HAKALA v. PARK et al

Filing 84

MEMORANDUM OPINION on Defendant B. Bilohlavek's Motion for Summary Judgment [ECF No.61]. The Motion will be denied. An appropriate Order will follow. Signed by Magistrate Judge Lisa Pupo Lenihan on 3/6/2015. (vad)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
GARY HAKALA
Plaintiff,
v.
DR. MIN PARK, M.D.,
DR. PHILLIP BALK, M.D.,
B. BILOHLAVEK, R.N., and
DARLA COWDEN, M.P.A.
Defendants.

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Civil Action No. 12-1506

Magistrate Judge Lenihan

ECF No. 61

MEMORANDUM OPINION

Lenihan, Magistrate Judge
Presently before the Court is the Motion for Summary Judgment filed by Defendant B.
Bilohlavek, R.N. (ECF No. 61.) For the reasons discussed below, the Court will deny the
Motion.

FACTS
The following facts are undisputed unless otherwise indicated and are taken from the
parties’ Statement of Material Facts and Response thereto at ECF Nos. 63 & 67.1 Plaintiff Gary
Hakala (“Plaintiff”) is an inmate currently incarcerated within the Pennsylvania Department of
Corrections (“DOC”) at the State Correctional Institution (“SCI”) at Albion. (ECF Nos. 63 & 67
at ¶ 1.) The moving Defendant is Byron Bilohlavek (“Defendant” or “Bilohlavek”), a registered
nurse at SCI-Fayette. (ECF Nos. 63 & 67 at ¶ 2.) The above captioned case arises from
Plaintiff’s incarceration at SCI-Fayette in 2009 and 2010. (ECF Nos. 63 & 67 at ¶ 3.)

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Where appropriate, the Court also relies on underlying documentation and the Plaintiff’s Complaint at ECF No.4.

Plaintiff claims that Bilohlavek and the three (3) other named Defendants refused to treat
Plaintiff for lung cancer in 2009 and 2010 while incarcerated at SCI-Fayette. (ECF Nos. 63 &
67 at ¶ 4.) Plaintiff alleges that he complained about breathing problems, and sought, but was
denied, medical treatment at an outside hospital. (ECF Nos. 63 & 67 at ¶ 5.) Plaintiff further
alleges that in September 2010, Defendants falsified his medical records indicating that he had
no issues concerning his lungs and cleared him for release. (ECF Nos. 63 & 67 at ¶ 6; ECF No.
4 at 2, ¶ IV.C.) Plaintiff claims that just after his release, he was examined by an outside
physician and told there was a mass on his lung. (ECF Nos. 63 & 67 at ¶ 7.) In October 2010, a
CT scan and biopsy confirmed he had lung cancer. (ECF Nos. 63 & 67 at ¶ 8.) Plaintiff claims
that an outside physician opined that the mass had to have been known by SCI-Fayette medical
staff upon review of xrays. (ECF Nos. 63 & 67 at ¶ 9.) Plaintiff had a portion of his lung
surgically removed. (ECF Nos. 63 & 67 at ¶ 10.)
It is undisputed that Plaintiff failed to utilize the grievance procedure at SCI-Fayette.
(ECF Nos. 63 & 67 at ¶¶ 13-14.) Plaintiff explained that he failed to use the grievance procedure
because he was not aware that he had lung cancer until after he was paroled from SCI-Fayette.
(ECF Nos. 63 & 67 at ¶ 15.)
On July 7, 2011, Plaintiff was incarcerated at SCI-Albion due to a parole violation. (ECF
Nos. 63 & 67 at ¶ 11.) On October 18, 2012, Plaintiff filed the above-captioned case, pro se,
while an inmate at SCI-Albion. (ECF Nos. 63 & 67 at ¶ 12.) On November 30, 2012, this Court
entered an Order granting Plaintiff’s Motion for Appointment of Counsel. On February 27,
2013, Attorney Brian C. Bevan (“Bevan”) accepted the request to represent Plaintiff. (ECF No.
12.) On August 5, 2014, Attorney Bevan filed a Motion to Withdraw as Attorney (ECF No. 71),
which was granted by this Court on August 7, 2014 (ECF No. 75).

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LEGAL STANDARD
Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving
party, “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.” 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 essential 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, 322 (1986). The moving party bears the initial
burden of identifying evidence, or the lack thereof, which demonstrates the absence of a genuine
issue of material fact. Nat’l State Bank v. Fed. Reserve Bank of New York, 979 F.2d 1579, 158182 (3d Cir. 1992) (citing Celotex, 477 U.S. at 323-25). Once that burden has been met, the
nonmoving party may not rest on the allegations in the complaint, but must “go beyond the
pleadings and by [his] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Celotex, 477 U.S. at 324 (quoting Fed. R. Civ. P. 56(e) (1963)). See also Orsatti v. New Jersey
State Police, 71 F.3d 480, 484 (3d Cir. 1995) (“plaintiff cannot resist a properly supported
motion for summary judgment merely by restating the allegations of his complaint, but must
point to concrete evidence in the record that supports each and every essential element of his
case.”) (citing Celotex, 477 U.S. at 322).
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, 248 (1986).
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)(2); Celotex, 477 U.S.
at 324; J.F. Feeser, Inc. v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).

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ANALYSIS
Defendant Bilohlavek’s only argument in support of his Motion for Summary Judgment
is that Plaintiff failed to exhaust his administrative remedies while at SCI-Fayette. It is
undisputed that Plaintiff did not avail himself of the Inmate Grievance System.
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,
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) (emphasis added by Court). 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

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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 . . .
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

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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), cited in, Williams v. Gavins, No. 1:13-CV-0387, 2013 WL
5408638, *5 & *6 (M.D. Pa. Sept. 25, 2013).
Here, Plaintiff has come forward with evidence from which a reasonable finder of fact
could conclude that the administrative remedies at SCI-Fayette were unavailable to him. For
purposes of resolving factual disputes relevant to the exhaustion issue, this Court may act “as the
fact finder because exhaustion constitutes a preliminary issue for which no right to a jury trial
exists.” See Small v. Camden Cnty., 728 F.3d 265, 271 (3d Cir. 2013); Drippe v. Tobelinski, 604
F.3d 778, 782 (3d Cir. 2010).
While it would have been far more effective if appointed pro bono counsel had filed, at
minimum, an affidavit from Plaintiff setting forth the material and relevant facts in his favor,
Plaintiff’s Complaint at ECF No. 4 may be considered by this Court as an affidavit for purposes
of Federal Rule of Civil Procedure 56.2 That is, Plaintiff’s Complaint concludes as follows: “I
declare under penalty of perjury that the foregoing is true and correct. October 14, 2012.
[signed] Gary Hakala.” (ECF No. 4 at 3-4.) Therein, Plaintiff states that he “complained several
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Effective December 2010, Federal Rule of Civil Procedure 56 was amended to provide that a declaration, an
unsworn statement subscribed to under penalty of perjury, can substitute for an affidavit. See Fed. R. Civ. P. 56
Advisory Committee Note to 2010 Amendments (“Subdivision (c)(4) carries forward some of the provisions of
former subdivision (e)(1) . . . . A formal affidavit is no longer required. 28 U.S.C. § 1746 allows a written unsworn
declaration, certificate, verification, or statement subscribed in proper form as true under penalty of perjury to
substitute for an affidavit.”). See also Ray v. Pinnacle Health Hosps., Inc., 416 F. App’x 157, 164 n.8 (3d Cir. 2010)
(“Unsworn declarations may substitute for sworn affidavits where they are made under penalty of perjury and
otherwise comply with the requirements of 28 U.S.C. § 1746.”). If executed within the United States, 28 U.S.C. §
1746 provides that the unsworn declarations must be in substantially the following form: “I declare (or certify,
verify, or state) under penalty of perjury that the foregoing is true and correct. Executed on (date). (Signature).”

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times about breathing problems and pain.” (ECF No. 4 at 2.) He continues that he “asked to be
seen at an outside hospital, but, [sic] was denied.” (ECF No. 4 at 2.) Plaintiff further states that
Defendants told him in September 2010, that he “had no medical issues concerning his lungs and
cleared Plaintiff for release.” (ECF No. 4 at 2.) Plaintiff then states that “[j]ust after being
released, Plaintiff was examined by a doctor who told Plaintiff that there was a mass on his lung
which needed to be diagnosed ASAP. On October 27, 2010, after a ‘CT’ scan and a biopsy,
Plaintiff was told that he had cancer.” (ECF No. 4 at 2.) The parties do not dispute that
thereafter, Plaintiff had a portion of his lung surgically removed. (ECF Nos. 63 & 67 at ¶ 10.)
Clearly, when Plaintiff was told by prison medical officials that he had no medical issues
concerning his lungs, Plaintiff would have had no reason to file a grievance. Moreover, when
Plaintiff did discover that he had lung cancer in October 2010, he was no longer incarcerated,
and therefore, was unable to file a grievance. Although Plaintiff was again incarcerated in July
2011 for a parole violation, the time had long since passed for the timely filing of a grievance.
(ECF Nos. 63 & 67 at ¶ 11.) Consequently, one of the main purposes of the requirement, to
“affor[d] corrections officials time and opportunity to address complaints internally” would by
that time have become futile. See Woodford, 548 U.S. at 93. Hence, Plaintiff found himself in a
“Catch 22” that was not of his making.3
Therefore, this Court finds that Plaintiff was unable to exhaust his administrative
remedies through no fault of his own, and therefore, he may proceed with his Eighth Amendment
claim. Hence, Defendant Bilohlavek’s Motion for Summary Judgment on the issue of
exhaustion will be denied.

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Because the moving Defendant’s Motion for Summary Judgment is premised upon the issue of exhaustion only,
Plaintiff need not come forward at this time with his evidence as to whether Defendant Bilohlavek violated his
Eighth Amendment right to medical care for serious medical needs by deliberately falsifying his prison medical
records in September 2010.

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An appropriate Order will follow.

BY THE COURT

s/Lisa Pupo Lenihan
LISA PUPO LENIHAN
United States Magistrate Judge

Dated: March 6, 2015

cc:

GARY HAKALA
HC-6218
727 Mercer Road
Beaver Falls, PA 15010
All counsel of record
Via electronic filing

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