Wyatt v. Malisko et al

Filing 131

MEMORANDUM AND ORDER re 118 MOTION in Limine to Exclude Evidence of Retaliation, or in the Alternative, For Damages filed by Butts. IT IS ORDERED that the motion for a pre-trial ruling on these issues is DENIED. While we acknowledge th at the issues of PLRA exhaustion must be resolved by the court, we will defer ruling upon this question until after trial when we may consider these exhaustion issues on a fully Developed factual record. Signed by Magistrate Judge Martin C. Carlson on June 15, 2021. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TARIQ WYATT,
Plaintiff
v.
C.O. MALISKO, et al.,
Defendants.

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Civil No. 3:16-CV-1438

(Magistrate Judge Carlson)

MEMORANDUM AND ORDER
I.

Factual Background

This case is currently scheduled for a non-jury trial before the undersigned
relating to the plaintiff’s sole surviving claim, a First Amendment retaliation claim
based on the alleged denial of access to legal papers and placement in an unsanitary
psychiatric observation cell. The remaining Defendant, Lt. Butts of the Department
of Corrections (“Department” or “DOC”), has filed a motion in limine, which seeks
a pre-trial determination by the Court that the plaintiff failed to properly exhaust his
retaliation claim, or in the alternative, seeks to bar Wyatt from seeking damages
other than nominal damages. (Doc. 118). Both of these arguments by the defense are
premised upon what they regard as flawed and incomplete efforts by Wyatt to
exhaust his administrative grievances, or seek damages in the grievances that he

submitted to prison officials. As the defendants view it, Wyatt’s pathway to grieve
these matters was through the three-tier system prescribed by DC-ADM 804, and his
failure to fully and properly exhaust grievances through this process is now fatal and
bars this retaliation claim.
The plaintiff has responded to this motion, (Doc. 123), with a twofold
rejoinder arguing: first, that Wyatt properly exhausted his grievances by reporting
allegations of inmate abuse pursuant to a separate prison policy DC-ADM 001; and,
second, by contending that the plaintiff’s efforts to exhaust his grievances were
obstructed by staff. Citing these legal and factual disputes, Wyatt contends that these
issues of exhaustion and damages should be deferred until trial when the court may
make fully informed decisions based upon a complete factual record.
In our view, the need for a pre-trial ruling on a motion in limine is reduced
here, where we will be conducting a non-jury trial. This fact reduces the urgency and
necessity of pre-trial evidentiary rulings like those sought here since:
[A]ny concern about juror confusion is obviated, and the Court is wellpositioned to make judgments regarding the admissibility of evidence
within the context of the trial itself. Indeed, although courts will rule
on motions in limine in advance of bench trials in appropriate cases,
Velez v. Reading Health System, 2016 WL 9776079 (E.D. Pa. Feb. 24,
2016), they often will find it unnecessary to do so because the concerns
over prejudice or confusion to a jury are absent. See 9 Charles A.
Wright & Arthur R. Miller, Federal Practice and Procedure Civil 3d §
2411 (3d ed. 2008); see also United States v. Brown, 2017 WL 219521
(N.D. Ill. Jan. 19, 2017) (noting that concerns over the potential for
prejudice from improper evidence “are minimal in bench trials ...
rulings on motions in limine are less important.”); Alan L. Frank Law
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Assocs., P.C. v. OOO RM Invest, 2016 WL 9348064 (S.D. Fla. Nov.
30, 2016).
Buhler Versatile Inc. v. GVM, Inc., No. 1:17-CV-00217, 2018 WL 6062307, at *5
(M.D. Pa. Nov. 20, 2018). Therefore, we will decline the invitation to make pre-trial
rulings on these disputed exhaustion issues and will instead defer rulings upon these
administrative exhaustion issues pending the full factual development of the record
at trial.
II.

Discussion

The Court is vested with broad inherent authority to manage its cases, which
carries with it the discretion and authority to rule on motions in limine prior to trial.
See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods.
Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other grounds sub nom.,
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the court
exercises its discretion to rule in limine on evidentiary issues “in appropriate cases”).
Courts may exercise this discretion in order to exclude unfairly prejudicial,
confusing, cumulative, or irrelevant evidence. United States v. Romano, 849 F.2d
812, 815 (3d Cir. 1988). Courts may also do so in order to “narrow the evidentiary
issues for trial and to eliminate unnecessary trial interruptions.” Bradley v.
Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (citation omitted).
However, courts should be careful before doing so.

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In this case, it is alleged that the plaintiff has failed to exhaust his
administrative remedies within the prison system prior to filing this complaint. The
failure to timely and fully pursue these administrative remedies has substantive
significance for inmate-litigants like Wyatt since the Prison Litigation Reform Act
(“PLRA”) provides that “[n]o action shall be brought with respect to prison
conditions under . . . [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.” 42 U.S.C. § 1997e(a). Section 1997e’s
exhaustion requirement applies to a wide-range of inmate complaints, including
damages complaints like those made here. See Spruill v. Gillis, 372 F.3d 218 (3d
Cir. 2004); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). While this exhaustion
requirement is not a jurisdictional bar to litigation, this requirement is strictly
enforced by the courts. This rigorous enforcement is mandated by a fundamental
recognition that section 1997e’s exhaustion requirement promotes important public
policies. Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000) (citations omitted).
Because of the substantial policies fostered by this exhaustion requirement, it
has been held that there is no futility exception to section 1997e’s exhaustion
requirement. Id. Instead, courts have typically required across-the-board
administrative exhaustion by inmate plaintiffs who seek to pursue claims in federal
court. When assessing an exhaustion claim, it is important to note that the exhaustion
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requirement of the PLRA is one of “proper exhaustion.” Woodford v. Ngo, 548 U.S.
81, 84 (2006). Failure to comply with the procedural requirements of the available
grievance system will result in a claim being deemed procedurally defaulted. Nyhuis
v. Reno, 204 F.3d 65, 90 (3d Cir. 2000); Spruill v. Gillis, 372 F.3d 218, 227-32 (3d
Cir. 2004).
This broad rule favoring full exhaustion admits of a number of exceptions,
however. For example, if the actions of prison officials directly caused the inmate’s
procedural default on a grievance, the inmate will not be held to strict compliance
with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir.
2000). Likewise, an inmate may only exhaust those remedies that are available to
him. As we have observed:
[A]n inmate’s failure to exhaust will only be excused “under certain
limited circumstances.” Harris v. Armstrong, 149 F. App'x 58, 59 (3d
Cir. 2005). In Ross [v. Blake], the Supreme Court of the United States
articulated three circumstances where a prison’s administrative
procedures are “unavailable” to inmates. Specifically, the Supreme
Court noted that administrative remedies are not available where: 1) the
administrative procedure operates “as a simple dead end—with officers
unable or consistently unwilling to provide any relief to aggrieved
inmates”; 2) the administrative scheme is “so opaque that it becomes,
practically speaking, incapable of use”; and 3) “prison administrators
thwart inmates from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at
1859-60 (citing Booth v. Churner, 532 U.S. 731, 738, 741 n.6 (2001)).
As to the second circumstance, the Supreme Court instructed that
“[w]hen rules are so confusing that no reasonable prisoner can use
them, then they are no longer available.” Ross, 136 S. Ct. at 1860
(quotation omitted). The Supreme Court further noted that “Congress
has determined that the inmate should err on the side of exhaustion”
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where “an administrative process is susceptible of multiple reasonable
interpretations,” however, where a remedy becomes “essentially
‘unknowable’—so that no ordinary prisoner can make sense of what it
demands — then it is also unavailable.” Id.; see also Brown v. Croak,
312 F.3d 109, 110 (3d Cir. 2002) (holding that prisoner with failure to
protect claim was entitled to rely on instruction by prison officials to
wait for outcome of internal security investigation before
filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)
(holding that exhaustion requirement was met where Office of
Professional Responsibility fully examined merits of excessive force
claim and correctional officers impeded filing of grievance).
Landau v. Lamas, No. 3:15-CV-1327, 2018 WL 8950127, at *6 (M.D. Pa. Oct. 11,
2018), report and recommendation adopted, No. 3:15-CV-1327, 2019 WL 3502627
(M.D. Pa. Aug. 1, 2019).
“Failure to exhaust is an affirmative defense the defendant must plead and
prove; it is not a pleading requirement for the prisoner-plaintiff.” Small v. Camden
Cnty., 728 F.3d 265, 268-69 (3d Cir. 2013). In accordance with the PLRA, in order
to prevail on this affirmative defense, a defendant must show that the prisoner failed
to comply with exhaustion requirements with respect to any claim that arises in the
prison setting, regardless of the type of claim asserted, or the relief sought. See
Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA=s 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”); Booth, 532 U.S. at 741 n.6 (“[A]n inmate must exhaust

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irrespective of the forms of relief sought and offered through administrative
avenues”).
Whether an inmate has exhausted administrative remedies is a question of law
that is to be determined by the court even if that determination requires the resolution
of disputed facts. See Small, 728 F.3d at 271 (judges may resolve factual disputes
relevant to the exhaustion issue without the participation of a jury); see also Drippe
v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010). Where this process entails factfinding and resolution of factual disputes, the court may resolve the issue of
exhaustion at trial through an evidentiary hearing. As the Court of Appeals has
observed:
[J]ust as subject-matter jurisdiction, personal jurisdiction, and venue,
exhaustion is a Athreshold issue that courts must address to determine
whether litigation is being conducted in the right forum at the right
time.@ Dillon, 596 F.3d at 272 (emphasis added); see Pavey, 544 F.3d
at 741 (AJuries decide cases, not issues of judicial traffic control. Until
the issue of exhaustion is resolved, the court cannot know whether it is
to decide the case or the prison authorities are to.@); cf. McCarthy v.
Madigan, 503 U.S. 140, 144, 112 S. Ct. 1081, 117 L.Ed.2d 291 (1992)
(likening the doctrine of exhaustion of administrative remedies to
Aabstention, finality, and ripeness-that govern the timing of federalcourt decisionmaking@); Myers v. Bethlehem Shipbuilding Corp., 303
U.S. 41, 50B51 n. 9, 58 S. Ct. 459, 82 L. Ed. 638 (1938) (describing
exhaustion as a Arule of judicial administration@). . . . . [I]t is of no
consequence that here, as is often the case, there are disputed facts that
must be resolved in order to determine whether the claims were
exhausted. See Bryant, 530 F.3d at 1373B74 (holding the district court
properly acted as fact finder in resolving conflicting evidence that
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raised a genuine issue of material fact about whether administrative
remedies were available to the prisoner plaintiffs); accord Messa, 652
F.3d at 309; Dillon, 596 F.3d at 271. Matters of judicial administration
often require judges to decide factual disputes and the Seventh
Amendment is not implicated as long as the facts are not bound up with
the merits of the underlying dispute.
Small, 728 F.3d at 269-70.
In the instant case, the parties’ pleadings reflect both factual disagreements
regarding whether the grievance process was actually available to Wyatt, as well as
legal disputes concerning whether Wyatt’s submission of an abuse complaint under
Corrections policy DC-ADM 001 satisfied this exhaustion requirement. With
respect to this legal issue regarding the interplay of the general prison grievance
policy, DC-ADM 804, and the inmate abuse reporting policy, DC-ADM 001:
[T]he legal significance of these parallel grievance paths has been
thoroughly discussed and, “while the court of appeals ‘has not
considered whether a Pennsylvania prisoner can exhaust his
administrative remedies through DC–ADM 001, nor what steps would
be necessary under that procedure,’ Victor v. Lawler, 565 Fed.Appx.
126, 129 (3d Cir. 2014), a number of district courts ‘have found that
allegations of abuse do not have to be filed through all three levels of
the DOC’s grievance system pursuant to DC-ADM 804, if the inmate
reports the abuse pursuant to DC-ADM 001.’ Boyer v. Malet, No.
3:CV-16-0149, 2016 WL 4679013, at *3 (M.D. Pa. Sept. 7,
2016).” Robinson v. Tennis, No. 3:11-CV-1724, 2017 WL 4479349, at
*6 (M.D. Pa. Sept. 8, 2017), report and recommendation adopted, No.
3:11-CV-1724, 2017 WL 4478009 (M.D. Pa. Oct. 6, 2017).
Landau v. Lamas, No. 3:15-CV-1327, 2018 WL 8950127, at *7 (M.D. Pa. Oct. 11,
2018), report and recommendation adopted, No. 3:15-CV-1327, 2019 WL 3502627
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(M.D. Pa. Aug. 1, 2019). Yet, while come courts have addressed this legal issue, at
least in part, we need not make a conclusive determination on these exhaustion
questions at this time. Given these legal and factual disputes, and recognizing the
non-jury nature of these proceedings, while we acknowledge that the issues of PLRA
exhaustion must be resolved by the court, we will defer ruling upon these questions
until after trial when we may consider these exhaustion issues on a fully developed
factual record.
An appropriate order follows.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
DATED: June 15, 2021

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
TARIQ WYATT,

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Plaintiff
v.
C.O. MALISKO, et al.,
Defendants.

Civil No. 3:16-CV-1438

(Magistrate Judge Carlson)

ORDER
AND NOW, this 15th day of June 2021, in accordance with the accompanying
Memorandum, upon consideration of the defendant’s motion in limine (Doc. 118),
which seeks which seeks a determination by the Court that the plaintiff failed to
properly exhaust his retaliation claim, or in the alternative, seeks to bar Wyatt from
seeking damages other than nominal damages, IT IS ORDERED that the motion for
a pre-trial ruling on these issues is DENIED. While we acknowledge that the issues
of PLRA exhaustion must be resolved by the court, we will defer ruling upon this
question until after trial when we may consider these exhaustion issues on a fully
developed factual record.
S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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