WEICKSEL v. GRIFFITHS et al
MEMORANDUM OPINION - After de novo review of the pleadings and documents in the case, together with the report and recommendation, and the objections thereto, the report and recommendation (ECF No. 36 ) will be adopted as the opinion of the court, as supplemented herein. An appropriate order will be entered, and as more fully stated in said Memorandum Opinion. Signed by Judge Kim R. Gibson on 9/5/2017. (dlg)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICKEY A. WEICKSEL,
CASE MGR PATRICK GRIFFITHS, et
Civil Action No. 3: 16-cv-0252
United States District Judge
Kim R. Gibson
United States Magistrate Judge
Cynthia Reed Eddy
On or about November 16, 2016, Plaintiff submitted in the United States District Court
for the Eastern District of Pennsylvania a civil rights complaint accompanied by a motion to
proceed informapauperis. On November 30, 2016, the case was transferred to this District
from Eastern District of Pennsylvania. The undersigned was assigned the case and the case was
referred to United States Magistrate Judge Cynthia Reed Eddy for pretrial proceedings in
accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l), and the Local Rules of Court
for Magistrate Judges.
Defendants filed a motion to dismiss or in the alternative motion for summary judgment
arguing that the case should be dismissed as Plaintiff had failed to exhaust his administrative
remedies. Because Defendants presented material outside of the Complaint, the magistrate judge
converted the motion to dismiss into a motion for summary judgment only on the issue of
exhaustion, and allowed the parties time to submit additional briefing and evidence.
On July 21, 2017, Magistrate Judge Eddy filed a Report and Recommendation (ECF No.
36) recommending that Defendants' motion to dismiss, which had been converted into a motion
for summary judgment on the issue of exhaustion, be granted on the ground that Plaintiff had not
properly exhausted his administrative remedies pursuant to the Prison Litigation Reform Act.
Plaintiff was served with the Report and Recommendation at his listed address and was advised
that he had until August 10, 2017, to file written objections to the Report and Recommendation.
In response, Plaintiff filed a "Motion for Abbeyance" (ECF No. 37) in which he asks the Court
to stay the case for a period of 12 to 18 months. According to Plaintiff, he is currently scheduled
to be released to a halfway house on 12/6/2017 and from BOP custody on 6/1/2018, at which
time he will be in a better position to object to the Report and Recommendation, and will be able
to have "lawyers, investigators, agencies, etc. that can I will assist him in this matter." (ECF No.
3 7 at 1.)
This request will be denied. The Court has no way of knowing if, and when, Plaintiff
will be released from BOP custody. Whether Plaintiff is in custody, or is released, offers no
reasoned basis for holding this case in abeyance.
Turning to the merits of Plaintiffs objections, attached to the motion, are four (4) pages
which appear to be objections to the report and recommendation, as well as an Affidavit from
Henry Antoine Saunders, dated June 24, 2017, who was confined with Plaintiff in the SHU at
FCI Loretto from December 1, 2015 to August 26, 2016, and describes incidents he heard that
allegedly occurred between Case Manager Mr. Griffiths and Plaintiff. (ECF No. 37-2).
The Court finds that Plaintiffs Objections do not undermine the recommendation of the
Magistrate Judge. As the report stated, it is the law in this circuit that all available administrative
remedies must be exhausted prior to filing suit. Oriakhi v. United States, 165 F. App'x 991, 993
(3d Cir. 2006).
Under the BOP's regulations, no administrative appeal is considered to have
been fully exhausted until a decision is reached on the merits by the BOP's general counsel.
Davis v. Miner, No. 1:CV-06-1763, 2007 WL 1237924, at *7 (M.D. Pa. Apr. 26, 2007) (citing 28
C.F.R. §§ 532.13 - 542.15).
Although Plaintiff describes the four misconducts at issue in this lawsuit as "BOGUS
Incident Reports written against Weicksel by Griffiths," the fact remains that because a decision
was not reached on the merits by the BOP's general counsel, Plaintiffs administrative appeals
were not fully exhausted. Plaintiffs objections as to Incident Report Nos. 2771804, 2784364
and 2810014 can be summarily denied as Plaintiff merely repeats the same arguments that he
made in his response to the summary judgment motion. The summary judgment evidence of
record is clear that there was no decision by the BOP's general counsel on these three reports.
Plaintiff also argues that he exhausted the second incident report, No. 2774817, because it
was dismissed on January 25, 2016.
However, as the report states, the summary judgment
evidence of record reflects that No. 2774817 was partially granted by the regional office and
subsequently expunged by the institution on January 24, 2016.
The record also reflects that on
January 29, 2016, after the expungement, Plaintiff submitted multiple requests to the regional
office all concerning No. 2774817. He was advised by the regional office that the incident report
had been expunged and that any complaints he continued to have concerning staff or procedures
must be submitted at the institutional level. The summary judgment evidence of record reflects
that Plaintiff took no further action after being advised that he needed to submit his grievance to
the institution. Therefore, any requests concerning No. 2774817 made on or after January 29,
2016, were not fully exhausted.
In conclusion, after de nova review of the pleadings and documents in the case, together
with the report and recommendation, and the objections thereto, the report and recommendation
(ECF No. 36) will be adopted as the opinion of the court, as supplemented herein. An
appropriate order will be entered.
BY THE COURT:
Kim R. Gibson
United States District Judge
MICKEY A. WEICKSEL
PO BOX 1000
WHITE DEER, PA 17887
(via U.S. First Class Mail)
Michael C. Colville
United States Attorney's Office
(via CM/ECF electronic notification)
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