SMITH v. SECRETARY OF PENNSYLVANIA DEPARTMENT OF CORRECTIONS et al
ORDER GRANTING 26 Motion for Summary Judgment. The Clerk of Court shall mark this CASE CLOSED. Signed by Chief Magistrate Judge Maureen P. Kelly on 01/03/18. A copy of this Order will be mailed to Plaintiff this day, 01/03/18. (eca)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
.ANTHONY TUSWEET SMITH,
SECRETARY OF PENNSYLVANIA
DEPARTMENT OF CORRECTIONS, SCI
GREENE FACILITY MANAGER, SCI
GREENE CAPTAIN SHRADER, SCI
GREENE RHU LT. MORRIS, SCI GREENE
RHU SGT. TIKEY, SCI GREENE C/O
ARBABELL, SCI GREENE C/O CARTER,
SCI GREENE C/O HOLLOWOOD, SCI
GREENE C/O LEWIS, SCI GREENE C/O
RIDDLE, SCI GREENE C/O RECICHAR,
Civil Action No. 17-93
Chief Magistrate Judge Maureen P. Kelly
Re: ECF No. 26
OPINION AND ORDER ·.
KELLY, Chief Magistrate Judge 1
Plaintiff Anthony Tusweet Smith ("Plaintiff') is an inmate in the custody of the
Pennsylvania Department of Corrections ("DOC"), and is presently incarcerated at the State
Correctional Institution at Greene ("SCI Greene"). Plaintiff brings this civil rights action against
Defendants Secretary of Pennsylvania Department of Corrections; SCI Greene F-Unit Manager;
SCI Greene Captain Shrader; SCI Greene RHU Lt. Morris; SCI Greene RHU Sgt. Tikey
("Tikey"); SCI Greene C/O Arbabell; SCI Greene C/O Carter; SCI Greene C/O Hollowood
("Hollowood"); SCI Greene C/O Lewis; SCI Greene C/O Riddle ("Riddle"); SCI Greene C/O
Recichar; and SCI Greene Facility Manager, alleging that cavity/strip searches are being
conducted to harass Level· 5 prisoners and deter them from participating in Level 5 activities and
In accordance with the provisions of28 U.S.C. § 636(c)(l), the parties voluntarily consented to having a United
States Magistrate Judge conduct proceedings in this case, including the entry ofa final judgment. ECF Nos. 14, 18.
that Defendants have retaliated against him for filing a grievance relative to the strip/cavity
Plaintiff submitted the instant Complaint on January 19, 2017, which was filed with the
Court on April 17, 2017. ECF Nos. 1, 6. On August 3, 2017, Defendants filed a Motion for
Leave to file a Motion for Summary Judgment on the Issue of Exhaustion Only, which was
granted by the Court_ on August 4, 2017. ECF Nos. 23, 24. Defendants were directed to file the
Motion for Summary Judgment by August 18, 2017 and, at the same time, Plaintiff was ordered
to file a response to the Motion by September 18, 2017. ECF No. 24. Defendants timely filed
their Motion for Summary Judgment on August 14, 2017, ·and on September 25, 2017, having
failed to receive Plaintiffs response to the Motion as ordered, the Court issued an Order to Show
Cause directing Plaintiff to show cause why the Motion "should not be gra!J.ted for failing to
respond. ECF No. 31. In his response to the Order to. Show Cause, Plaintiff indicated, amongst
other things, that he did not receive the Court's Order granting Defendants leave·to file the
Motion for Summary Judgment and setting the briefing schedule. ECF No. 33. Plaintiff also
indicated that he is unable to substantiate that he exhausted his administrative remedies absent
discovery. Id. Consequently, the Court ordered Defendants to provide Plaintiff with any and all
documents relevant to the issue of exhaustion that had not already been produced in conjunction
with Defendants' Motion for Summary Judgment and to do so by October 30, 2017. The Court
also extended the time for Plaintiff to respond to the Motion for Summary Judgment until
11/30/2017. 10/16/17 Text Order; ECJ:'. No. 34. In a letter dated October 23, 2017, Defendants
represented that all of the documents related to the issue of exhaustion had been provided to
Plaintiff in the Appendix to the Motion for Summary Judgment and thus no further discovery
Plaintiffs complaint alleges that the strip and cavity searches consisted of requiring him to "bare body, expose my
orifice - tongue, gums, ears, and anus, lift my penis to view the scrotum and lift the scrotum." ECF No. 6, p. 2.
would be forthcoming. ECF No. 36-1at2. Plairitiff subseguently requested an extension of time
to fil~ his response, which was granted by the c'ourt. ECF Nos. 38, 40. Plaintiff filed his
Response to Defendants' Motion for Summary Judgment on December 27, 2017. ECF Nos. 38,
40, 41. As such, the Motion is ripe for review. For the reasons that follow, the Motion for
Summary Judgment will be granted.
STANDARD OF. REVIEW
Rule 56 of the Federal Rules of Civil Procedure provides that: "The court shall grant
summary judgment ifthe movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). An issue of
material fact is in genuine dispute if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
See Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007) ("A genuine issue is present
when a reasonable trier of fact, viewing all of the record evid,ence, could rationally find in favor
of the non-moving party in light of his burden of proof'). Thus, summary judgment is warranted
where, "after adequate time for discovery and upon motion ... a party ... fails to make a
showing sufficient to establish the existence of an element essential to that P?It:Y' s case, and on
which that party will bear the burden of proof at trial." Marten v. Godwin, 499 F.3d 290, 295
(3d Cir. 2007), quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
The moving party bears the initial burden of demonstrating to the court that there is an
absence of evidence to support the non-moving party;s case. Celotex Corp. v. Catrett, 477 U.S,
317, 322 (1986). See Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir.
2004). "[W]hen the moving party has carried its burden under Rule 56(c), its opponent must do
more than simply show that there is some metaphysical doubt as to the material facts .... Where
the record taken as a whole could not lead a rational trier of fact to find for the nonmoviµg party,
there is no genuine issue for trial." Scott v. Harris, 550 U.S. 372, 380 (2007), quoting Matsushita
Elec. Indus. Co. v. Zenith Radio Coro., 475 U.S. 574, 586-87 (1986).
In deciding a summary judgment motion; a court must view the facts in the light most
favorable to the nonmoving party and must draw all reasonable inferences, and resolve all doubts
in favor of the nonmoving party. Matreale v. N.l Dep't of Military & Veterans Affairs, 487
F.3d 150, 152 (3d Cif. 2007); Woodside v. ~ch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130
(3d Cir. 2001).
The Prison Litigation Reform Act ("PLRA"), requires a prisoner filing a Section 1983
action to exhaust all administrative remedies before filing a claim in federal court. 42 U.S.C. §
1997(e)(a). 3 See Spruill v. Gillis, 372 F.3d 218, 228 (3d Cir. 2004). See also Nyhuis v. Reno,
204 F.3d 65, 73, (3d Cir. 2000) ("it is beyond the power of the court to excuse compliance with
the exhaustion requirement"). In order to properly exhaust his or her administrative remedies, a
plaintiff must be in "compliance with an agency's deadlines and other critical procedural rules ..
. ." Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). The DOC's Grievance System Policy, DCADM 804, sets out a three-step grievance and appeals process. First, an inmate is required to
legibly set forth all facts and identify all persons relevant to his claim in a grievance which will
then be subject to "initial review." Spruill v. Gillis, 372 F.3d at 232, 233. Second, after the
initial review by a grievance officer, the inmate must file an appeal to the Facility Administrator
Specifically, the PLRA states that:
No action shall be brought with respect to prison conditions under section 1983 of this Title, or any
other Federal law by a prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are avi,tilable are exhausted.
42 U.S.C. § 1997e(a).
for a second level of review. Id. at p. 232. Finally, the inmate is required to file an appeal to the
Secretary's Office of.Inmate Grievances and Appeals ("the Secretary's Office"). Id.
In addition, the United States Court of Appeals for the Third Circuit has found that the
PLRA's exhaustion requirement includes a procedural default component which requires more
than "simple" exhaustion; it requires "proper" exhaustion. Id. at 228, 230. Thus, where the
inmate fails to specifically name the individual in the grievance or where the grievance is
untimely or otherwise defective, claims against an accused individual are procedurally defaulted.
Id. at 234 .. See Woodford v. Ngo, 548 U.S. at 90-91 (exhaustion of administrative remedies
· under the PLRA requires "using all steps that the agency holds out," and "demands compliance
with an agency's deadlines and other critical procedural rules") (internal quotations and citations
Moreover, courts have held that the mandatory language contained in the DOC's policy
governing inmate grievances, which provides that, "the inmate must request the specific relief
sought in his/her initial grievance" if the inmate desires compensation or other legal relief
normally available from a court, requires an inmate who seeks legal relief from a Court to state
in the grievance what relief is sought (e.g. monetary relief) or else he has not properly exhausted
administrative remedies as to any legal remedies not mentioned in that grievance. ECF No. 29-1
Mobley v. Snyder, No. 1:13-772, 2015 WL 5123909, at *7-9 (M.D. Pa.
Sept. 1, 2015),favorably cited by Mayon v. Capozza, No. 2:14-1203, 2017 WL 476790, at *8
(W.D. Pa. Feb. 6, 2017); Sanders v. Beard, No. 3:09-1384, 2013 WL 1703582, at *6 (M.D. Pa.
April 19, 2013); Collins v. Walsh, No. 1:09-1932, 2012 WL 3536803, at *3-4 (M.D. Pa. Aug.
15, 2012); Stafford v. Wetzel, No. 4:13-2026, 2016 WL 5171725, at *5 (M.D. Pa. Sept. 21,
2016), citing Geisler v. Hoffman, No. 99-1971, slip op. at 4 (3d Cir. Sept. 29, 2000).
Failure to exhaust administrative remedies is an affirmative defense and, hence, the
burden lies with party asserting it. Karpielv. Ogg, Cordes, Murphy & Ignelzi, LLP, 297 F.
App'x 192, 193 (3d Cir. 2008).
Here, it is clear from the record that Plaintiff has not only failed to exhaust his
administrative remedies but that his claims are procedurally defaulted as well.
A. Grievance No. 636685
Relative to this case, Plaintiff filed Grievance No. 636685 on July 31, 2016, in which he
complained that the strip/cavity searches performed on Level 5 inmates every time they leave
their cells are designed to harass and dissuade the inmates from participating in Level 5
activities. ECF No. 29-1 at 2. The grievance was denied and that finding was upheld at the
second level ofreview on September 8, 2016. Id. at 3, 5. Although Plaintiff filed a timely
appeal to the Secretary's Office for a third level of review, Plaintiff failed to,provide the
complete documentation relevant to the appeal. Id. at 6-8. Plaintiff was so notified on
September 27, 2016, and given another fifteen days, or until October 12, 2016, to provide the
required documentation. Id. at 8. Plaintiff failed to provide the documentation in a timely
fashion, id. at 9, and on February 7, 2017, the appeal was ultimately dismissed as untimely. Id.
In response to Defendants' motion, Plaintiff argues that DOC's grievance procedure
requirements are inapplicable because the cavity/strip searches were ei:nployed to sexually abuse
and harass the Plaintiff. ECF No. 41 at 5. Plaintiff states that because of the sexual nature of his
complaint, pursuant to DC-ADM 008 (Prison Rape Elimination Act) and DC ADM 804.1.A.6,
his grievances should have been referred immediately to the "Security Office and the PCM for
investigation &, tracking, and not addressed in the Grievance System." Id. According to
Plaintiff, pursuant to these alternative complaint processes for sexual abuse complaints, he has
timely and fully exhausted all grievances related to the searches.
The Court notes that this is the first occasion that Plaintiff has claimed a sexual
motivation for the security searches, which are required of all inmates assigned to the Restricted
Housing Unit. As described in detail by the Plaintiff in his C,omplaint, the strip and cavity
searches were conducted in accordance with approved institutional security policy,
Brown v. Blaine, 185 F. App'x 166 (3d Cir. 2006), were not sexual in nature, and do not
implicate either of the cited alternative grievance or complaint processes. Plaintiffs belated recharacterization of the
does not alter the procedural path that he was required
to follow to meet the exhaustion mandate of the PLRA.
Alternatively, Plaintiff argues that any delays in timely perfecting his final appeal are the
result of his misapprehension of the Secretary's action letter granting Plaintiff an additional
fifteen days to submit the missing documentation. Plaintiff further contends that such
documentation is not required by DC-ADM 802, because the Secretary's Office is in
c.onstructive possession of all necessary grievance paperwork. ECF No. 41 at 5-6. -These
arguments are unavailing. The Secretary's Office sent notification that Plaintiff needed to
provide a copy of his appeal to the Facility Manager within fifteen days or his appeal could be
dismissed. ECF No. 29-1at12. His failure to comply with this directive is not excusdd given the
clarity of the Secretary's instructions.
Mack v. Klopotoski, 540 F. App'x 108, 113 (3d
Cir. 2013). See also, DC-ADM 804.2.j ("An inmate appealing a grievance to final review is
responsible,for providing the [the Secretary's Office] with all required documentation relevant.to
the appeal. A proper appeal to final review must include: (1) a legible copy of the Initial
Grievance; (2) a copy of the initial review response/r~jection ... (3) a legible copy of the Inmate
Appeal to the Facility Manager; (4) a copy of the Facility Manager/designee's decision ... "). As a
result of Plaintiffs failure to follow the instructions provided in the Action Required notice, his
appeal was properly dismissed.
Because Plaintiffs final appeal to the Secretary's Office was untimely, it is apparent that
Plaintiffs claims with respect to the strip/cavity searches are procedurally defaulted. In addition,
it is also apparent that the only Defendant named in the grievance is Defendant Tikey and thus
the claims as to the other Defendants are procedurally defaulted on that basis as well. As such,
Defendants' Motion for 'Summary Judgment relative to the issues raised in Grievance No.
636685, will be granted.
B. Grievance No. 638803
Plaintiff filed Grievance No. 638803 on August 15, 2016, complaining that Defendant
Tikey denied him access to the "yard" in retaliation for filing the above grievance regarding
strip/cavity searches. Id. at 14. The grievance was denied and that finding was upheld at the
second level of review on August 22, 2016. Id. at 15, 17. Plaintiff failed to file an appeal to the
Secretary's Office for the final level of review and thus his claim of retaliation set forth in
Grievance No. 638813 is also procedurally defaulted. Id. at 29-1 at 38
Further, not only is Tikey again the only Defendant named in Grievance No. 638803, but
Plaintiff did not request any relief in the grievance much less any legal relief that could be
provided by a court. 4 Defendants, therefore, are entitled to sUIIllliary judgment on Plaintiffs
retaliation claim based on Grievance No. 63880f
Although Defendant Riddle is mentioned in the grievance, Plaintiff does not state a claim against Riddle but
merely states that Riddle honored Plaintiffs request to be placed on the yard list. Id. at 14.
C. Grievance No. 640134
Plaintiff filed Grievance No. 640134 on August 23, 2016, in which he claimed that Tikey
sent Defendant Hollowood to Plaintiff's cell to do Tikey's "dirty work" for him by denying
Plaintiff access to the yard and that Tikey did so in retaliation for Plaintiff filing Grievance No.
638803. Id. at 19. Grievance No. 640134 was denied on August 31, 2016, and Plaintiff failed to
file an appeal to either the second or third level of review. Id. at 20, 38 ~ b. Moreover, Plaintiff
has failed to identify any Defendant other than Tikey and Hollowood in the grievance and, again,
did not request any relief in the grievance much less any legal relief that could be provided by a
court. Plaintiff therefore has failed to exhaust his administrative remedies with respect to the
claims raised in Grievance No. 640134 and Defendants' Motion for Summary Judgment in this
regard is properly granted.
D. Grievance No. 642039
In Grievance No. 642039, dated September 5, 2016, Plaintiff complains that he found
mouse feces in his cereal. Id. at 23. The grievance was rejected on September 6, 2016, because
it did not indicate the date of the occurrence. Plaintiff, however, was given five working days to
correct the error. Id. at 24. The grievance was apparently resubmitted by Plaintiff in a timely
fashion but was nevertheless denied on September 29, 2016. Id. at 25, 26. Plaintiff again failed
to appeal that ruling to the second or third level of review and did not request any legal relief that
this Court could provide; indeed, Plaintiff only asked,that the individuals who prepare the trays
"be more vigilant with their duties." Id. at 25, 38
c. In addition, the only Defendant mentioned
in the grievance is Riddle but only because it was Riddle whom Plaintiff informed about the
mouse excrement. Id. at 23. Under these circumstances, to the extent that Plaintiff brings claims
stemming from the food tray incident, Defendants are entitled to summary judgment as to these
claims as well.
E. Misconduct No. 991705
The record also shows that Plaintiff was issued a misconduct charging him with
threatening an employee with bodily harm, refusing to obey an order and using abusive and/or
obscene language to an employee following a verbal altercation with Tikey on September 13,
2016. According to the Misconduct Report, while Tikey was collecting food trays, Plaintiff put
his arm through the wicket of his cell door and refused to remove it despite three direct orders to
do so; Plaintiff also threatened to "put two bullets in the back of [Tikey's] head" and otherwise
kill him. ECF No. 29-1 at 28. Following a video
hdd on September 15, 2016, Plaintiff
was found guilty of all three infractions. Id. at 31. Plaintiff appealed the hearing examiner's
findings to the Program Review Committee on September 18, 2016, and on September 23, 2016,
the Program Review Committee sustained tliose findings. Id. at 32, 33. Plaintiff filed a second
level appeal on November 9, 2016, which was denied by the Superintendent on November 27,
2016. Id. at 34, 36. Plaintiff, however, did not appeal the misconduct to final review and thus
did not exhaust his administrative remedies with respect to his claims arising out of the
September ,13, 2016 incident. Id. at 38
d. Accordingly, Defendants' Motion for Summary
Judgment relative to claims revolving around the September 13, 2016 incident and the resulting
misconduct will be granted as well.
For the foregoing reasons, Defendants' Motion for Summary Judgment on the Issue of
Exhaustion Only is properly granted. Accordingly; the following Order is entered:
AND NOW, this 3rd day of January, 2018, upon consideration of Defendants' Motion for
Summary Judgment on the Issue of Exhaustion Only, ECF No. 26, and Plaintiff's Response to
Defendants' Motion, ECF No. 41, IT IS HEREBY ORDERED that Defendants' Motion is
GRANTED and the Clerk of Court is to mark the case closed.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, if Plaintiff wishes to appeal from this Order he must do so within thirty
(30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P., with the Clerk of
Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 1.5219.
All counsel of record by Notice of Electronic Filing
Anthony Tusweet Smith
175 Progress Drive
Waynesburg, PA 15370
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