FLEMING v. PENNSYLVANIA PAROLE BOARD et al
Filing
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MEMORANDUM OPINION that Defendants motion to dismiss 13 is granted in its entirety. The Clerk of Courts is directed to mark this case closed. Signed by Magistrate Judge Susan Paradise Baxter on 9/25/13. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS JEFFERSON FLEMING,
Plaintiff,
v.
PENNSYLVANIA PAROLE BOARD,
et al,
Defendants.
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)
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)
)
Civil Action No. 12-185 Erie
Magistrate Judge Susan Paradise Baxter
MEMORANDUM OPINION
Magistrate Judge Susan Paradise Baxter1
A. Relevant Procedural History
Plaintiff, a state inmate acting pro se, initiated this civil rights action on August 13, 2012.
Plaintiff alleges that he has cancer of the spine and that “the State [has] showed deliberate
indifference to [his] medical needs.” ECF No. 8, ¶ 12. Plaintiff claims that a lack of medical
treatment, beginning in April of 2012 upon his return to prison as a technical parole violator,
violates his constitutional rights. As Defendants to this action, Plaintiff has named:
“Pennsylvania Parole Board;” SCI Albion; Superintendent Harlow; “Medical Dept.”; Maxine
Overton; and “F-Unit Management Team.”
In response to the complaint, Defendants filed a motion to dismiss. ECF No. 13. By
Order of this Court, Plaintiff was advised that the motion to dismiss could be converted into a
motion for summary judgment and was advised that he should file an opposition in accordance
with the Federal Rules of Civil Procedure. ECF No. 16. Plaintiff did not file any brief in
In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily
consented to have a United States Magistrate Judge conduct proceedings in this case, including
the entry of a final judgment. ECF Nos. 4, 17.
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opposition to the pending motion, but filed letters which have been reviewed by this Court. ECF
Nos. 15, 18, 20-22.
By Memorandum Opinion and Order filed on September 11, 2013, I analyzed
Defendants’ pending dispositive motion and granted it in its entirety. ECF No. 23. Important to
the analysis therein was the fact that Plaintiff had not filed any opposition to the motion.
On September 17, 2013, Plaintiff filed a “Response in Opposition” to the Memorandum
Opinion claiming that he did not ever receive Defendants’ motion to dismiss or any response
order by this Court. In light of Plaintiff’s representation in this regard, I directed the Clerk of
Courts to reopen this case and to mail to Plaintiff the motion to dismiss and the supporting
documents, as well as this Court’s response order. I then allowed Plaintiff time in which to file
an opposition brief to the motion to dismiss. See Text Order dated September 17, 2013.
Plaintiff filed an opposition brief, which has been reviewed by this Court. This issues
and arguments presented in the Defendants’ motion to dismiss are ripe for disposition by this
Court.
B. Standards of Review
1) Pro Se Litigants
Pro se pleadings, Ahowever inartfully pleaded,@ must be held to Aless stringent standards
than formal pleadings drafted by lawyers.@ Haines v. Kerner, 404 U.S. 519, 520 (1972). If the
court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it
should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax
and sentence construction, or litigant=s unfamiliarity with pleading requirements. See Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
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555 (3d Cir. 1969)(A[W]e should recognize that a habeas corpus petition prepared by a prisoner
without the aid of counsel may be inartfully drawn and should therefore be read >with a measure
of tolerance.=@); Smith v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v.
Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules,
during the initial stages of litigation, a district court should construe all allegations in a complaint
in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997), overruled on other
grounds by Abdul-Akbar v. McKelvie, 239 F.3d 307 (3d Cir. 2001). See, e.g., Nami v. Fauver,
82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v.
Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se
litigant, this Court will consider facts and make inferences where it is appropriate.
2) Motion to Dismiss pursuant to Rule 12(b)(6)
A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be
viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the
complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A complaint
must be dismissed pursuant to Rule 12 (b)(6) if it does not allege “enough facts to state a claim
to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)
(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)).
See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond
the context of the Sherman Act).
A Court need not accept inferences drawn by a plaintiff if they are unsupported by the
facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp.,
394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906
(3d Cir. 1997). Nor must the Court accept legal conclusions set forth as factual allegations.
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Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). See also
McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) quoting Iqbal, 556
U.S. at 678 (“The tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”). A plaintiff’s factual allegations “must be
enough to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 556, citing 5
C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004).
Although the United States Supreme Court does “not require heightened fact pleading of
specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its
face.” Id. at 570.
In other words, at the motion to dismiss stage, a plaintiff is “required to make a ‘showing’
rather than a blanket assertion of an entitlement to relief.” Smith v. Sullivan, 2008 WL 482469,
at *1 (D. Del.) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). “This
‘does not impose a probability requirement at the pleading stage,’ but instead ‘simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of’ the
necessary element.” Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556 n.3.
Recently, the Third Circuit expounded on the Twombly/Iqbal line of cases:
To determine the sufficiency of a complaint under Twombly and Iqbal, we
must take the following three steps:
First, the court must ‘tak[e] 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.’
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) quoting Santiago v.
Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010).
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3) Motion for Summary Judgment pursuant to Rule 56
Defendants have submitted evidence in support of the motion to dismiss.2 Therefore, this
Court will convert the motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) to
a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. See Burns v.
Harris County Bail Bond Bd., 139 F.3d 513, 517 (5th Cir.1998). ("When matters outside the
pleadings are presented to and not excluded by the district court, the district court must convert a
motion to dismiss into a motion for summary judgment."); Greer v. Smith, 2003 WL 1090708,
*1 (3d Cir. (Pa.) 2003) (Athe District Court considered material outside of the pleadings and,
therefore, should have converted the motion for dismissal to a summary judgment motion,
allowing the plaintiff an opportunity for appropriate discovery and a reasonable opportunity to
present all material made pertinent to the motion.@).
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted
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.” When applying this standard, the court must examine
the factual record and reasonable inferences therefrom in the light most favorable to the party
opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
The moving party has the initial burden of proving to the district court the absence of
evidence supporting the non-moving party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317, 330
(1986); Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007); UPMC Health System v.
Metropolitan Life Ins. Co., 391 F.3d 497, 502 (3d Cir. 2004). The burden then shifts to the nonBy Order of this Court, Plaintiff was notified, pursuant to the requirements of Renchenski v.
Williams, 622 F.3d 315 (3d Cir. 2010), that this Court may convert the motion to dismiss into a
motion for summary judgment. ECF No. 16. The docket indicates that this Order was re-mailed
to Plaintiff by the Clerk of Courts on September 18, 2013, following the re-opening of this case.
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movant to come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P.
56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance which supports each element of his claim to defeat a properly presented motion for summary
judgment). The non-moving party must go beyond the pleadings and show specific facts by
affidavit or by information contained in the filed documents (i.e., depositions, answers to
interrogatories and admissions) to meet his burden of proving elements essential to his claim.
Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
The non-moving party “must present more than just bare assertions, conclusory allegations or
suspicions to show the existence of a genuine issue.” Garcia v. Kimmell, 2010 WL 2089639, at *
1 (3d Cir. 2010) quoting Podobnik v. U.S. Postal Serv., 409 F.3d 584, 594 (3d Cir. 2005).
When considering a motion for summary judgment, the court is not permitted to weigh
the evidence or to make credibility determinations, but is limited to deciding whether there are
any disputed issues and, if there are, whether they are both genuine and material. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
C) The Exhaustion Requirement
The PHS Defendants move for summary judgment on Plaintiff’s claims arguing that
Plaintiff has failed to exhaust his administrative remedies in accordance with the exhaustion
requirements of the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), which provides:
no action shall be brought with respect to prison conditions under
section 1983 of this title ... by a prisoner confined in any jail, prisons,
or other correctional facility until such administrative remedies as
are available are exhausted.
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Id.4 The exhaustion requirement is not a technicality, rather it is federal law which federal district
courts are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language
“no action shall be brought,” Congress has “clearly required exhaustion”).
The PLRA’s exhaustion requirement “is a non-jurisdictional prerequisite.” Small v.
Camden County, ___ F.3d ___, ___, 2013 WL 4504761, at *2 n.3 (3d Cir. Aug.26, 2013).5 The
requirement that an inmate exhaust administrative remedies applies to all inmate suits regarding
prison life, including those that involve general circumstances as well as particular episodes.
Porter v. Nussle, 534 U.S. 516 (2002); Cutter v. Wilkinson, 544 U.S. 709, 723 n.12 (2005)
(noting that the PLRA requires that “a prisoner may not sue under RLUIPA without first
exhausting all available administrative remedies.”); Concepcion v. Morton, 306 F.3d 1347 (3d
Cir. 2002) (for history of exhaustion requirement).
The PLRA also requires “proper exhaustion” meaning that a prisoner must complete the
administrative review process in accordance with the applicable procedural rules of that
grievance system. Woodford v. Ngo, 548 U.S. 81, 87-91 (2006) (“Proper exhaustion demands
It is not a plaintiff’s burden to affirmatively plead exhaustion. Small v. Camden County, ___
F.3d ___, ___, 2013 WL 4504761, at *2 n.3 (3d Cir. Aug.26, 2013); Jones v. Bock, 549 U.S.
199, 217 (2007) (“...failure to exhaust is an affirmative defense under the PLRA, and that
inmates are not required to specially plead or demonstrate exhaustion in their complaints.”).
Instead, the failure to exhaust must be asserted and proven by the defendants. Ray v. Kertes, 285
F.3d 287, 295 (3d Cir. 2002). Moreover, “the defendant must prove that the prisoner-plaintiff
failed to exhaust each of his claims. There is no ‘total exhaustion’ rule permitting dismissal of an
entire action because of one unexhausted claim. Small, ___ F.3d at ___, 2013 WL 4504761, at
*2 (emphasis in original) quoting Jones, 549 U.S. at 220-24.
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“As such, just as subject matter jurisdiction, personal jurisdiction, and venue, exhaustion is a
‘threshold issue that courts must address to determine whether litigation is being conducted in
the right forum at the right time.’” Small, 2013 WL 450476, at *3, quoting Dillon v. Rogers, 596
F.3d 260, 272 (5th Cir. 2010). See also Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000)
(“...[W]e agree with the clear majority of courts that §1997e(a) is not a jurisdictional
requirement, such that failure to comply with the section would deprive federal courts of subject
matter jurisdiction.”).
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compliance with an agency’s deadlines and other critical procedural rules ...”). Importantly, the
exhaustion requirement may not be satisfied “by filing an untimely or otherwise procedurally
defective ... appeal.” Id. at 83.3
So then, no analysis of exhaustion may be made absent an understanding of the
administrative process available to state inmates. “Compliance with prison grievance procedures,
therefore, is all that is required by the PLRA to ‘properly exhaust.’ The level of detail necessary
in a grievance to comply with the grievance procedures will vary from system to system and
claim to claim, but it is the prison’s requirements, and not the PLRA, that define the boundaries
of proper exhaustion.” Jones v. Bock, 549 U.S. at 218. See also Spruill, 372 F.3d at 231 (having
concluded that the PLRA includes a procedural default component, the Court then indicated that
“prison grievance procedures supply the yardstick for measuring procedural default.”).
The DC-ADM 804 grievance system, available to state prisoners, consists of three
separate stages. First, the prisoner is required to timely submit a written grievance for review by
the facility manager or the regional grievance coordinator within fifteen days of the incident,
who responds in writing within ten business days. Second, the inmate must timely submit a
written appeal to intermediate review within ten working days, and again the inmate receives a
written response within ten working days. Finally, the inmate must submit a timely appeal to the
Central Office Review Committee within fifteen working days, and the inmate will receive a
final determination in writing within thirty days. See Booth v. Churner, 206 F.3d 289, 293 n.2
See also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004) (utilizing a procedural default
analysis to reach the same conclusion) (“ Based on our earlier discussion of the PLRA's
legislative history, [...] Congress seems to have had three interrelated objectives relevant to our
inquiry here: (1) to return control of the inmate grievance process to prison administrators; (2) to
encourage development of an administrative record, and perhaps settlements, within the inmate
grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to
frivolous prisoner lawsuits.”).
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(3d Cir. 1997), aff’d. 532 U.S. 731 (2001). Furthermore, the Department of Corrections
grievance policy requires responsible individuals to be named or identified in the grievance.
Spruill, 372 F.3d at 234.
The evidence before this Court reflects that Plaintiff has not exhausted his administrative
remedies in accord with the requirements of the PLRA. See ECF Nos. 13-1, pages 1-5; 13-2,
pages 1-3. Plaintiff has provided no evidence to the contrary as he must in the face of a wellsupported motion for summary judgment. See Celotex. In his Opposition, Plaintiff summarily
argues:
Plaintiff did not fail to exhaust administrative remedies. Please check all the
request slip from SCI Albion that I mailed to you. Furthermore during our first
conference call concerning the issue herein[,] the Superintendent was made aware
of my grievance, as was the grievance Coordinator Ms. Adams.
ECF No. 25, page 1.
Although Plaintiff has filed several letters on the docket, none of them provides evidence
that he has fully exhausted any of his medical claims. This Court held a status conference on
February 1, 2013 at which time Plaintiff’s complaints about his medical care were discussed.
However, a status conference is not a substitute for the official grievance process laid out at DCADM 804. See Jones v. Bock, 549 U.S. at 218 (“Compliance with prison grievance procedures
… is required by the PLRA to ‘properly exhaust.’”). Accordingly, summary judgment should be
granted in favor of Defendants.
An appropriate Order follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THOMAS JEFFERSON FLEMING,
Plaintiff,
v.
PENNSYLVANIA PAROLE BOARD,
et al,
Defendants.
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)
)
)
)
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)
)
Civil Action No. 12-185 Erie
Magistrate Judge Susan Paradise Baxter
ORDER
AND NOW, this 25th day of September, 2013;
IT IS HEREBY ORDERED that Defendants’ motion to dismiss [ECF No. 13] is granted
in its entirety. The Clerk of Courts is directed to mark this case closed.
/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
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