BARCLAY v. GARDNER
Filing
11
MEMORANDUM OPINION AND ORDER granting 2 Motion to Dismiss that has been converted into a Motion for Summary Judgment. IT IS FURTHER ORDERED that Plaintiff's Complaint is dismissed with prejudice for his failure to exhaust administrative remedi es as required by the PLRA. IT IS FURTHER ORDERED that "Plaintiff's Objection and Non-Refusal to Process" (ECF No. 8) is DENIED to the extent he requests this Court to resolve a motion for default that he believes is still pending in t he Greene County Court of Common Pleas. IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED. AND IT IS FURTHER ORDERED that Plaintiff has thirty (30) days to file a notice of appeal if he so desires. Signed by Magistrate Judge Lisa Pupo Lenihan on October 19, 2015. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
VIRGIL BARCLAY,
Plaintiff,
v.
JAYME GARDNER,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 15 – 362
Magistrate Judge Lisa Pupo Lenihan
ECF No. 2
MEMORANDUM OPINION
Presently before this Court is Defendant’s Motion to Dismiss that was converted into a
Motion for Summary Judgement on May 18, 2015. (ECF No. 2.) For the reasons set forth
below, the Motion will be granted and Plaintiff’s Complaint will be dismissed with prejudice.
A. Background
Plaintiff, Virgil Barclay (hereinafter referred to as “Plaintiff”), initiated the instant
prisoner civil rights action in the Court of Common Pleas of Greene County at 911 AD 2014, on
or about December 18, 2014, with the filing of a Petition to Proceed in forma pauperis.1 His
Petition to Proceed in forma pauperis was granted by order dated December 30, 2014, and
thereafter Deputy Sheriffs personally served the Writ of Summons on Defendant Jayme Gardner
(hereinafter referred to as “Defendant”) on January 8, 2015. Plaintiff’s Complaint was filed with
the Greene County court on or about January 26, 2015. Defendant was served with the
Complaint on February 28, 2015.
1
This Court takes judicial notice of the docket entries in Virgil Barclay v. Jayme Gardner, CA
No. AD-911-2014 (Ct. Com. Pl. of Greene County). See, e.g., Mar Elec. Co., Inc. v. United
Jersey Bank, 959 F.2d 1194, 1200 n.3 (3d Cir. 1991).
1
Defendant removed this action to this Court by Notice of Removal filed on March 18,
2015, pursuant to 28 U.S.C. §§ 1441 and 1446. (ECF No. 1.) Shortly thereafter, Defendant filed
a Motion to Dismiss (ECF No. 2) that was converted into a Motion for Summary Judgment by
order dated May 18, 2015 (ECF No. 4). Plaintiff filed a response in opposition on June 2, 2015
(ECF No. 7) and also filed a document on June 16, 2015 titled “Plaintiff’s Objection and NonRefusal to Process” (ECF No. 8) wherein he seeks resolution of a motion for entry of default
judgment that he contends is still pending before the Greene County court. For the following
reasons, Defendant’s Motion will be granted and this action will be dismissed for Plaintiff’s
failure to exhaust his administrative remedies pursuant to the Prison Litigation Reform Act.
B. State Court Proceedings and Subsequent Removal to Federal Court
As an initial matter, Plaintiff appears to believe that he is entitled to entry of default
judgment against Defendant because the Defendant did not file a timely response to his
Complaint when this case was still in the Greene County Court of Common Pleas. As a result of
this alleged default, Plaintiff believes that the removal of this case to federal court was improper.
First, Plaintiff is incorrect in his belief that Defendant defaulted when this matter was still
in state court. Defendant was served with the Complaint on February 28, 2015, and timely
removed this case to federal court on the basis of federal question jurisdiction. Pursuant to 28
U.S.C. § 1446(b), a notice of removal must be filed within thirty days after receipt of the
defendant, through service or otherwise, of a copy of the initial pleadings. See Murphy Bros. v.
Michetti Pipe Stinging, 526 U.S. 344, 348 (1999) (holding that the time to remove is triggered by
“receipt of the complaint, ‘through service or otherwise’ after and apart from service of the
summons . . . .”); Sikirica v. Nationwide Ins. Co., 416 F.3d 214, 223 (3d Cir. 2005) (stating that
in Murphy Bros., the Supreme Court interpreted “initial pleading” to mean “complaint” so a writ
2
of summons alone can no longer be the “initial pleading” that triggers the 30-day period for
removal); Di Loreto v. Costigan, 351 F. App’x 747, 751 (3d Cir. 2009) (“[T]he removal period
for a defendant does not begin to run until that defendant is properly served or until that
defendant waives service.”). In this case, Defendant had until March 30, 2015, thirty days after
he was served with the Complaint, to file for removal. Defendant filed the Notice of Removal on
March 18, 2015, well within the statutory period. Thus, there was no default as Plaintiff
suggests.
Plaintiff also states that there is a motion for default judgment that he filed on or about
March 2, 2015 that is still pending in the state court. While Plaintiff did file two motions for
default judgment, one docketed on March 2, 2015 and the other docketed on March 31, 2015, his
complaint was subsequently dismissed on April 28, 2015, for lack of a justiciable cause of action
and lack of subject matter jurisdiction. Plaintiff filed a motion for reconsideration of that order,
but that was denied on May 21, 2015. Thus, there are no motions currently pending in state
court.
C. Failure to Exhaust Administrative Remedies
As to Defendant’s Motion to Dismiss that was converted into a Motion for Summary
Judgment, Defendant argues that Plaintiff’s Complaint should be dismissed because Plaintiff
failed to comply with the exhaustion requirement of the Prison Litigation Reform Act (“PLRA”),
42 U.S.C. § 1997e(a), which requires prisoners, as that term is defined in the statute, to exhaust
their administrative remedies prior to filing suit under 42 U.S.C. § 1983 with respect to prison
conditions. Specifically, the PLRA provides:
No action shall be brought with respect to prison conditions under section 1983 of
this title by a prisoner confined in jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.
3
Id. The United States Supreme Court has held “that the PLRA’s exhaustion requirement applies
to all inmate suits about prison life, whether they involve general circumstances or particular
episodes.” Porter v. Nussle, 534 U.S. 516 (2002). Furthermore, exhaustion is mandatory and no
case may be brought until the inmate-plaintiff has exhausted all available administrative
remedies. See Booth v. Churner, 532 U.S. 731, 739 (2001). 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 their administrative remedies
before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). Proper exhaustion
requires the prisoner to identify the issue or claim and future defendant in the operative
grievance or else the grievance is procedurally defective as to that issue, claim or future
defendant. See Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004). Additionally, “[p]roper
exhaustion demands compliance with an agency’s deadlines and other critical procedural rules.”
Woodford, 548 U.S. at 90-91. Such requirements “eliminate unwarranted federal-court
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, 372 F.3d at 228-29
(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
4
subsequently litigating claims in federal courts. See, e.g., Booth, 206 F.3d 289; Bolla v.
Strickland, 304 F. App’x 22 (3d Cir. 2008); Jetter v. Beard, 183 F. App’x 178 (3d Cir. 2006).
Plaintiff raises three counts in this Complaint, all alleging a violation of his right to
access the court under the First Amendment. Specifically, he claims that his right has been
violated because (1) he is being denied adequate access to the law library; (2) the Defendant has
willfully failed to take corrective action after receipt of two Notices of Intent to Sue; and (3) the
Defendant’s inability to run a law library has hindered his ability to adequately litigate his cases.
While Plaintiff did file two grievances which relate to the issues that he presents in his
Complaint, he did not specifically grieve any of the issues presented in his Complaint. See ECF
No. 3-1 at pp.2-3, Def.’s Ex. A, Decl. of Tracey Shawley. In Grievance # 526495, Plaintiff
claimed that he had “lost” library time as he switched his days in order to accommodate a prison
visit. See ECF No. 3-1 at pp.6-7, Def.’s Ex. B. However, he withdrew the grievance on
September 12, 2014, after he was allotted time on Saturday September 6, 2014. Id. at p.5.
Because the grievance was withdrawn it was not litigated to final review. Also, in Grievance #
536622, filed on November 18, 2014, Plaintiff claimed that he was denied by Defendant the
ability to make copies in the library under indigent status for a case that was yet to be filed. See
ECF No. 3-1 at pp.11-12, Def.’s Ex. C. Plaintiff claimed that this was done in retaliation for a
lawsuit that he intended to file against Defendant. Id. However, this grievance was not appealed
from the initial review and was not litigated to final review. Id. at pp.9-10.
Additionally, Plaintiff failed to exhaust all of the grievances that he did file during the
time period identified in the Complaint. See Def.’s Ex. A. Plaintiff states that he did not use the
DOC’s grievance system to complain about the issues in his Complaint because the grievance
system is a “sham” and does not provide an “adequate remedy”. See ECF No. 1-1 at p.2, Pl.’s
5
Compl. at ¶ 8. Instead, he gave the Defendant written notice of the problems through a Notice of
Intent to Sue and sought recourse in the courts after Defendant failed to respond. Id.
To the extent Plaintiff argues that he failed to pursue his administrative remedies because
to do so would have been futile, the Third Circuit Court of Appeals has specifically stated that
there is no “futility” exception to the PLRA’s mandatory exhaustion requirement. See Nyhuis,
204 F.3d at 71. As stated by the Third Circuit, “it is beyond the power of the court – or any other
– to excuse compliance with the exhaustion requirement, whether on the ground of futility,
inadequacy or any other basis.” Id. at 73 (quotation omitted). Therefore, to the extent Plaintiff
alleges that exhaustion would have been futile, the Court rejects this claim.2
For the aforementioned reasons, Defendant’s Motion will be granted and Plaintiff’s
Complaint will be dismissed with prejudice. An appropriate Order follows.
Dated: October 19, 2015
________________________
Lisa Pupo Lenihan
United States Magistrate Judge
cc: Virgil Barclay
BM9109
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Counsel of record
Via CM/ECF Electronic Mail
2
The Third Circuit has excused the failure to exhaust in limited circumstances when the
grievance procedure is unavailable to the prisoner. See, e.g., Brown v. Croak, 312 F.3d 109, 113
(3d Cir. 2002) (prison officials’ instruction that plaintiff must delay filing grievance would
render the grievance procedure unavailable); Camp v. Brennan, 219 F.3d 279, 280-81 (3d Cir.
2000) (correctional officers impeding plaintiff’s ability to file a grievance renders grievance
procedure unavailable). However, this was not the situation in this case.
6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
VIRGIL BARCLAY,
Plaintiff,
v.
JAYME GARDNER,
Defendant.
)
)
)
)
)
)
)
)
)
Civil Action No. 15 – 362
Magistrate Judge Lisa Pupo Lenihan
ORDER
AND NOW, this 19th day of October, 2015, after consideration of the briefs and
documents filed in this case,
IT IS HEREBY ORDERED that Defendant’s Motion to Dismiss that has been
converted into a Motion for Summary Judgment (ECF No. 2) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Complaint is dismissed with
prejudice for his failure to exhaust his administrative remedies as required by the PLRA.
IT IS FURTHER ORDERED that “Plaintiff’s Objection and Non-Refusal to
Process” (ECF No. 8) is DENIED to the extent he requests this Court to resolve a motion
for default that he believes is still pending in the Greene County Court of Common Pleas.
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, if any party wishes to appeal from this Order a notice of appeal, as
provided in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court,
7
at 700 Grant Street, Room 3110, Pittsburgh, PA 15219, within thirty (30) days.
________________________
Lisa Pupo Lenihan
United States Magistrate Judge
cc: Virgil Barclay
BM9109
SCI Greene
175 Progress Drive
Waynesburg, PA 15370
Counsel of record
Via CM/ECF Electronic Mail
8
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?