep't of Corr., 182 F.3d 532, 538 (7th Cir.
1999) (remanding for dismissal and reversing the district court's refusal to
dismiss when, at the time the district court was ruling on the motion to dismiss,
the inmate had fully exhausted his administrative remedies but had not done so
at the time of filing); Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir.
2006) (nonprecedential) (noting "unanimous circuit court consensus" that
prisoner cannot fulfill the exhaustion requirement after filing the complaint).
The Prison Litigation Reform Act speaks in unambiguous terms that “[n]o
action shall be brought” absent exhaustion of available administrative remedies.
42 U.S.C. § 1997e(a). The law provides that aside from one qualifier—that
administrative remedies must indeed be “available”—the text of the statute
suggests no limits on a prisoner’s obligation to exhaust. Booth v. Churner, 532
U.S. 731 (2001). “[A] court may not excuse a failure to exhaust, even to take
‘special circumstances’ into account.” Ross v. Blake, -- U.S. --, 136 S. Ct. 1850,
1853 (2016).
After careful review, it is undisputed that petitioner filed this action prior to
exhausting all available administrative remedies. (Doc. 1; Doc. 53; Doc. 61).
Defendants have cited to a testimonial declaration and documentary evidence
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establishing that plaintiff first sought review by the BOP on March 12, 2015, over
two weeks after he originally filed his complaint. (Doc. 55). Documentary
evidence also establishes that plaintiff’s administrative remedies were not
exhausted until July 7, 2015, when the BOP’s General Counsel responded to
plaintiff’s appeal—months after the complaint was filed in this action. (Doc. 55,
Ex. 1)
We agree with Magistrate Judge Saporito that the petitioner failed to
exhaust, or even initiate, any administrative remedies prior to filing suit, as
required by § 1997e(a). It is neither in our discretion to excuse such failure, nor
has plaintiff asked us to.
Conclusion
For the foregoing reasons, we will overrule plaintiff’s objection and adopt
Magistrate Judge Saporito’s R&R. An appropriate order follows.

Date: September 14, 2017

s/ James M. Munley______
JUDGE JAMES M. MUNLEY
United States District Court

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