RAMIR v. GIROUX et al
MEMORANDUM OPINION that Defendant's motion for summary judgment 33 will be granted. Judgment to follow. Signed by Magistrate Judge Susan Paradise Baxter on 5/19/17. (lrw)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
NANCY GIROUX, et al.,
C.A. No. 15-252 Erie
Magistrate Judge Baxter
United States Magistrate Judge Susan Paradise Baxter
Relevant Procedural History
On October 15, 2015, Plaintiff Ramir Steve, an inmate incarcerated at the State
Correctional Institution at Albion, Pennsylvania (“SCI-Albion”), initiated this civil rights action
by filing a pro se complaint pursuant to 42 U.S.C. § 1983 against Defendants Nancy Giroux,
Superintendent at SCI-Albion (“Giroux”), and Sgt. Delaney, a corrections officer at SCI-Albion
("Delaney"). Plaintiff subsequently filed a motion to dismiss Defendant Delaney from this case
voluntarily [ECF No. 28], which was granted by this Court by Order dated January 19, 2017
[ECF No. 32]. Thus, Defendant Giroux is the sole Defendant in this case.
Plaintiff claims that his Eighth Amendment rights were violated when "the water to the
jail was cut off" from March 9, 2015 through March 15, 2015, which allegedly forced him to
All parties have consented to having a United States Magistrate Judge exercise jurisdiction over this matter. [ECF
Nos. 11, 16].
"defecate and urinate in plastic bags" and to eat snow because there was no running water in the
toilets, sinks, or showers. (ECF No. 4, Complaint, at Section IV). As relief for his claim, Plaintiff
seeks monetary damages.
Defendant Giroux filed an answer to Plaintiff's complaint on May 2, 2016, and the parties
have since completed discovery. Defendant Giroux has now filed a motion for summary
judgment [ECF No. 66], arguing that Plaintiff failed to exhaust his administrative remedies and,
alternatively, has failed to state an Eighth Amendment claim upon which relief may be granted.
Although Plaintiff was given ample time to respond to Defendant's motion, he has failed to do
so. This matter is now ripe for consideration.
Standards 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
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
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 (“only 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).
Pro Se Pleadings
Pro se pleadings, “however inartfully pleaded,” must be held to “less 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. Boag v.
MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552,
555 (3d Cir. 1969) (Apetition prepared by a prisoner... may be inartfully drawn and should be
read “with a measure of tolerance”); Freeman v. Department of Corrections, 949 F.2d 360 (10th
Cir. 1991). Under our liberal pleading rules, 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). 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.
Defendant argues that Plaintiff has failed to exhaust his administrative remedies in
accordance with the requirements of the Prison Litigation Reform Act. The Court agrees.
The Exhaustion Requirement
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), provides, in pertinent
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
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); Concepcion v. Morton, 306 F.3d 1347
It is not a plaintiff's burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. 199, 216 (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).
(3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be
completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144 (1992).
Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all the available
remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished
Opinion) (10th Cir. May 8, 1997).3 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
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
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; 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
Importantly, a plaintiff's failure to exhaust his administrative remedies does not deprive the district court of subject
matter jurisdiction. 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.").
There is no "futility" exception to the administrative exhaustion requirement. Banks v. Roberts, 2007 WL 3096585,
at * 1 (3d Cir.) citing Nyhuis, 204 F.3d at 71 ("[Plaintiff's] argument fails under this Court's bright line rule that
'completely precludes a futility exception to the PLRA's mandatory exhaustion requirement.'"). See also Woodford v.
Ngo, 548 U.S. 81, 85 (2006) ("Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies
even where the relief sought-- monetary damages--cannot be granted by the administrative process.").
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.").
The Administrative Process Available to State Inmates
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.
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 (3d Cir.
1997), aff'd. 532 U.S. 731 (2001).
In support of their exhaustion argument, Defendants have submitted the Declaration of
Michele Tharp, Superintendent's Assistant and Grievance Coordinator at SCI-Albion ("Tharp"),
who declares, in pertinent part:
Mr. Steve filed Grievance #591453 on October 8, 2015 at SCIAlbion….
While the typed date on Grievance #591453 has a date of March
18, 2015, the grievance was only received by the Facilities
Grievance Coordinator on October 8, 2015….5
On October 9, 2015, a response was issued to Grievance #591453
in the form of a Grievance Rejection as the grievance was not
submitted within fifteen working days of the events upon which the
claims were based….
The Grievance Rejection noted that the grievance was extremely
untimely as over 6 months had passed before the inmate inquired
as to why he did not receive an answer to the grievance….
The Grievance Rejection further noted that when the inmate did
not receive his pink copy from his original grievance showing it
was processed, he should have contacted the Grievance
Coordinator within 15 days of filing the grievance per the DCADM 804 policy….
Inmate Steve filed an Appeal to the Facilities Manager from the
rejection of Grievance #591453….6
Attached to Ms. Tharp's declaration are copies of all grievance records pertaining to Grievance No. 591453, which
confirm that Plaintiff was raising the same issues that are raised in this case. (See ECF No. 36-2, at pp. 2-7). As Ms.
Tharp states, the grievance is purportedly dated "3/18/15;" however, the Court notes that the number of the month
appears to be handwritten over the typed number on the copy attached to Ms. Tharp's declaration (See Id. at p. 2).
Thus, it is not entirely clear when the original grievance was written or submitted.
Although Ms. Tharp declares that the appeal was from the rejection of Plaintiff's grievance, the appeal document
does not reference the rejection of the grievance, nor does it contain the number of the grievance to which the appeal
applied. Instead, in the box for "grievance #", Plaintiff wrote "none." (See ECF No. 36-2, at p. 5).
The Appeal to the Facilities Manager was received on October 9,
2015 for Grievance #591453….
The date on Appeal to the Appeal to Facility Manager [sic] is dated
September 18, 2015, which is 21 days before the rejection was
Even if Mr. Steve had submitted the Appeal to the Facility
Manager on September 18, 2015, that was more than 6 months
after the date of the events upon which the claims were based and
would still be untimely under DC-ADM 804.
On October 14, 2015, the Facility Manager's Appeal Response was
issued dismissing Grievance #591453 as untimely finding that it
was properly rejected under DC-ADM 804.
Grievance #591453 was not appealed to final review.
(ECF No. 36-1, Declaration of Michele Tharp, at ¶¶ 6-16).
Plaintiff has not submitted any evidence to contradict Ms. Tharp's declaration. Thus,
based on the uncontroverted evidence of record, it is apparent that Plaintiff failed to exhaust his
administrative remedies in accordance with the PLRA's requirements, and is now procedurally
defaulted from doing so. As a result, Plaintiff's claim against Defendant Giroux will be
An appropriate Order follows.
/s/ Susan Paradise Baxter_____
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: May 19, 2017
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