BROWN v. BEARD et al

Filing 161

MEMORANDUM AND OPINION on the 147 MOTION for Summary Judgment filed by LEE JOHNSON. Signed by Chief Magistrate Judge Lisa Pupo Lenihan on 02/24/2012. (jmb)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ABDUL BROWN,
Plaintiff,
v.
LEE JOHNSON,
Defendant.

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Civil Action No. 07 - 637
Chief Magistrate Judge Lisa Pupo Lenihan
ECF No. 147

MEMORANDUM OPINION
Plaintiff, Abdul Brown, is an inmate in the custody of the Pennsylvania Department of
Corrections currently incarcerated at the State Correctional Institution at Camp Hill. He initiated
this matter on May 14, 2007, by filing a Complaint pursuant to 42 U.S.C. § 1983 complaining
about the conditions of his confinement while in the Special Management Unit (“SMU”) at SCIFayette. After a lengthy case history, this Court issued a Memorandum Order on March 21,
2011, (ECF No. 135), granting Defendants’ motion for summary judgment except as to
Plaintiff’s claim that Defendant Lee Johnson used the EBID after Plaintiff was fully restrained in
the restraint chair and thus incapable of being a threat. The Court then ordered the parties to
brief the issue of whether the remaining claim had been properly exhausted pursuant to §
1997e(a) of the Prison Litigation Reform Act (“PLRA”). Accordingly, on December 16, 2011,
Defendant filed a Concise Statement of Material Facts Not in Dispute (ECF No. 148), a Motion
for Summary Judgment (ECF No. 147) and a Brief in Support of Summary Judgment (ECF No.
149) addressing the exhaustion issue. Plaintiff filed a Brief in Opposition to Summary Judgment
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(ECF No. 154) and a Responsive Concise Statement of Material Facts (ECF No. 156).
Defendant filed a Reply (ECF No. 158) to Plaintiff’s response in opposition to summary
judgment. Defendant’s motion is now ripe for review by this Court.
A. Summary Judgment Standard
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving
party, the record indicates that “there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment
may be granted against a party who fails to adduce facts sufficient to establish the existence of
any element to that party’s case and for which that party will bear the burden of proof at trial.
Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The moving party bears the initial burden of
identifying evidence or the lack thereof that demonstrates the absence of a genuine issue of
material fact. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582
(3d Cir. 1992). Once that burden has been met, the non-moving party must set forth “specific
facts showing that there is a genuine issue for trial” or the factual record will be taken as
presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec.
Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). An issue is genuine only if the
evidence is such that a reasonable jury could return a verdict for the non-moving party.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986). The inquiry, then, involves determining
“whether the evidence presents a sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a matter of law.” Brown v. Grabowski,
922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52). If a court, having
reviewed the evidence with this standard in mind, concludes that “the evidence is merely
colorable . . . or is not significantly probative,” then summary judgment may be granted.
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Anderson, 477 U.S. at 249-50. Finally, while any evidence used to support a motion for
summary judgment must be admissible, it is not necessary for it to be in admissible form. See
Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909
F.2d 1524, 1542 (3d Cir. 1990).
B. Facts
On December 12, 2005, while housed in the long term segregation unit at SCI-Fayette,
Plaintiff smashed his cell door windows and ripped a metal plate off the wall inside his cell.
Plaintiff was also observed threatening to assault staff with a mixture of urine and feces which he
intended to throw out of his cell. In response to this situation, Lieutenant George Reposky
assembled a cell extraction team and reported to Plaintiff’s cell. In addition to the notes of the
ensuing exchange, which Lieutenant Reposky prepared immediately thereafter, the cell
extraction was videotaped by a corrections officer commencing with the assembly of the
extraction team.1 In briefing the cell extraction team, Lieutenant Reposky stated that Plaintiff
had been medically cleared for the use of Oleoresin Capsicum (O.C.) (essentially mace or pepper
spray), as well as the Electronic Barring Immobilization Device (“EBID”). The extraction team
was accompanied by a nurse for the purposes of ensuring Plaintiff’s continued well-being during
the extraction.

Lieutenant Reposky and the extraction team approached Plaintiff’s cell,

whereupon they discovered that Plaintiff had covered the window in the door with a towel. After
Plaintiff refused several direct orders to remove the towel and submit himself to be handcuffed,
Lieutenant Reposky administered a two-second burst of O.C. through the food aperture in
Plaintiff’s cell door. Plaintiff threw the aforementioned mixture of urine and feces at Lieutenant
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The cell extraction was videotaped pursuant to DOC policy and the video was submitted to the Court as an
exhibit to a previous motion for summary judgment in this case. The Court has re-reviewed the video for purposes
of the instant motion for summary judgment.
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Reposky as he opened the food aperture. This initial dose of O.C. appears to have had no effect
on Plaintiff, who can be heard speaking clearly – even shouting – at the officers even after its
application. After being convinced to dispose of a second cup of urine and feces mixture,
Plaintiff voluntarily submitted himself to be handcuffed and was removed from the cell without
further incident.
Plaintiff was thereafter placed in a holding cell area so that the requisite strip search
could be performed. At this time, Plaintiff was laughing and taunting the Corrections Officers
and threatening “y’all gonna pay for this.” After he refused several direct orders regarding the
search, O.C. was used for a second time by Lieutenant Reposky. Once the strip search was
completed, Plaintiff’s eyes were washed by the nurse. Plaintiff was then removed from the
holding cell area and taken to another cell where he was placed in a restraint chair and secured.
While Plaintiff was being secured in the chair, Officer Jay Haines used the hand-held EBID on
Plaintiff when he began resisting the application of the arm restraints. Once Plaintiff was secure
therein, his eyes were once again washed and the restraints were checked. Upon his complaints
of shortness of breath, the nurse administered Plaintiff’s inhaler.
After Plaintiff was secured and bound to the restraint chair, the video camera was turned
off. Plaintiff alleges that, at some point after the video camera had been turned off, Defendant
Johnson shocked him two or three times with the EBID even though he was incapable of being a
threat to anyone and also incapable of any defense. He claims that this use of the EBID caused
him to vomit and defecate on himself.
Plaintiff was placed in the restraint chair at approximately 10:30 a.m. and was removed at
approximately 6:30 p.m.

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C. Analysis
Defendant argues that Plaintiff may not pursue his claim concerning the alleged improper
use of the EBID device on him after he was fully restrained in the restraint chair on the basis of
his failure to have exhausted his available administrative remedies as required by the PLRA.
Through the PLRA, Congress amended 42 U.S.C. § 1997e(a) to prohibit prisoners from bringing
an action with respect to prison conditions pursuant to 42 U.S.C. § 1983 or any other federal law,
until such administrative remedies as are available are exhausted. Specifically, the act provides,
in pertinent part, as follows:
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.
42 U.S.C. § 1997e(a).
The United States Court of Appeals for the Third Circuit analyzed the applicability of the
exhaustion requirement in 42 U.S.C. § 1997e in Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) and
Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). In each of these cases, the Court of Appeals
announced a bright line rule that inmate-plaintiffs must exhaust all available administrative
remedies before they can file an action in federal court concerning prison conditions. In so
holding, the court specifically rejected the notion that there is ever a futility exception to section
1997e(a)’s mandatory exhaustion requirement. Booth, 206 F.3d at 300; Nyhuis, 204 F.3d at 66.
A unanimous Supreme Court affirmed the Court of Appeals’ holding in Booth v. Churner, 532
U.S. 731 (2001) where the Court confirmed that in the PLRA Congress mandated exhaustion of
administrative remedies, regardless of the relief offered through those administrative procedures.
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As stated by the Third Circuit, “it is beyond the power of this court – or any other – to excuse
compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or
any other basis.” Nyhuis, 204 F.3 at 73 (quotation omitted). The Supreme Court of the United
States reiterated this tenet when it affirmed the Third Circuit’s holding in Booth.
Additionally, the Court of Appeals for the Third Circuit has held that a prisoner’s failure
to comply with the procedural and substantive requirements of the DOC’s grievance policy
results in procedural default, thereby precluding an action in federal court. See Spruill v. Gillis,
372 F.3d 218 (3d Cir. 2004). In so holding, the Court of Appeals specifically held that failing to
specifically name accused individuals in a grievance amounted to procedural default because the
regulations so required.
The United States Supreme Court adopted a similar holding in Woodford v. Ngo, 126 S.
Ct. 2378 (2006) wherein it held that an untimely “or otherwise procedurally defective
administrative grievance or appeal” does not satisfy the PLRA’s mandatory exhaustion
requirement. Id. at 2382.
Because exhaustion requirements are designed to deal with parties who do not
want to exhaust, administrative law creates an incentive for these parties to do
what they would otherwise prefer not to do, namely, to give the agency a fair and
full opportunity to adjudicate their claims. Administrative law does this by
requiring proper exhaustion of administrative remedies, which “means using all
steps that the agency holds out, and doing so properly (so that the agency
addresses the issues on the merits).” This Court has described the doctrine as
follows: “[A]s a general rule . . . courts should not topple over administrative
decisions unless the administrative body not only has erred, but has erred against
objections made at the time appropriate under its practice.” Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural
rules because no adjudicative system can function effectively without imposing
some orderly structure on the course of its proceedings.
Id. at 2385-86 (internal citations, quotations and footnotes omitted).

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The Court further noted that “[c]onstruing § 1997e(a) to require proper exhaustion also
fits with the general scheme of the PLRA, whereas respondent’s interpretation would turn that
provision into a largely useless appendage.

The PLRA attempts to eliminate unwarranted

federal-court interference with the administration of prisons, and thus seeks to afford corrections
officials time and opportunity to address complaints internally before allowing the initiation of a
federal case.” Id. at 2387. The Court concluded that the benefits of exhaustion could only be
realized if the prison grievance system is given a fair opportunity to consider the claims, which
required the grievant to comply with the procedural rules. Id. at 2388.
In the instant case, the record reveals that Plaintiff filed Grievance Number 138822 on
December 20, 2005, alleging excessive force based on the incident of December 12, 2005. In the
grievance, Plaintiff alleged, inter alia, that “C/O John Doe stun me with the EBID while I was
strapped in the chair because I was speaking my mind.” Plaintiff appealed the grievance through
final review, which was denied on February 3, 2006.
Defendant argues Plaintiff failed to properly exhaust his administrative remedies under
the PLRA with respect to his claim that Defendant Johnson used the EBID device on him after
he was fully restrained in the restraint chair and incapable of being a threat. Specifically,
Defendant asserts that the “John Doe” in Plaintiff’s grievance is the individual who used the
EBID on him the first time, while he was being placed in the restraint chair, and the Court has
already determined that this individual was Officer Jay Haines and that its use on that occasion
did not violate the Constitution as it was reasonable and necessary to control the Plaintiff while
he was being strapped into the restraint chair. While Defendant admits that Plaintiff exhausted
his claim that Officer Haines used the EBID device on him on December 12, 2005, they contend
that Plaintiff did not exhaust any claim that Defendant Johnson used the EBID device on him at a
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later time. Plaintiff argues that he did not specify in his grievance that he was stunned only one
time and that Defendant is mistaken to assume that his grievance refers to, and is restricted to, a
single use of the EBID device. He suggests that the grievance should be construed to cover all of
the events related to the cell extraction until his release from the restraint chair over eight hours
later.
The Supreme Court has held that the PLRA does not establish the level of specificity that
an inmate plaintiff must include to fully exhaust his or her claim. Rather, “[t]he 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. 199, 218 (2007).

“‘[P]rison

grievance procedures supply the yardstick’ for determining what steps are required for
exhaustion,” Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting Spruill, 372 F.3d at
231), and Third Circuit precedent makes clear that a prisoner must complete the administrative
review process in accordance with the applicable procedural rules in order to satisfy the
exhaustion requirement of the PLRA. Nickens v. Department of Corr., 277 F. App’x 148, 152
(3d Cir. 2008) (citing Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) and Spruill, 372 F.3d
at 228, 231). However, the Third Circuit has also stated that the PLRA does not require perfect
overlap between the grievance and the complaint; rather the two must simply share a factual
basis. Jackson v. Ivens, 244 F. App’x 508, 513 (3d Cir. 2007) (unpublished).
The Inmate Grievance System for the Commonwealth of Pennsylvania Department of
Corrections, DC-ADM 804, in place at the time Plaintiff filed Grievance Number 138822,
specified that an inmate filing a grievance must “include a statement of the facts relevant to the
claim . . . [and] identify any person(s) who may have information that could be helpful in
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resolving the grievance.” DC-ADM 804, Inmate Grievance System Policy § VI(A)(7). Thus, it
appears that for Plaintiff to have properly exhausted his claim that Defendant Johnson used the
EBID device after he was fully restrained to the chair and incapable of being a threat, Plaintiff
had to, at the very least, present facts in his grievance “relevant” to the incident.
It is undisputed that Plaintiff was shocked with the EBID device at least one time while
the officers were putting him into the restraint chair. It is also undisputed that, in Grievance
Number 138822, Plaintiff makes an explicit reference to being “stunned” with the EBID device
while strapped in the chair. Plaintiff’s grievance does not specify how many times this occurred
and by whom, although a plain reading would indicate that it only occurred once. Nevertheless,
reading this statement in context with the entirety of Plaintiff’s grievance, it is evident that
Plaintiff’s reference to being shocked with the EBID device is in regard to its use by Officer
Haines when Plaintiff was resisting the application of the arm restraints. Specifically, Plaintiff’s
grievance details a step by step account of his cell extraction on December 12, 2005,
complaining of conduct by Lieutenant Reposky and his staff and culminating with the statement
that he would like the “video recording [of the incident] held for civil action.” For example,
Plaintiff first states that a “riot team” was sent to extract him, at which point Lieutenant Reposky
sprayed O.C. in his cell knowing he had asthma. He states that he was taken to the strip search
area where he was again sprayed with O.C. for no justifiable reason and then he was taken to
another cell where he was “strapped in a chair.” At this point in his grievance, Plaintiff states
that C/O John Doe “stunned” him with the EBID device while he was “strapped in the chair”

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because he was “speaking [his] mind.”2 Then Plaintiff goes on to complain that the restraint
belts on the chair were used as “torture” devices because they were applied too tightly.
Reading the statement concerning the use of the EBID device in context with the rest of
Plaintiff’s grievance, it would logically follow that the use of the device by John Doe was in
reference to the first time it was used by Officer Haines. Plaintiff makes no mention of what
allegedly took place after the video recording was stopped. Instead, he specifically makes
reference to the fact that the events of which he complains were captured on video, which would
include Officer Haines’ use of the EBID device. In addition, Plaintiff plainly stated in his
deposition that by John Doe, he meant the individual who had used the EBID on him the first
time, which has already been established was Officer Haines. Contrary to Plaintiff’s contention
that his grievance should be construed to encompass all the events related to his cell extraction
until the time he was released from the restraint chair, Plaintiff’s grievance was not sufficient to
put prison officials on notice of Plaintiff’s claim that Defendant Johnson came into Plaintiff’s
cell after he was fully restrained to the chair and used the EBID device without reason because
the grievance does not contain facts relevant to this incident. Thus, the Court is constrained to
find that Grievance Number 138822 did not suffice to exhaust Plaintiff’s administrative remedies
and Defendant Johnson is entitled to summary judgment.
D. Conclusion
For the reasons set forth above, Defendant Johnson is entitled to summary judgment with
respect to Plaintiff’s claim. An appropriate order will be entered.

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The Court feels it necessary to note that Plaintiff’s legs were already strapped to the restraint chair when
Officer Haines used the EBID device. However, the device was used when the officers were attempting to strap
Plaintiff’s arms into the chair and Plaintiff appeared to be resisting.
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Dated: February 24, 2012

_________________________
Lisa Pupo Lenihan
Chief United States Magistrate Judge

cc: Abdul Brown
#DP2655
SCI-Camp Hill
P.O. Box 200
Camp Hill, PA 17001
Counsel of Record

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