Opinion
Civil Action 20-140J
02-08-2023
JAMIE MCVICKER, Plaintiff, v. GREGORY BRIGGS, Warden, JOHN CARON, Deputy Warden, TONI MARONOWSKI, Lieutenant, and BRIAN PELESKY, Deputy Warden, and DENNIS VOUGHT, Defendants.
Kim R. Gibson District Judge
REPORT AND RECOMMENDATION RE: ECF NOS. 83, 87, 97 AND 102
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Jamie McVicker (“Plaintiff'), an inmate incarcerated at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”), filed this pro se action under 42 U.S.C. § 1983 against Defendants Gregory Briggs (“Briggs”), John Caron (“Caron”), Toni Maronowski (“Maronowski”), Brian Pelesky (“Pelesky”) and Daniel Vought (“Vought”) (collectively, “Defendants”) arising out of allegations that the conditions of his confinement at Somerset County Jail violated his Eighth and Fourteenth Amendment rights. ECF No. 50.
Presently before the Court are two cross motions for summary judgment and two motions to strike certain materials from the Court's consideration: (1) Plaintiffs Motion for Summary Judgment, ECF No. 83; (2) Defendants' Motion for Summary Judgment, ECF No. 87; (3) Plaintiffs Motion for Sanctions to Strike the Record (“Motion to Strike”), ECF No. 97; and (4) Defendants' Motion to Strike Exhibits in Support (“Motion to Strike”), ECF No. 102.
For the reasons that follow, it is respectfully recommended that Defendants' Motion for Summary Judgment be granted, and that Plaintiff's Motion for Summary Judgment and both Motions to Strike be denied.
II. REPORT
A. FACTUAL BACKGROUND
Plaintiffs claims arise out of his confinement at Somerset County Jail during two periods of time: (1) February 27, 2017 to August 1, 2018 (“First Incarceration”); and (2) November 27, 2019 to December 9, 2019 (“Second Incarceration”). ECF No. 88 ¶¶ 1, 2, 89, 92, 118. Plaintiff originally was detained as a pretrial detainee. Id. ¶¶ 1-2. He became a convicted prisoner on May 24,2018. Id.¶82.
Plaintiff also was sentenced on two criminal charges on April 5, 2017 and June 20,2017 for periods of three to six months and five days to six months. ECF No. 88 ¶¶ 60-61. However, Plaintiff states that he completed both sentences before any events relevant to this lawsuit occurred. ECF No. 106 ¶¶ 10-11.
1. Conditions of Confinement During First Incarceration
Following his arrest on state criminal charges, Plaintiff was incarcerated at Somerset County Jail beginning on February 27, 2017. Id. ¶ 2. After being housed in an observation cell in administrative custody for about 18 days, Plaintiff was transferred to the general population area on March 17, 2017. Id. ¶ 54. At various times between March 17, 2017 and November 27, 2017, he was housed in five different general population cells, Cell Nos. 1, 19, 21, 16 and 24. ECF No. 89-8 at 3. During this time, Plaintiff alleges that he overheard inmates complaining about feces hacking up in their toilets, but he did not personally experience this issue in his cells. ECF No. 50 at 7.
On October 5, 2017, Plaintiff was assigned to work as a “block worker.” ECF No. 88 ¶ 65. His duties included cleaning the range, showers, and hallways. Id. While performing that job, he became aware that toilets in other inmates' cells would back up. Id. ¶ 66. According to Plaintiff, the guards informed him this issue had “already been relayed up the chain of command.” ECF No. 50 at 8. In October 2017, Plaintiff claims that he attended a meeting between inmates and staff, including Maronowski and Pelesky, regarding inmates' concerns about the living conditions, including toilets backing up, no ladders to access top bunks, and the poor and foulsmelling mattresses. Id.
On November 28,2017, Plaintiff was transferred to Cell No. 9. ECF No. 89-8 at 3. There, he alleges that his toilet regularly “bubbled up” with human waste from the toilets used by inmates in Cell No. 23, an issue that Plaintiff calls the “ping-pong effect.” ECF No. 50 at 8-9. Plaintiff claims that he and his cellmates often needed to flush their toilet to resolve this issue. Id. Upon flushing, the high-pressure plumbing system caused human waste and other bodily fluids to splash into Plaintiff's living space. Id. Plaintiff experienced the nauseating, lingering smell of human waste in his cell. Id.
To combat this issue, inmates in the affected, associated cells (here, Cell Nos. 9 and 23), sometimes tapped on the sink before flushing the toilet to alert inmates in the associated cell. ECF No. 88 ¶ 43; ECF No. 93 ¶ 43. The inmates in the associated cell would then try to flush their toilet at the same time to prevent the “ping pong effect” from occurring. ECF No. 88 ¶ 44. At various times a day, including for meals, recreation, and “block time,” Plaintiff could be out of his cell (and away from the toilet). Id. ¶ 58.
On August 1, 2018, Plaintiff was transferred to the State Correctional Institution at Greene (“SCI-Greene”). Id. ¶ 89; ECF No. 50 at 13. Except for two periods of time on May 23, 2018 and July 18, 2018, he was housed in Cell No. 9 from November 28, 2017 until his transfer to SCI-Greene. ECF No. 89-8 at 3.
2. Conditions of Confinement During Second Incarceration
On November 27, 2019, Plaintiff was temporarily transferred from SCI-Houtzdale to Somerset County Jail to attend resentencing proceedings in the Court of Common Pleas of Somerset County. ECF No. 50 at 14; ECF No. 88 ¶ 92.
Plaintiff was housed in general population on Range 207 in Cell No. 26. ECF No. 88 ¶ 94. He spent the evening of November 27, 2019 in the day room and then returned to his cell around 10 p.m. Id. ¶¶ 95-96. Upon his return, he saw that his toilet was foil of feces. Id. ¶ 96. When he flushed the toilet, it sprayed excrement on the toilet, sink and surrounding floor. Id. ¶ 97. Plaintiff cleaned this mess without cleaner or protective equipment. Id. ¶ 98.
On November 28, 2019, Plaintiff claims that he had to flush his toilet twice because of the “ping pong effect,” and that this same thing happened four more times the next day. Id. ¶¶ 102-03. Plaintiff was moved to Cell No. 5 on November 29, 2019, around 10:00 p.m. Id. ¶ 104.
On December 6, 2019, staff turned off the water to Plaintiffs toilet because it began to flush nonstop. Id. ¶ 108. Staff also came to Plaintiffs cell to service his toilet but could not fix it that day. Id. ¶ 109.
That same day, an inmate who was experiencing withdrawal symptoms, including vomiting and diarrhea, moved into the cell next door. Id. ¶¶ 110-11. Plaintiff claims that because of the “ping pong” effect, waste from the sick inmate's toilet backed up into his toilet. Id. ¶ 112. When that happened, Plaintiff and his cellmate used water from the sink to flush their toilet. Id. ¶ 113.
The next day, December 7, 2019, Plaintiff was moved from Cell No. 5 to Cell No. 1. Id. ¶ 114. He was transferred back to SCI-Houtzdale two days later. Id. ¶ 118.
3. Somerset County Jail Grievance Procedures Policy
After he arrived at Somerset County Jail, Plaintiff received a copy of the Somerset County Jail Inmate Handbook. ECF No. 88 ¶ 3; ECF No. 89-2 at 2. The Inmate Handbook explains the grievance process. ECF No. 88 ¶¶ 4, 6.
Under the Grievance Policy, “[a]n inmate should attempt an informal resolution to a grievance before filing a formal grievance.” Id. ¶ 8. The policy directs inmates to informally raise concerns with a housing unit officer or work crew supervisor. Id. ¶ 9. If those individuals cannot resolve the grievance, it should be referred to the shift supervisor. Id.
If an inmate cannot resolve a grievance informally, he may file a formal grievance. Id. ¶ 15. To file a grievance, the inmate must “complete the grievance form detailing the problem, the informal resolution process that was used, and the remedy being sought.” Id. ¶ 11. The policy states that inmates must use the Somerset County Jail grievance form, and that the “[t]he inmate must submit a grievance for initial review within 15 working days after the event upon which the claim is based.” Id. ¶¶ 12-13.
The Somerset County Jail's Grievance Coordinator is required to investigate and respond to the grievance within 10 working days. Id. ¶ 14. If the inmate is not satisfied with this response, he may appeal by submitting a written request form to the Warden within 5 days of receiving a response. Id. ¶¶ 15-16. If an inmate has a pending grievance upon release, he will “generally lose all standing with respect to any further administrative remedy.” Id. ¶ 17.
4. Plaintiff's Complaints about the Conditions
a. Informal reports
Plaintiff claims that he repeatedly raised concerns regarding his conditions of confinement, both internally to Somerset County Jail officials and to outside parties. On multiple occasions between October 2017 and June 2018, Plaintiff claims that he notified or met with members of the management staff, including Maronowski, Pelesky, and Briggs, regarding the toilets backing up and other concerns relating to his living conditions. ECF No. 50 at 8-11.
Beginning in January 2018, Plaintiff also contacted several outside entities, including the American Civil Liberties Union (“ACLU”), the Pennsylvania Prison Society, his state representative, and the Occupational Safety and Health Administration (“OSHA”) for help. Id. at 9-14. Based on his correspondence with Plaintiff, a representative of the Pennsylvania Prison Society, John Hargreaves (“Hargreaves”), spoke with Briggs about the inmates' concerns about their conditions of confinement. According to Hargreaves, Briggs informed him around June 26, 2018 that “[a]ll internal problems were fixed.” ECF No. 84-12 at 2. Hargreaves assumed that Briggs was referring to the plumbing sewage issues. Id.
b. Grievances
Plaintiff did not file any grievances about the toilets during his First Incarceration. He did submit multiple grievances on other topics during his First Incarceration and Second Incarceration. Later, he alleges he tried to submit a grievance about the toilets during his Second Incarceration.
(1) Grievances during First Incarceration
(a) Law library
Plaintiff claims he submitted two grievances about the inadequacy of law library in November 2017 and March 2018, but he only received a response to the March 2018 grievance.ECF No. 95-1 at 2-3; ECF No. 89-12 at 2.
Defendants contend they have no record of this November 2017 grievance, and that Plaintiff did not produce it as required in discovery. Based on this, Defendants have moved to strike this exhibit. ECF No. 102.
In his March 2018 grievance, Grievance No. 008-18, Plaintiff complained that the law library was inadequate because there was an inoperable computer program; it was being used for various other classes while inmates received limited time in the library; the legal materials were insufficient and outdated; and there was no liaison to assist with legal research. ECF No. 89-12 at 2-3.
Maronowski responded to Grievance No. 008-18 on March 14, 2018, as follows.
Law library was recently updated in February and updates are sent quarterly. Since Somerset County Jail is a small facility it is important that we meet all our inmates needs with groups, church, drug and alcohol classes and law library. You may request assistance when you access the law library. When requesting to use the law library request the assistance also at that time.Id. at 4.
Plaintiff claims that he appealed this decision to Briggs, but he never received any response to this appeal. ECF No. 94 ¶ 5; ECF No. 95-1 at 6. Defendants contend that Plaintiff received an appeal form but he refused to use it. ECF No. 88 ¶ 79.
Plaintiff produced a copy of the document he purports to have submitted as his appeal in response to Defendants' Motion for Summary Judgment. Defendants have moved to strike this exhibit, arguing they have no record of it and that it was not produced by Plaintiff during discovery. ECF No. 102.
When another inmate, Timothy Hartman (“Hartman”), filed a grievance regarding the inadequate library several months later, Caron considered Hartman's grievance to be “founded” on July 2, 2018, and he responded as follows.
A series of new books have been ordered and we are awaiting their arrival, Lexis Nexis contract has been submitted to the Commissioners office, and a new All-in-One Computer has been ordered. The Law Library will be complete and up to date when all the items arrive to the Facility.ECF No. 50-4 at 4.
(b) Legal mail
On June 26, 2018, Plaintiff filed a grievance claiming that privileged mail was opened outside of his presence. ECF No. 50-3 at 2. Caron considered this grievance to be “founded,” and he responded: “(a]n email has been put out by me to all of the Staff members reminding them that Legal Mail is to be opened in the presence of the receiving person. Also that all general mail should be copied in its entirety and the copies should be sent to the receiving person.” ECF No. 50-4 at 2.
(c) Isolated Confinement .
Plaintiff also filed a grievance about being confined in isolated confinement following his criminal sentencing from July 12, 2018 through July 18, 2018. ECF No. 95-3 at 2. Medical staff stated in a response dated July 31, 2018:
Patient was placed on Level 2 Suicide watch per protocol due to the length of his sentence. Patient was seen by Psychiatry and Mental Health Clinician at the next available lines. Medical does not limit or restrict phone call privileges due to this status. At this time your grievance is unfounded ....Id. at 4.
Plaintiff claims he did not receive a copy of this response until it was produced in discovery. ECF No. 94 ¶ 14.
(2) Grievances During Second Incarceration
After he returned to Somerset County Jail for the Second Incarceration (from November 27, 2019 to December 9, 2019), Plaintiff electronically submitted grievances on December 7 and 8, 2019 about the “lack of structural integrity” of the mattresses and the failure to provide ladders to reach the top bunks. ECF No. 89-12 at 11-12.
During Plaintiffs Second Incarceration, electronic tablets were available for use by inmates at the Somerset County Jail, including for the electronic submission of grievances. ECF No. 101 ¶ 8; ECF No. 89-3 at 30.
Plaintiff also claims that he tried to grieve the issue of his toilet backing up. But he claims that prison officials refused to give him a paper grievance form upon request. When Plaintiff tried to submit this grievance on a plain sheet of paper December 5, 2019, prison officials refused to file it. ECF No. 94 ¶¶ 8-9; ECF No. 50-3 at 3. Defendants dispute this, stating that Plaintiff was allowed to file this grievance electronically (like he did for the mattresses and ladders), but he refused to do so. ECF No. 101 ¶¶ 8-9. As a result, they have no record of this grievance. Id.
Plaintiff claims that he never received a response to these grievances. ECF No. 96 at 7. He left Somerset County Jail on December 9, 2019, before any response was due. After his transfer, Plaintiff states that he mailed appeals to Briggs on December 27, 2019 but did not receive any response. ECF Nos. 6-5 at 4-6; ECF No. 94 ¶ 10.
B. PROCEDURAL HISTORY
1. Pleadings/Legal Claims
Plaintiff began this lawsuit on July 21, 2020 by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), together with a proposed Complaint. ECF No. 1. The Court granted Plaintiffs IFP Motion on August 4, 2020, and his Complaint was filed on the same date. ECF Nos. 5 and 6.
In his original Complaint, Plaintiff brought four counts under the First, Eighth, and Fourteenth Amendments against Defendants Briggs, Caron, Maronowski, and Pelesky. ECF No. 6. In Count I, Plaintiff claimed that Defendants were deliberately indifferent by failing to protect him from the backing up of raw sewage and other inmates' bodily fluids, which placed him at risk of acquiring an infectious disease, such as Hepatitis A. Id. ¶¶ 87-94. Counts II and III concerned unclean, structurally unsound mattresses and the failure to provide ladders to reach the top bunks. Id. ¶¶ 95-105. Count IV was a retaliation claim. Id. ¶¶ 106-119.
Defendants moved to dismiss Plaintiffs Complaint. ECF No. 21. The undersigned submitted a Report and Recommendation as to the Motion to Dismiss, recommending that certain claims be dismissed. ECF No. 36. Defendants filed objections to the Report and Recommendation, and Plaintiff filed a response in which he incorporated a motion for leave to amend his Complaint. ECF Nos. 37 and 38.
Upon consideration of the filings, United States District Judge Kim R. Gibson granted in part and denied in part Defendants' Motion to Dismiss, dismissing Counts II, III, and IV of Plaintiffs Complaint with prejudice. ECF No. 40. The Court also ordered that Plaintiffs request to amend his Complaint be docketed as a separate motion for consideration. Id. Upon review, the Court granted Plaintiff leave to amend his Complaint as to Count I. ECF No. 49.
Based on this ruling, Plaintiff filed the operative First Amended Complaint on February 2, 2022, in which he added Vought as Defendant. ECF No. 50. Plaintiff brings his only claim, Count I, under the Eighth and Fourteenth Amendments arising out allegations that Defendants were deliberately indifferent to Plaintiffs health and safety by failing to protect him from infectious diseases relative to the ping-pong toilets. Id. ¶¶ 73-80. As relief, Plaintiff requests a declaration that his rights have been violated, injunctive relief, punitive damages, and costs for bringing this action. Id. at 21.
Plaintiff does not expressly request compensatoiy damages in his Amended Complaint, and he has confirmed in response to Defendants' Motion to Dismiss that he is not seeking such damages in this lawsuit. ECF No. 50 at 21; ECF No. 36 at 19. In his response to Defendants' Motion for Summary Judgment, however, Plaintiff “moves to supplement” his Complaint to ask for compensatory damages in the amount of $15,000. ECF No. 96 at 25. Because Plaintiff has not filed an appropriate motion seeking such relief, the Court does not consider this request to amend.
2. Motions for Summary Judgment
Plaintiff filed a Motion for Summary Judgment and Brief in Support on August 26, 2022. ECF Nos. 83 and 84.
On October 31, 2022, Defendants filed a Motion for Summary Judgment and Brief in Support, together with a Concise Statement of Material Facts and supporting Appendix. ECF Nos. 87, 88, 89 and 90. Defendants also filed a Response in opposition to Plaintiff's Motion for Summary Judgment. ECF No. 91.
On December 2, 2022, Plaintiff filed a Response to Defendants' Concise Statement of Material Facts, along with his own Concise Statement of Material Facts and supporting exhibits, and a Response in opposition to Defendants' Motion for Summary Judgment. ECF Nos. 93, 94, 95 and 96.
On December 13, 2022, Defendants filed a Reply in support of their Motion for Summary Judgment and a Response to Plaintiffs Concise Statement of Material Facts. ECF Nos. 100 and 101.
Plaintiff later filed a document titled “Supplemental Pleading to ‘Unavailable Administrative Remedies.'” ECF No. 105. Although Plaintiff styled this as supplemental pleading under Federal Rule of Civil Procedure 15(d), in substance it appeared to be a supplemental response relative to Defendants' Motion for Summary Judgment. The Court entered an Order striking this filing, ECF No. 110, and does not consider it here because it was filed without leave.
The Motions for Summary Judgment are now ripe for consideration.
3. Motions to Strike
Plaintiff filed the instant Motion to Strike on December 2, 2022, in which he asked the Court to strike his medical records and criminal history from the record. ECF No. 97. Defendants filed a Response in opposition. ECF No. 99. Plaintiff filed a Reply. ECF No. 106.
Defendants also filed a Motion to Strike, asking the Court not to consider certain grievances and declarations that Plaintiff submitted in response to the Motion for Summary Judgment. ECF No. 102. Plaintiff filed a Response in opposition. ECF No. 108.
The Motions to Strike are now ripe for consideration.
C. LEGAL STANDARD FOR SUMMARY JUDGMENT
Under Federal Rule of Civil Procedure 56, “[t]he court shall grant 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). 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); 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 evidence, 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 party'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, 477 U.S. at 322; 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 nonmoving 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 Corp., 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.J. Dep't of Mil. & Veterans Affairs, 487 F.3d 150, 152 (3d Cir. 2007); Woodside v, Sch. Dist. of Phila. Bd. of Educ., 248 F.3d 129, 130 (3d Cir. 2001).
D. DISCUSSION
1. Defendants' Motion for Summary Judgment (ECF No. 87)
In support of the Motion for Summary Judgment, Defendants argue that summary judgment should be granted for these reasons: (1) Plaintiff failed to exhaust his administrative remedies; (2) any claim arising out of events that occurred on or before July 18, 2018 is barred by the two-year statute of limitations; and (3) the record does not establish any violation of Plaintiffs Eighth Amendment rights because Defendants were not deliberately indifferent and, as to the Second Incarceration, the conditions were not sufficiently serious. ECF No. 90 at 8-21. To the extent Plaintiff claims that he suffered from hepatitis, Defendants also argue no evidence supports such a claim, and that punitive damages and injunctive relief are improper because Plaintiff is no longer incarcerated at Somerset County Jail, and there was no willful or wanton misconduct. Id. at 21-24.
Plaintiff began this lawsuit on July 21, 2020. ECF No. 1. Defendants argue that the Court should apply a two-year statute of limitations, plus an additional three days to account for mailing. ECF No. 90 at 14. The Court notes, however, that Plaintiffs Complaint is post-marked July 20, 2020. ECF No. 1-13.
Because Plaintiffs deliberate indifference claim in Count I arises out of two distinct periods of incarceration, the Court separately considers Defendants' arguments below relative to the First Incarceration and the Second Incarceration. For the reasons below, the Court should grant summary judgment for conduct that occurred during Plaintiffs First Incarceration because Plaintiff failed to exhaust his administrative remedies. As for Defendants' alleged conduct during the Second Incarceration, the Court should also grant summary judgment because the record does not support an Eighth Amendment violation.
a. Plaintiff failed to exhaust administrative remedies relative to the First Incarceration.
The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), requires that a prisoner exhaust available administrative remedies before filing an action challenging prison conditions or experiences. Under the PLRA, “[n]o 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 correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).
“Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. Thus, the benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219.
As the United States Court of Appeals for the Third Circuit has explained:
The PLRA requires inmates to exhaust prison grievance procedures before suing in court. 42 U.S.C. § 1997e(a). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218, 127 S.Ct. 910 (quoting Woodford v. Ngo, 548 U.S. 81, 88, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006)).Robinson v. Superintendent Rockview SCI, 831 F.3d 148,153 (3d Cir. 2016).
While exhaustion of administrative remedies is mandatory under the PLRA, “[a] prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not ‘available'” to the inmate. Ross v. Blake, 578 U.S. 632, 636 (2016). “The only limit to § 1997e(a)'s mandate is the one baked into its text: An inmate need exhaust only such remedies as are ‘available.'” Id. at 648 (quoting § 1997e(a)). In other words, “the exhaustion requirement hinges on the ‘availability' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642. “[T]he ordinary meaning of the word ‘available' is ‘capable of use for the accomplishment of a purpose,' and that which ‘is accessible or may be obtained.'” Id. (quoting Booth v. Chumer, 532 U.S. 731,737-38 (2001)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (quoting Booth, 532 U.S. at 738).
The United States Supreme Court has described three instances in which an administrative remedy is unavailable as a practical matter: “(1) ‘it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates'; (2) it is ‘so opaque that it 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.'” Shumanis v. Lehigh Cnty., 675 Fed.Appx. 145, 148 (3d Cir. 2017) (quoting Ross, 578 U.S. at 643-44).
“The burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). “But once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him.” Id. (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 (10th Cir. 2011)).
In support of the Motion for Summary Judgment, Defendants argue that Plaintiff failed to exhaust his administrative remedies because he never filed a grievance about the toilets during his First Incarceration. ECF No. 90 at 12-13. While the grievance policy encourages inmates to informally resolve issues, Defendants argue, those complaints must be brought to the inmate's housing unit officer or work crew supervisor (and not outside entities, as Plaintiff did here). Id. at 13. Even then, inmates still must file a grievance within 15 days of the incident. Id. Because Plaintiff filed grievances about various topics other than the plumbing, Defendants argue that administrative remedies were available to him.
In response, Plaintiff does not dispute that he never filed a grievance about the toilets during his First Incarceration. However, he argues that he informally tried to resolve this issue by reporting it to various prison staff and the Pennsylvania Prison Society. ECF No. 96 at 4, 12. Plaintiff also argues that he later tried to grieve this issue during his Second Incarceration (and was not provided with a grievance form). Id. at 5-6, 13.
Plaintiff further contends that administrative remedies were unavailable to him at Somerset County Jail. In support, Plaintiff argues that: (1) prison officials misled him; (2) Maronowski attempted to intimidate Plaintiff and other inmates from complaining about the conditions of their confinement; and (3) prison officials did not respond (or did not adequately respond) to certain grievances and appeals on topics other than the toilets. Id. at 3, 7 and 14.
(1) Failure to exhaust
Upon review, the Court should find that Plaintiff failed to exhaust his administrative remedies as to the toilets relative to his First Incarceration. Under the grievance policy, Plaintiff needed to file a grievance within 15 days of the incident. He began to experience issues with the ping-pong toilet in Cell No. 9 around November 28, 2017. But he did not file a grievance about this issue within 15 days of this occurring. In fact, it is undisputed that he never filed any grievance about the toilets during his First Incarceration. Thus, he did not exhaust his administrative remedies as to the toilets.
(2) Availability of remedies
Having satisfied their burden to show that Plaintiff did not exhaust his administrative remedies, the burden shifts to Plaintiff to show that administrative remedies were unavailable to him. Plaintiff contends that administrative remedies were not available because of: (1) misleading statements, (2) intimidation, and (3) failure to respond, or adequately respond, to grievances. For the reasons below, none of these grounds support a finding that administrative remedies were unavailable.
(a) Misleading statements
The Court first considers Plaintiffs argument that administrative remedies were unavailable because of prison officials' misleading statements. On this point, Plaintiff makes two arguments: (1) that Briggs misled him into believing that he had satisfied his administrative remedies when he told Hargreaves (of the Pennsylvania Prison Society) that “all internal problems were fixed”; and (2) the grievance policy, itself, was misleading because it is unclear about when inmates lose standing to grieve issues upon release.
As discussed, administrative remedies are not available when prison officials “thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.'” Ross, 578 U.S. at 644. In Hardy v. Shaikh, 959 F.3d 578 (3d Cir. 2020), the United States Court of Appeals for the Third Circuit adopted a two-part test to determine whether a misrepresentation by a prison official thwarts an inmate's use of the grievance process.
As an objective matter, taking account of the speaker and context, the instruction must be of the sort that a reasonable inmate would be “entitled to rely on,” even
though it is “at odds with the wording” of the grievance process. Brown, 312 F.3d at 112; see also Davis [v. Fernandez, 798 F.3d 290, 296 (5th Cir. 2015)] (finding “no reason that [the inmate] should not be entitled to rely on the representations of his jailers”). It also must be so misleading to a reasonable inmate as to interfere with his use of the grievance process ....
As a subjective matter, the inmate must persuade the district court that he in fact did rely on the misrepresentation to his detriment. As in the threat context, Rinaldi, 904 F.3d at 268-69, objectively misleading instructions can be circumstantial evidence that an inmate's use of the grievance process has been thwarted, but a farther showing-such as “documents, affidavits, or live testimony if deemed warranted,” id. at 269-will typically be required. And in any event, that circumstantial evidence can be overcome by evidence that an inmate actually knew how to navigate the grievance process despite the misleading instructions. Id.; cf. Dillon v. Rogers, 596 F.3d 260, 268 (5th Cir. 2010) (“When a prisoner has no means of verifying prison officials' claims about the administrative grievance process, incorrect statements by officials may indeed make remedies unavailable.”).Id. at 587-88.
Applying this standard, the two alleged misrepresentations at issue did not render administrative remedies unavailable. Briggs' statement to Hargreaves that “all internal problems were fixed” was not an objectively misleading instruction about the use of the grievance process, nor was it directed to Plaintiff. Plaintiff also did not rely on it to his detriment. By the time this statement occurred, around June 26,2018, Plaintiff had already failed to exhaust his administrative remedies relative to the ping-pong toilet in his cell.,
The date of June 26,2018 refers to when Hargreaves allegedly spoke to Briggs. It is unclear when this statement was communicated to Plaintiff, or if Plaintiff was still incarcerated at Somerset County Jail at the time.
Plaintiffs first experience of issues with the toilet in his cell was around November 28, 2017. He did not file a grievance about this issue within 15 days of the occurrence. Nor did he file any grievance relative to the toilets at any time prior to the conclusion of his First Incarceration on August 1, 2018.
As for the grievance policy, the arguably vague statement Plaintiff relies on refers to standing to pursue grievances after an inmate leaves the facility. There is no indication this policy was misleading about the necessary steps for filing a grievance while incarcerated, or that Plaintiff relied on it to his detriment in not filing a timely grievance about the toilets. Plaintiff therefore does not establish he was thwarted from filing a grievance based on misleading statements.
(b) Intimidation
Plaintiff also does not establish that he was thwarted from using the administrative process because of intimidation. In Rinaldi, the Third Circuit considered when “intimidation” so thwarts an inmate's use of the grievance process that it becomes unavailable. The Third Circuit held that an inmate must show “that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance” and “that the threat actually did deter this particular inmate.” Rinaldi, 904 F.3d at 268-69.
In this case, Plaintiff does not point to any apparent threat, let alone one that would deter a reasonable inmate from using the grievance process. Rather, Plaintiff refers the Court to his testimony about a meeting between Maronowski and inmates about their conditions of confinement. While Plaintiff characterizes this meeting as a “show of force,” this is not supported by his testimony. Rather than describing any threat, Plaintiff testified that Maronowski refused to make any changes in response to inmates' concerns, and the meeting became “argumentative.” She cut the meeting short and left in tears after the inmates became “really upset.” ECF No. 89-3 at 18. There is no testimony that Maronowski issued any threats. Accordingly, the record does not show that administrative remedies were unavailable based on intimidation.
(c) Failure to adequately respond to grievances
Finally, prison officials' alleged failure to adequately respond to grievances on other topics also does not show administrative remedies were unavailable. Plaintiff relies on Shifflett v. Korsniak, 934 F.3d 356 (3d Cir. 2019), in which the Third Circuit held that “a prisoner exhausts his administrative remedies as soon as the prison fails to respond to a properly submitted grievance in a timely fashion.” Id. at 359. But this holding does not excuse Plaintiffs failure to file a grievance relative to his claims in this case.
In Shifflett, an inmate-plaintiff filed two grievances about his failure to receive adequate medical care, but he did not file any grievance about retaliation. Id. at 360, 365-66. The Third Circuit held that when prison officials did not timely respond to plaintiff s grievance appeals about his medical care, plaintiff had fully exhausted his administrative remedies for those grievances. Id. at 365-66. Still, this did not excuse plaintiffs failure to file a grievance about retaliation. Id. at 366. Despite prison officials' failure to respond on one topic (medical care), plaintiff was still required to file a grievance about retaliation before he could sue on that basis. Id. Based on this, the Third Circuit allowed Plaintiff to proceed on his Eighth Amendment claim for denial of medical care, but it affirmed the dismissal of his First Amendment retaliation claim based on failure to exhaust. Id.
Here, then, the mere fact that prison officials did not timely respond to certain grievances or appeals on other topics (e.g., the law library) does not excuse Plaintiff s failure to file a grievance and to exhaust administrative remedies relative to the toilet issues. And while Plaintiff argues that the administrative process was a “mere dead end,” the record does not show that officials were either “unable or consistently unwilling to provide relief.” Ross, 578 U.S. at 64344. As to legal mail, there is evidence, for example, that prison officials provided relief in response to Plaintiffs grievance. Accordingly, prison officials' alleged failure to respond to grievances on other topics does not excuse Plaintiffs failure to file a grievance and exhaust administrative remedies relative to his Eighth and Fourteenth Amendment claims as to the toilet issues.
For these reasons, the record shows that Plaintiff did not exhaust his administrative remedies relative to any claim arising out of the First Incarceration. Because Plaintiff does not show administrative remedies were unavailable to him, the Court should grant the Motion for Summary Judgment to the extent that Count I arises out of the First Incarceration.
In light of the finding of failure to exhaust administrative remedies, the Court need not address Defendants' other two arguments in support of the Motion for Summary Judgment.
b. Plaintiff cannot establish any Eighth Amendment violation relative to the Second Incarceration.
Plaintiff brings Count I under the Eighth and Fourteenth Amendments. As the United States Supreme Court has held, “[t]he Constitution ‘does not mandate comfortable prisons.'” Farmer v. Brennan, 511 U.S. 825, 832 (1994) (quoting Rhodes v. Chapman, 452 U.S. 337, 349 (1981)). Prison officials are required to “provide humane conditions of confinement,” and must take “reasonable measures to guarantee the safety of inmates.” Id. (citations omitted). “For prisoners incarcerated following a conviction, the government's obligation arises out of the Eighth Amendment's prohibition on cruel and unusual punishment.” Cameron v. Bouchard, 815 Fed.Appx. 978, 984 (6th Cir. 2020); see also Murray v. Keen, 763 Fed.Appx. 253, 255 (3d Cir. 2019). When a pretrial detainee is challenging the conditions of his confinement, however, the claim arises instead under the Due Process Clause of the Fourteenth Amendment. See E.D. v. Sharkey, 928 F.3d 299, 307 (3d Cir. 2019) (citing Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir. 2008)).
Because Plaintiff was convicted on May 24, 2018, he was a convicted inmate throughout the Second Incarceration. Therefore, Plaintiffs claim relative to the Second Incarceration solely arises under the Eighth Amendment.
Where, as here, an inmate challenges the conditions of his confinement under the Eighth Amendment, the relevant inquiry is whether the inmate has been deprived of the “minimal civilized measure of life's necessities.” Rhodes, 452 U.S. at 347; see also Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997). Plaintiff must establish that he has been denied “basic human needs, such as food, clothing, shelter, sanitation, medical care and personal safety” from physical assault. Griffin, 112 F.3d at 709. General allegations of harm are not sufficient. Id.; see also Thomas v. Rosemeyer, 199 Fed.Appx. 195, 198 (3d Cir. 2006).
To establish that prison officials have violated the Eighth Amendment: “(1) the deprivation must be ‘objectively, sufficiently serious; a prison official's act or omission must result in the denial of the minimal civilized measure of life's necessities'; and (2) the prison official must have been ‘ deliberate [ly] indifferen[t] to inmate health or safety.'” Porter v. Pa. Dep't of Corr., 974 F.3d 431, 441 (3d Cir. 2020) (quoting Farmer, 511 U.S. at 834). “An official is deliberately indifferent if he ‘knows of and disregards an excessive risk to inmate health or safety.'” Id. (quoting Farmer, 511 U.S. at 837).
In support of the Motion for Summary Judgment, Defendants argue that Plaintiff cannot establish either element of this claim. As for the first element, Defendants argue that the toilet issues during Plaintiffs Second Incarceration were not serious enough to violate Plaintiffs constitutional rights. ECF No. 90 at 16-18. Defendants point out that: (1) Plaintiff was only subject to this condition for about four days, (2) he could leave his cell for periods of time, and (3) inmates could knock on their toilets to alert the inmate in the other cell to flush, which prevented the ping-pong effect. Id.
As for the second element, Defendants also argue there is no evidence of deliberate indifference because: (1) plumbing issues sometimes resulted from inmates flushing objects (e.g., blankets, sheets, and garbage), and officials tried to resolve those incidents, and (2) Defendants could not reasonably have corrected the underlying problem, which would ostensibly require replumbing the entire jail. Id. at 18-20.
In response, Plaintiff argues that Defendants knew about the ping-pong toilets, and that coming into contact with bodily fluids can lead to infectious diseases, but they did not resolve the issue. ECF No. 96 at 9-10.
Upon review, as to the Second Incarceration, Plaintiff does not identify any condition that was sufficiently serious to violate his Eighth Amendment rights. As the Court recognized, pingpong toilets that contaminate an inmate's cell with human waste may implicate the Eighth Amendment. ECF No. 36 at 14. “Toilets backing up from time to time is an unpleasant fact of everyday life, but a toilet that a person cannot freely move away from, and which is continually filled with fecal matter, can present a seriously unsanitary condition that may implicate the Eighth Amendment. Id. (citing Walker v. Regan, No. 13-7556, 2018 WL 347685, at *3 (E.D. Pa. Jan. 9, 2018)).
In evaluating Plaintiffs claim, the Court's decision in Ridgeway v. Guyton is instructive. In Ridgeway, plaintiff claimed that for about four weeks, the toilet in his cell was broken and would overflow with fecal matter, urine, and a black substance in the water. Ridgeway v. Guyton, No. 13-1254, 2015 WL 877778 (W.D. Pa. Mar. 2, 2015), aff'd, 663 Fed.Appx. 203 (3d Cir. 2016). One time, plaintiffs toilet overflowed “with fecal matter and urine mixed water” to the point that it completely flooded his cell and destroyed his belongings. Id. at *1. The Court held that “[c]onfmement in a cell for up to thirty days with a toilet that ‘often' backs up is insufficient to state an Eighth Amendment claim.” Id. at *6 (citing Burkholder v. Newton, 116 Fed.Appx. 358, 363 (3d Cir. 2004)).
Against this backdrop, Plaintiff does not establish the “objectively, sufficiently serious” conditions of confinement necessary to support an Eighth Amendment claim. The conditions Plaintiff experienced during the Second Incarceration lasted significantly less time (about four to five days) than in Ridgeway (about thirty days), and Plaintiffs toilet did not overflow and flood his cell during this time. Because Plaintiff could leave his cell during periods of time, he also was not continuously exposed to this condition. While the Court acknowledges the unpleasant nature of the conditions that Plaintiff experienced, it does not rise to the level of a constitutional violation. Accordingly, the Motion for Summary Judgment should also be granted as to his claims arising out the Second Incarceration.
Plaintiffs Second Incarceration lasted about 12 days (from November 27, 2019 until December 9, 2019). However, he only specifically described problems with his toilet occurring the evening of November 27, November 28 and 29, and December 6 until he transferred cells on December 7, 2019. ECF No. 88 ¶¶ 94-98, 102-114; ECF No. 50 at 17.
2. Plaintiffs Motion for Summary Judgment (ECF No. 83)
Plaintiff has also moved for summary judgment. ECF Nos. 83 and 84. In support, Plaintiff argues that Defendants violated his Eighth Amendment rights through their deliberate indifference to conditions caused by the ping-pong toilets, including the potential for serious disease, and he argues that the record does not support Defendants' affirmative defenses of statute of limitations and failure to exhaust administrative remedies.
Upon review of Plaintiffs Motion for Summary Judgment and the materials he has provided, for the reasons discussed above, his Motion for Summary Judgment is not supported by the record and should be denied.
3. Plaintiffs Motion to Strike (ECF No. 97)
In his Motion to Strike, Plaintiff moves to strike certain materials submitted relative to the motions for summary judgment: his medical records, information related to his criminal history, and any portions of Defendants' submissions at summary judgment that refer to those issues. ECF No. 97 at 7-8. In support, Plaintiff argues that Defendants improperly obtained his medical records without authorization (in violation of HIPAA) and did not produce those documents in discovery. Id. at 2-5. As for his criminal records, Plaintiff argues that this evidence is not relevant, and that Defendants rely on it in solely in bad faith to impugn his character. Id. at 4-6.
In response, Defendants argue they did, in fact, produce Plaintiff's medical records in response to Plaintiff's discovery requests. ECF No. 99 at 2. Defendants assert they already had Plaintiff's medical records in their possession as a result of a separate lawsuit that Plaintiff filed involving his health. Id. at 2-3. And they contend that Plaintiff placed his medical condition at issue when he alleged the toilets exposed him to infectious diseases (like Hepatitis A) and caused various symptoms, such as nausea, vomiting, diarrhea, fatigue, and headaches. Id. at 1-2. Defendants also argue that Plaintiffs criminal records are relevant to considering whether his claims arise under the Eighth or Fourteenth Amendments. Id. at 3-5.
Upon review, Plaintiffs Motion to Strike should be denied. Because the Court does not rely on Plaintiffs medical records in resolving the Motions for Summary Judgment and there is no pending claim relative to whether those records were obtained improperly, the Motion to Strike as to Plaintiffs medical records should be denied as moot.
That said, the Court acknowledges Plaintiffs concerns regarding the confidentiality of these records and will place those documents under seal on the Court's electronic docket.
As for Plaintiffs criminal history, whether Plaintiff was a pretrial detainee or convicted inmate is relevant to determining whether his claim arises under the Eighth or Fourteenth Amendment. The Court can consider this evidence and grant it the appropriate weight. Therefore, Plaintiffs Motion to Strike should be denied.
4. Defendants' Motion to Strike (ECF No. 102)
Defendants also move to strike certain exhibits that Plaintiff submitted in response to Defendants' Motion for Summary Judgment: (1) Plaintiffs declaration, ECF No. 95-2; (2) a November 2017 grievance and appeal about the law library, ECF No. 95-1 at 2, 6; and (3) the declaration of inmate Jesse Miller (“Miller”), ECF No. 95-5. For the reasons that follow, Defendants' Motion to Strike should be denied.
a. Plaintiffs declaration
Plaintiff submitted a declaration that focuses on his use of the grievance process at the Somerset County Jail. ECF No. 95-2. Defendants broadly claim that Plaintiff s declaration is a “sham affidavit” that contradicts Plaintiffs deposition testimony and contains self-serving, conclusory statements, “many of which are not corroborated by the evidence of record,” and hearsay. ECF No. 102 ¶¶ 5-11. But Defendants proffer no substantive analysis to support these conclusions, including how Plaintiffs declaration arguably contradicts his testimony or other evidence of record. Because this request is not meaningfully supported, it should be denied.
b. Law library grievance and appeal
Defendants also argue that a November 2017 grievance and appeal regarding the law library in Exhibit Q should be stricken under Federal Rule of Civil Procedure 37(c)(1) because Plaintiff failed to produce those documents in response to a discovery request seeking this information. ECFNo. 102 ¶¶ 12,15-17. Defendants argue that Plaintiff s failure to disclose these documents (of which they have no record) is prejudicial, because they could not question Plaintiff about these allegedly lost documents. Id. ¶¶ 19-20.
Defendants refer the Court to Rule 34, but they rely on the text of Rule 37(c)(1). ECF No. 102 ¶ 13.
In response, Plaintiff does not dispute that Defendants specifically requested these documents in discovery, and he did not properly disclose them. ECF No. 108 at 1-2. He only argues that he is relying on these documents to contest Defendants' Motion for Summary Judgment, and that they are relevant and discoverable. Id.
Under Federal Rule of Civil Procedure 37(c)(1):
(c) Failure to Disclose, to Supplement an Earlier Response, or to Admit.
(1) Failure to Disclose or Supplement. If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless. In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard:
(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;
(B) may inform the jury of the party's failure; and
(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).Fed. R. Civ. P. 37(c)(1).
Upon consideration, there is no dispute that Plaintiff failed to properly disclose these two documents in response to a written discovery request. Plaintiff does not offer any justification for why he failed to do so. That said, Plaintiffs failure to produce these documents did not result in any prejudice given the recommended disposition of Defendants' Motion for Summary Judgment in their favor. For this reason, the Motion to Strike on this basis should be denied.
c. Miller's declaration
Defendants also move to strike Miller's declaration, ECF No. 95-5, in which Miller asserts he was incarcerated with Plaintiff for periods of time at Somerset County Jail and similarly experienced the ping-pong toilets. Defendants argue that Plaintiff failed to disclose Miller as a witness and his declaration is not notarized. ECF No. 102 ¶¶ 12, 19-24.
In response, Plaintiff argues that Miller did not arrive on Plaintiffs block at SCI-Houtzdale until October 17, 2022, and that he disclosed this witness on November 3, 2022. Plaintiff also argues that this declaration is not required to be notarized under 28 U.S.C. § 1746. ECF No. 108 at 5, 7.
Plaintiffs last custody at Somerset County Jail ended on December 9, 2019.
Upon review, because the Court does not rely on Miller's declaration to resolve the Motions for Summary Judgment, the Motion to Strike this declaration should be denied as moot.
E. CONCLUSION
For these reasons, the Court should grant Defendants' Motion for Summary Judgment, ECF No. 87. The Court should deny Plaintiffs Motion for Summary Judgment, ECF No. 83. The Court should also deny Plaintiff s Motion to Strike, ECF No. 97, and Defendants' Motion to Strike, ECF No. 102.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187,193 n. 7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen (14) days thereafter in accordance with Local Civil Rule 72.D.2.