Opinion
CIVIL 1:20-CV-425
04-05-2022
WILLIAM VICTOR, Plaintiff, v. LT. MOSS, et al., Defendants.
Mannion, Judge
REPORT AND RECOMMENDATION
Martin C. Carlson United States Magistrate Judge
I. Introduction
As a matter of law, inmates must exhaust any administrative remedies that are available to them before filing a lawsuit in federal court. This administrative exhaustion requirement is imposed by statute, the Prison Litigation Reform Act, 42 U.S.C. § 1997e (“PLRA”), and this exhaustion requirement serves important and salutary purposes. Therefore, it has been held that full and proper exhaustion of administrative remedies is a statutory prerequisite to filing a prisoner civil rights lawsuit.
In Pennsylvania, inmates who believe that they have been aggrieved by assaultive conduct by staff may have two paths to administratively exhaust their prison grievances-the general inmate grievance process and a separate process for raising claims of staff abuse. However, regardless of which path is chosen, it remains the responsibility of the prisoner to fully and properly exhaust his grievances prior to filing a lawsuit in federal court.
This case illustrates the importance of full and proper exhaustion of administrative grievances. The plaintiff, William Victor, is an inmate who has alleged that his constitutional rights were violated in the Fall of 2019 when he was assaulted by correctional staff. However, although Victor had two methods of exhausting his prison grievances regarding this alleged assault and Victor's prior prison litigation had made it unmistakably clear to the plaintiff that full exhaustion was a prerequisite to litigation, it is clear that Victor filed this case without awaiting full exhaustion of his administrative remedies.
On these facts, the defendants now move for summary judgment, citing Victor's failure to completely exhaust these available remedies prior to filing suit. For the reasons set forth below, we agree that Victor filed this case prematurely without awaiting complete and proper exhaustion of his grievances. Therefore, case law commands that this case be dismissed for failure to exhaust administrative remedies.
II. Statement of Facts and of the Case
This is a civil rights action brought by William Victor, a state inmate. In his complaint, which was first filed on March 12, 2020 and later amended on November 16, 2020, (Docs. 1 and 49), Victor, who is proceeding pro se, named multiple individuals at the State Correctional Institution (SCI) Dallas as defendants. According to Victor, on September 17, 2019, staff at SCI Dallas violated his rights under the Eighth Amendment to be free from cruel and unusual punishment when they used excessive force and engaged in an “unprovoked attack” upon him, (Doc. 1), resulting in blood loss, swelling, and facial fractures. (Doc. 49, ¶ 6). Victor further alleges that he was transferred to a nearby prison, SCI Frackville, for medical treatment following his injuries. While at that prison, Victor avers that he made full efforts to file and exhaust any grievances arising out of this affray. (Id., ¶ 7).
This issue of administrative exhaustion now lies at the heart of this case, the defendants having filed a motion for summary judgment which challenges whether Victor properly exhausted his administrative remedies within the prison system prior to filing this lawsuit. On this score, the defendants acknowledge that Victor possessed two avenues for administratively exhausting his prison grievances. First, Victor could adhere to the general prison grievance policy which provides for a three-tiered grievance system as set forth by the DOC in DC-ADM 804. See Spruill, 372 F.3d at 232. Pursuant to DC-ADM 804, inmates must first file grievances with the Facility Grievance Coordinator at the facility where the events that give rise to the complaint occurred. If the inmate is dissatisfied with the initial review of his grievance, he may appeal the decision to the Facility Manager (i.e., the Superintendent). Upon receiving a decision from the Superintendent, the inmate may file an appeal with the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”) within 15 working days of the Superintendent's decision. DC-ADM 804.
In addition, the Department of Corrections prescribes a second pathway for the investigation and resolution of inmate complaints of physical abuse by staff, DC-ADM 001. (Doc. 115-3). This prison policy does not contain the same three-tiered system and timetables prescribed for grievances generally. Instead, DC-ADM 001 calls for the referral of abuse allegations for investigation. (Id.) While DC-ADM 001 contemplates that many investigations will be completed within 30 days, the policy also recognizes that in some instances more than 30 days will be necessary to allow for a full, thorough, and impartial investigation. Therefore, this 30-day period may be extended to allow for completion of any investigation. (Id., at 10).
In this case, Victor initially filed a grievance relating to this alleged September 17, 2019 assault on September 26, 2019. (Doc. 115-4). In accordance with DC-ADM 001, Victor's grievance was treated as an inmate abuse allegation and was referred for investigation, first within the Department of Corrections and later by the Pennsylvania State Police. (Doc. 115-5). On October 17, 2019, Victor was specifically informed that his grievance had been referred for investigation pursuant to DC-ADM 001. (Doc. 118-1, at 4). Moreover, when the investigation of Victor's allegations extended beyond 30 days, Victor was once again advised by the Superintendent on December 16, 2019, that his abuse allegation was still under review. (Doc. 115-4, at 6). Having been informed of this on-going review of his allegations of abuse by prison officials in December of 2019, Victor did not await the outcome of this investigation. Instead, he instituted this lawsuit on March 12, 2020, prior to the completion of the investigation called for by DC-ADM 001.
In fact, it appears that the state police investigation concluded in June of 2021 with a determination that Victor's assault allegations were unfounded. (Doc. 115-5).
Citing Victor's decision to file this lawsuit at a time when he knew that his allegations had been referred for investigation pursuant to DC-ADM 001, but prior to the completion of that investigation, the defendants have moved for summary judgment, arguing that Victor failed to fully and properly exhaust these grievance procedures as he was required to do by statute. (Doc. 114). This summary judgment motion is fully briefed and is, therefore, ripe for resolution. (Docs. 114, 115, 116, 117, 118, 119).
For the reasons set forth below, it is recommended that the motion for summary judgment be granted.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendants have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the 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). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact,” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving 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 at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the nonmoving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In
practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
B. Administrative Exhaustion Under the PLRA
The Prison Litigation Reform Act, 42 U.S.C. § 1997 (“PLRA”) requires prisoners to present their claims through an administrative grievance process prior to seeking redress in federal court. Specifically, the Act provides that: “No action shall be brought with respect to prison conditions under [§ 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. § 1997e(a) (emphasis added). In accordance with the PLRA, prisoners must comply with exhaustion requirements with respect to any claim that arises in the prison setting, regardless of the relief sought. See Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong”); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues”).
By its terms this exhaustion requirement only applies to “such administrative remedies as are available.” 42 U.S.C. § 1997e(a). However, as the statute's language makes clear, if remedies are available, the exhaustion of these available administrative remedies prior to filing suit is mandatory. See Ross v. Blake, 136 S.Ct. 1850, 1853 (2016) (“That mandatory language means a court may not excuse a failure to exhaust”); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (“[I]t is beyond the power of this court - or any other - to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis”) (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y. 1998)). An inmate who fails to exhaust available administrative remedies is subsequently barred from litigating that claim in federal court. See Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000).
Moreover, the exhaustion requirement of the PLRA is one of “proper exhaustion.” Woodford v. Ngo, 548 U.S. 81, 84 (2006). Failure to comply with the procedural requirements of the available grievance system will result in a claim being deemed procedurally defaulted. Id. at 90; Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004). An inmate cannot circumvent the PLRA's exhaustion requirement by failing to properly exhaust the prison's administrative review process, or by waiting until such remedies are no longer available to him. Woodford, 548 U.S. at 95. However, the Supreme Court has recently recognized a narrow exception to the exhaustion requirement built into the statutory language of the PLRA; a prisoner need not exhaust administrative remedies prior to filing a claim if the remedies are not available to the inmate. See Ross, 136 S.Ct. at 1853; see also Berry v. Klem, 283 Fed.Appx. 1, 4-5 (3d Cir. 2008) (“[W]e made clear . . . that the PLRA requires exhaustion of all available remedies, not all remedies.”). Likewise, where an inmate “fail[s] to receive even a response to the grievances addressing . . . incidents, much less a decision as to those grievances, the [administrative remedy] process [i]s unavailable to him.” Small, 728 F.3d at 273.
In this regard, case law recognizes a clear “reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires.” Davis v. Warman, 49 Fed.Appx. 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust will only be excused “under certain limited circumstances.” Harris v. Armstrong, 149 Fed.Appx. 58, 59 (3d Cir. 2005). In Ross, the Supreme Court of the United States articulated three circumstances where a prison's administrative procedures are “unavailable” to inmates. Specifically, the Supreme Court noted that administrative remedies are not available where: 1) the administrative procedure operates “as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; 2) the administrative scheme is “so opaque that it becomes, practically speaking, incapable of use”; and 3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 136 S.Ct. at 1859-60 (citing Booth v. Churner, 532 U.S. 731, 738, 741 n.6 (2001)). As to the second circumstance, the Supreme Court instructed that “[w]hen rules are so confusing that no reasonable prisoner can use them, then they are no longer available.” Ross, 136 S.Ct. at 1860 (quotation omitted). The Supreme Court further noted that “Congress has determined that the inmate should err on the side of exhaustion” where “an administrative process is susceptible of multiple reasonable interpretations,” however, where a remedy becomes “essentially ‘unknowable'- so that no ordinary prisoner can make sense of what it demands - then it is also unavailable.” Id.; see also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (holding that prisoner with failure to protect claim was entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (holding that exhaustion requirement was met where Office of Professional Responsibility fully examined merits of excessive force claim and correctional officers impeded filing of grievance).
Further, proper exhaustion is a prerequisite to litigation. A prisoner may not satisfy the PLRA's exhaustion requirement by exhausting administrative remedies after initiating suit in federal court. See Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (“If exhaustion was not completed at the time of filing, dismissal is mandatory”); Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (“Whatever the parameters of ‘substantial compliance' [with a prison's grievance procedures], it does not encompass ... the filing of a suit before administrative exhaustion, however late, has been completed”) (citations omitted).
Pennsylvania inmates ordinarily must exhaust administrative remedies in accordance with a three-tiered grievance system set forth by the DOC in DC-ADM 804. See Spruill, 372 F.3d at 232. Pursuant to DC-ADM 804, inmates must first file grievances with the Facility Grievance Coordinator at the facility where the events that give rise to the complaint occurred. If the inmate is dissatisfied with the initial review of his grievance, he may appeal the decision to the Facility Manager (i.e., the Superintendent). Upon receiving a decision from the Superintendent, the inmate may file an appeal with the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”) within 15 working days of the Superintendent's decision. DC-ADM 804. “Proper exhaustion in Pennsylvania requires completion of a three-part procedure; initial review, appeal, and final review.” Garcia v. Kimmell, 381 Fed.Appx. 211, 213 n.1 (3d Cir. 2010) (citing Spruill, 372 F.3d at 232)). Again, compliance with the DOC's administrative grievance process is mandatory prior to bringing suit in federal court, and the failure to do so will result in that suit being subject to dismissal pursuant to the clear terms of the PLRA. Nyhuis, 204 F.3d at 73.
However, the Pennsylvania Department of Corrections also provides another grievance process relating to allegations of inmate abuse, DC-ADM 001. (Doc. 1153). This prison policy does not contain the same three-tiered system and timetables prescribed for grievances generally. Instead, DC-ADM 001 calls for the referral of abuse allegations for investigation. (Id.) While DC-ADM 001 sets a 30-day aspirational timetable for abuse investigations, the policy also recognizes that in many instances more than 30 days will be necessary to allow for a full, thorough, and impartial investigation. Therefore, this 30-day period may be extended to allow for completion of any investigation. (Id., at 10).
The existence of these dual grievance pathways has led courts to conclude that exhaustion of any one process is sufficient to satisfy the PLRA's exhaustion requirement. Thus, with respect to the inmate abuse policy statement, DC- ADM 001, the legal significance of these parallel grievance paths has been thoroughly discussed and:
[W]hile the court of appeals “has not considered whether a Pennsylvania prisoner can exhaust his administrative remedies through DC-ADM 001, nor what steps would be necessary under that procedure,” Victor v. Lawler, 565 Fed.Appx. 126, 129 (3d Cir. 2014), a number of district courts “have found that allegations of abuse do not have to be filed through all three levels of the DOC's grievance system pursuant to DC-ADM 804, if the inmate reports the abuse pursuant to DC-ADM 001.” Boyer v. Malet, No. 3:CV-16-0149, 2016 WL 4679013, at *3 (M.D. Pa.
Sept. 7, 2016).Robinson v. Tennis, No. 3:11-CV-1724, 2017 WL 4479349, at *6 (M.D. Pa. Sept. 8, 2017), report and recommendation adopted, No. 3:11-CV-1724, 2017 WL 4478009 (M.D. Pa. Oct. 6, 2017).
Cases construing DC-ADM 001's exhaustion requirement recognize that this prison policy is in some ways less strict and more forgiving that the general grievance policy, DC-ADM 804, in terms of its timetables and deadlines. However, a rising tide of case law has concluded that exhaustion under DC-ADM 001 is not complete until the investigation into the inmate's abuse allegation has concluded. As the Court of Appeals has observed:
[E]ven if we were to agree with the various District Court opinions holding that an inmate need only file a grievance with the OPR under DC-ADM 001 in order to exhaust administrative remedies, we do not agree that a prisoner can file a complaint before the OPR's investigation is complete, at least absent unusual circumstances. Under the PLRA, “[n]o action shall be brought with respect to prison conditions ... 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. § 1997e(a) (emphasis added). Exhaustion of administrative remedies must be proper and in accordance with applicable regulations and policies, and noncompliance cannot be excused by the courts. Woodford v. Ngo, 548 U.S. 81, 83-84, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006); Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir.Pa.2004); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.Pa.2000). If exhaustion is not complete at the time of filing, dismissal is mandatory. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.2003); Smith v. Mensinger, 293 F.3d 641, 647 n. 3 (3d Cir.2002).Victor v. Lawler, 565 Fed.Appx. 126, 129 (3d Cir. 2014).
This view is also reflected in a growing consensus of district court cases which acknowledge that in the normal course “even if exhaustion is through DC-ADM 001 . . ., the inmate must wait for the investigation to be complete before filing a complaint in federal court.” Boyer v. Malet, No. 3:CV- 16-0149, 2016 WL 4679013, at *3 (M.D. Pa. Sept. 7, 2016). See e.g., Washington v. Sedlock, No. CV 17-988, 2020 WL 4353198, at *6 (W.D. Pa. May 12, 2020), report and recommendation adopted sub nom. Washington v. Gilmore, No. CV 17 - 988, 2020 WL 4350242 (W.D. Pa. July 29, 2020), order vacated on reconsideration (Nov. 24, 2020), and report and recommendation adopted sub nom. Washington v. Gilmore, No. CV 17-988, 2021 WL 688088 (W.D. Pa. Feb. 23, 2021), reconsideration denied, No. CV 17-988, 2021 WL 1060346 (W.D. Pa. Mar. 18, 2021), and affd, 852 Fed.Appx. 639 (3d Cir. 2021), and affd, 852 Fed.Appx. 639 (3d Cir. 2021); McCain v. Wetzel, No. 1: 12-CV-0789, 2018 WL 3439204, at *6 (M.D. Pa. July 17, 2018). Thus, under DC-ADM 001 “[c]onsistent with Victor and the purposes of the PLRA, absent special circumstances, the inmate must wait for an investigation to be complete before filing a complaint in federal court.” Moore v. Lamas, No. 3: 12-CV-223, 2017 WL 4180378, at *11 (M.D. Pa. Sept. 21, 2017). See also Pressley v. Huber, No. 3: 08-CV-00449, 2018 WL 1079612, at *8 (M.D. Pa. Jan. 11, 2018), report and recommendation adopted, No. CV 3:08-0449, 2018 WL 1077300 (M.D. Pa. Feb. 27, 2018) (“Middle District precedent hold[s] that the only prerequisite to filing a claim in federal court for a cause of action stemming from conduct reported under DC-ADM 001 is that the inmate must wait for completion of the subsequent investigation.”)
Moreover, many of these cases involve scenarios like the scenario presented here where the underlying investigation has extended beyond 30 days. Provided that the inmate has received notice of the ongoing nature of the investigation from prison officials, thus allaying any concerns that the grievance process has become unavailable, courts have concluded that the passage of more than 30 days does not excuse the inmate from awaiting the completion of any abuse investigation before filing a lawsuit. Id.
Because it is an affirmative defense, the defendants have the burden of pleading and proving the failure to exhaust available administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007); Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). “Proof of the defense of failure to exhaust must be made by a preponderance of the evidence.” Cooper v. Martucchi, No. CIV.A. 15-267, 2015 WL 4773450, at *1 (W.D. Pa. Aug. 12, 2015). Whether an inmate has exhausted administrative remedies is a question of law to be determined by the court, even if that determination requires the resolution of disputed facts. However, where there are factual disputes concerning the availability and use of these remedies those disputes must be resolved by the court following an evidentiary proceeding. See Small v. Camden County, 728 F.3d 265, 270-71 (3d Cir. 2013) (“[T]he District Court did not err by acting as the fact finder because exhaustion constitutes a preliminary issue for which no right to a jury trial exists.”); see also Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010).
It is against these legal guideposts that we assess whether Victor has complied with the PLRA's administrative grievance exhaustion requirement.
C. Victor Did Not Fully and Properly Exhaust His Grievances Prior to Filing This Lawsuit.
Judged against these benchmarks, we conclude that Victor did not fully and properly exhaust his administrative remedies prior to filing this lawsuit. At the outset, it is undisputed that Victor had not fully complied with the general grievance policy DC-ADM 804 when he filed this complaint in March of 2020. Victor could not have completed this process because, in accordance with the inmate abuse policy, DC-ADM 001, the investigation into his abuse allegations was still ongoing. Moreover, the fact that this investigation had not been completed at the time that Victor filed this complaint also means that the plaintiff cannot claim full and proper exhaustion pursuant to DC-ADM 001 since “even if exhaustion is through DC-ADM 001 . . ., the inmate must wait for the investigation to be complete before filing a complaint in federal court.” Boyer, 2016 WL 4679013 at *3.
Nor can Victor evade this exhaustion requirement by asserting that the investigation spanned beyond 30 days. Victor was on notice of the ongoing nature of the investigation he instigated, and law enforcement and correctional officials are entitled under this policy to exceed this 30-day period when the needs of an ongoing investigation dictate a more thorough and comprehensive review of the facts. The fact that the duration of this investigation exceeded 30 days does not, therefore, excuse Victor from awaiting the ongoing of the inquiry inspired by his abuse allegations before proceeding to federal court. Boyer, 2016 WL 4679013 at *3; Washington, 2020 WL 4353198 at *6.
Moreover, Victor cannot avoid this exhaustion requirement by alleging that he exhausted these remedies after he filed this lawsuit. Under the PLRA, exhaustion is a prerequisite to litigation. Therefore, an inmate must exhaust administrative remedies prior to filing suit. See Oriakhi v. United States, 165 Fed.Appx. 991, 993 (3d Cir. 2006); Dawson v. Cook, 238 F.Supp.3d 712, 718 (E.D. Pa. 2017). A court is not permitted to “excuse compliance” with the exhaustion requirement, “whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (internal quotation marks omitted).
We leave for another day the question of whether Victor may now file a new complaint having completed the exhaustion process mandated by DC-ADM 001.
In short, regardless of which administrative exhaustion path is chosen as the applicable legal guidepost, Victor's complaint is fatally flawed because he filed this action prematurely without awaiting complete exhaustion of his grievances. Therefore, the PLRA commands the dismissal of this unexhausted complaint.
IV. Recommendation
Accordingly, for the foregoing reasons, upon consideration of the defendants' motion for summary judgment, (Doc. 114), IT IS RECOMMENDED THAT the motion be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.