Saleem v. Commonwealth Of Pennsylvania et al

Filing 15

MEMORANDUM (Order to follow as separate docket entry) re 5 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by C.O. 1 Bickle, Amanda West, Donna Varner, Department of Corrections, Commonwealth Of Pennsylvania, C.O. 1 Ostrofsky, N. Paul, C.O. 1 Hanes, Unit Manager Kuhn, Captain Dyke, Superintendent Garman. Signed by Honorable Robert D. Mariani on 5/9/22. (jam)

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
Civil No. 3:21-cv-1413

MOHAMMAD SOHAIL SALEEM,

(Judge Mariani)

Plaintiff
V.

COMMONWEALTH OF PENNSYLVANIA,:
et al.,
Defendants

MEMORANDUM
Plaintiff Mohammad Sohail Saleem ("Saleem"), an inmate who was housed at all
relevant times at the State Correctional Institution, Rockview, Pennsylvania ("SCIRockview"), commenced this civil rights action on July 9, 2021, in the Court of Common
Pleas of Centre County, Pennsylvania. (Doc. 1-1 ). The action was subsequently removed
to the United States District Court for the Middle District of Pennsylvania. (Doc. 1). Named
as Defendants are the Commonwealth of Pennsylvania, the Pennsylvania Department of
Corrections, Correctional Officer Bickle, Correctional Officer Hanes, Correctional Officer
Ostrofsky, Unit Manager Kuhn, Captain Dyke, Superintendent Garman, Grievance
Coordinator N. Paul, Grievance Review Officer Amanda West, and Chief Grievance Officer
Dorina Varner. Before the Court is Defendants' motion (Doc. 5) to dismiss pursuant to
Federal Rule of Civil Procedure Rule 12(b)(6) or, in the alternative, for summary judgment
pursuant to Federal Rule of Civil Procedure 56. Pursuant to Federal Rule of Civil Procedure

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12(d), the Court will treat the motion as one for summary judgment under Rule 56 with
respect to the issue of exhaustion of administrative remedies. 1 The remaining claims will be
addressed in the Rule 12(b) motion. Saleem failed to respond to Defendants' motion and
the time for responding has now passed. 2 Therefore, the motion is deemed unopposed and
ripe for resolution. For the reasons set forth below, the Court will grant the motion.

I.

Rule 12(b)(6) Motion
A.

Allegations of the Complaint

Saleem alleges that on December 10, 2018, he was in his cell reading religious
materials when two fellow inmates entered his cell , attacked him, and robbed him. (Doc. 11 ~~ 22-29). Saleem reported the incident to prison officials and was transported to the
medical department for treatment. (Id.~~ 30-31 ). After an evaluation, he was immediately
transferred to an outside hospital. (Id. ~~ 31-32). Saleem underwent further treatment at
the outside hospital, received eye drops, and was transferred back to the prison later that
day. (Id. ~ 33). When Saleem returned to the prison, he alleges that his eye drops were

1

On November 17, 2021 , the Court issued an Order apprising the parties that the motion to
dismiss would be treated as one for summary judgment with respect to the issue of exhaustion of
administrative remedies. (Doc. 9) . Because Defendants raised the issue of exhaustion of administrative
remedies, the Court also notified the parties that it would consider exhaustion in its role as factfinder in
accordance with Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018) and Small v. Camden Cty. , 728 F.3d
265 (3d Cir. 2013) , and afforded the parties the opportunity to supplement the record with any additional
evidence relevant to exhaustion of administrative remedies . (Doc. 9) .
2

Saleem was directed to file a brief in opposition to Defendants' motion and was admonished
that failure to file an opposition brief would result in Defendants' motion being deemed unopposed . (Docs.
8, 13) (citing M.0. PA. LOCAL RULE OF COURT 7.6).

2

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confiscated, he was placed in the Restricted Housing Unit ("RHU"), and his property was
separated by his cellmate and packed by Defendant Hanes. (Id.~ 33). Saleem alleges that
he did not receive medical care while housed in the RHU and had to treat his own eye
injury. (Id. ~ 34). A few days later, Saleem was transferred back to general population. (Id.
~

35) . He picked up his personal property and noticed that commissary and personal items

were missing. (Id. ~ 36). Saleem alleges that Defendants Bickle, Ostrofsky, and Hanes
packed the items in his cell and misplaced his property.
On December 17, 2018, Saleem sent a request slip regarding the missing items. (Id.
~~ 36-39) .

He received a response on December 29, 2018. (Id.~ 39). Also on December

29, 2018, Saleem filed Grievance Number 779527 complaining about his missing property.
(Id.~~ 39-40). On January 17, 2019, Defendant Kuhn denied the grievance and stated that

all of Saleem's items were separated by his cellmate on December 10, 2018, and
everything that belonged to Saleem was packed and inventoried. (Id.~ 41 ). On January
28, 2019, Saleem filed an appeal to the Facility Manager. (Id. ~ 44). The Facility Manager
denied the appeal on February 20, 2019. (Id.~ 46). Saleem allegedly did not receive the
Facility Manager's denial until April 22, 2019 because he was temporarily transported to
Lebanon County for a court hearing. (Id. ~~ 45-46) . Saleem asserts that he filed an appeal
to the Secretary's Office of Inmate Grievances and Appeals ("SOIGA") on May 9, 2019. (Id.
~

49). Because Saleem never received a response from the SOIGA, he sent a letter on July

9, 2019, inquiring about the status of his appeal. (Id. ~ 49). In response, on July 18, 2019,
3

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the SOIGA informed Saleem that the office never received his appeal. (Id.

~

50). On July

29, 2019, Saleem mailed his appeal to the SOIGA. (Id.~ 51). On August 8, 2019, the
SOIGA dismissed Saleem's appeal. (Id.). Saleem alleges that Defendants Kuhn, West,
and Garman were dishonest in their responses to his grievance. (Id.

~~

75-162, 155).

Saleem further alleges that corrections staff discriminated against him based on his
religion by lodging religious insults, failing to protect him from the assault and robbery on
December 10, 2018, and denying his grievance. (Id.~~ 63, 67-73 , 80) .

B.

Legal Standard

A complaint must be dismissed under FED. R. CIv. P. 12(b)(6), if it does not allege
"enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v.
Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed . 2d 929 (2007). The plaintiff must
aver "factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct.
1937, 1949, 173 L. Ed. 2d 868 (2009).
"Though a complaint 'does not need detailed factual allegations, .. . a formulaic
recitation of the elements of a cause of action will not do.lll De/Rio-Mocci v. Connolly Prop.
Inc., 672 F.3d 241 , 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555) . In other words ,
"[fjactual allegations must be enough to raise a right to relief above the speculative level."
Covington v. Int'/ Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013)
(internal citations and quotation marks omitted). A court "take[s] as true all the factual
4

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allegations in the Complaint and the reasonable inferences that can be drawn from those
facts , but ... disregard[s] legal conclusions and threadbare recitals of the elements of a
cause of action , supported by mere conclusory statements." Ethypharm S.A. France v.
Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation

marks omitted) .
Twombly and Iqbal require [a district court] to take the following three steps to
determine the sufficiency of a complaint: First, the court must take note of the
elements a plaintiff must plead to state a claim. Second , the court should
identify allegations that, because they are no more than conclusions , are not
entitled to the assumption of truth. Finally, where there are well-pleaded
factual allegations, a court should assume their veracity and then determine
whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013).

"[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged - but it has not show[n] - that the
pleader is entitled to relief. " Iqbal, 556 U.S. at 679 (internal citations and quotation marks
omitted) . This "plausibility" determination will be a "context-specific task that requires the
reviewing court to draw on its judicial experience and common sense." Id.
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a
defendant moves to dismiss it, unless the district court finds that amendment
5

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would be inequitable or futile, the court must inform the plaintiff that he or she
has leave to amend the complaint within a set period of time.
Id.

C.

Discussion

1.

Lack of Personal Involvement of Defendants Kuhn, Dyke,
Garman, Paul, West, and Varner

Defendants Garman, Varner, Hayles, and Chernisky argue that Saleem fails to state
a claim against them because they lack personal involvement in the alleged wrongs. (Doc.
6, pp. 4-7). Individual liability can be imposed under section 1983 only if the state actor
played an "affirmative part" in the alleged misconduct and "cannot be predicated solely on
the operation of respondeat superior." Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005)
(quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1998)). "A defendant in a civil
rights action must have personal involvement in the alleged wrongs. . . . Personal
involvement can be shown through allegations of personal direction or of actual knowledge
and acquiescence." Rode, 845 F.2d at 1207-08; see also Rizzo v. Goode, 423 U.S. 362
(1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations, however, must
be made with appropriate particularity in that a complaint must allege the particulars of
conduct, time, place, and person responsible. Evancho, 423 F.3d at 354; Rode, 845 F.2d at
1207-08. Alleging a mere hypothesis that an individual defendant had personal knowledge
or involvement in depriving the plaintiff of his rights is insufficient to establish personal
involvement. Rode, 845 F.2d at 1208.
6

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Saleem attempts to hold Defendants Kuhn, Dyke, Garman, Paul, and West liable
based solely on their involvement in the grievance procedure. (Doc. 1-1

,m 75-162) . This

claim fails. Courts have routinely held that the "failure of a prison official to provide a
favorable response to an inmate grievance is not a federal constitutional violation."
Flanagan v. Shively, 783 F. Supp. 922, 931-32 (M.D. Pa. 1992), aff'd, 980 F.2d 722 (3d Cir.
1992). Dissatisfaction with responses to an inmate's grievances does not support a
constitutional claim. See Alexander v. Gennarini, 144 F. App'x 924 (3d Cir. 2005)
(concluding that involvement in the post-incident grievance process is not a basis for§ 1983
liability). Because the claims against Defendants Kuhn, Dyke, Garman, Paul, and West are
premised on their respective roles in the grievance process , they are entitled to dismissal.
To the extent that Saleem seeks to hold Unit Manager Kuhn, Captain Dyke, and
Superintendent Garman liable based upon their supervisory roles , this claim also fails.
Supervisors "may not be held liable for the unconstitutional conduct of their subordinates
under a theory of respondeat superior." Iqbal, 556 U.S. at 676. Accordingly, insofar as
Saleem's claims against Defendants Kuhn, Dyke, and Garman rely on a respondeat
superior theory of liability, they are entitled to dismissal on this ground.

2.

Religious Land Use and Institutionalized Persons Act of 2000

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000
("RLUIPA") provides, in relevant part, that "[n]o government shall impose a substantial
burden on the religious exercise of a person residing in or confined to an institution . . . even
7

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if the burden results from a rule of general applicability," unless the government establishes
that the burden furthers "a compelling interest," and does so by the "least restrictive means."
42 U.S.C. § 2000cc-1 (a)(1 )-(2) . RLUIPA defines "religious exercise" to include "any
exercise of religion, whether or not compelled by, or central to, a system of religious belief."
42 U.S.C. § 2000cc-5(7)(A); see a/so Cutter v. Wilkinson, 544 U.S. 709, 715 (2005) .
Although Congress intended that RLUIPA be construed "in favor of broad protection of
religious exercise," see 42 U.S.C. § 2000cc-3(g), Congress also "anticipated that courts
would apply the Act's standard with 'due deference to the experience and expertise of
prison and jail administrators in establishing necessary regulations and procedures to
maintain good order, security and discipline, consistent with consideration of costs and
limited resources. "' Cutter, 544 U.S. at 723. Congress indicated that in the event an
inmate's request for religious accommodation would "become excessive, impose unjustified
burdens on other institutionalized persons , or jeopardize the effective functioning of an
institution, the facility would be free to resist the imposition." Id. at 726.
a.

Monetary Damages
(i)

Individual Liability

Saleem cannot recover monetary damages against the Defendants in their individual
capacities under RLUIPA. It is well-settled that RLUIPA does not permit an action for
damages of any sort against state officials in their individual capacities. See Sharp v.

8

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Johnson, 669 F.3d 144, 155 (3d Cir. 2012). Defendants' motion will be granted in this
regard.
(ii)

Official Capacity

Conversely, Saleem can proceed against the Defendants in their official capacities.
See Kelley Bey v. Keen, No. 13-CV-1942, 2014 WL 3563475, at *13 (M.D. Pa. July 17,
2014) (holding that official capacity RLUIPA claims against county officials were not barred
by the Eleventh Amendment which only applies to states (citing Opulent Life Church v. City
of Holly Springs, Miss., 697 F.3d 279, 289-90 (5th Cir. 2012) (holding that while states may
not be held liable for money damages under RLUIPA, municipalities and counties may)).
Under RLUIPA, the plaintiff must show that his religious exercise has been burdened
substantially by the challenged conduct. Washington v. Klem, 497 F.3d 272, 277-78 (3d
Cir. 2007). "[A] substantial burden exists where: (1) a follower is forced to choose between
following the precepts of his religion and forfeiting benefits otherwise generally available to
other inmates versus abandoning one of the precepts of his religion in order to receive a
benefit; or (2) the government puts substantial pressure on an adherent to substantially
modify his behavior to violate his beliefs." Id. at 280. The plaintiff bears the initial burden of
demonstrating that a prison institution's policy or official practice has substantially burdened
the inmate's religious practice. Holt v. Hobbs, 574 U.S. 352, 360 (2015). If the plaintiff
shows that prison administrators' actions or inactions have imposed a substantial burden on
the exercise of his religion, the burden shifts to the prison administrator to establish that the
9

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challenged conduct furthers a compelling governmental interest and that it is the least
restrictive means of furthering that interest. Id. at 362.
The initial burden falls on Saleem to demonstrate that an SCI-Rockview policy has
substantially burdened the practice of his religion. Saleem has failed to establish any
substantial or undue burden on his exercise of religious beliefs. He alleges that corrections
staff used racial slurs, failed to protect him from the assault and robbery due to his religion,
and denied his grievance based on his religious beliefs. (Doc. 1-1

,r,r 67-73, 80).

Saleem

does not identify how his religion was targeted or intentionally burdened by any of the
Defendants. Moreover, Saleem has failed to oppose Defendants' motion, and he presents
nothing beyond the allegations of his complaint. The Court cannot discern any burden on
the practice of his religion from the record. Accordingly, the Court will grant Defendants'
motion to dismiss the RLUIPA claim .
3.

Negligence Claim against Bickle, Hanes, and Ostrofsky

Saleem sets forth a negligence claim against Defendants Bickle, Hanes, and
Ostrofsky in relation to his loss of property. (Doc. 1-1

,r,r 168-172).

Negligent or intentional

deprivations of property by a state employee do not give rise to the level of constitutional
claims if the state provides an adequate post-deprivation remedy. See Hudson v. Palmer,
468 U.S. 517, 533 (1984). Saleem cannot state a due process claim because the prison
grievance system and Pennsylvania law provide him with an adequate state remedy for the
deprivation of his property. See Spencer v. Bush, 543 F. App'x 209, 213 (3d Cir. 2013)
10

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('"[A]n unauthorized intentional deprivation of property by a state employee does not
constitute a violation of the procedural requirements of the Due Process Clause of the
Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available."')
(quoting Hudson , 468 U.S. at 533) ; Shakurv. Coelho, 421 F. App'x 132,135 (3d Cir. 2011)
(per curiam) (explaining that the Pennsylvania Tort Claims Act provides an adequate
remedy for a willful deprivation of property); Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d
410, 422 (3d Cir. 2000) (holding that prison grievance system provides adequate postdeprivation remedy) . Saleem was not deprived of any process. He acknowledges that he
availed himself of the prison grievance procedure and, although he may not agree with the
outcome of his grievance, his complaints were aired in the designated forum and assessed
by the appropriate officials. Therefore, Defendants' motion will be granted with respect to
this claim.
4.

Claims against the Department of Corrections

Section 1983 provides that persons acting under color of state law may be found
liable if they deprive an individual of "any rights , privileges, or immunities secured by the
Constitution and laws" of the United States. See 42 U.S.C. § 1983. To state a§ 1983
claim, a plaintiff must plead two essential elements: (1) the conduct complained of was
committed by a person acting under color of state law; and (2) the conduct deprived the
plaintiff of a right, privilege, or immunity secured by the Constitution or laws of the United

11

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States. See West v. Atkins, 487 U.S. 42, 48 (1998); Mal/eus v. George, 641 F.3d 560, 563
(3d Cir. 2011).
It is well-settled that neither a state nor its agencies are considered a "person" as
that term is defined under§ 1983 and , therefore, are not subject to a § 1983 suit. Hafer v.
Melo, 502 U.S. 21 , 25-27 (1991 ). Consequently, Saleem's claims against the Pennsylvania
Department of Corrections are barred , as it is not a person within the meaning of 42 U.S.C.
§ 1983. See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that a
state may not be sued in federal court pursuant to § 1983 and is not a "person" for purposes
of that provision) . Moreover, this Defendant is entitled to Eleventh Amendment immunity.
Lavia v. Pa. Dep't of Corr., 224 F.3d 190, 195 (3d Cir. 2000) (finding that the Pennsylvania
Department of Corrections "shares in the Commonwealth's Eleventh Amendment
immunity").
5.

Injunctive and Declaratory Relief

Saleem seeks declaratory and injunctive relief in this matter. However, Saleem is no
longer housed at SCI-Rockview. Article Ill of the Constitution provides that the judicial
power of the United States shall extend to "cases" and "controversies." U.S. CONST. , art. Ill,
§ 2. "[F]ederal courts may adjudicate only actual , ongoing cases or controversies ," Lewis v.
Cont'/ Bank Corp. , 494 U.S. 472,477 (1990), and "[i]t is a basic principle of Article Ill that a
justiciable case or controversy must remain 'extant at all stages of review, not merely at the
time the complaint is filed ,"' United States v. Juvenile Male, 564 U.S. 932, 936 (2011)
12

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(citation omitted). Generally, an inmate's transfer from the facility complained of moots
claims for equitable and declaratory relief. Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir.
2003) ; Johnson v. Wenerowicz, 440 F. App'x 60, 62 (3d Cir. 2011) (holding that the
prisoner's request for injunctive and declaratory relief against the named defendants was
rendered moot by his transfer to another prison). Because Saleem is no longer
incarcerated at SCI-Rockview, he does not present a live case or controversy for injunctive
or declaratory relief regarding the policies or practices at that facility.
D.

Leave to Amend

Before dismissing a complaint for failure to state a claim upon which relief may be
granted, the Court must grant Saleem leave to amend his complaint unless amendment
would be inequitable or futile. See Grayson v. Mayview State Hospital, 293 F.3d 103, 114
(3d Cir. 2002). Saleem's claims are factually and legally flawed . Additionally, he failed to
oppose Defendants' motion . Therefore, the Court finds that granting leave to amend would
be futile.

13

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II.

Rule 56 Motion
A.

Statement of Undisputed Facts 3

The Department has established an inmate grievance review system to provide
prisoners in its custody with a regular procedure to resolve problems or other issues arising
during the course of their confinement. The Department's inmate grievance system policy is
set forth in Administrative Directive 804 ("DC-ADM 804"). (Doc. 7 ~ 1). Pursuant to DCADM 804, any inmate personally affected by a Department or institutional action or policy or
by the action of a Department employee may file a grievance. (Id.~ 2). The inmate is
encouraged to attempt to resolve his concerns informally prior to filing a grievance. (Id.).
The grievance must be submitted in writing to the Facility Grievance Coordinator, using the
grievance form that is available on all housing units or blocks. (Id.). All inmates, regardless
of where they are housed in an institution, may file grievances. (Id.~ 3). All inmates are
provided with a copy of the grievance system policy and procedures manual in their inmate
handbook when coming into one of the Department's diagnostic and classification centers

3

Local Rule 56 .1 requires that a motion for summary judgment pursuant to Federal Rule of
Civil Procedure 56 be supported "by a separate, short, and concise statement of the material facts, in
numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried ." LOCAL
RULE OF COURT 56 .1. A party opposing a motion for summary judgment must file a separate statement of
material facts, responding to the numbered paragraphs set forth in the moving party's statement and
identifying genuine issues for trial. See id. Unless otherwise noted, the factual background herein derives
from the Defendants' Rule 56.1 statement of material facts and attached exhibits. (Docs. 7, 7-1 ). Saleem
did not file a response to Defendants' statement of material facts . The Court accordingly deems the facts
set forth by Defendants to be undisputed . See LOCAL RULE OF COURT 56.1. (See also Doc. 8 ~ 2; Doc. 13
~ 3) (advising Saleem that failure to file a responsive statement of material facts would result in the facts
set forth in Defendants' statement of material facts being deemed admitted) .

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and are provided notice of any revisions to the policy and procedures manual. (Id. ~ 4). In
addition, when an inmate is assigned to a permanent institution , a copy of the grievance
system policy and procedures manual is available on all housing blocks and in the
institutional library for inmates to review or request to obtain copies. (Id.). Pursuant to the
DC-ADM 804, the Department has a three-tiered grievance system which serves as an
inmate's administrative remedy: (1) an initial review by a Grievance Officer; (2) appeal to the
Facility Manager or designee; and (3) appeal to the SOIGA for final review. (Id. ~ 5) . The
DC-ADM 804 sets forth requirements for grievances submitted by inmates. An inmate must
submit a grievance in writing to the Facility Grievance Coordinator, using the grievance form
which is available on all housing units or blocks, as well as in the main and mini-law
libraries. (Id. ~ 6). Among other things, the inmate "must include a statement of the facts
relevant to the claim," which "must not exceed two pages" and "shall include the date,
approximate time and location of the event(s) that gave rise to the grievance." (Id. ~ 7) .
Also, in the grievance, "[t]he inmate shall identify [the] individuals directly involved in the
event(s) ." (Id.). The inmate further is required to "specifically state any claims he/she
wishes to make concerning violations of Department directives, regulations, court orders , or
other law." (Id. ). The inmate is required to include a request for the specific relief soughtsuch as compensation - in the initial grievance. (Id.) . Furthermore, "[a]ny grievance based
on separate events must be presented separately, unless it is necessary to combine the
issues to support the claim ." (Id.~ 8). Pursuant to DC-ADM 804, the inmate must submit a
15

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grievance for Initial Review to the Facility Grievance Coordinator within fifteen (15) working
days after the event upon which the claim is based . (Id.~ 9). The Facility Grievance
Coordinator/designee shall assign a grievance tracking number to every grievance (even a
rejected grievance) upon receipt and enter every grievance into the Automated Inmate
Grievance Tracking System." (Id.~ 10). An inmate may appeal an Initial Review Response
or Grievance Rejection to the Facility Manager (Superintendent) in writing within fifteen
working days from the date of the Initial Review Response or Grievance Rejection . (Id. ~
11 ). Among other things , the text of the appeal must contain the reasons for the appeal.
(Id. ~ 12). Only an issue that was raised for Initial Review, determination of frivolousness,

rejection and/or placement on grievance restriction may be appealed . (Id.). The Facility
Manager then provides a written response to the inmate. (Id.

~

13). The Facility Manager

may, among other things : Uphold the Initial Review Response, Uphold Inmate, Dismiss,
Uphold in Part/Deny in Part, or Remand. (Id.). Any inmate who is not satisfied with the
decision of the Facility Manager may submit an appeal, called an Inmate Appeal to Final
Review, within fifteen (15) working days from the date of the Facility Manager's decision to
the Secretary's Office of Inmate Grievances and Appeals. (Id.~ 14). Only issues raised in
both the original grievance and the appeal to the Facility Manager may be appealed to the
Secretary's Office of Inmate Grievances and Appeals . (Id.

~

15). Along with the written

appeal to final review, the inmate must include copies of the Initial Grievance, the Initial
Review Response, the Inmate Appeal to the Facility Manager (Superintendent), and the
16

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Facility Manager/designee's Response. (Id.~ 16). The Secretary's Office of Inmate
Grievances and Appeals then may, among other things: Uphold Response, Uphold Inmate,
Dismiss, Uphold in Part/Deny in Part, or Remand . (Id.

~

17). When an appeal is remanded

from the SOIGA to the facility, notification is provided to both the inmate and facility, and the
facility provides a revised response to the inmate. (Id.

~

18). If an inmate is dissatisfied

with the revised response, the inmate may appeal the revised response to final review again
within fifteen (15) working days of the date of the revised response. (Id.~ 19).
Helen Shambaugh, Grievance Review Officer, reviewed the files of the Secretary's
Office of Inmate Appeals and Grievances for grievances filed by Plaintiff, Mohammad Sohail
Saleem MA-9795, regarding loss of property in December 2018. (Id.~ 20). On December
29, 2018, Saleem filed Grievance Number 779527 regarding an incident occurring on
December 10, 2018 at SCI-Rockview, wherein he complains that inmates stole his property
and that property was missing after being packed by unnamed staff members. (Id.~ 21 ).
The grievance does not mention his religion or that he was being precluded from practicing
his religion. (Id. ~ 22). Grievance Number 779527 states as follows:
On or about December 10, 2018, I was robbed and assaulted by two
individuals in my cell on A Block. This incident was reported to security. I
was taken to hospital due to my eye injury. A DC-141 No. 299754 was issued
in the matter. I was put into RHU when I came back from hospital. Before I
report to medical and going to hospital I secure my property with pad lock in
my cabinet. There was some property was stolen by these two individuals,
which can be seen in the video. Further, when my property was packed by
staff, I am missing more property and personal items.
17

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(Doc. 7-1 , p. 50) (sic).
Grievance Number 779527 was received by the Facility Grievance Coordinator on
December 31 , 2018. (Doc. 7 ~ 23). On January 17, 2019, Unit Manager Kuhn issued an
initial review response and denied the grievance on the basis that Saleem's property was
inventoried and accounted-for. (Id. ~ 24). On January 28, 2019, Saleem appealed the
initial review response to the Facility Manager. (Id. ~ 25). The initial review response was
upheld by the Facility Manager on February 20, 2019. (Id.~ 26). The SOIGA did not
receive an appeal of the Facility Manager's decision , but received a letter from Saleem on
July 7, 2019 inquiring about the status of the Grievance Number 779527. (Id.

~

27). On

July 18, 2019, the SOIGA issued a response to Saleem indicating that his correspondence
was being filed without further action because no appeal of the grievance had been
received by the SOIGA. (Id. ~ 28). On July 29, 2019, Saleem forwarded to the SOIGA an
appeal of Grievance Number 779527 dated May 9, 2019. (Id. ~ 29). On August 8, 2019,
the SOIGA dismissed Saleem's appeal as untimely. (Id.~ 30) . The SOIGA has no record
of Saleem filing a grievance subsequent to Grievance Number 779527 regarding missing
property at SCI-Rockview. (Id.~ 31 ).
The SOIGA has no record of Saleem filing a grievance in December 2018, or after,
regarding any officer being deliberately indifferent to his safety at SCI-Rockview. (Id.

~

32) .

The SOIGA has no .record of Saleem filing a grievance in December 2018, or after,
regarding infringement of his relig ious rights at SCI-Rockview. (Id.~ 33). The SOIGA has
18

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no record of Saleem filing a grievance in December 2018, or after, about_ grievance
the
system or those involved in responding to his grievances. (Id.

B.

~

34).

Legal Standard

Through summary adjudication , the court may dispose of those claims that do not
present a "genuine dispute as to any material fact."

FED.

R. CIv. P. 56(a). "As to materiality,

... [o]nly disputes over facts that might affect the outcome of the suit under the governing
law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986).
The party moving for summary judgment bears the burden of showing the absence
of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving
party must offer specific facts contradicting those averred by the movant to establish a
genuine issue of material fact. Lujan v. Nat'/ Wildlife Fed'n, 497 U.S. 871,888 (1990).
Therefore, the non-moving party may not oppose summary judgment simply on the basis of
the pleadings, or on conclusory statements that a factual issue exists . Anderson, 477 U.S.
at 248. "A party asserting that a fact cannot be or is genuinely disputed must support the
assertion by citing to particular parts of materials in the record ... or showing that the
materials cited do not establish the absence or presence of a genuine dispute, or that an
adverse party cannot produce admissible evidence to support the fact."

FED.

R. CIv. P.

56(c)(1 )(A)-(8). In evaluating whether summary judgment should be granted, "[t]he court
19

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need consider only the cited materials, but it may consider other materials in the record. "
FED. R. CIv. P. 56(c)(3). "Inferences should be drawn in the light most favorable to the nonmoving party, and where the non-moving party's evidence contradicts the movant's, then
the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974
F.2d 1358, 1363 (3d Cir.1992), cert. denied 507 U.S. 912 (1993).
However, "facts must be viewed in the light most favorable to the nonmoving party
only if there is a 'genuine' dispute as to those facts ." Scott v. Harris, 550 U.S. 372, 380, 127
S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). If a party has carried its burden under the
summary judgment rule,
its opponent must do more than simply show that there is some metaphysical
doubt as to the material facts. Where the record taken as a whole could not
lead a rational trier of fact to find for the nonmoving party, there is no genuine
issue for trial. 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. When opposing parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe
it, a court should not adopt that version of the facts for purposes of ruling on a
motion for summary judgment.

Id. (internal quotations, citations, and alterations omitted) .
C.

Discussion

Defendants contend that Saleem failed to properly exhaust any grievances in the
prison 's administrative review process prior to proceeding to federal court. (Doc. 6, pp. 1115). Under the Prison Litigation Reform Act of 1996 (the "PLRA") , a prisoner is requ ired to
20

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pursue all avenues of relief available within the prison's grievance system before bringing a
federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth v.
Churner, 206 F.3d 289, 291 (3d Cir. 2000). Section 1997e(a) establishes the requ irement
of administrative exhaustion:
No 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 .
42 U.S.C. § 1997e(a).
The PLRA "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). It has
been made clear that the exhaustion requirement is mandatory. See Williams v. Beard, 482
F.3d 637, 639 (3d Cir. 2007) ; see also Booth v. Churner, 532 U.S. 731 , 741 (2001) (holding
that the exhaustion requirement of the PLRA applies to grievance procedures "regardless of
the relief offered through administrative procedures") ; Nyhuis v. Reno, 204 F.3d 65, 67 (3d
Cir. 2000) (same). "[l]t is beyond the power of [any] court ... to excuse compliance with the
exhaustion requirement. " Nyhuis , 204 F.3d at 73 (quoting Beeson v. Fishkill Corr. Facility,
28 F. Supp.2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies an inmate must comply with all applicable
grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218 , 231 (3d Cir. 2004). The
21

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PLRA requires not only technical exhaustion of the administrative remedies , but also
substantial compliance with procedural requirements . Spruill, 372 F.3d at 227-32; see also

Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner, either through late or
improper filings , bars the prisoner from bringing a claim in federal court unless equitable
considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v.

Brennan, 219 F.3d 279 (3d Cir. 2000) .
The Department of Corrections has an Inmate Grievance System, set forth in DCADM 804, which permits any inmate to seek review of problems that may arise during the
course of confinement. See 37 Pa. Code§ 93.9(a) ; Pa. Dep't of Corr., No. DC-ADM 804.
After an attempt to resolve any problems informally, an inmate may submit a written
grievance to the Facility's Grievance Coordinator for initial review. This must occur within
fifteen days after the events upon which the claims are based. Within fifteen days of an
adverse decision by the Grievance Coordinator, an inmate may then appeal to the Facility
Manager of the institution. Thereafter, within fifteen days of an adverse decision by the
Facility Manager, an inmate may file a final appeal to the Secretary's Office of Inmate
Grievances and Appeals . An appeal to final review cannot be completed unless an inmate
complies with all established procedures . An inmate must exhaust all three levels of review
and comply with all procedural requirements of the grievance review process in order to fully
exhaust an issue. See Booth, 206 F.3d at 293 n. 2 (outlining Pennsylvania's grievance
review process) .
22

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The record reflects that Saleem filed one grievance relating to the allegations in the
complaint. On December 29 , 2018 , Saleem filed Grievance Number 779527 asserting that
inmates stole his property, and that property was missing after being packed by unnamed
staff members. (Doc. 7 ~ 21 ; Doc. 7-1 , p. 50). On January 17, 2019, Unit Manager Kuhn
issued an initial review response and denied the grievance. (Doc. 7 ~ 24; Doc. 7-1, p. 51).
On January 28, 2019, Saleem appealed to the Facility Manager. (Doc. 7 ~ 25; Doc. 7-1 , p.
52). On February 20, 2019, the Facility Manager upheld the initial review response. (Doc. 7
~

26; Doc. 7-1, p. 53). On August 8, 2019, the SOIGA ultimately dismissed Saleem's

appeal as untimely. (Doc. 7 ~ 30; Doc. 7-1, p. 47) . An untimely "or otherwise procedurally
defective administrative grievance or appeal" does not satisfy the PLRA's mandatory
exhaustion requirement. See Woodford v. Ngo, 548 U.S. 81, 83 (2006) ; see also Spruill,
372 F.3d at 230. It is undisputed that Saleem did not file any additional grievances relating
to missing property at SCI-Rockview. (Doc. 7 ~ 31 ). It is also undisputed that Saleem did
not file any grievances regarding any officer being deliberately indifferent to his safety at
SCI-Rockview, regarding infringement of his religious rights at SCI-Rockview, or regarding
the grievance system or those involved in responding to his grievances. (Id. ~~ 32-34).
The PLRA mandates that inmates properly exhaust their administrative remed ies
before filing suit in federal court, a requirement which demands compliance with an
agency's deadlines and procedural rules. Woodford, 548 U.S. at 90-93. It is well-settled
that administrative remedies must be exhausted prior to the initiation of suit. Booth v.
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Churner, 532 U.S. 731 , 738 (2001) ("The 'available' 'remed[y]' must be 'exhausted' before a
complaint under§ 1983 may be entertained."); see also Oriakhi v. United States, 165 F.
App'x 991, 993 (3d Cir. 2006) (nonprecedential) ("[A] prisoner must exhaust all available
administrative remedies prior to filing suit.").
Under certain circumstances , administrative remedies may not be effectively
available to an inmate, preventing a timely pursuit of the prison grievance process. See,
e.g., Camp, 219 F.3d at 281 ; Shifflett v. Korszniak, 934 F.3d 356, 359 (3d Cir. 2019) ("a
prisoner exhausts his administrative remedies as soon as the prison fails to respond to a
properly submitted grievance in a timely fashion") ; Robinson v. Superintendent Rockview

SCI, 831 F.3d 148, 154 (3d Cir. 2016) (holding that prison officials rendered plaintiff's
administrative remedies unavailable when they failed to timely respond to his grievance and
ignored his follow-up requests for a decision). The record simply does not support a finding
that the administrative process was unavailable to Saleem. To the contrary, it establishes
that Saleem had full and ready access to the administrative remedy process .
In light of the undisputed facts and relevant evidence of record, the Court concludes
that Saleem has failed to produce any evidence to overcome Defendants' summary
judgment motion and cannot argue against summary judgment by merely relying on
unsupported assertions, inferences based upon a speculation or conjecture, or unverified,
conclusory allegations. Under Rule 56, Saleem was required to go beyond his pleadings
with affidavits or the like in order to establish the existence of a genuine dispute of material
24

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fact. See Celotex Corp., 477 U.S. at 324 . Because he has failed to do so, the Court
concludes that Saleem has not properly exhausted the claims in this action, and Defendants
are entitled to an entry of summary judgment in their favor.
Ill.

Conclusion

The Court will grant Defendants' motion (Doc. 5) in its entirety. A separate Order
shall issue.

I

Rooert D. n 1
United States District Judge

Dated: May

q ,2022

25