HINTON v. MARK et al
MEMORANDUM OPINION AND ORDER - upon consideration of the motion for summary judgment filed by Defendants (ECF No. 88 ) and the Report and Recommendation filed by the Magistrate Judge (ECF No. 115 ), and for the reasons set forth in the accompanying memorandum opinion, IT IS HEREBY ORDERED that the Magistrate Judge's Report and Recommendation is not adopted, and Defendants' motion for summary judgment is GRANTED in part and DENIED in part as follows: Count I of the third amended compl aint (ECF No. 41 ) is dismissed with prejudice. Defendant Mr. Patz is therefore dismissed as a party. The motion is denied in all other respects, and as more fully stated in said Memorandum Opinion and Order. Signed by Judge Kim R. Gibson on 9/29/2017. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
Case No. 3:10-cv-305
JUDGE KIM R. GIBSON
TIMOTHY MARK, Chief Hearing
Examiner, RAYMOND SOBINA,
Superintendent, PATTI MCKISSOCH,
Hearing Examiner, MR. PATZ,
Psychologist, and SANDRA GORNIAK,
Pending before the Court are Defendants' motion for summary judgment (ECF No. 88)
and the Magistrate Judge's thorough and well-written report and recommendation (ECF No. 115)
recommending that Defendants' motion be granted. Having conducted a de novo review of the
parties' submissions and the Magistrate Judge's report and recommendation, Defendants' motion
for summary judgment will be GRANTED in part and DENIED in part.
Introduction & Procedural Background
On December 3, 2010, Plaintiff filed this case under 42U.S.C.§1983 against prison officials
and psychological staff at State Correctional Institution Albion ("SCI-Albion") for alleged civilrights violations that occurred while Plaintiff was incarcerated there. Specifically, Plaintiff sued
Timothy Mark, Raymond Sobina, Patti McKissoch, a "Mr. Patz," and Sandra Gorniak. In his
complaint (ECF No. 3), Plaintiff alleged that-during his time at SCI-Albion-Timothy Mark was
employed by the Pennsylvania Department of Corrections ("DOC") as the Chief Hearing
Examiner, Raymond Sobina was the Superintendent at SCI-Albion, Patti McKissoch was a
hearing examiner at SCI-Albion, Mr. Patz was a psychologist at SCI-Albion, and Sandra Gomiak
was an accountant at SCI-Albion.
In his original complaint (it has since been amended three times), Plaintiff alleged four
claims: denial of access to the courts, denial of procedural due process, deliberate indifference to
a serious medical need, and conspiracy to interfere with civil rights. Plaintiff's claims stern from
his failed suicide attempt on January 2, 2009. On that day, he called officers to his cell, showed
them nine Sinequan pills, and proceeded to swallow them. He was taken to a hospital and treated.
Plaintiff alleges that, prior to swallowing the Sinequan pills, he called the prison psychologistMr. Patz-to his cell and informed Mr. Patz of his mental state and plan to kill himself. According
to Plaintiff, Mr. Patz told him that all the psychiatric-observation cells were full and that he would
have to "be cool" because Mr. Patz was heading home for the weekend and that they would speak
on Monday. Plaintiff alleges that Mr. Patz took no precautions to prevent him from attempting
After returning from the hospital, Plaintiff was issued a misconduct for possession of
contraband-Le. the Sinequan pills-and for failure to report contraband. He was also assessed
the costs of the medical care resulting from his suicide attempt. Further, he alleges that his inmate
account was subsequently blocked for over eight months, preventing him from hiring an
attorney, and that this was done without adequate due process.
Pursuant to 28 U.S.C. § 636 and Local Civil Rule 72, Plaintiff's case was referred to a
magistrate judge for pretrial proceedings. After screening Plaintiff's complaint pursuant to
28 U.S.C. § 1915A, the Magistrate Judge recommended dismissing the complaint with leave to
amend, finding that Plaintiff had not pleaded enough facts regarding each Defendant's actions to
support a plausible theory of liability. Plaintiff subsequently filed two amended complaints; one
on December 29, 2010 (ECF No. 7), and one on March, 25, 2011. (ECF No. 11.) These complaints
alleged a claim against Patz for deliberate indifference to Plaintiff's serious medical needs, namely
his particular vulnerability to suicide. The Magistrate Judge thereafter issued another report and
recommendation (ECF No. 13), wherein he explained that he had screened Plaintiff's amended
complaint and found that it did not adequately allege an injury as a result of Patz's alleged
deliberate indifference. The Magistrate Judge therefore recommended dismissing the complaint
sua sponte for failure to state a claim. This Court adopted that recommendation and dismissed
the second amended complaint on March 30, 2012, without further leave to amend. (ECF No. 17.)
On November 13, 2013, the United States Court of Appeals for the Third Circuit vacated
that dismissal, holding that Plaintiff had adequately stated three claims, and remanded the case
for further proceedings. (ECF No. 27, Hinton v. Mark, 544 F. App'x 75, 79 (3d Cir. 2013).) The three
claims were: (1) a claim under the Eighth Amendment against Patz for deliberate indifference to
Plaintiff's serious medical need on the basis of his risk of attempting suicide; (2) a due process
claim under the Fourteenth Amendment against Mark, Sobina, and Gorniak for allegedly
blocking Plaintiff from transferring $570 out of his prison account to hire an attorney; and (3) a
due process claim under the Fourteenth Amendment against Mark, Sobina, McKissoch, and
Gornick for charging Hinton's inmate account for the cost of medical care related to his suicide
attempt without adequate due process. On remand, Plaintiff filed a third amended complaint
(ECF No. 41), which restated these three claims.
Defendants filed motions to dismiss for failure to state a claim on June 30, 2014 (ECF No.
43), and January 28, 2015 (ECF No. 59), and raised the affirmative defense that Plaintiff had failed
to exhaust his administrative remedies. The Magistrate Judge denied both motions, ordered
discovery on the question of exhaustion, and set a briefing schedule for motions for summary
judgment. (ECF No. 62.) After the parties filed motions for summary judgment, the Magistrate
Judge issued a third report and recommendation, recommending that Defendants' motion for
summary judgment be granted on all claims on the basis that Plaintiff did not exhaust his
administrative remedies. (See ECF No. 115.) Plaintiff timely filed objections to the Magistrate
Judge's third report and recommendation. (See ECF No. 119.)
Standards of Review
A. Reports & Recommendations and Objections Thereto
When objections are filed to a magistrate judge's report and recommendation, the district
court "shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C); see also United
States v. Raddatz, 447 U.S. 667, 674-75 (1980) (explaining the standard for a district court's review
of a magistrate judge's report and recommendation). The district court may accept, reject or
modify-in whole or in part-the magistrate judge's findings or recommendations. §
636(b)(l)(C). Although the standard of review is de novo, § 636(b)(l) permits whatever reliance
the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's
proposed findings and recommendations. Raddatz, 447 U.S. at 676; see also Goney v. Clark, 749 F.2d
5, 7 (3d Cir. 1984) (noting the discretion district courts have in their use of magistrate judges'
B. Summary Judgment
Summary judgment is a sort of filtering mechanism; the operative question is whether
there exists "a genuine dispute as to any material fact" of a party's claim or defense. See Fed. R.
Civ. P. 56(a). The rationale for summary judgment is efficiency; if-to prevail on his or her claima plaintiff would have to prove a certain element at trial, and the defendant establishes that the
plaintiff can offer no plausible evidence in support of that element, then there is no reason to let
the claim proceed to trial at all. That is so because no reasonable jury would be able to find that
the element is met, making summary judgment in the defendant's favor appropriate. Thus, when
presented with a motion for summary judgment, the judge's function is not to weigh the evidence
and determine the truth of the matter, but strictly to determine whether there is a genuine dispute
to be resolved by a factfinder. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "The inquiry
performed is the threshold inquiry of determining whether there is the need for a trial-whether,
in other words, there are any genuine factual issues that properly can be resolved only by a finder
of fact because they may reasonably be resolved in favor of either party." Id. at 250.
C. Exhaustion Under the Prison Litigation Reform Act ("PLRA")
"In an effort to curb the number of prisoner filings in the federal courts, Congress enacted
the PLRA which, as relevant here, mandates that prisoners exhaust internal prison grievance
procedures before filing suit." Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013). The PLRA
provides that "[n]o action shall be brought with respect to prison conditions under section 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. § 1997(e)(a); see
Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004) (quoting§ 1997(e)(a)).
"[E]xhaustion is a question of law to be determined by a judge, even if that determination
requires the resolution of disputed facts." Id. (footnote omitted) (citing Drippe v. Tobelinski, 604
F.3d 778, 781 (3d Cir. 2010)).
Failure to exhaust administrative remedies is an affirmative defense-the burden of
establishing failure to exhaust rests with the defendant(s) rather than the prisoner. Brown v. Croak,
312 F.3d 109, 111 (3d Cir. 2002) ("Failure to exhaust administrative remedies is an affirmative
defense that must be pled and proven by the defendant.") (citation omitted); see also Jones v. Bock,
549 U.S. 199, 211-12 (2007). In the context of summary judgment, this means a defendant asserting
failure to exhaust as a defense must show that there is no genuine dispute that the prisoner failed
to exhaust his administrative remedies. See Small, 728 F.3d at 268-69 (citing Jones, 549 U.S. at 212,
"[A] prisoner need exhaust only 'available' administrative remedies." Ross v. Blake, 136 S.
Ct. 1850, 1856 (2016). But "[t]o state that standard, of course, is just to begin; courts in this and
other cases must apply it to the real-world workings of prison grievance systems." Id. at 1859.
Thus, "the actual availability of remedies may tum on questions of fact." Shumanis v. Lehigh Cnty.,
675 Fed. Appx. 145, 148 (3d Cir. 2017). The Supreme Court has described three instances when an
administrative remedy is unavailable as a practical matter: "(1) 'it operates as a simple dead endwith officers unable or consistently unwilling to provide any relief to aggrieved inmates'; (2) it is
'so opaque that is becomes, practically speaking, incapable of use,' such as when no ordinary
prisoner can discern or navigate it; or (3) 'prison administrators thwart inmates from taking
advantage of a grievance process through machination, misrepresentation, or intimidation.'" Id.
at 8-9, quoting Ross 136 S. Ct. at 1859-60. 1
Administrative Remedies in the Pennsylvania Department of Corrections ("DOC")
Within the DOC system, various administrative policies exist which allow inmates to
challenge aspects of their confinement. Those policies include: (1) the Inmate Grievance Policy,
DC-ADM 804; (2) the Inmate Discipline Policy, DC-ADM 801; and (3) the Administrative Custody
policy, DC-ADM 802. As their names suggest, DC-ADM 804 covers general grievances (see ECF
No. 91-4 at 3-17), DC-ADM 801 covers inmate discipline, including the assessment of costs for
medical care and losses caused by inmate misconduct (see ECF No. 95-5), and DC-ADM 802
covers administrative-custody procedures. (See ECF No. 91-4 at 3-17.) Only DC-ADM 804 and 801
are implicated in this case.
A. DC-ADM 804: Inmate Grievances
DC-ADM 804 describes the administrative remedies for inmate grievances. DC-ADM 804
defines a "grievance" as "[a] formal written complaint by an inmate related to a problem
encountered during the course of his/her confinement." (ECF No. 91-4 at 2.)
DC-ADM 804 provides three levels of adjudication-an initial decision followed by two
levels of review. (See Id. at 4.) Grievances are initiated by an inmate filing an inmate-grievance
form, which must be filed with the Facility Grievance Coordinator within 15 days of the incident
giving rise to the grievance. (Id. at 6-7.) The grievance should identify the persons involved in the
This Court notes that while one Circuit Court has observed that the three scenarios described in Ross
"do not appear to be exhaustive," that court declined to "opine on what other circumstances might
render an otherwise available administrative remedy actually incapable of use." See Williams v. Correction
Officer Priatno, 829 F.3d 118, 124 (2d Cir. 2016).
incident and "include a statement of the facts relevant to the claim." (Id. at 6-7.) If the Facility
Grievance Coordinator's decision on the grievance is unsatisfactory, the inmate can appeal that
decision to two subsequent tiers of review; the Facility Manager and ultimately the Chief of the
DOC Secretary's Office of Inmate Grievances and Appeals. (See Id. at 9-14.)
DC-ADM 804 lists three exceptions-issues that are not grievable under its provisions.
Specifically, Section VI.H. provides that initial review of "issues relating to" DOC policy DCADM 801, i.e. inmate discipline, are not covered under DC-ADM 804. (Id. at 15.) In other words,
DC-ADM 804 explicitly states that "issues relating to" inmate discipline are not grievable under
B. DC-ADM 801: Inmate Discipline
DC-ADM 801 covers inmate discipline. (See ECF No. 95-5.) Whereas a grievance is
initiated by an inmate, inmate discipline is initiated by a member of the prison staff filing a written
misconduct report. (Id. at 8.) While less-serious offenses are subject to informal resolution,2 moreserious offenses are resolved through formal channels. This involves a misconduct hearing before
a Hearing Examiner who determines whether the inmate is guilty of the alleged violation. (See Id.
at 16.) Findings of not guilty are recorded in writing and require no rationale. (Id.) Findings of
guilty, however, require the preparation of a written summary of the hearing, which includes the
facts the Hearing Examiner relied upon in reaching his or her decision. (Id.)
Certain less-serious offenses are eligible for so-called informal resolution, whereby the inmate's Unit
Manager resolves the alleged misconduct through an informal meeting. The disciplinary measures
associated with informal resolution are less severe than those associated with formal resolution and include
such things as no discipline at all, a reprimand and warning, and loss of certain privileges like phone callsthough any loss of privileges cannot exceed seven days. (See ECF No. 95-5at10-11.)
DC-ADM 801 provides three levels of possible review. (See Id. 20-22.) After a finding of
guilty, the inmate has 15 days to submit a written appeal to the Program Review Committee
("PRC"). (See Id. at 16, 20.) There are only three valid bases for an appeal: (1) that the procedures
employed were contrary to law or DOC directives or regulations; (2) that the punishment is
disproportionate to the offense; or (3) that the findings of fact were insufficient to support the
decision. (Id. at 20.) Inmates are not allowed to appeal findings of not guilty, and if they pleaded
guilty then they may appeal only on the first two grounds. (Id.) After the PRC issues its decision,
the inmate then has seven days to appeal to the Facility Manager. (Id. at 21.) Once the Facility
Manager makes his or her decision, the inmate then has seven days to appeal to the DOC Chief
Hearing Examiner's Office, Office of Chief Counsel, which provides the final level of review. (Id.
As noted above, Plaintiff brought three claims. Defendants now move for summary
judgment on the basis that Plaintiff failed to exhaust his administrative remedies. The only
question before this Court is, have the Defendants met their burden to establish that Plaintiff
failed to exhaust his administrative remedies with respect to each claim?
For purposes of exhaustion, Plaintiff's claims can be separated into two categories: (1) his
Eighth Amendment claim and (2) his Fourteenth Amendment claims. The Court will discuss
Defendants' exhaustion defenses to these claims in tum.
A. Did Plaintiff Exhaust His Eighth Amendment Claim?
Defendants assert that Plaintiff failed to exhaust his administrative remedies with respect
to his Eighth Amendment claim against Patz. It is undisputed that Plaintiff filed three inmate
grievances in the four months after he attempted suicide-including one just five days after he
tried to end his life-and that none of these grievances alleged that DOC personnel were
recklessly indifferent or otherwise failed to protect him from suicide.3 Defendants claim that they
are entitled to summary judgment on Plaintiff's Eighth Amendment claim because Plaintiff failed
to exhaust his administrative remedies under DC-ADM 804.
In response, Plaintiff contends that his Eighth Amendment claim is not barred. Plaintiff
claims that the PLRA's exhaustion requirement only applies to "available" remedies. Plaintiff
further asserts that the administrative remedies at SCI-Albion were, practically speaking,
unavailable, excusing his requirement to exhaust them before bringing suit in federal court.
Specifically, Plaintiff asserts that he would not have been able to grieve Patz' s alleged
misconduct under DC-ADM 804. Plaintiff argues that (1) the text of ADM 804 states that "issues
relating to" inmate discipline are not grievable, and (2) the Grievance Coordinator, Mindy Jones,
testified that she would reject an 804 grievance that "pertained to the misconduct that the inmate
received." (ECF No. 95-1at19.). Plaintiff therefore claims that administrative review under DCADM 804 was unavailable to him because Patz's alleged misbehavior-deliberate indifference to
his suicide risk-relates and pertains to the misconduct Plaintiff received-possession of the
Sinequan pills Plaintiff ingested in an attempt to end his life.
Plaintiff alleges that administrative review of Patz's alleged misconduct was similarly
unavailable under DC-ADM 801. It is undisputed that DC-ADM 801 does not permit appeals
Plaintiff filed Grievance #256881 on January 7, 2009, alleging that he was verbally harassed by inmate staff
during a cell extraction. (ECF No. 90 at 2.) Plaintiff filed Grievance #264889 on March 12, 2009, alleging that
his Sixth Amendment right to counsel was violated. (Id. at 3.) On April 23, 2009, Plaintiff filed Grievance
#270359, which alleged that funds from his inmate account were being deducted in violation of his right to
due process. (Id. at 3; ECF No. 94 at 2.)
when charges are dismissed, and only permits appeals from guilty pleas in three circumstanceswhen (1) "the procedures employed were contrary to law, [DOC] directives, or regulations;" (2)
"the punishment is disproportionate to the offense;" or (3) "the findings of fact were insufficient
to support the decision." (See ECF No. 91-4 at 44.) Plaintiff pleaded guilty to possession of
contraband on January 9, 2009, and the failure to report charge was dismissed. (See ECF No. 94 at
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