Miller v. Holt et al
Filing
51
MEMORANDUM (Order to follow as separate docket entry) re 26 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by S. L. Holt.Signed by Honorable Malachy E Mannion on 7/31/17. (bs)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
B. MILLER,
a/k/a STRANDON MILLER,
Plaintiff
v.
:
:
:
C.O. S.L. HOLT, et al.,
Defendants
CIVIL ACTION NO. 3:16-0605
(JUDGE MANNION)
:
:
MEMORANDUM
I. Background
Plaintiff, an inmate confined in the State Correctional Institution
Frackville (“SCI-Frackville”), Pennsylvania, filed this civil rights action pursuant
to 42 U.S.C. §1983. (Doc. 1). The action proceeds on an amended complaint
filed by Plaintiff B. Miller on October 7, 2016. (Doc. 25). The named Defendants
in the amended complaint are the following correctional officers at SCI-Frackville:
S.L. Holt, R.E. Lynn, S.P. Allen, and S.M. Holezman. Id. Plaintiff alleges that
Defendants Lynn, Allen and Holezman took his tablet from him for no reason
when he was coming in from the exercise yard on September 20, 2016. He
claims that this was done pursuant to the order of Defendant Holt in retaliation
for suing Holt. Id.
On October 27, 2016, Defendant Holt filed a motion to dismiss or, in the
alternative, for summary judgment with respect to the claims set forth against
him in the amended complaint. (Doc. 26). The motion is based on Plaintiff’s
failure to exhaust the claims set forth in the complaint. Id. In support of the
motion, Holt has also filed a brief and the unsworn declaration of Jennifer
Newberry, Assistant to the Superintendent at SCI-Frackville. (Docs. 31, 32).
On March 24, 2017, this Court issued an Order, affording Plaintiff the
opportunity to file an opposition brief by April 7, 2017, and cautioned him that his
failure to file a brief would result in the motion being deemed unopposed and
granted without an analysis of the merits. (Doc. 43, citing L.R. 7.6.). Plaintiff
failed to file a brief in opposition1 to the motion in accordance with the Local
Rules of Court. L.R. 7.6. For the reasons set forth below, Defendant’s motion for
summary judgment will be granted.
II. Standards of Review
A. Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to
On April 7, 2017, Plaintiff filed a document entitled “Amended Complaint.”
(Doc. 26). This document, however, is a mere iteration of Plaintiff’s original and
amended complaint, and in no way opposes Defendant’s dispositive motion, or
offers any new facts to be considered.
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state a claim upon which relief can be granted.” Under Rule 12(b)(6), we must
“accept all factual allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any reasonable reading
of the complaint, the plaintiff may be entitled to relief.” Fowler v. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Phillips v. County of
Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint need only
contain “a short and plain statement of the claim,” Fed.R.Civ.P. 8(a)(2), and
detailed factual allegations are not required, Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555 (2007), a complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Id. at 570. “The plausibility standard is not akin
to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662 (2009) (quoting
Twombly, 550 U.S. at 556). “[L]abels and conclusions” are not enough, Twombly,
550 U.S. at 555, and a court “is not bound to accept as true a legal conclusion
couched as a factual allegation.” Id. (quoted case omitted). Thus, “a judicial
conspiracy claim must include at least a discernible factual basis to survive a
Rule 12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 184 (3d Cir. 2009) (per curiam).
In resolving the motion to dismiss, we thus “conduct a two-part
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analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual elements
from the legal elements and disregard the legal conclusions. Id. at 210-11.
Second, we “determine whether the facts alleged in the complaint are sufficient
to show that the plaintiff has a “plausible claim for relief”. Id. at 211 (quoted case
omitted).
B. Summary Judgment
Pursuant to Federal Rule of Civil Procedure 56(a) “[t]he court shall grant
summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
“[T]his standard provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no genuine issue of material
fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis
in original).
A disputed fact is “material” if proof of its existence or nonexistence
would affect the outcome of the case under applicable substantive law.
Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078
(3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that
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a reasonable jury could return a verdict for the nonmoving party. Anderson, 477
U.S. at 257; Brenner v. Local 514, United Brotherhood of Carpenters and Joiners
of America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether there is a genuine issue of material fact, the
court must view the facts and all reasonable inferences in favor of the nonmoving
party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated
Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse
Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary
judgment, however, parties may not rely on unsubstantiated allegations. Parties
seeking to establish that a fact is or is not genuinely disputed must support such
an assertion by “citing to particular parts of materials in the record,” by showing
that an adverse party’s factual assertion lacks support from cited materials, or
demonstrating that a factual assertion is unsupportable by admissible evidence.
Fed.R.Civ.P. 56(c)(1); see Celotex, 477 U.S. at 324 (requiring evidentiary
support for factual assertions made in response to summary judgment). The
party opposing the motion “must do more than simply show that there is some
metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio, 475 U.S. 574, 586 (1986). Parties must produce evidence to show
the existence of every element essential to its case that they bear the burden of
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proving at trial, for “a complete failure of proof concerning an essential element
of the nonmoving party’s case necessarily renders all other facts immaterial.”
Celotex, 477 U .S. at 323; see Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.
1992). Failure to properly support or contest an assertion of fact may result in the
fact being considered undisputed for the purpose of the motion, although a court
may also give parties an opportunity to properly provide support or opposition.
Fed.R.Civ.P. 56(e).
Statement of Facts2
III.
On September 20, 2016, during a random cell search, CO Holezman
confiscated Plaintiff’s electronic table from his cell. (Doc. 25 at 3, Confiscated
Middle District of Pennsylvania Local Rules of Court provide that in
addition to filing a brief in response to the moving party’s brief in support, “[t]he
papers opposing a motion for summary judgment shall included a separate, short
and concise statement of material facts responding to the numbered paragraphs
set forth in the statement [of material facts filed by the moving party] ..., as to
which it is contended that there exists a genuine issue to be tried.” See M.D. Pa.
LR 56. 1. The rule further states that the statement of material 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. See id. Because
Plaintiff has failed to file a separate statement of material facts controverting the
statement filed by Defendant, all material facts set forth in Defendant’s statement
(Doc. 25) will be deemed admitted.
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Items Receipt).
On September 20, 2016, Plaintiff filed Grievance No. 644217 stating the
following:
At 2:55 pm coming in from the “Exercise Yard”...I was
accosted by C/O R.E. Lynn, C/O Holezman, C/O S.P. Allen.
“Shay Holt” told C/O Holezman to take my tablet. C/O Shay
Holt told Holezman, S.P. Allen and R.E. Lynn to arbitrarily,
capriciously, confiscate my tablet cause Civil Action 3:16
Middle District Court involves him (Shay Holt). Theirs (sic) not
wrong with my tablet. My name is on the screen once you turn
it on, as my number. Theirs (sic) no reason to take my tablet.
Device is transparent. I deem this to be retaliatory from R.E.
Lynn and Shy Holt! Due to 3:16-cv-605. All was done under Lt.
C.O. Ludwedo. I was told Federal Judge Middle District
Federal Court (Judge Kosik) has been informed concerning
capricious action.
(Doc. 32-1 at 44, Official Inmate Grievance).
On September 23, 2016, Miller’s electronic tablet was “returned to [him]
in normal working order.” (Doc. 25 at 3, Confiscated Items Receipt). Also on
September 23, 2016, Miller filed a grievance withdrawal, withdrawing Grievance
No. 644217. (Doc. 32-1 at 46, Grievance Withdrawal). There are no further
appeals regarding Grievance No. 644217, or the issues raised in Plaintiff’s
complaint. (Doc. 32-1 at 5, Declaration of Jennifer Newberry, Assistant to the
Superintendent at SCI-Frackville).
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IV. Discussion
Section 1997e(a) of title 42 U.S.C. provides that “[n]o action shall be
brought with respect to prison conditions under section 1983 of this title, 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.” This
“exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). A prisoner must exhaust all available administrative remedies before
initiating a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739 (2001). Failure
to exhaust available administrative remedies is an affirmative defense. Ray v.
Kertes, 285 F.3d 287 (3d Cir. 2002). As such, the failure to exhaust available
administrative remedies must be pleaded and proven by the Defendants. Brown
v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
Defendant Holt has properly raised the matter of exhaustion of
administrative remedies made available to inmates confined within the
Department of Corrections. The Pennsylvania Department of Corrections’
administrative remedies for inmate grievances are provided for in Department of
Corrections Administrative Directive 804.
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See www.cor.state.pa.us, DOC
Policies, DC-ADM 804, Inmate Grievance System Policy (“DC-ADM 804"). This
policy establishes the Consolidated Inmate Grievance Review System, through
which inmates can seek to resolve issues relating to their incarceration. Id. The
first step in the inmate grievance process is initial review. Id. Grievances must
be submitted for initial review within 15 working days after the event upon which
the grievance is based. Id. After initial review, the inmate may appeal to the
superintendent of their institution. Id. Upon completion of the initial review and
the appeal from the initial review, an inmate may seek final review with the Chief
of the Secretary’s Office of Inmate Grievances and Appeals (SOIGA). Id.
It is clear from the record before this court that Plaintiff has failed to
exhaust his administrative remedies before filing the above captioned action. The
undisputed record reveals that Plaintiff withdrew his grievance concerning the
confiscation of his electronic tablet, prior to Plaintiff seeking any level of review
of said grievance. In light of his failure to properly exhaust all claims, the
complaint will be dismissed. See Woodford v. Ngo, 548 U.S. 81,92 (2006)
(mandating complete exhaustion of all administrative remedies before filing suit);
see also Rivera v. Pa. Dep’t of Corr., 388 Fed. App’x 107, 108 (3d Cir. 2010)
(“An inmate must exhaust his administrative remedies prior to filing a civil action
in federal court”).
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Moreover, because it is beyond dispute that Plaintiff failed to exhaust
his remedies, debilitating any chance for success of the above captioned action,
the Court finds that, based upon the foregoing, the remaining Defendants, R.E.
Lynn, S.P. Allen, and S.M. Holezman, are also entitled to dismissal pursuant to
of 28 U.S.C. §1915(e)(2)(B)(ii), for Plaintiff’s failure to state a claim upon which
relief may be granted. Additionally, because we find based on the record
submitted, that Plaintiff has procedurally defaulted on his administrative
grievance, and, therefore, did not and cannot fully exhaust his remedies, any
further leave to amend the complaint would be futile and will not be permitted.3
V. Conclusion
For the reasons stated above, the Court will grant summary judgment in favor
of Defendant Holt, for Plaintiff’s failure to exhaust administrative remedies prior
to filing the above captioned action. Additionally, the remaining Defendants, R.E.
Lynn, S.P. Allen, and S.M. Holezman, will be dismissed pursuant to of 28 U.S.C.
§1915(e)(2)(B)(ii).
We recognize that in civil rights cases pro se plaintiffs often should be
afforded an opportunity to amend a complaint before the complaint is dismissed
in its entirety, See Fletcher–Hardee Corp. v. Pote Concrete Contractors, 482
F.3d 247, 253 (3d Cir.2007). However, it is unnecessary to permit further
amendment when granting further leave to amend would be futile or result in
undue delay. Alston v. Parker, 363 F.3d 229, 235 (3d Cir.2004).
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An appropriate order shall issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
Dated: July 31, 2017
O:\Mannion\shared\MEMORANDA - DJ\CIVIL MEMORANDA\2016 MEMORANDA\16-0605-02.wpd
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