WRIGHT v. SAUERS et al

Filing 221

MEMORANDUM OPINION that Defendant Gatto's second motion for summaryjudgment 203 is GRANTED, and judgment is entered in favor of Defendant Gatto and against Plaintiff, accordingly. An appropriate order follows. Signed by Magistrate Judge Susan Paradise Baxter on 8/30/17. (lrw)

UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF PENNSYLVANIA

JAMES OSCAR WRIGHT,
Plaintiff,
v.
DEBRA K. SAUERS, et al.,
Defendants.

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C.A. No. 13-358 Erie

Magistrate Judge Baxter

MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter
I.

Introduction
A.

Relevant Procedural History

Plaintiff James Oscar Wright initiated this civil rights action pursuant to 42 U.S.C.
§ 1983 on December 13, 2013, by filing a pro se complaint. Plaintiff subsequently filed an
amended complaint, also pro se, on May 5, 2014. [ECF No. 17]. Thereafter, counsel entered an
appearance on Plaintiff’s behalf and filed a second amended complaint. [ECF No. 44]. Named as
Defendants in the second amended complaint are: Debra K. Sauers, former Superintendent at
SCI-Forest ("Sauers"); Michael Overmyer, former Deputy Superintendent for Facilities
Management at SCI-Forest ("Overmyer"); Eric Tice, former Deputy Superintendent for
Centralized Services at SCI-Forest ("Tice"); Corrections Officers Anthony Gatto (incorrectly
identified by Plaintiff as "Gotto") ("Gatto"), D.E. Clever ("Clever"), and Lt. Raymond Burkhart
("Burkhart"); Nancy McGarvie, Medical Director at SCI-Forest ("McGarvie"); Kim Smith,

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Subsequent to the resolution of initial motions for summary judgment, the remaining parties consented to having a
United States Magistrate Judge exercise jurisdiction over this matter. [ECF Nos. 4, 205].

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Corrections Health Care Administrator at SCI-Forest ("Smith"); and Wexford Health Sources,
Inc. ("Wexford").
On August 13, 2015, this Court issued a Report and Recommendation (“R&R”) to deny
the motion to dismiss, or in the alternative, motion for summary judgment filed by Defendants
Wexford and McGarvie. [ECF No. 76]. The R&R was adopted by Order of District Judge
Barbara Rothstein, dated September 10, 2015. [ECF No. 82]. Soon after, this Court entered an
Order granting Plaintiff leave to file a third amended complaint to add Defendant Corizon
Health, Inc. (“Corizon”) as the employer of Defendant McGarvie. [ECF No. 89]. Plaintiff’s third
amended complaint was subsequently docketed on October 2, 2015 [ECF No. 90], and is the
operative pleading in this case.2 For ease of reference, all Defendants other than Defendants
Gatto, McGarvie, Wexford, and Corizon will be collectively referred to as “Commonwealth
Defendants.”
In his third amended complaint, Plaintiff claims that (1) Defendants Gatto, Clever,
Sauers, Overmyer, and Tice violated his Eighth Amendment right to be free from cruel and
unusual punishment by using and/or allowing the use of excessive force against him, and
(2) Defendants Sauers, Overmyer, Tice, Gatto, Burkhart, Smith, McGarvie, Wexford, and
Corizon were deliberately indifferent to his serious medical needs in violation of his Eighth
Amendment rights. As relief for his claims, Plaintiff seeks injunctive relief and monetary
damages.
The parties completed discovery on or about October 30, 2015. On January 14, 2016, the
Commonwealth Defendants, including Gatto, filed a motion for summary judgment as to all
2

No substantive changes were made to the second amended complaint other than the addition of Defendant Corizon.
The third amended complaint merely states the same allegations against both Defendants Wexford and Corizon. All
other Defendants, and the allegations against them, remain the same.

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claims against them. [ECF No. 115]. With the exception of Plaintiff’s excessive force claim
against Gatto, the Commonwealth Defendants raised Plaintiff’s failure to properly exhaust
available administrative remedies as a complete defense, due to his failure to appeal initial
grievances and his failure to grieve specific incidents alleged in his operative complaint. On
February 26, 2016, Defendant Corizon filed a motion for summary judgment as to Plaintiff’s
claims against it on the grounds that the evidence was insufficient to establish the existence of a
policy or custom of inadequate medical care or a failure to supervise and train personnel. [ECF
No. 137]. On February 29, 2016, Defendants Wexford and McGarvie filed their own motion for
summary judgment as to all of Plaintiff’s claims against them, raising, inter alia, failure to
exhaust administrative remedies as a complete defense. The parties stipulated to the dismissal of
all of Plaintiff’s claims against Defendants Wexford and Clever, and those Defendants were
terminated from this case. [ECF Nos. 175 and 176].
On September 1, 2016, this Court issued an R&R recommending that: (1) the
Commonwealth Defendants' motion for summary judgment be granted as to Plaintiff's claims
against all Commonwealth Defendants, except Defendant Gatto, for failure to exhaust
administrative remedies; (2) Defendant Corizon's motion for summary judgment be denied as to
Plaintiff's claims that Corizon had a custom of not following established policies, and failed to
train or supervise its employees, with regard to the provision of special medical items that
implicate security concerns; and (3) Defendant McGarvie's motion for summary judgment be
granted for failure to exhaust administrative remedies. [ECF No. 182]. On September 14, 2016,
Defendant Corizon filed timely objections to this Court's R&R, raising for the first time
Plaintiff's failure to exhaust administrative remedies as a complete defense to Plaintiff’s claims.
[ECF No. 183]. Plaintiff opposed consideration of the issue, contending that Defendant Corizon

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could not establish excusable neglect to permit the belated assertion of exhaustion as a complete
defense. [ECF No. 187, at pp. 2-5].
By Order entered March 31, 2017, Judge Rothstein adopted this Court’s R&R as to the
Commonwealth Defendants’ motion for summary judgment, denying summary judgment as to
Plaintiff’s excessive force claim against Defendant Gatto, granting summary judgment to the
remaining Commonwealth Defendants on the grounds that Plaintiff failed to exhaust available
administrative remedies against them, and granting summary judgment in favor of Defendant
McGarvie, concluding that Plaintiff did not properly exhaust his medical claims against her.
[ECF No. 189]. As to Defendant Corizon, however, Judge Rothstein determined that, while
Corizon failed to raise the issue of exhaustion in its initial summary judgment motion, Corizon
was entitled to judgment in its favor because it pled failure to exhaust as an affirmative defense
in its Answer to Plaintiff’s complaint. In addition, Judge Rothstein concluded that presenting and
fully briefing the issue would have been cumulative, given that Plaintiff’s failure to exhaust
medical claims had been raised and briefed by the Commonwealth Defendants and McGarvie.
(Id., at pp. 10-11). Accordingly, the Court entered judgment in favor of Defendant Corizon as to
all of Plaintiff's claims against it based on Plaintiff's failure to exhaust administrative remedies.
[ECF No. 189]. Accordingly, all Defendants other than Defendant Gatto were terminated from
this case and the only claim remaining is Plaintiff's excessive use of force claim against
Defendant Gatto.
On June 9, 2017, Defendant Gatto filed a motion for leave to file a second motion for
summary judgment [ECF No. 202], contending that Plaintiff procedurally defaulted on his
remaining excessive force claim because Plaintiff failed to request monetary damages when he
submitted his original inmate grievance. Counsel for Defendant Gatto asserted that he only

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recently learned of “substantial case law” concluding that an inmate’s failure to comply with all
grievance form instructions, including a demand for monetary or other remedy available at law,
foreclosed further relief.3 [ECF No. 203, at p. 1]. Over Plaintiff’s objections that Defendant
Gatto failed to show good cause or excusable neglect for the delay in raising exhaustion, Judge
Rothstein issued an Order [ECF No. 206] granting Defendant Gatto leave to file the requested
motion [ECF No. 203-2], stating:
Here, Defendant affirmatively pled that plaintiff failed to exhaust his
administrative remedies. Answer, Doc. 93 at 5…. While unfortunate that
Defendant did not previously brief his exhaustion argument as to
Grievance 422147, Defendant’s ‘failure to make a timely dispositive
motion based on this affirmative defense does not mean that [he] ha[s]
waived the defense.’ Sanders v. Beard, 2013 WL 1703582, at *4 (M.D.
Pa. Apr. 19, 2013)(citing Drippe v. Gototweski, 434 Fed. Appx. 79, 81 (3d
Cir. 2011). Moreover, whether a prisoner has properly exhausted his
administrative remedies is a question of law, and thus for the court to
determine (citations omitted).
(ECF No. 206, at pp. 2-3). Plaintiff has since filed a response in opposition to Defendant Gatto's
motion. [ECF No. 209]. This matter is now ripe for consideration.
B.

Relevant Factual History4

Plaintiff is an inmate formerly incarcerated at the State Correctional Institution at Forest
in Marienville, Pennsylvania (“SCI-Forest”).5 On July 23, 2012, while Plaintiff was housed in

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Gatto cites the following cases in support of his contention that Plaintiff has procedurally defaulted on his remaining
claim by failing to include a demand for monetary relief in his initial grievance form as required by DC-ADM 804:
Mobley v. Snyder, 2015 WL 5123909 at *7-9 (M.D. Pa. 2015); Sanders v. Beard, 2013 WL 1703582 at *6 (M.D.
Pa. 2013), Collins v. Walsh, 2012 WL 3536803 at *3-4 (M.D. Pa. 2012).
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The factual history recited herein is gleaned from the Defendants’ concise statements of material facts [ECF Nos.
117, 137, 141], and Plaintiff’s responses thereto [ECF Nos. 148, 150, 152], to the extent the facts are undisputed
and/or amply supported by the factual record before this Court. Where there are discrepancies in the parties’
interpretations of the documentary evidence of record, the Court draws from and cites the documents themselves.
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Plaintiff has since been released from prison and is represented by counsel.

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SCI-Forest’s restricted housing unit (“RHU”), Corrections Officers Defendant Gatto and former
Defendant Clever escorted Plaintiff to the RHU shower. (ECF No. 117, Commonwealth
Defendants’ Concise Statement of Undisputed Material Facts, at ¶¶ 1, 3). At the same time,
security team officers Sharrar and Dombrowski went to Plaintiff’s cell to conduct a random cell
search. (Id. at ¶ 4). Plaintiff became upset in the shower because he did not want his cell
searched. (Id. at ¶ 6). When Plaintiff finished his shower, he was handcuffed and escorted by
Gatto and Clever to stand outside of his cell so he could be present for the cell search. (Id. at
¶ 10).6 Gatto held Plaintiff by a tether during the escort. (Id. at ¶ 11). Plaintiff was angry that he
was wet and did not have the opportunity to get dressed, and he stated three times that the
officers could not search his cell. (Id. at ¶¶ 16-17). Nonetheless, Officer Dombrowski began to
search Plaintiff’s cell, which further angered Plaintiff. (Id. at ¶¶ 18, 20). Plaintiff became
verbally aggressive, pulled and tugged on the tether, turned to face Defendant Gatto, and then
forcefully kicked his left foot at Defendant Gatto’s lower leg. (Id, at ¶¶ 26-28, 31; ECF No. 1181, DVAR Video, at 2:39:28-49).7 Defendant Gatto and Clever immediately attempted to take
Plaintiff to the ground, but Plaintiff resisted. (ECF No. 118-1, DVAR Video, at 2:39:50). When
Plaintiff was ultimately brought to the ground, Clever fell on Plaintiff’s right foot, causing
Plaintiff to feel a sharp pain in the foot. (ECF No. 117, at ¶¶ 38-39; ECF No. 118-9, Plaintiff’s
Deposition Transcript, at pp. 17, 27).8 It was later revealed that Plaintiff suffered a fracture of

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Plaintiff denies that he asked to be present for the search. (ECF No. 148, Plaintiff’s response to Commonwealth
Defendants’ Concise Statement of Material Facts, at ¶ 10).
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Although Plaintiff disputes that he was verbally aggressive, pulled on the tether, and kicked Defendant Gatto with
his left foot, the DVAR video footage of the incident conclusively affirms these facts.
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The Court notes, and the parties acknowledge, that there is a twelve second gap in the DIVAR footage, during which
Plaintiff was taken to the ground and the injury to his right foot occurred. Nonetheless, there appears to be no

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three metatarsal joints, and after a period of conservative treatment, Plaintiff underwent surgical
repair of the affected joints.
On July 27, 2012, Plaintiff filed Grievance 422147, describing the incident and alleging
an excessive use of force claim against Clever and Gatto. [ECF No. 203-5, at p. 5]. The
Department of Corrections Grievance Policy in effect at the time of Plaintiff’s incident sets forth
the following requirements for submitting a grievance:
The statement of facts must not exceed two pages and must be
handwritten or typed on writing paper (one DC-804, Part 1 and one onesided 8 ½” x 11” page). In Section B of the DC-804, Part 1, the inmate
should include information on any attempt to resolve the matter
informally. The inmate will also specifically state any claims he/she
wishes to make concerning violations of Department directions,
regulations, court orders, or other law. If the inmate desires
compensation or other legal relief normally available from a court, the
inmate shall request the specific relief sought in his/her initial
grievance.

DC-ADM 804 §1.A.12 (bold and italics in original). [ECF No. 2-3-5, p. 19]. The Official Inmate
Grievance form used by Plaintiff to submit his complaint states that an inmate is to “[p]rovide a
brief, clear statement of your grievance. Additional paper may be used, maximum two pages
(one DC-804 and one one-side 8 ½” x 11” page). State all relief you are seeking.” [ECF No. 2035, at p. 5]. Plaintiff concedes that, when completing the form, he failed to ask for any relief,
monetary or otherwise.
In response to Plaintiff’s grievance, Lieutenant Carter (“Carter”) of SCI-Forest’s Security
Department conducted an investigation. (ECF No. 117, at ¶¶ 71-72). Carter reviewed the DIVAR
video of the incident multiple times, and interviewed Gatto, Clever, Sharrar, and Dombrowski as
part of his investigation. (Id. at ¶¶ 86, 89). As a result of his investigation, Carter concluded that

dispute that Plaintiff’s foot injury occurred as a result of Clever coming into contact with it when Plaintiff was on
the ground.

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all staff involved acted professionally and used the minimum amount of force necessary to
control a combative inmate. (Id. at ¶ 90). Thus, no disciplinary action was recommended against
any of the involved staff members. (Id. at ¶ 91). Former Defendants Tice, Overmyer, and Sauers
reviewed Carter’s report and agreed with his findings. (Id. at ¶ 95). Sauers then sent the report to
the OSII Director, James Barnacle. (Id. at ¶ 96). Upon timely appeal and final review by the
State Office of Inmate Grievances and Appeals (“SOIGA”), Plaintiff’s Grievance was denied as
non-meritorious.
Defendant Gatto now contends that, because Plaintiff failed to request monetary damages
through his initial inmate grievance arising out of the incident at issue, he is precluded from
obtaining recovery in this action. Plaintiff opposes the motion on the basis that he has
substantially complied with the prescribed inmate grievance process, and contends that his
failure to request a remedy does not bar his claim. Alternatively, Plaintiff argues that Defendant
Gatto has waived exhaustion by failing to raise the issue in conjunction with his initial motion
for summary judgment, and that compliance is otherwise excused by the resolution of the merits
of his grievance.
C.

Standard of Review

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.” Under Rule 56, the district court must enter summary
judgment against a party “who 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 of proof at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment may be granted
when no “reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty

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Lobby, Inc., 477 U.S. 242, 248 (19896). “[A] party seeking summary judgment always bears the
initial responsibility of informing the district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue
of material fact.” Celotex, 477 U.S. at 323 quoting Fed.R.Civ.P. 56.
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, 477 U.S. at 330. See also 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). When a non-moving party would have the burden of proof at
trial, the moving party has no burden to negate the opponent’s claim. Celotex, 477 U.S. at 323.
The moving party need not produce any evidence showing the absence of a genuine issue of
material fact. Id. at 325. “Instead, … the burden on the moving party may be discharged by
‘showing’ – that is, pointing out to the district court – that there is an absence of evidence to
support the nonmoving party’s case.” Id. After the moving party has satisfied this low burden,
the nonmoving party must provide facts showing that there is a genuine issue for trial to avoid
summary judgment. Id. at 324. “Rule 56(e) permits a proper summary judgment motion to be
opposed by any of the kinds of evidentiary materials listed in Rule 56(c), except the mere
pleadings themselves….” Id. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001);
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) (the non-moving party “must present more than just bare
assertions, conclusory allegations or suspicions to show the existence of a genuine issue.”).
In considering these evidentiary materials, “courts are required to view the facts and draw
reasonable inferences in the light most favorable to the party opposing the summary judgment

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motion.” Scott v. Harris, 550 U.S. 372, 378 (2007) (internal quotation marks and alterations
omitted). See also Doe v. Cnty. of Centre, Pa., 242 F.3d 437, 446 (3d Cir. 2001) (when applying
this standard, the court must examine the factual record and make reasonable inferences
therefrom in the light most favorable to the party opposing summary judgment).
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., 477
U.S. at 248, 255 (“[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. Factual disputes that are
irrelevant or unnecessary will not be counted.”). In determining whether the dispute is genuine,
the court’s function is not to weigh the evidence or to determine the truth of the matter, but only
to determine whether the evidence of record is such that a reasonable jury could return a verdict
for the nonmoving party. Id. at 249. The court may consider any evidence that would be
admissible at trial in deciding the merits of a motion for summary judgment. Horta v. Sullivan, 4
F.3d 2, 8 (1st Cir. 1993).
II.

DISCUSSION
A.

Failure to Exhaust - Procedural Default

In resolving Defendants’ initial motions for summary judgment, this Court explained that
through the PLRA, Congress enacted a requirement that inmates exhaust “such administrative
remedies as are available” before bringing suit to challenge prison conditions. [ECF No. 182]. 42
U.S.C. § 1997(e)a. The United States Supreme Court has repeatedly confirmed that “[t]here is no
question that exhaustion is mandatory under the PLRA.” Ross v. Blake, ___ U.S. ___, 136 S. Ct.
1850, 1856 (2016), quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006), accord Jones v. Bock,

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549 U.S. 199, 211 (2007). “And that mandatory language means a court may not excuse a failure
to exhaust, even to take [] [special] circumstances into account.” Ross at 1856.
Because the PLRA is a statutory exhaustion provision, “Congress sets the rules – and
courts have a role in creating exceptions only if Congress wants them to. For that reason
mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes,
foreclosing judicial discretion.” Id. at 1857. Accordingly, exhaustion is required regardless of the
availability of the requested relief, and regardless of the nature of the underlying claim, whether
it arises from excessive force, or a violation of the constitution. Id., citing, Booth v. Churner, 532
U.S. 731, 741 (2001); Porter v. Nussle, 534 U.S. 516, 520 (2002); Woodford, 548 U.S. at 91.
Additionally, exhaustion must be “proper,” which “demands compliance with an
agency’s deadlines and other critical procedural rules.” Woodford, at 90. This serves to protect
“administrative agency authority” over the matter, giving an agency “an opportunity to correct its
own mistakes … before it is haled into federal court,” and “discourages ‘disregard of [the
agency’s] procedures.” Id. at 89, quoting McCarthy v. Madigan, 503 U.S. 140, 145 (1992).
Plaintiff cites several cases that predate Woodford, Jones v. Bock, and Ross, and argues
that procedural default extends only to compliance with the grievance “process,” in particular, to
deadlines and stages of appeal, and not to the precise remedy sought. This interpretation fails for
a number of reasons. Initially, the Supreme Court has held that compliance is measured by the
particular agency’s grievance policy, which the Court cannot ignore. “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 219. In the case before it, the
Supreme Court concluded that the inmate had properly exhausted his claim against all

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defendants because neither the prison grievance process nor the PLRA required him to name
each potential defendant in the grievance and, as such, imposition of such a requirement by the
Court was unwarranted. Id.
However, in accord with Jones, where the provisions of a grievance process expressly
require the identification of named defendants, or the use of specified appeal forms, or even the
signature of an inmate, the Court of Appeals for the Third Circuit has found procedural default in
an inmate’s failure to comply as instructed. See, e.g., Rosa-Diaz v. Dow, 683 F. App’x 103, 105–
06 (3d Cir. 2017) (inmate procedurally defaulted on claim where grievance policy required
identification of defendants, and inmate failed to name particular defendant in grievance related
to assault); Small v. Lanigan, 656 F. App’x 586, 589–90 (3d Cir. 2016) (prisoner’s use of
correspondence to appeal grievance denials was not authorized process and constituted
procedural default, despite the fact that some of his letters were answered); Walker v. Glunt, 654
F. App’x 531, 534 (3d Cir. 2016) (prisoner did not exhaust his administrative remedies when he
failed to sign his grievance, and signature held to constitute an important procedural requirement
set by the institution); Mack v. Klopotoski, 540 F. App’x 108, 113 (3d Cir. 2013) (rejecting
inmate’s argument that he “technically” complied with grievance procedure and finding
procedural default where inmate failed to provide photocopies of grievances and responses
received to date to pursue internal appeal).
With regard to the grievance process at issue, a finding of procedural default is compelled
by Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). In Spruill, the Third Circuit considered a prior
version of DC-ADM 804, and rejected a claim of procedural default arising out of the inmate’s
failure to specifically request money damages. The grievance policy in effect at the time
permitted but, importantly, did not require an inmate to identify the relief sought on his

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grievance form. The optional nature of the provision was deemed incapable of giving rise to
procedural default. In reaching this conclusion, the Court distinguished the provision from one
that is mandatory (use of the word “may” as opposed to “shall”), and from a situation where the
form on which grievances are filed includes a prompt to state the relief sought, thereby further
putting an inmate on notice of the requirement. Id. at 233-234.
The regulation … is a far cry from, say, a regulation that reads, “If the inmate
desires compensation of other legal relief normally available from a court, the
inmate shall request the relief with specificity in his/her initial grievance.”
Id. The Court indicated that to the extent the DOC was dissatisfied with the ruling, it could “alter
the grievance system to require more (or less) of inmates by way of exhaustion,” while
remaining consistent with the Constitution and the purposes of the PLRA. Id. at 235.
The DOC has since adopted the phrasing suggested in Spruill, and affirmatively places
inmates on notice of the requirement to list any relief sought in both the grievance policy and on
the initial grievance form. Much like failing to sign the grievance form, or failing to provide
copies of certain documents on appeal, it is the level of detail required by the grievance process
that defines the boundaries of exhaustion, which this Court is not at liberty to ignore. Jones,
supra, at 219.
Finally, a requirement to set forth the compensation or legal relief requested places the
agency on notice of the prisoner’s demand or valuation of his or her claim, and furthers the
PLRA’s underlying litigation avoidance goals by supporting early settlement or accommodation.
Proper exhaustion, including adherence to a requirement to delineate the relief requested,
therefore promotes the efficiency recognized in Woodford, permitting claims to be “resolved
much more quickly and economically in proceedings before an agency than in litigation in
federal court.” Woodford at 87. Given the underlying goals of the PLRA, and the state of the

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law requiring adherence to clearly stated content requirements, this Court must conclude that the
mandatory nature of the language at issue gives rise to procedural default as a result of Plaintiff’s
failure to set forth the desired monetary or other legal relief on his initial grievance form.
B.

Failure to Exhaust - Availability of Remedy

Plaintiff alternatively cites Ross for the proposition that the PLRA excuses his
compliance with remedies that are “unavailable,” and contends that because monetary awards are
not available through the inmate grievance process, his failure to request such relief on his
grievance form is excused. (ECF No. 209, at p. 14). Plaintiff further argues that at the time he
filed his grievance, he was unaware of the extent of his injuries and so was not in a position to
state the amount of monetary relief necessary to satisfy his claim. Both arguments are readily
resolved in favor of the Defendant.
As an initial matter, Plaintiff misreads Ross, which identifies unavailability as an
impediment to process. The Court identified three “kinds of circumstances in which an
administrative remedy, although officially on the books, is not capable of use to obtain relief[:]”
First … an administrative procedure is unavailable when (despite what
regulations or guidance materials may promise), it operates as a simple
dead end – with officers unable or consistently unwilling to provide any
relief to aggrieved inmates…. Next, an administrative scheme might be so
opaque that it becomes, practically speaking, incapable of use. In this
situation, some mechanism exists to provide relief, but no ordinary
prisoner can discern or navigate it …. And, finally, the same is true when
prison administrators thwart inmates from taking advantage of a grievance
process through machination, misrepresentation, or intimidation.
Id. at 1859-60. In such instances, the PLRA’s own textual exception to mandatory exhaustion
precludes a finding of procedural default. Plaintiff has not alleged nor provided evidence of any
such impediment rendering the DOC grievance process unavailable to him. Additionally, to the
extent Plaintiff contends the grievance process is unavailable because monetary damages are not

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recoverable through the DOC’s internal procedures, § 1997e(a) requires administrative
exhaustion “‘irrespective of the forms of relief sought and offered through administrative
avenues.” Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001); and see, Nyhuis v. Reno, 204 F.3d
65, 74 (3d Cir. 2000) (claims for monetary relief are not excused from the exhaustion
requirement). Furthermore, Plaintiff’s argument is factually incorrect, as Defendant Gatto has
supplied the declaration of an SOIGA Grievance Review Officer indicating that for all times
relevant to this proceeding, monetary relief has been afforded through the DOC inmate grievance
system and payments to inmates totaling $93,317.48 have been processed by the relevant agency.
[ECF No. 214-1].
Finally, Plaintiff's argument that he was not aware of the extent of his injuries, and so
was not able to estimate the amount of monetary relief to seek, is a nonstarter. The issue is
whether Plaintiff sought monetary damages at all, not whether he was able to state with
specificity the amount of monetary damages to which he was entitled. Though he may not have
been aware of the full extent of his injuries, he certainly knew that he suffered an injury as a
result of an alleged excessive use of force. This knowledge was sufficient to prompt him to seek
monetary relief in whatever amount he deemed sufficient at that time. Thus, availability is not a
bar to procedural default in this matter.
C.

Excused Noncompliance and Waiver

Plaintiff next invokes excused noncompliance and waiver to bar Defendant Gatto’s
assertion of exhaustion as a defense in this action. Plaintiff contends that because SCI Forest
investigated the assault at issue and rendered a final disposition on the merits of his grievance,
Plaintiff’s noncompliance with the requirement to set forth particular items of relief in his initial
grievance was excused. For this proposition, Plaintiff relies upon cases where an inmate failed to

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identify a specific defendant by name in a grievance, Robinson v. Johnson, 343 Fed. Appx. 778,
781-82 (3d Cir. 2009), or cases from other jurisdictions excusing untimely grievances. Hammett
v. Cofield, 681 F.3d 945, 947 (9th Cir. 2012); Maddox v. Love, 655 F3d 709, 722 (7th Cir. 2011).
These cases are inapposite.
As made clear in Ross v. Blake, “[e]xhaustion is no longer left to the discretion of the
district court.” 136 S. Ct. at 1858, quoting Woodford, 548 U.S. at 85. Where, as here, there is no
reasonable argument that the process was so opaque or confusing that no reasonable prisoner
could use it, internal grievance review is not “unavailable” within the meaning of the PLRA’s
exception, and the inmate “should err on the side of exhaustion” by complete and proper
compliance with all requirements. Id. at 1859. In this matter, the directions on the grievance form
are clear, the requirement is explained in the policy, and the Court cannot excuse Plaintiff’s
failure to comply because his grievance was eventually denied as unfounded.
Finally, Plaintiff contends that Defendant Gatto’s delay and lack of diligence in asserting
exhaustion as a bar to Plaintiff’s claim constitutes waiver of the defense. In response, Defendant
Gatto correctly argues that the issue of waiver has been decided in his favor by Judge Rothstein
in her order granting leave to file a second motion for summary judgment [ECF No. 206], which
is the law of the case.
For the foregoing reasons, the second motion for summary judgment filed on behalf of
Defendant Gatto [ECF No. 203-2] will be granted. An appropriate Order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: August 30, 2017

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