BURNS v. DOE (1) et al
Filing
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ORDER granting 44 Motion for Summary Judgment on the ground that Plaintiff did not properly exhaust his administrative remedies pursuant to the PLRA before filing suit. IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED. AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure. Signed by Magistrate Judge Lisa Pupo Lenihan on October 31, 2013. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
THEODORE BURNS,
Plaintiff,
v.
MARSHALL FIKE, C/O 1, ANDREW
SCHNEIDER, C/O 1, and JOHN
CONNOR, C/O 1,
Defendants.
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Civil Action No. 12 – 239
Chief Magistrate Judge Lisa Pupo Lenihan
ECF No. 44
MEMORANDUM OPINION AND ORDER
This case is before the Court on the Motion for Summary Judgment filed by Defendants,
Corrections Officers at the State Correctional Institution at Greene (“SCI-Greene”): C/O
Marshall Fike, C/O Andrew Schneider, and C/O John Connor.
Among the arguments
Defendants make in support of summary judgment is that Plaintiff did not properly exhaust his
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a),
and has thus procedurally defaulted his claims. For the reasons set forth in this Memorandum,
Defendants’ Motion for Summary Judgment will be granted on this ground.
I.
FACTUAL BACKGROUND
Plaintiff’s claims arise out of an incident that occurred at 5:20 a.m. on November 21,
2010, while he was walking to his assigned job in the Dietary Department. (Plaintiff’s Second
Amended Complaint, ECF No. 21 at ¶ 10.) As Plaintiff was approaching the entrance to the
kitchen, he was suddenly attacked by another inmate and repeatedly hit in the head with a
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combination lock attached to a homemade rope made from torn sheets. Id. at ¶ 11. It is
undisputed that the assault, which lasted approximately two minutes, was witnessed by the
Defendant officers and that the officers did not intervene to end the assault. What is disputed,
however, is whether they had a duty to intervene and their actions while the assault was taking
place.
According to Plaintiff, the Defendants were approximately five to eight feet away from
the assault and simply watched while the attacker repeatedly struck him in the head with the
weapon, knocking him to the ground. Id. at ¶¶ 12-13, 16. One officer even allegedly yelled,
“Get up, be a man and fight back.” Id. at ¶ 15. Several inmates who were in the kitchen dining
area started to bang on the window and shout for the guards to stop the attacker. Id. at ¶ 17.
After repeatedly striking Plaintiff with the lock, Mr. Wyne, a civilian kitchen worker, rushed
outside to the scene and subdued and disarmed the attacker without any help from the
Defendants. Id. at ¶ 18. Afterward, Plaintiff received treatment for his injuries, which included
numerous lacerations to his head. Id. at ¶ 19.
Defendants paint a different picture of what happened that morning.
According to
Defendant Conner, who was responsible for escorting a group of approximately 20 inmates,
including Plaintiff, from B-Blck to the kitchen, he witnessed a “skirmish” between Plaintiff and
his attacker. (Def.’s Exh. 10, Declaration of John Conner, ECF No. 47-10 at ¶¶ 4-5.) He was
approximately thirty feet away and he heard Defendants Schneider and Fike order the assaulting
inmate to stop. Id. at ¶¶ 5-6. He also heard a notification over the radio that there was a fight.
Id. at ¶ 6. He claims that he could not intervene because he could not allow for the other
inmates, who were still walking in front of him, to be left unsupervised. Id. at ¶ 7. He also
claims that he could not place himself in front of the inmates because that would have impaired
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his ability to control them and jeopardized his safety as well as the safety of the other inmates.
Id. He states that Mr. Wyne did not subdue the attacker as Plaintiff alleges and that before
backup arrived the attacker finally complied with Defendants Fike and Schneider’s orders to
stop. Then the attacker was handcuffed. Id. at ¶¶ 8-9. He denies stating, or ever hearing an
officer state, “Get up and fight like a man.” Id. at ¶ 11.
Defendant Fike states that he was assigned to work as a Shift Sergeant that morning, and,
around 5:20 a.m., when the group of inmates were being escorted to the kitchen to report for
work, he heard a “loud thump and immediately looked in the direction of the noise” where he
observed the attack on Plaintiff. (Def.’s Exh. 1, Declaration of Marshall Fike, ECF No. 47-1 at
¶¶ 4-5.) As soon as he saw what was happening, he repeatedly ordered the attacker to stop and
drop the weapon. Id. at ¶ 6. The attacker did not immediately comply with his orders so he
radioed for back up while ordering everyone in the vicinity to back away. Id. He states that he
did not intervene in the assault because the attacker was swinging a lock affixed to a rope and
had he intervened he would have put himself in harm’s way. Id. at ¶ 7. He also states that Mr.
Wyne did not subdue the assailant and that the inmate eventually tossed the weapon toward him
and put his hands in the air. Id. at ¶¶ 8-9. The attacker complied with orders to lie face down on
the ground at which time Defendant Schneider placed handcuffs on him and patted him down.
Id. at ¶ 9. He also denies ever stating, or hearing anyone state, “Get up and fight like a man.” Id.
at ¶ 11.
Defendant Schneider’s recitation of events correlates with Defendant Fike’s version
except for the fact that he claims he did not intervene because he feared that he would have
gotten hurt or “knocked out” and that had he intervened Defendant Fike would have been on his
own until the other officers responded. (Def.’s Exh. 2, Declaration of Andrew Schneider, ECF
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No. 47-2 at ¶¶ 1-7.) He also denies ever stating, or hearing anyone state, “Get up and fight like a
man.” Id. at ¶ 8.
The incident reports prepared by Defendants Schneider and Fike indicate that control was
notified of the assault at 5:20 a.m. and that Lt. Bowlin arrived on the scene two minutes later, at
which time the attacker dropped the weapon. (Def.’s Exhs. 4-5, Employee Report of Incident by
Schneider and Mike, ECF Nos. 47-4, 47-5.) A nurse arrived on scene at 5:25 a.m. to tend to
Plaintiff’s injuries and take him to the medical department for treatment, via wheelchair. Id.;
ECF No. 47-1 at ¶ 10. The medical incident/injury report indicates that Plaintiff had a one-anda-quarter inch laceration on the right side of his forehead and multiple one-half to one inch
lacerations on the back of his head. (Def.’s Exh. 7, Medical Incident/Injury Report, ECF No. 477 at p.1.)
Upon evaluation, Plaintiff denied vision and hearing problems and loss of
consciousness. Id. at p.1. It was noted that his conversation was appropriate and that he could
ambulate independently. Id. There was moderate bleeding to all areas, which was controlled by
pressure and bandages. Id. Plaintiff received stitches for three of his lacerations and was kept in
the infirmary for further evaluation. Id. at p.4. He was evaluated by the nurses on multiple
occasions throughout the day and complained of having a slight headache and some pain, for
which he was given Tylenol 500mg. Id. at pp. 5-7. He was discharged back to his block the
following afternoon and his stitches were removed on November 29, 2010. Id. at p.8.
II.
EXHAUSTION OF ADMINISTRATIVE REMEDIES
Through the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.
1321 (1996), 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,
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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). Exhaustion is required under this provision regardless of the type of relief
sought and the type of relief available through administrative procedures. See Booth v. Churner,
532 U.S. 731, 741 (2001). In addition, the exhaustion requirement applies to all claims relating
to prison life which do not implicate the duration of the prisoner’s sentence, including those that
involve general circumstances as well as particular episodes. See Porter v. Nussle, 524 U.S. 516,
532 (2002). Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all
the available remedies prior to filing the action. See 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 also mandates that inmates “properly” exhaust administrative remedies before
filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules because no
adjunctive system can function effectively without imposing some orderly structure on the
course of its proceedings.” Id. at 90-91. Such requirements “eliminate unwarranted federalcourt interference with the administration of prisons, and thus seek[] to ‘affor[d] corrections
officials time and opportunity to address complaints internally before allowing the initiation of a
federal case.’”
Id. at 93 (quoting Porter, 534 U.S. at 525).
Importantly, the exhaustion
requirement may not be satisfied “by filing an untimely or otherwise procedurally defective . . .
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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). Courts have concluded that inmates
who fail to fully, or timely, complete the prison grievance process are barred from subsequently
litigating claims in federal courts. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000);
Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008); Jetter v. Beard, 183 F. App’x 178 (3d Cir.
2006).
This broad rule favoring full exhaustion admits of one, narrowly defined exception. If
the actions of prison officials directly caused the inmate’s procedural default on a grievance, the
inmate will not be held to strict compliance with this exhaustion requirement. See Camp v.
Brennan, 219 F.3d 279 (3d Cir. 2000) (Section 1997e(a) only requires that prisoners exhaust
such administrative remedies “as are available”).
However, case law recognizes a clear
“reluctance to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the statute
requires.” Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to
exhaust will only be excused “under certain limited circumstances,” Harris v. Armstrong, 149 F.
App’x 58, 59 (3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust only by
showing “he was misled or that there was some extraordinary reason he was prevented from
complying with the statutory mandate.” Davis, 49 F. App’x at 368; see also Brown v. Croak,
312 F.3d 109, 110 (3d Cir. 2002) (assuming that prisoner with failure to protect claim is entitled
to rely on instruction by prison officials to wait for outcome of internal security investigation
before filing grievance); Camp, 219 F.3d at 281 (exhaustion requirement met where Office of
Professional Responsibility fully examined merits of excessive force claim and correctional
officers impeded filing of grievance).
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In the absence of competent proof that an inmate was misled by corrections officials, or
some other extraordinary circumstances, inmate requests to excuse a failure to exhaust are
frequently rebuffed by the courts. Thus, an inmate cannot excuse a failure to timely comply with
these grievance procedures by simply claiming that his efforts constituted “substantial
compliance” with this statutory exhaustion requirement. Harris, 149 F. App’x at 59. Nor can an
inmate avoid this exhaustion requirement by merely alleging that the Department of Corrections
policies were not clearly explained to him. Davis, 49 F. App’x at 368. Thus, an inmate’s
confusion regarding these grievances procedures does not, standing alone, excuse a failure to
exhaust. Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003). Moreover, an inmate cannot cite to
alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust, if it
also appears that the prisoner did not pursue a proper grievance once those impediments were
removed. Oliver v. Moore, 145 F. App’x 731 (3d Cir. 2005) (failure to exhaust not excused if,
after staff allegedly ceased efforts to impede grievance, prisoner failed to follow through on
grievance).
III.
DISCUSSION
The Pennsylvania Department of Corrections grievance procedure, contained in DC-
ADM 804, is a three-step Inmate Grievance System that provides inmates with an avenue to seek
review of problems that may arise during the course of their confinement. Pursuant to DC-ADM
804, the Inmate Grievance System Procedure, after an attempt to resolve any problems
informally, an inmate may submit a written grievance to the facility’s Grievance Coordinator for
initial review. This must occur within fifteen working days after the events upon which the
claims are based.
Within fifteen working days of an adverse decision by the Grievance
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Coordinator, an inmate may then appeal to the Facility Manager of the institution.1 Within
fifteen working days of an adverse decision by the Facility Manager, an inmate may file a final
appeal to the Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”). An appeal to
final review cannot be completed unless an inmate complies with all established procedures. An
inmate must exhaust all three levels of review and comply with all procedural requirements of
the grievance review process in order to fully exhaust an issue. See Booth v. Churner, 206 F.3d
289, 293 n.2 (3d Cir. 2000) (outlining Pennsylvania’s grievance review process); Ingram v. SCI
Camp Hill, No. 08-23, 2010 U.S. Dist. LEXIS 127124, at *21-25 (M.D. Pa. Dec. 1, 2010)
(same).
Defendants maintain that Plaintiff did not properly exhaust his administrative remedies
pursuant to the PLRA because his initial grievance, while dated December 8, 2010, was not
received by the Grievance Coordinator until one week later, on December 15, 2010, which was
outside of the required timeframe of 15 working days. (Def.’s Exh. 3, Plaintiff’s Grievance
#346961, ECF No. 47-3 at p.2.) Plaintiff’s grievance was rejected on December 15, 2010, due to
his failure to timely submit the grievance. Id. at p.3. Plaintiff appealed the rejection of the
grievance to the Superintendent on December 17, 2010, and the Superintendent issued an appeal
response on December 30, 2010, upholding the initial rejection of Plaintiff’s grievance as being
untimely. Id. at pp.4-5. Plaintiff’s appeal to the SOIGA was received on April 12, 2011. Id. at
p.6.
On April 18, 2011, a final appeal decision was rendered by the SOIGA, dismissing
Plaintiff’s appeal at the final appeal level for being untimely. Id. at p.7.
1
The policy was last amended on December 1, 2010. The previous version of the policy only allowed ten working
days to appeal an adverse initial review decision to the facility manager.
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In response, Plaintiff states that the Grievance Coordinator miscalculated the timeliness
of his grievance and that his grievance was actually submitted within eleven working days
following the incident. Although unclear, it appears he argues that the earliest date in which he
could submit his grievance was November 24, 2010, because he was held in the RHU for three
days following the incident pending an investigation. From the Court’s calculation that would be
eleven working days before December 8, 2010, the date that he signed his grievance, but sixteen
days before his grievance was actually received. Plaintiff further asserts that the “mailbox rule”
annunciated in Houston v. Lack, 487 U.S. 266 (1998), is applicable or should be extended to
apply to the submission of his grievance to prison officials. Pursuant to the “mailbox rule,” an
inmate is deemed to have filed a pleading in state or federal court on the date that he placed his
pleading into the prison mailing system, not on the date that it was ultimately received and filed
by the clerk of the applicable court. Id. at 276. This Court has found no other court that has
applied this rule to the submission of inmate grievances or appeals during the grievance
procedure. Rather, as stated above, proper exhaustion under the PLRA mandates compliance
with the prison’s deadlines and other procedural rules. Woodford, 548 U.S. at 90-93. The
Pennsylvania Department of Corrections Inmate Grievance System Procedures Manual
specifically states that an “inmate must submit a grievance for Initial Review to the Facility
Grievance Coordinator within 15 working days after the event upon which the claim is based.”
DC-ADM 804, Sect. 1(A)(14) (emphasis added). There is nothing in the manual which allows
for the application of the prisoner mailbox rule to the submission of grievances in the context in
which Plaintiff contends.
Furthermore, the Court notes that Plaintiff’s final appeal to SOIGA was not submitted
until April 2011 (received on April 12, 2011) even though the Superintendent’s appeal response
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was rendered on December 30, 2010. Pursuant to the grievance procedure, Plaintiff had only
fifteen working days to submit his appeal to SOIGA. In his appeal letter to SOIGA Plaintiff
stated that the reason for the “delay” in filing the appeal was because he was in the RHU from
December 23, 2010, until March 23, 2011, and “did not have my copy of this and could not
respond to the decision of the Superintendent. I had wrote to him on 12/7/2010 and did not get a
response from him until Jan. 6 2011.” While Plaintiff actually submitted his appeal to the
Superintendent on December 17, 2010, and not December 7, 2010, it is unclear what the “this” is
referring to in his explanation. It appears to the Court that the “this” was the Superintendent’s
appeal response but Plaintiff stated that he received it on January 6, 2011. Regardless, he does
not explain why he waited until April to file his appeal to SOIGA or why he was prohibited from
filing his appeal while in the RHU.2 His final appeal was dismissed as untimely on April 18,
2011.
The PLRA mandates that inmates “properly” exhaust their administrative remedies
before filing suit in federal court and that demands compliance with an agency’s deadlines and
procedural rules. Woodford, 548 U.S. at 90-93. It is clear from the record that Plaintiff did not
do so in this case. Not only was his initial grievance untimely, but his final appeal was untimely
as well. We sympathize that Plaintiff was attacked by another inmate apparently unexpectedly
and unprovoked. In addition, we recognize that under certain circumstances, administrative
remedies may not be effectively “available,” preventing a timely pursuit of the prison grievance
process. See, e.g., Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (administrative remedy
unavailable where prison security officials told inmate to wait to file grievance until after the
2
The Court notes that inmates in the RHU are allowed to file grievances. Per Pennsylvania DOC policy, grievance
forms are “readily available on every housing unit.” DC-ADM 804, Sect. 1(A)(6). Even if Plaintiff was on
“grievance restriction,” he would still be allowed to file “one grievance every 15 working days.” Id. at Sect.1(C)(1).
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investigation was complete); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (administrative
remedy unavailable where inmate put on grievance restriction). However, in this case, the record
simply does not support a finding that the administrative process was unavailable to him. Even
assuming Plaintiff was told to wait to file a grievance until after the investigation concluded,
which no such allegation was even made in this case, his initial grievance was still untimely
submitted by one day because the first day he presumably could have filed his grievance was the
day he was released from the RHU, which, according to Plaintiff, was November 24, 2010.3
Thus, the Court finds that Defendants are entitled to summary judgment because Plaintiff did not
properly exhaust his administrative remedies pursuant to the PLRA.
An appropriate order
follows.
AND NOW, this 31st day of October, 2013;
IT IS HEREBY ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
44) is granted on the ground that Plaintiff did not properly exhaust his administrative remedies
pursuant to the PLRA before filing suit.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.
AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(1) of the Federal Rules
of Appellate Procedure, Petitioner has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.
3
The only evidence of record regarding any investigation that took place are four Employee Incident Reports each
dated November 21, 2010, the day of the incident, and two Extraordinary Occurrence Reports, one dated November
21, 2010, and the other dated November 22, 2010, approved on November 23, 2010. (ECF Nos. 47-4, 5, 6, 8A, 8B,
9.) There is no evidence that Plaintiff was housed in the RHU during this time or that he was told to wait to file a
grievance until the investigation had concluded. Moreover, Plaintiff’s medical records indicate that he was
“discharged to F Block as ordered” on November 22, 2010. (ECF No. 47-4 at p.7.)
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/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
Chief United States Magistrate Judge
cc: Theodore Burns
BY-9150
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Via First Class U.S. Mail
Counsel of Record
Via ECF Electronic Mail
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