Opinion
Case No. 1:19-cv-00223 (Erie)
04-21-2020
WARREN EASLEY, Plaintiff v. REUBERG, SIMON, BYERS, ADAMS, SAWTELLI, GILL, REHRER, OBERLANDER, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS BYERS and REUBERG'S MOTION TO DISMISS ECF NO. 24 I. Recommendation
It is respectfully recommended that Defendants Renberg and Byers' Motion to Dismiss (ECF No. 24) be GRANTED, in part, and DENIED, in part. Specifically, it is recommended that the Court:
A. Convert the pending motion to a Motion for Summary Judgment;II. Report
B. Grant the motion as to all claims against Defendants Renberg and Byers arising out of their alleged conduct in 2019 because the record establishes that Plaintiff failed to exhaust his administrative remedies as to these claims;
C. Deny the motion as to claims arising out of Defendant Renberg's alleged conduct in 2015 because Defendant Renberg has failed to produce a record to support his exhaustion defense or statute of limitations defense as to these claims; and
D. Enter judgment for Defendant Byers and direct the Clerk of the Court to terminate Defendant Byers from this action.
A. Introduction
Plaintiff Warren Easley (Easley), an inmate at the State Correctional Institution at Forest (SCI-Forest), initiated this civil rights action against several employees of the Pennsylvania Department of Corrections (DOC) and two outside medical providers. Easley's Complaint alleges that the defendants violated several of his constitutional rights. ECF No. 8. Renberg and Byers, the two non-DOC medical providers, have moved to dismiss the claims against them. Their motion is the subject of this Report and Recommendation.
Easley moved for a preliminary injunction and temporary restraining order on August 9, 2019, before he filed his Complaint. See ECF No. 3. A telephonic hearing was conducted before the undersigned on August 20, 2019. ECF No. 4. Counsel for the Department of Corrections defendants entered a special appearance. The undersigned submitted a Report and Recommendation that Easley's motion for a preliminary injunction and temporary restraining order be denied. ECF No. 5. The District Court adopted that recommendation and denied the motion. ECF No. 20.
The DOC Defendants have filed an Answer to Easley's Complaint. See ECF No. 26.
B. Applicable Standards
Renberg and Byers have moved to dismiss all claims of Easley's Complaint against them pursuant to Federal Rule of Civil Procedure 12(b)(6). They have attached exhibits to their Brief in Support of the Motion to Dismiss in support of an exhaustion defense. See ECF No. 25-1, ECF No. 25-2, ECF No. 25-3, ECF No. 25-4, ECF No. 25-5. Because these documents are external to the pleadings, the Court should convert the Defendants' motion into a motion for summary judgment. Consistent with Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010), the Court explicitly cautioned Easley that the pending motion to dismiss may be treated, either in whole or in part, as a motion for summary judgment under Federal Rule of Civil Procedure 56. See ECF No. 28.
Federal Rule of Civil Procedure 56(a) requires a court to enter summary judgment "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." Fed. R. Civ. P. 56(a). Under this standard "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is "material" if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Id. 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations in his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must to go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, "a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. See also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
The summary judgment standard, as recounted above, "is somewhat relaxed with respect to pro se litigants. Where a party is representing himself pro se, the complaint is to be construed liberally. A pro se plaintiff may not however, rely solely on his complaint to defeat a summary judgment motion." Miller v. McClure, et al., 2020 WL 1049750, *6 (W.D. Pa. Mar. 4, 2020) (citing Anderson, 477 U.S. at 256 ("Rule 56(e) itself provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading, but must set forth specific facts showing that there is a genuine issue for trial.")). Allegations made without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) ("[U]nsupported allegations ... and pleadings are insufficient to repel summary judgment."). Easley has not filed a Response in Opposition to the Defendants' motion and has not filed any additional evidence by way of accompanying exhibits.
C. Factual Background
In his Complaint, Easley alleges that after arriving at SCI-Forest in March of 2015, he immediately went on a hunger strike. ECF No. 8, ¶ 1. This strike lasted three and a half months and he was intent on killing himself. Id. at ¶ 4. Per an undefined policy, Easley claims that he was to be seen weekly by a psychiatrist, in his case, Renberg. Id. at ¶¶ 2-3. Easley claims that during his hunger strike, he only met with Renberg on three occasions. He alleges he was force fed over one hundred times. Id. at ¶ 6. Easley's attempts to admit himself to the prison's mental health unit were ignored. Id. at ¶ 7.
Four years later, on or about June 8, 2019, Easley again felt suicidal and attempted to seek the help of a mental health specialist but does not allege that he sought assistance from Renberg or Byers. Id. at ¶ 8. Easley attempted to commit suicide on that date by cutting his wrists. Id. at ¶ 9. After Easley was treated for his self-inflicted wounds, he saw Renberg who, he alleges, told him "well you almost killed yourself. We wouldn't have to deal with you anymore, that's for sure." Id. at ¶ 12. Easley states that this comment increased his suicidal thoughts and that despite indicating that she would see him in two weeks, Renberg did not follow up. Id. at ¶ 13. Renberg allegedly made comments to Byers that she "did not want to hear his [Easley's] shit." Id. at ¶ 14.
Easley faults Byers for failing to put him on suicide watch. Id. at ¶ 17. He also claims that Byers encouraged him to commit suicide and denied him any mental health treatment. Id. He claims Renberg and Byers deliberately deprived him of mental health treatment, relating to a comment that "we are not catering to him aiming to commit suicide." Id. at ¶ 19. Easley then makes generalized allegations that Renberg and Byers, among others, "went out of their way by refusing [and conspiring] to deny Plaintiff proper mental health treatment as they told all staff to ignore [his] request to sign himself in the mental health unit." Id. ¶ 24. Easley alleges that Byers did nothing to help him because, as Byers alleged told him, "I have to follow orders, I cannot pursue it per Deputy Adams." Id. at ¶ 25. He also alleged that both Renberg and Byers refused to put him on suicide watch and refused to see him about his various attempts at suicide. Id. at ¶ 29.
On July 24, 2019, Easley again reported suicidal thoughts to a nurse, who in turn contacted Byers. Id. at ¶ 30. Again, he claims that Byers and Renberg refused to place him in the mental health unit. Id. at ¶ 31. Easley accuses Renberg of falsifying documents and reports to indicate that she had seen him when she had not. Id. at ¶ 34.
D. Discussion and Analysis
1. Easley's claims based on Defendant Renberg's actions in 2015 should not be dismissed.
The Court should resolve the claims arising from Renberg's alleged conduct in 2015 under the Rule 12(b)(6) standard for dismissal because Renberg has not presented a record to support his statute of limitations or exhaustion defenses regarding these claims. The Complaint alleges that, upon the initiation of his hunger strike in 2015, Easley "was only seen by psychiatrist Renberg on 3 occasions out of the 14 ½ weeks as policy states it is to be weekly on hunger strike." ECF No. 8, ¶ 5. He claims to have been force fed "over 100 times" and "requested to be evaluated by psychiatrist Renberg to, Simons, Oberlander, and Adams to no avail." Id. at ¶ 6. Defendants contend that any claims related to Easley's 2015 hunger strike are barred by the statute of limitations, as these claims accrued more than four years before Easley filed this lawsuit and a two-year statute of limitations applies. Defendants are correct as to the applicable statute of limitations. A Pennsylvania § 1983 plaintiff's claim is subject to the Commonwealth's personal injury statute of limitations which requires that an action be brought within two years of accrual of the claim (e.g., of a plaintiff's becoming aware of the allegedly unconstitutional acts). Disco v. Thompson, 2020 WL 1689777, at *9 (W.D. Pa. Apr. 7, 2020) (citing 42 Pa. Cons. Stat. §5524(7).
But the Prison Litigation Reform Act of 1995 (PLRA), which requires that a prisoner exhaust administrative remedies prior to filing a § 1983 claim, creates "a statutory prohibition that tolls Pennsylvania's statute of limitations". Pearson v. Sec'y Dep't of Corr., 775 F.3d 598, 603 (3d Cir. 2015). That is, any statute of limitations is tolled pending a plaintiff's utilization of the prison grievance procedures. See Edens v. White, 2020 WL 1531220, at *4 (M.D. Pa. Mar. 31, 2020) (citing Pearson, 775 F.3d at 603 ("[T]he PLRA is a statutory prohibition that tolls Pennsylvania's statute of limitations while a prisoner exhausts administrative remedies.")).
Here, the Defendants subpoenaed only Easley's grievance record from June 1, 2019 onward. Without the records from 2015-2019, the Court cannot determine whether Easley's claims against Renberg were tolled during the time he pursued any administrative remedies. See id. Therefore, the Court cannot accept what amounts to Renberg's unsupported assertion of grounds for dismissal. Because the law is clear that a complaint may only be dismissed on a Rule 12 motion on the basis that the statute of limitations has expired "where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly applies on the face of the pleading", see Oshiver, 38 F.3d at 1384 n. 1, the Court is unable to conclude that Easley's claims against Renberg based on conduct in 2015 are absolutely barred. See, e.g., Ballard v. Williams, 2010 WL 7809047, *6 (M.D. Pa. Dec. 9, 2010). Because there remain questions about the timeliness of these claims that cannot be resolved adequately on the pleadings, it is recommend that the Court decline to dismiss Easley's 2015 claim against Renberg on limitations grounds. Such denial, however, should be without prejudice to Renberg subsequently demonstrating that the complaint is untimely, even after factoring in equitable tolling for the period during which administrative grievances, if any, were being pursued.
2. Summary judgment should be entered in favor of Renberg and Byers on Easley's claims arising out of conduct in July of 2019 because Easley has failed to exhaust his administrative remedies as to these claims.
The claims based on events that took place in July of 2019 should be resolved on summary judgment. Renberg and Byers argue that Easley failed to exhaust his administrative remedies prior to filing suit for the claims that occurred in July of 2019. ECF No. 25, p. 4. As noted above, Easley filed nothing in opposition to this contention. Based upon the administrative record, which Easley has not disputed, the Court agrees that Easley did not exhaust his administrative remedies regarding his claims against Renberg and Byers and that they are, therefore, entitled to judgment in their favor as a matter of law.
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a) ("PLRA"), 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." The requirement that an inmate exhaust administrative remedies applies to all inmate suits about prison life, including those that involve general conditions as well as particular acts or events. Porter v. Nussle, 534 U.S. 516 (2002); Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be completed before 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, 1997 WL 235613 (10th Cir. May 8, 1997). The exhaustion requirement is not a technicality, rather it is federal law which federal district courts must 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").
Indeed, the United States Supreme Court has repeatedly confirmed that "[t]here is no question that exhaustion is mandatory under the PLRA." Ross v. Blake, — U.S. —, 136 S. Ct. 1850, 1856 (2016) (quoting Woodford v. Ngo, 548 U.S. 81, 85 (2006). Accord Jones v. Bock, 549 U.S. 199, 211 (2007). "And that mandatory language means a court may not excuse a failure to exhaust, even to take [] [special] circumstances into account." Ross, 136 S. Ct. at 1856.
Because the PLRA is a statutory exhaustion provision, "Congress sets the rules—and courts have a role in creating exceptions only if Congress wants them to. For that reason, mandatory exhaustion statutes like the PLRA establish mandatory exhaustion regimes, foreclosing judicial discretion." Id. at 1857. Accordingly, exhaustion is required regardless of the availability of the requested relief, and whatever the underlying claim, whether it arises from excessive force, or a violation of the Constitution. Id. (citing Booth v. Churner, 532 U.S. 731, 741 (2001)); Porter, 534 U.S. at 520; Woodford, 548 U.S. at 91. Additionally, exhaustion must be "proper," which "demands compliance with an agency's deadlines and other critical procedural rules." Woodford, 548 U.S. at 90. This serves to protect "administrative agency authority" over the matter, giving an agency "an opportunity to correct its own mistakes ... before it is haled into federal court," and "discourages 'disregard of [the agency's] procedures." Id. at 89 (quoting McCarthy, 503 U.S. at 145).
Where the provisions of a grievance process require the identification of named defendants, or the use of specified appeal forms, or even the signature of an inmate, the Court of Appeals for the Third Circuit has found procedural default in an inmate's failure to comply as instructed. See, e.g., Rosa-Diaz v. Dow, 683 Fed. Appx 103, 105-06 (3d Cir. 2017) (inmate failed to name particular defendant in grievance related to assault, where grievance policy required identification of defendants); Small v. Lanigan, 656 Fed. Appx 586, 589-90 (3d Cir. 2016) (prisoner's use of correspondence to appeal grievance denials was not authorized process and constituted procedural default, even though some of his letters were answered); Walker v. Glunt, 654 Fed. Appx 531, 534 (3d Cir. 2016) (prisoner failed to sign his grievance, and signature held to constitute an important procedural requirement set by the institution); Mack v. Klopotoski, 540 Fed. Appx 108, 113 (3d Cir. 2013) (finding procedural default where inmate failed to provide photocopies of grievances and responses received to date to pursue internal appeal).
3. The Administrative Process Available to State Inmates
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, 549 U.S. at 218.
The DC-ADM 804 grievance system, available to state prisoners, consists of three separate stages. First, the prisoner has 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 within fifteen working days, and the inmate will receive a final determination in writing within thirty days. See Booth, 206 F.3d at 293 n.2, aff'd, 532 U.S. 731 (2001).
4. Analysis
In support of their argument that Easley failed to exhaust administrative remedies as to all claims against them, Renberg and Byers submitted the entire record produced by the DOC Secretary's Office of Inmate Grievances and Appeals (SOIGA) in response to their subpoena. ECF No. 25-2 (subpoena); ECF No. 25-3, ECF No. 25-4, ECF No. 25-5 (grievance record). This record consists of two hundred and eighty-four pages of documents related to thirty-two grievances filed by Easley during the relevant period. The Court has reviewed these records thoroughly. They can be broken down as follows. Four of Easley's grievances were dismissed because of his failure to comply with DOC procedures. See ECF No. 25-3. The other twenty-eight were properly appealed to final review, but do not concern the claims against Renberg and Byers in this litigation. See ECF No. 25-4.
The subpoena asked for "a complete copy of any and all grievance records, including grievances, rulings, appeals, etc., pertaining to inmate Warren Easley (inmate #KA-1544) from June 1, 2019 through present." ECF No. 25-2.
One grievance in the record is relevant here because it concerns a suicide attempt. Grievance 811912 mentions the events, at least tangentially, outlined in Easley's Complaint. Easley filed this Grievance on July 12, 2019, concerning events that took place on July 9, 2019. He grieved that he was "broken out" of his cell by an extraction team, "felt suicidal" but his concerns were ignored by a "supervisor nurse" (whom he possibly identifies as "Fidorko") and "Nurse Rankin." Id. Easley states that he was sprayed with "O.C. spray," and accuses the prison of keeping psychiatric cells for "whites only" and "pushing people to suicide." Id.
Upon review of the entire grievance record, the Court observes as follows. First, there is no grievance in the record that can be connected to any events that occurred in 2015. Thus, to the extent Easley raises a claim against Renberg and Byers based on events that took place then, Easley failed to exhaust. Second, Grievance 811912, although mentioning suicidal ideations and possibly an attempt, does not mention either Renberg or Byers by name. Nor can they be identified by any other reference in the document. The PLRA itself does not have a "name all defendants" requirement. Byrd v. Shannon, 715 F.3d 117, 127 (3d Cir. 2013) (citing Jones v. Bock, 549 U.S. 199, 217 (2007)). But the United States Court of Appeals for the Third Circuit has found that where an 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. Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004).
Grievance 811912 does not specifically name Renberg or Byers as being involved in the incident in question. Easley offers no excuse for not identifying these Defendants. Without a justifiable excuse, a Pennsylvania inmate's failure to properly identify a defendant in a grievance is a failure to properly exhaust his administrative remedies under the PLRA. Id. at 234. So then, because Easley has not exhausted his claims against Renberg and Byers, summary judgment should be entered in their favor as to his claims based upon their alleged conduct in 2019. Because no actionable conduct is alleged against Byers prior to 2019, judgment should be IV. Conclusion
In conclusion, it is respectfully recommended as follows:
A. The Court convert the pending motion to a Motion for Summary Judgment;
B. The Court grant the motion as to all claims against Defendants Renberg and Byers arising out of their alleged conduct in 2019 because the record establishes that Plaintiff Easley failed to exhaust his administrative remedies as to these claims;
C. The Court deny the motion as to claims arising out of Defendant Renberg's alleged conduct in 2015 because he has failed to produce a record to support his exhaustion defense or statute of limitations defense as to these claims. However, this denial should be without prejudice to Renberg subsequently demonstrating by filing the complete grievance record, that the complaint is untimely, even after factoring in equitable tolling for the period during which administrative grievances, if any, were being pursued; andV. Notice to the Parties
D. Enter judgment for Defendant Byers and direct the Clerk of the Court to terminate Defendant Byers from this action.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, Plaintiff shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiff's failure to file timely objections will constitute a waiver of his appellate rights.
Entered this 21st day of April, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge