FAHEY v. S.C.I. GREENE et al

Filing 67

MEMORANDUM OPINION that 59 MOTION for Summary Judgment filed by DAVID SACKS is denied. An appropriate Order to follow. Signed by Magistrate Judge Susan Paradise Baxter on 3/27/18. (lrw)

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

WARREN FAHEY,
Plaintiff,

v.

DAVID SACKS,
Defendant.

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Civil Action No. 15-431Pittsburgh

Magistrate Judge Baxter

MEMORANDUM OPINION1
United States Magistrate Judge Susan Paradise Baxter

Relevant Procedural History
This civil action was filed in this Court on March 31, 2015. Plaintiff, an inmate
incarcerated at the State Correctional Institution at Greene, brings this action against Defendant
David Sacks, a member of SCI-Greene’s psychology department.
In his counseled amended complaint, Plaintiff alleges that in retaliation for Plaintiff
bringing grievances against Defendant, Defendant issued Plaintiff an unfounded misconduct
causing Plaintiff to spend over seventy days in a restricted housing unit and resulting in the
denial of parole for Plaintiff. Plaintiff further alleges that Defendant acted with deliberate
indifference to Plaintiff’s paranoid schizophrenia by refusing to acknowledge Plaintiff’s
diagnosis and accusing Plaintiff of falsifying his symptoms in order to receive special treatment.
As such, Defendant has denied Plaintiff’s request to live in single-cell housing, a request that has

The parties have consented to having a United States Magistrate Judge exercise jurisdiction
over this matter. ECF No. 8; ECF No. 55.
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been routinely granted for Plaintiff in the past in order to preserve the safety of Plaintiff and
those around him and to prevent the deterioration of Plaintiff’s mental condition. Plaintiff claims
his First Amendment and Eighth Amendment rights have been violated by Defendant’s conduct.
ECF No. 39.
Defendant filed a motion for summary judgment based solely on Plaintiff’s failure to
exhaust administrative remedies in accordance with the Prison Litigation Reform Act. ECF No.
59. Plaintiff has filed a brief in opposition arguing that Plaintiff’s failure should be excused due
to his fear of retaliation. ECF No. 65. This motion is fully briefed and is ripe for disposition by
this Court.

Standard of Review - Motion for summary judgment
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.” When applying this standard, the court must examine
the factual record and reasonable inferences therefrom in the light most favorable to the party
opposing summary judgment. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986).
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 Corp. v. Catrett, 477 U.S. 317, 330
(1986); 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). The burden then shifts to the nonmovant to come forward with specific facts showing a genuine issue for trial. Fed. R. Civ. P.
56(e); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989) (the non-

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movant must present affirmative evidence - more than a scintilla but less than a preponderance which supports each element of his claim to defeat a properly presented motion for summary
judgment). The non-moving party must go beyond the pleadings and show specific facts by
affidavit or by information contained in the filed documents (i.e., depositions, answers to
interrogatories and admissions) to meet his burden of proving elements essential to his claim.
Celotex, 477 U.S. at 322. See also Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
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 v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The court must consider the evidence, and all
reasonable inferences which may be drawn from it, in the light most favorable to the non-moving
party. Matsushita, 475 U.S. at 587.

The Allegations of the Complaint2
In 2003, Plaintiff was evaluated at SCI Graterford and was diagnosed with paranoid
schizophrenia. ECF No. 39, ¶ 7. On September 7, 2014, Defendant Sacks, an employee in SCI
Greene’s psychology department, requested to meet with Plaintiff. Id. at ¶ 10. During the
meeting, Defendant questioned Plaintiff about his paranoid schizophrenia. Plaintiff replied by
describing his experience with the disorder as having troublesome thoughts and hearing voices.
Id. at ¶ 11. Defendant responded that his issues were “not a real disorder” and accused Plaintiff
of fabricating his symptoms in order to received special treatment. Id. at ¶ 12.

Because the Concise Statements do not address the factual underpinnings of the claims, this
Court herein restates the allegations of Plaintiff’s complaint in order to provide context.
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After the meeting, Plaintiff filed grievances against Defendant on October 16, 2014. Id. at
¶ 13. All of Plaintiff’s grievances against Defendant were ultimately denied. Id. at ¶ 14.
On November 5, 2014, less than a month after Plaintiff had filed grievances against
Defendant and about a week before Plaintiff’s first parole hearing, Defendant issued Plaintiff a
misconduct for allegedly using “inappropriate language” and telling cellmates to worship Satan.
Id. at ¶ 15. As a result of the misconduct, Plaintiff was sent to Restricted Housing Unit and
remained there for 72 days. Id. at ¶ ¶ 17-18. On November 13, 2015, Plaintiff was denied parole.
Among the reasons listed for the denial were “report and evaluations, which includes
consideration of any misconducts.” Id. at ¶ 20. Plaintiff was denied parole as a result of the
misconduct issued by Defendant. Id. at ¶ 21. On April, 27, 2015, Plaintiff was again denied
parole. Id. at ¶ 23.
At Count I, Plaintiff alleges that Defendant Sacks retaliated against him for the filing of
the grievance. At Count II, Plaintiff alleges that Defendant was deliberately indifferent to the
serious medical needs of Plaintiff by 1) refusing to acknowledge the existence of Plaintiff’s
condition and to treat the condition; 2) the inexcusable delay in obtaining proper medication to
alleviate Plaintiff’s symptoms; and 3) the refusal to grant Plaintiff’s reasonable request for
special housing arrangement in order to alleviate Plaintiff’s symptoms, avoid conflicts with
Plaintiff’s cellmates, and increase Plaintiff’s safety and the safety of those around him. Id. at ¶
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The Prison Litigation Reform Act
The Exhaustion Requirement
Defendant argues that he is entitled to summary judgment based on Plaintiff’s failure to
exhaust administrative remedies in accordance with the requirement of the Prison Litigation
Reform Act.
A sister court within the Middle District has concisely summarized the burdens of proof
on the failure to exhaust defense:
Failure to exhaust available administrative remedies is an affirmative defense that
must be pleaded and proven by the defendant. But once the defendant has carried
that burden, the prisoner has the burden of production. That is, the burden shifts to
the prisoner to come forward with evidence showing that there is something in his
particular case that made the existing and generally available administrative
remedies effectively unavailable to him. However, as required by the Supreme
Court, the ultimate burden of proof remains with the defendant.
Njos v. Argueta, 2017 WL 1304301, at *2 (M.D. Pa. Feb.23, 2017) (internal citation omitted).3
The PLRA, 42 U.S.C. § 1997e(a) provides:
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 exhausted.
Id. 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); Cutter v. Wilkinson, 544 U.S. 709, 723 n.12
(2005) (noting that the PLRA requires that “a prisoner may not sue under RLUIPA without first
exhausting all available administrative remedies.”); Concepcion v. Morton, 306 F.3d 1347 (3d
It is not a plaintiff’s burden to affirmatively plead exhaustion. Jones v. Bock, 549 U.S. 199,
217 (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).
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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).4 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
exhaustion”).5
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
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
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.”).
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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.”).
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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.”).
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. See also Spruill, 372 F.3d at 231 (having
concluded that the PLRA includes a procedural default component, the Court then indicated that
“prison grievance procedures supply the yardstick for measuring procedural default.”).

The Administrative Process Available to State Inmates
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, also known as the Secretary’s Office of Inmate Grievances
and Appeals (“SOIGA”), 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).

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Plaintiff’s utilization of the grievance system
The parties agree that Plaintiff did not fully and properly exhaust his administrative
remedies as to the legal claims raised in this case. The evidence reflects that Plaintiff filed two
grievances about the psychology staff during the relevant time period. On October 21, 2014,
Plaintiff filed Grievance 532605 about interaction that he had with Defendant David Sacks. ECF
No. 62, ¶ 6. The grievance was rejected because it did not include a date and the rejection noted
that the Grievance could be resubmitted to cure the deficiency within five business days. Id. at ¶
¶ 7-8. On October 27th, Plaintiff resubmitted the grievance giving a date of October 14th as the
date of his interaction with Defendant Sacks. Id. at ¶ 9. On November 17, 2014, Plaintiff
received a response to his grievance which indicated:
In reviewing documentation and staff interviews related to the above mentioned
interaction(s) all applicable policies and procedures were adhered to and there is
no evidence supporting this grievance. A review of the facts clearly demonstrates
that Mr. Fahey LP0255 is receiving the appropriate level of [mental health] care.
All applicable policies and procedures are being adhered to in addressing his
[mental health] concerns. The grievance is denied and Mr. Fahey is encouraged to
partner with his treatment providers as he experiences the appropriate level of
care. He is further encouraged to work with his unit team regarding the potential
for an incentive based transfer.
ECF No. 61-1, page 76.
On November 5, 2014, after Plaintiff had resubmitted this grievance, Defendant Sacks
issued a retaliatory misconduct to Plaintiff, which resulted in Plaintiff being sentenced to ninety
days in Restricted Housing. ECF No. 61-1, Exhibit 3.6 Then, Plaintiff filed Grievance 536685
complaining that Defendant’s threats, as set out in Grievance 532605, had been realized and that

Defendant has not filed a response to Plaintiff’s concise statement as is required by the Federal
and Local Rules of Civil Procedure. This Court will consider these facts undisputed for purposes
of this motion. See Fed.R.Civ.P. 56.
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Defendant Sacks had issued a misconduct in retaliation for the filing of 532605. Both grievances
were denied for reasons that Plaintiff disputes. Plaintiff maintains that he did not appeal either of
these grievances to final review as he was afraid of the potential for additional retaliatory
conduct from Defendant. See ECF No. 61-1.
Interference with an inmate's attempts at exhaustion impacts the availability of the
administrative remedy process. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003) (“A
grievance procedure is not available even if one exists on paper if the defendant prison officials
somehow prevent a prisoner from using it.”).7 Although there is no precedential Third Circuit
case that is precisely on point with the facts of this case, the Third Circuit has cited with approval
the decisions of other Circuits formally recognizing that the fear of retaliation can render
administrative remedies unavailable. See Williams v. Gavin, 640 Fed.App’x 152, 155 (3d Cir.
2016) citing Turner v. Burnside, 541 F.3d 1077, 1084 (11th Cir. 2008); Kaba v. Stepp, 458 F.3d
678, 684-86 (7th Cir. 2006); and Hemphill v. New York, 380 F.3d 680, 686-87 (2d Cir. 2004);
Verbanik v. Harlow, 441 Fed.App’x 931, 935 (3d Cir. 2011) (“… [A]s there is a question
whether administrative remedies were rendered unavailable as to all of Verbanik’s claims by
defendants’’ alleged retaliatory actions, we will vacate the District Court’s order and will remand
for further proceedings.”).
Because Defendant has not met his burden to demonstrate that Plaintiff failed to exhaust
his administrative remedies and because Plaintiff has produced evidence that the full
See also Berry v. Klem, 283 Fed.App’x 1, 5 (3d Cir. 2009) (“[Plaintiff] contended that the
severity of his injuries prevented him from timely filing his initial grievance. [ ... and] also
argued that the administrative grievance process was not available to him because he feared
serious harm for filing a grievance. While that claim may not ultimately prevail, his allegations
put in question the availability of the remedy.”); McKinney v. Guthrie, 2009 WL 274159, at *1
(3d Cir. 2009) (“[A]n administrative remedy may be unavailable if a prisoner is prevented by
prison authorities from pursuing the prison grievance process.”).
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administrative remedy process may not have been available to him, summary judgment will be
denied.8

An appropriate order follows.

/s/ Susan Paradise Baxter
SUSAN PARADISE BAXTER
United States Magistrate Judge
Dated: March 27, 2018

The issue of exhaustion may need to be resolved through an evidentiary hearing. See Small v.
Camden County, 728 F.3d 265 (3d Cir. 2013); Scott v. Erdogan, 2016 WL 4154939, at * 2 (M.D.
Pa. 2016) citing Small, 728 F.3d at 268 (“Where this process entails fact-finding and resolution
of factual disputes, the Court may resolve the issue of exhaustion through an evidentiary
hearing.”).
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