Hill et al v. Ebbert et al

Filing 113

MEMORANDUM (Order to follow as separate docket entry) - re Defendants' 92 MOTION for Summary Judgment.Signed by Honorable Matthew W. Brann on 6/12/15. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
DEMETRIUS HILL, ET AL.,

:
:
Plaintiffs
:
:
v.
:
:
WARDEN DAVID EBBERT, ET AL., :
:
Defendants
:

CIVIL NO. 4:CV-13-668
(Judge Brann)

MEMORANDUM
June 12, 2015
Background
Demetrius Hill, Nestor Cercet, Anthony Washington, Kevin Lawson,
Martin Eduardo Castellano-Bayseillo, Roscoe L. Alford, and John F. Legrand
initiated this pro se civil rights action regrading their mutual confinement at the
Canaan United States Penitentiary, Waymart, Pennsylvania (USP-Canaan).1

An

Amended Complaint (Doc. 13) was previously submitted.
By Order dated June 6, 2013, Plaintiffs’ request for class certification was
denied and the Original Plaintiffs’ individual motions to proceed in forma

1

It appears that only one Plaintiff is still confined at USP-Canaan.
1

pauperis were construed as motions to proceed without full prepayment of fees
and costs and the motions and granted. See Doc. 51. The Order also authorized
service of the Plaintiffs’ Amended Complaint on the Defendants named therein.2
Named as Defendants are the following USP-Canaan officials: Warden
David Ebbert; Associate Warden Leonard Oddo; Captain Robert Kazuba;
Lieutenant B. Sudul; Health Services Administrator Jeffrey Burkett; Unit
Managers Kyle Lindsay, Michael Sample, and Thomas Gubbiotti; Counselors
James Durkin, Debra Tomaino, and Thomas Newcomb; Margaret Trently; as well
as Correctional Officers John Schwartz, Christopher Heenan, Ryan Burns, Ryan
Rosencrance, Matthew Kubicki, and Edward Hayden.
According to the Amended Complaint, USP-Canaan was placed on
lockdown status following the killing of a correctional officer by an inmate on
February 25, 2013. During this lockdown period, Plaintiffs contend that
beginning with an incident which purportedly transpired on March 4, 2013 they
have been injured as the result of a retaliatory campaign of abuse carried out by

The Amended Complaint added an eighth Plaintiff, Inmate Eric Gay.
However, Gay has neither paid the required filing fee nor submitted an in forma
pauperis application. In fact, Gay has never made any type of submission or filing in
this matter. Defendants also note that since his release from BOP custody on
November 13, 2013 Gay has not informed the Court of his change in address. In light
of those failures, Gay will not be granted leave to be joined as an Additional Plaintiff.
2

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correctional staff. See Doc. 13, p. 3.
Presently pending is Defendants’ partial motion to dismiss and motion for
summary judgment. See Doc. 92. Plaintiff Hill has opposed the motion.3
Defendants initially ask that this Court dismiss the Amended Complaint as to
Plaintiffs Cercet, Gay, Castellano-Bayseillo and Alford for failure to prosecute
because they have each failed to provide the Court with their current address
following their release from the custody of the Federal Bureau of Prisons (BOP)
and have failed to make filing fee payments. They also seek entry of summary
judgment on the basis that “each of the plaintiffs failed to exhaust their
administrative remedies.” Doc. 99, p. 2.
Discussion
Standard of Review
Defendants’ pending dispositive motion is supported by evidentiary
materials outside the pleadings. Federal Rule of Civil Procedure 12(d) provides in
part as follows:
If, on a motion under Rule 12(b)(6) or 12(c), matters
outside the pleading are presented to and not excluded
by the court, the motion must be treated as one for
summary judgment under Rule 56. All parties must be

Despite being granted an enlargement of time to file a response, Plaintiff
LeGrand has not opposed the pending dispositive motion.
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given reasonable opportunity to present all the material
that is pertinent to the motion.
Fed. R. Civ. P. 12(b)(d).
This Court will not exclude the evidentiary materials accompanying the
Defendants' motion. Thus, their motion will be treated as solely seeking summary
judgment. See Latham v. United States, 306 Fed. Appx. 716, 718 (3d Cir.
2009)(when a motion to dismiss has been framed alternatively as a motion for
summary judgment such as in the present case, the alternative filing “is sufficient
to place the parties on notice that summary judgment might be entered.”)
Summary judgment is proper if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001). A factual dispute is “material” if it might affect the outcome of the
suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A factual dispute is “genuine” only if there is a sufficient evidentiary
basis that would allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. at 248. The court must resolve all doubts as to the existence of
a genuine issue of material fact in favor of the non-moving party. Saldana, 260
F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609
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(M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370
(3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to
support the claims of the non-moving party, the non-moving party may not simply
sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett,
477 U.S. 317, 324 (1986). Instead, it must “go beyond the pleadings and by [its]
own affidavits, or by the depositions, answers to interrogatories, and admissions
on file, designate specific facts showing that there is a genuine issue for trial.” Id.
(internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted).
Summary judgment should be granted where a party “fails to make a showing
sufficient to establish the existence of an element essential to that party’s case, and
on which that party will bear the burden at trial.” Celotex, 477 U.S. at 322-23.
“‘Such affirmative evidence – regardless of whether it is direct or circumstantial –
must amount to more than a scintilla, but may amount to less (in the evaluation of
the court) than a preponderance.’” Saldana, 260 F.3d at 232 (quoting Williams v.
Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
Failure to Provide Address
Defendants initially ask that this Court dismiss the Amended Complaint as
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to Plaintiffs Cercet, Gay, Eduardo, and Alford because they have each failed to
provide the Court with their respective current addresses following their release
from the custody of the Federal Bureau of Prisons (BOP).4
A pro se litigant has an affirmative obligation to keep the court informed of
his or her address. See M.D. Pa. Local Rule 83.18. If his or her address changes
in the course of the litigation, the litigant must immediately inform the court of
such change. A copy of this Court’s Standing Practice Order was mailed to each
Plaintiff on March 13, 2013. See Doc. 3. The Standing Practice Order provides in
relevant part as follows:
A pro se plaintiff has the affirmative obligation to keep the court informed
of his or her current address. If the plaintiff changes his or her address
while this lawsuit is being litigated, the plaintiff shall immediately inform
the court of the change, in writing. If the court is unable to communicate
with the plaintiff because the plaintiff has failed to notify the court of his or
her address the plaintiff will be deemed to have abandoned the lawsuit.
Id., p. 4.
If a plaintiff fails to prosecute or comply with a court order, the court may
dismiss the action, with prejudice. See Poulis v. State Farm Fire and Casualty Co.,

As discussed above, Gay has already been denied leave to be joined as an
additional Plaintiff. However, since the undisputed record shows that Gay was
released from BOP custody on November 13, 2013 and has neither notified the Court
or opposing counsel of his new address and has not taken any action whatsoever with
respect to the litigation of this matter, the failure to prosecute argument with respect to
Gay is a meritorious alternative for dismissal of said Plaintiff.
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747 F.2d 863, 868 (3d Cir. 1984); Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30
(3d Cir. 1991) (failure of a plaintiff to comply with a court’s specific direction to
comply with a local rule which required the filing of an opposing brief, warranted
the treatment of a motion to dismiss as being unopposed and subject to dismissal
without a merits analysis). The United States Court of Appeals for the Third
Circuit in Poulis set forth six (6) factors which must be considered in determining
whether to dismiss an action with prejudice for failure to prosecute: (1) extent of
the party’s personal involvement; (2) prejudice to the opposing party by the
dilatoriness; (3) whether a history of dilatoriness existed; (4) whether the
dilatoriness was willful and in bad faith; (5) possible effectiveness of alternative
sanctions; and (6) the merit of the claim or defense. See Adams v. Trustees, NJ
Brewery Trust Fund, 29 F.3d 863 (3d Cir. 1994).
Defendants state that Cercet was released from BOP custody on November
5, 2013 and has not notified the Court of his new address or made any filing fee
payments. A review of the docket reveals that Plaintiff Cercet filed a notice of
change of address on March 27, 2015 indicating that he was presently confined at
the Southern State Correctional facility, Delmont, New Jersey. See Doc. 110.
The docket also shows that Cercet has made multiple partial filing fee payments.
See Docs. 37, 54, 64, 68, & 72. In light of those factors, the request for entry of
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summary judgment with respect to Plaintiff Cercet for failure to provide his
current address and pay the filing fee will be denied.
With respect to Plaintiff Alford, Defendants contend that he was released
from BOP custody on October 4, 2013 and later returned to federal custody on
August 27, 2014 but has never informed the Court of his new addresses. A review
of the docket shows that Alford made two partial filing fee payments (Docs. 38 &
55), and that no mail sent to him at any time during the course of these
proceedings has been returned to this Court as being undeliverable.5 Although this
Court agrees that Alford has apparently lost interest in the prosecution of this
matter, since the docket does not reflect that there has ever been an inability of this
Court to communicate with Alford and out of an abundance of caution, the request
for summary judgment for failure to provide his current address and pay the filing
fee with respect to Alford will also be denied.
With respect to Plaintiff Marvin Eduardo Castellano-Bayseillo, Defendants
state that he was released from BOP custody on February 7, 2014 and has not
made any partial filing fee payments since December 12, 2013. See Doc. 99, p. 6.

The docket reflects that copies of this Court’s Orders of August 29, 2014
(Doc. 91); October 3, 2014 (Doc. 95) ; October 10, 2014 (Doc. 98); November 6,
2014 (Doc. 103); and November 24, 2014 (Doc. 107) were successfully mailed to
Alford.
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8

The Court initially recognizes that the failure of Castellano-Bayseillo to
make any partial filing fee payments may simply be attributable to his lack of
sufficient financial assets. Second, the docket reflects that there were prior
instances where mail sent to Castellano-Bayseillo was returned as undeliverable.
See Docs. 8, 35, 43, & 45. In apparent response to that problem, Plaintiff
Castellano-Bayseillo submitted a letter to the Court providing his federal inmate
number. See Doc. 41. Furthermore, copies of this Court’s Orders of August 29,
2014; October 3, 2014; October 10, 2014; November 6, 2014; and November 24,
2014 were apparently not mailed to Eduardo Castellano-Bayseillo because his
mailing address was somehow deleted from the docket.
Be that as it may, it is undisputed that Castellano-Bayseillo was released
from BOP custody on February 7, 2014 and has not notified the Court of his new
address. Since that date he has also not made any filings in this matter.
Consequently, said Plaintiff has clearly failed to comply with a requirement of the
Court’s Standing Practice Order and Local Rule 83.18. Since CastellanoBayseillo’s present whereabouts are unclear, it would be a waste of judicial
resources to allow his participation in this action to continue.
Based upon an application of the Poulis factors, adequate grounds have been
established for the extreme sanction of dismissal against Plaintiff Castellano9

Bayseillo.6 This conclusion is premised on the following considerations: (1) the
failure of Castellano-Bayseillo to satisfy his responsibility to notify either the
Court or opposing counsel of his current address; (2) Plaintiff CastellanoBayseillo’s failure to respond to the pending motion; and (3) his failure to make
any filings in this matter since April 25, 2013; and (4) the obvious prejudice to the
Defendants. Those factors support a finding of dilatoriness and wilful conduct and
other sanctions are not a viable alternative since that Plaintiff’s present
whereabouts are unclear.
In conclusion, the initial argument for summary judgment will be denied
with respect to Plaintiffs Alford and Cercet but granted in regards to CastellanoBayseillo and Gay.
Administrative Exhaustion
Defendants’ second argument contends that they are entitled to entry of
summary judgment because the undisputed record shows that “each of the
plaintiffs failed to exhaust their administrative remedies.” Doc. 99, p. 2. As

Although Azubuko, 243 Fed. Appx. at 729, recognizes a “balancing under
Poulis is unnecessary” in cases such as the present matter where a litigant’s conduct
makes adjudication of the case impossible, other Third Circuit decisions indicate that
the Poulis analysis should be undertaken. See Hernandez v. Palakovich, 293 Fed.
Appx. 890, 894 (3d Cir. 2008) (Poulis factors must be considered before dismissing a
case as a sanction for failure to follow a court order).
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previously noted, Plaintiffs seek relief with respect to alleged events which
transpired after USP-Canaan was placed on lockdown on February 25, 2013.
Defendants contend that although the Plaintiffs initiated various separate
grievances both during and after the lockdown, no grievance relating to the claims
asserted in the Amended Complaint was appealed to final administrative review
and as such, the pending claims are all subject to dismissal on the basis of nonexhaustion.
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 relief sought and offered through administrative avenues.” Porter v.
Nussle, 534 U.S. 516, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731,
741 n. 6 (2001). Claims for monetary relief are not excused from the exhaustion
requirement. Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an
inmate’s claim is appropriate when a prisoner has failed to exhaust his available
administrative remedies before bringing a civil rights action. Ahmed v.
Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000). “[E]xhaustion must occur
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prior to filing suit, not while the suit is pending.” Tribe v. Harvey, 248 F.3d 1152,
2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999)); Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
An inmate is not required to specifically plead or demonstrate exhaustion in
his or her complaint. See Jones v. Bock, 549 U.S. 199, 216 (2007); see also Ray
v. Kertes, 285 F.3d 287 (3d Cir. 2002)(a prisoner does not have to allege in his
complaint that he has exhausted administrative remedies). Rather, pursuant to the
standards announced in Williams v. Runyon, 130 F.3d 568, 573 (3d Cir. 1997), it
is the burden of a defendant asserting the defense of non-exhaustion to plead and
prove it.7 The United States Supreme Court in Jones noted that the primary
purpose of the exhaustion requirement is to allow prison officials to address
complaints before being subjected to suit, reducing litigation to the extent
complaints are satisfactorily resolved, and improving litigation that does occur by
leading to the preparation of a useful record.
The administrative exhaustion mandate also implies a procedural default
component. Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004). As explained by
the Third Circuit, a procedural default rule “prevents an end-run around the

In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the United States Court
of Appeals for the Third Circuit similarly stated that “[f]ailure to exhaust
administrative remedies is an affirmative defense for the defendant to plead.”
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exhaustion requirement.” Id. at 230. It also ensures “prisoner compliance with the
specific requirements of the grievance system” and encourages inmates to pursue
their administrative grievances “to the fullest.” Id. Similarly, the Supreme Court
has observed that proper exhaustion of available administrative remedies is
mandatory, meaning that prisoners must comply with the grievance system’s
procedural rules, including time limitations. Woodford v. Ngo, 548 U.S. 81
(2006).
The BOP has a well established three (3) step Administrative Remedy
Program whereby a federal prisoner may seek review of any aspect of his
imprisonment. See 28 C.F.R. §§ 542.10-542.19. After attempting to informally
resolve the issue, a BOP inmate can initiate the first step of the grievance process
by submitting “a formal written Administrative Remedy Request, on the
appropriate form (BP-9),” within twenty (20) calendar days “following the date
on which the basis for the Request occurred.” See 28 C.F.R. § 542.14(a). The
Warden has twenty (20) calendar days from the date the Request or Appeal is
filed in which to respond.” See 28 C.F.R. § 542.18.
If not satisfied with the Warden's response, an inmate may appeal (step two)
on the appropriate form (BP-10) to the Regional Director within twenty (20)
calendar days of the date the Warden signed the response. See 28 C.F.R. §
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542.15. Finally, if the inmate is dissatisfied with the Regional Director's response,
that decision may then be appealed (step three) on the appropriate form (BP-11) to
the General Counsel within thirty (30) calendar days from the date the Regional
Director signed the response. Id. Additionally, “[i]f the inmate does not receive a
response within the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level.” Id.
According to an undisputed declaration under penalty of perjury by BOP
Paralegal Kimberly Sutton, a search conducted of the BOP’s computerized
administrative remedy index revealed that “none of the eight plaintiffs ... had
exhausted his available administrative remedies regarding any of the issues raised”
in this matter. Doc. 100-1, Exhibit 1, ¶ 17. It is additionally noted that Paralegal
Sutton’s declaration is accompanied by copies of the Plaintiffs’ referenced
grievances and the corresponding institutional responses.
Specifically, Sutton avers that Plaintiff Hill filed 21 grievances during the
USP-Canaan lockdown which began on February 25, 2013 and 34 after the
lockdown ended on April 8, 2013. Hill was transferred from USP-Canaan
approximately one moth after the lockdown ended. The supporting evidence
submitted by Defendants shows that none of Hill’s relevant grievances were
appealed to the BOP Regional or Central Office levels.
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According to Sutton, Inmate Cercet filed 12 unsuccessful grievances during
and after commencement of the lockdown, but never completed the exhaustion
process” with respect to any of those filings. See id. at ¶ 21. Cercet was released
from BOP custody on November 5, 2013. Plaintiff Washington filed 14
grievances after the lockdown was initiated, all of which were rejected or denied
and none of the grievances pertaining to this action which were administratively
appealed.
Plaintiff Larson filed only 2 grievances after the lockdown began. Both
were rejected and neither resubmitted nor appeal taken to the Regional of Central
Office levels. See id. at ¶ 26. Defendants add that that Inmate CastellanoBayseillo filed 7 grievances after the lockdown began and prior to his release
approximately one year later. See id. at ¶ 29. However, Defendants contend that
none of those filings pertained to the allegations raised in the Amended Complaint.
With respect to Plaintiff Alford, Defendants acknowledge that he filed two
grievances after the lockdown ended. See id. at ¶ 31. One was rejected and the
other denied on the merits. However, Alford did not appeal either of those adverse
outcomes to either the Regional of Central Offices of the BOP . Defendants next
assert that Plaintiff LeGrand initiated two grievances following the lockdown. See
id. at ¶ 33. However, neither of LeGrand’s grievances pertain to the issues raised
15

by the Amended Complaint. Finally, Inmate Gay filed a total of 6 grievances
during the relevant time period, two of those filings were unrelated to the claims
before this Court, three were rejected and not appealed and one was denied but
was also not administratively appealed. See id. at ¶ 35.
In conclusion, Defendants contend that none of the 17 claims raised in the
amended complaint have been administratively exhausted. They point out that this
matter was docketed on March 13, 2013 approximately one week after the alleged
constitutional violations occurred. Defendants add that it is apparent that Plaintiffs
did not even attempt to comply with the exhaustion requirement before filing this
lawsuit.
A review of the docket confirms that the Original Complaint was docketed
on March 13, 2013 and references an alleged March 4, 2013 incident. Second,
none of the Plaintiffs have asserted that they exhausted an administrative
grievance relating to any of the claims presently pending before this Court.
Inmate Hill, the only Plaintiff to file a response to Defendants’ pending motion,
acknowledges that he failed to comply with the exhaustion requirement but asked
to be excused from that requirement because USP-Canaan staff have a history of
assaulting Hispanic and African-American inmates and he “had a legitimate fear’
that he would be assaulted if he filed a grievance. Doc. 108, p. 2.
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The Third Circuit has recognized that “[t]here is no futility exception” to the
exhaustion requirement. Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (citing
Nyhuis, 204 F.3d at 75. A subsequent decision by the Third Circuit reiterated its
no futility exception by rejecting an inmate’s argument that exhaustion should be
excused because prisoner grievances were regularly rejected. Hill v. Smith, 186
Fed. Appx. 271, 274 (3d Cir. 2006). The Third Circuit has also rejected
“sensitive’ subject matter or ‘fear of retaliation’ as a basis for excusing a
prisoner’s failure to exhaust.” Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110, 113
(3d Cir. 2008).
Hill readily admits that he filed multiple grievances following the USPCanaan, an admission which clearly undermines his voiced assertion that he was
afraid to seek administrative relief. Moreover, within several days of the
underlying incident and while still housed at USP-Canaan, Hill filed this action
which further compromises any claim that he was afraid to seek relief because of
potential staff reprisals.

Conclusion
The undisputed evidence submitted by the Defendants satisfies their burden
of establishing that Plaintiffs did not fully exhaust their available BOP
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administrative remedies prior to initiating this action and deliberately bypassed the
BOP’s administrative review system by filing this action within days of their
alleged constitutional mistreatment. Accordingly, the request for entry of
summary judgment on the basis of non-exhaustion of available administrative
remedies will be granted. An appropriate Order will enter.
BY THE COURT:
s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

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