Opinion
Civil Action 20-61J
01-19-2023
JOHN WILLIAMS, Plaintiff, v. TOM WOLF, et al Defendants.
Stephanie L. Haines, District Judge
REPORT AND RECOMMENDATION
RE: ECF NOS. 87, 111
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Pending before the Court is a Motion to Dismiss Amended Complaint or, in the alternative, a Motion for Summary Judgment, filed on behalf of Defendants Tom Wolf, John Wetzel, George Little, Timothy Holmes, Debra Rand, Barry Smith, Rebecca Reifer, Melissa Straw, Susan Hnatkovich, Robert Westover, Brodie Urban, Robert Parks, T. Little, Brooke Civiello, CO Stewart, CO Rieg, CO Isenburg, CO Smith, Freddy Nunez, and Terri Sechrengost (collectively, the “Commonwealth Defendants”). ECF No. 87. For the following reasons, it is respectfully recommended that the Court grant the Motion for Summary Judgment and enter judgment for each of the Commonwealth Defendants. It is further recommended that the Court deny Plaintiff's Motion for Leave to File Plaintiff's Supplemental Amended Complaint. ECF No. 111.
II. REPORT
A. RELEVANT PROCEDURAL BACKGROUND
Plaintiff John Williams (“Plaintiff”) is an inmate incarcerated at the State Correctional Institution at Houtzdale (“SCI-Houtzdale”). Plaintiff presents an Amended Complaint asserting claims against Governor Wolf, DOC administrators, supervisors, and employees for the violation of his rights under the First Amendment related to the alleged denial of access to courts and for retaliation; a claim for discrimination in violation of the Americans with Disabilities Act; and claims under federal and state law for alleged illegal deductions from his inmate account to pay court-imposed fees and penalties. Plaintiff also asserts claims against various state court and county judicial and prosecutorial entities and personnel for allegedly colluding to wrongfully convict him of his underlying crimes. ECF No. 79.
Through the Amended Complaint, Plaintiff seeks to correct pleading deficiencies that were identified in the Report and Recommendation issued on July 21, 2020, after the required screening of Plaintiff's Complaint in accordance with the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e. ECF No. 36. By Order dated January 15, 2021, the Court adopted the Report and Recommendation, dismissed each of Plaintiff's federal claims against all Defendants for failure to state a claim, and dismissed Plaintiff's state law claims for lack of jurisdiction. The Court also granted Plaintiff leave to file an Amended Complaint as to those claims not dismissed with prejudice. ECF No. 51.
In lieu of an Amended Complaint, Plaintiff filed a series of exhibits, none of which complied with the Court's January 15, 2021 Order. See ECF Nos. 61. On May 4, 2021, this Court issued a second Report and Recommendation recommending that Plaintiff's action be dismissed due to his failure to file an Amended Complaint. ECF No. 66. Plaintiff filed objections to the Report and Recommendation, ECF No. 67, and in the interest of justice, the Court granted Plaintiff one final opportunity to file an Amended Complaint only as to claims not dismissed with prejudice, and any claims not asserted on behalf of other prisoners. ECF No. 75.
In accordance with the Order granting leave, Plaintiff filed an Amended Civil Complaint. ECF No. 79. Through the pending Motion to Dismiss, the Commonwealth Defendants contend that many of the original pleading deficiencies have not been corrected and, further, that Plaintiff's claims against the Commonwealth Defendants have not been exhausted as required by the PLRA. By Order dated December 12, 2022, the Court notified the parties that since the Commonwealth Defendants present a declaration and grievance records to support the failure to exhaust argument, the Court would treat Motion to Dismiss as a Motion for Summary Judgment under Federal Rule of Civil Procedure 56 for the issue of exhaustion of administrative remedies only. ECF No. 101. See Renchenski v. Williams, 622 F.3d 315 (3d Cir. 2010) (district court must provide notice to pro se prisoners when converting a motion to dismiss into a motion for summary judgment). Plaintiff was granted to leave to file any other exhibits and a supplemental brief on this issue by January 9, 2023. Id.
As noted, Plaintiff also asserts claims in the Amended Complaint against the Pennsylvania Superior Court, various state court officials and employees, and the Cumberland County District Attorney related to the prosecution of his 2017 criminal charges. Plaintiff has not provided necessary service documents related to these parties and none have been served. The Court issued an Order to Show Cause why these parties should not be dismissed pursuant to Federal Rule of Civil Procedure 4(m) based on this deficiency. ECF No. 102. Plaintiff has not complied with the Order to Show Cause and thus the Court separately recommends that the Court dismiss Plaintiff's claims against Thomas A. Placey, Edward E. Guido, Rhonda J. Smith, Michele A. Elline, Denis Lebo, Merle L. Ebert, Kimberly A. Merzger, and the Superior Court of Pennsylvania. See Beckerman v. Susquehanna Twp. Police, 254 Fed.Appx. 149, 154 (3d Cir. 207) (where there is an unjustified and unexcused failure to timely serve a complaint, the court “must dismiss the action.”); Foster v. Pennsyvlania Hum. Rel. Comm'n, 157 Fed.Appx. 488, 490 (3d Cir. 2005) (an order dismissing a complaint is properly entered when a plaintiff fails to permit service despite warnings and requests by the court to address service issues).
On December 30, 2022, Plaintiff filed a Motion to Extend Time, alleging that he had insufficient funds in his inmate account to produce exhibits and that he “needs access to the prison library” to respond to the Court's orders. ECF No. 104. On January 3, 2023, the Court ordered the Commonwealth Defendants to respond to the Motion and to provide the Court with a copy of Plaintiff's current inmate account balance and information related to the time allotted or available to Plaintiff to access the prison law library. ECF No. 105. The Commonwealth Defendants have provided the requested information which reflects that as of an inmate payroll day on December 21, Plaintiff had a balance of $44.53 in his inmate account. ECF No. 106-4. Of that amount, Plaintiff expended $31.76 for cable and commissary use, and $12.10 for court ordered Act 84 charges and court filing fees. Id. Based on his account statement, Plaintiff will receive a payroll deposit on January 21, 2023. Plaintiff has had access to the law library three to five times per week for the period December 4, 2022, through January 5, 2023, on a schedule that would permit around 7.5 hours per week. ECF Nos. 106 and 107. He attended library sessions for 23.5 hours during this period and did not sign up for approximately 6.5 hours that were otherwise available to him. Id. Because these exhibits demonstrate that Plaintiff has had sufficient time and funds available to supplement his previous briefing of the limited issue of exhaustion, the Court granted in part the Motion to Extend Time to file a supplemental brief until January 25, 2023. ECF No. 108. Plaintiff filed his response on January 12, 2023. ECF Nos. 110 and 112. Plaintiff has also filed a Motion for Leave to File Plaintiff's Supplemental Amended Complaint to add claims and parties. ECF Nos. 110 and 111.
The record, including Plaintiff's supplemental brief and exhibits, establishes that Plaintiff failed to exhaust available administrative remedies for all claims asserted in his Amended Complaint. Therefore, the Court should grant the Commonwealth Defendants' Motion for Summary Judgment.
Moreover, considering Plaintiff's failure to exhaust administrative remedies for all claims asserted in his Amended Complaint, Plaintiff's motion to further amend his Complaint to assert new claims arising out of the incidents identified in the Amended Complaint or arising after the filing of the Amended Complaint should be denied as futile. Finally, pursuant to Federal Rule of Civil Procedure 4(m), all claims against Thomas A. Placey, Edward E. Guido, Rhonda J. Smith, Michele A. Elline, Denis Lebo, Merle L. Ebert, Kimberly A. Merzger, and the Superior Court of Pennsylvania should be dismissed without prejudice.
B. RELEVANT FACTUAL BACKGROUND
The exhibits attached to Plaintiff's Amended Complaint include Grievance No. 834885. ECF No. 79-1. In that grievance, Plaintiff asserted that as of November 11, 2019, he engaged in ongoing litigation of six matters. See also ECF No. 88-1. Plaintiff claimed that he would suffer irreparable harm because DOC and SCI - Houtzdale policies and procedures impaired or impeded his ability to litigate each legal action. Plaintiff challenged the allotment of three one-hour law library sessions per week and the provision of two print-capable computer stations for a prison population of 2500 inmates, which he said unreasonably impacted his ability to draft pleadings due to his severe carpal tunnel syndrome. ECF No. 88-1 at 49. Plaintiff also grieved the provision of $10 per month for indigent prisoners to offset expenses for legal photocopies, legal and personal postage, 5 envelopes per month for legal mail, and 100 sheets of paper. Plaintiff stated that the amount allocated to indigent prisoners for litigation postage and supplies impeded his ability to research, draft, and file necessary appeal documents. Id. As an example, Plaintiff stated that his exhibits to his Petition for Writ of Certiorari in the United States Supreme Court ran about 525 pages, which would take “105 months” to file given the $10 per month limitation.
The dockets of the matters identified in Plaintiff's grievance are all publicly available and reflect that Plaintiff actively litigated each matter to its conclusion or, in the case of his direct appeal of his 2017 conviction, until voluntary withdrawal.
(1) Williams v. Warden Cumberland County Prison, No. 19-2871 (3d Cir. Sept. 3, 2019), related to Plaintiff's Motion for Certificate of Appealability of his March 29, 2019 criminal conviction on charges for kidnapping, robbery, and unauthorized device access. The motion was denied on November 27, 2019. Plaintiff filed a petition for rehearing en banc on December 18, 2019, and the petition was denied on January 2, 2020.
(2) Williams v. Lumpkin, No. 19-11402, filed in the United States Court of Appeals for the Fifth Circuit. This matter concerned Plaintiff's 1996 criminal conviction in Texas for kidnapping, and was filed by Plaintiff on October 23, 2019. Plaintiff requested an extension of time on December 20, 2019 to submit his required Motion for Certificate of Appealability. The request was granted that same day, and Plaintiff filed the motion on January 20, 2020. Plaintiff's motion was denied on March 8, 2021, and a mandate and judgment were entered on March 30, 2021. As explained by the Court: “[Plaintiff] did not directly appeal his [1996] conviction or seek postconviction relief. Twenty-two years later, Williams filed a 28 U.S.C. § 2254 petition alleging ‘the denial of assistance of counsel, due process of law, and equal protection of the law, under the Sixth and Fourteenth Amendments to the Constitution.' The federal district court denied Williams's petition as time barred. Williams now applies for a certificate of appealability ....” Upon review of Williams' exhibits and motion, the Fifth Circuit concluded that Williams did not present a basis to excuse his failure to diligently pursue his rights within any exception to the one-year statute of limitations for review of his underlying conviction.
(3) Williams v. FCI Otisville, No. 18-2250, filed in the United States District Court for the Middle District of Pennsylvania. This action presents a motion to set aside a second conviction, also in Texas, for unlawful possession of a firearm. The Respondent requested dismissal or that the case be transferred and Plaintiff filed a timely traverse on September 24, 2019. On November 25, 2019, the district court ordered that the case be transferred to the to the United States District Court for the Eastern District of Texas for consideration as a motion to vacate sentence under 28 U.S.C. § 2255. Upon transfer, the Respondent filed a Motion to Dismiss, raising Plaintiff's unexcused delay in challenging his 2012 conviction, for which he had entered a plea of guilty. Plaintiff filed a Motion for Summary Judgment on May 11, 2020. The district court granted the Motion to Dismiss and entered final judgment against Plaintiff on March 10, 2021.
(4) Williams v. Travis Sherk, No. 19-1174 (M.D. Pa.). On July 10, 2019, Plaintiff filed a challenge to his March 2019 conviction in Pennsylvania for kidnapping, robbery, and access device fraud. The district court determined that Plaintiff had not yet exhausted state court post-conviction relief proceedings and dismissed the action without prejudice on October 2, 2019.
(5) Commonwealth v. Williams, No. 1184-MDA-2019 (Pa. Super. Ct.). This appeal is from Plaintiff's 2019 conviction for kidnapping, robbery, and access device fraud. Plaintiff filed his appeal on July 22, 2019. On October 31, 2019, the trial judge informed the Superior Court that the opinion on Plaintiff's motion for post-conviction relief was delayed. On November 22, 2019, Plaintiff filed a motion related to alleged inadequacies in prison library access and requested an order compelling the State Correctional Institute to provide him with guaranteed access to the law library, print-capable computers, stationery, and postage. The Superior Court denied the motion on December 2, 2019, but granted Plaintiff until January 8, 2020 to file his brief. Approximately one month after the trial court filed its opinion and in lieu of a second motion to extend time, Plaintiff filed an “Application for Discontinuance” on February 8, 2020, to withdraw the direct appeal of his conviction. The motion was granted on February 7, 2020, and Plaintiff's appeal was terminated.
(6) Williams v. Pennsylvania, No. 19-6895 (U.S. Dec. 10, 2019). Plaintiff filed a Petition for Writ of Certiorari in the United States Supreme Court seeking review of the Pennsylvania Supreme Court's dismissal by of his premature direct appeal of his March 2019 conviction and June 2019 sentencing. In his Petition, Plaintiff argued that Pennsylvania's elected judiciary precludes impartial adjudication and therefore violates the constitutional rights of accused or convicted criminal defendants. The petition was denied on February 24, 2020.
(7) Through the proposed Amended Complaint, Plaintiff adds reference to Williams v. Toomey, No. 19-2870, an appeal related to an attempted class action alleging a conspiracy on the part of the Cumberland County public defender's office. The district court dismissed the complaint with prejudice for failure to state a claim, and Plaintiff filed an appeal to the Third Circuit on November 19, 2019. The Third Circuit affirmed the dismissal with prejudice on April 6, 2020. Williams v. Toomer, No. 19-2870 (3d Cir. Apr. 6, 2020).
The grievance also challenged the amount charged per page for copies (10 cents per page) as inflated and unlawful. Plaintiff states that he was allowed to proceed in forma pauperis in each of his identified legal actions and thus supplies and copies should have been provided by the DOC without charge. Plaintiff asserted that DOC policy limited his access to courts and to assistance of counsel only because he is indigent and therefore violates his constitutional rights to equal protection and due process. Id. As relief, Plaintiff requested that he be provided five two-hour law library sessions per week with reserved access to a print capable computer for each session. He also requested that DOC and SCI - Houtzdale provide him with all litigation related photocopies, envelopes, printing, and postage costs for each of the six referenced matters. Id. Plaintiff did not request monetary damages.
On November 25, 2019, the assigned Grievance Officer denied Plaintiff's Grievance at No. 834885, and stated that the limits on Plaintiff's supplies, law library time, computer, and word processor access were all in accordance with DOC policy. Id. at 51. The Grievance Officer further noted that Plaintiff's claim of carpal tunnel syndrome could not be substantiated and Plaintiff would need to provide medical documentation of the diagnosis to obtain relief. Id.
Plaintiff provides what purports to be his second level Inmate Appeal to Facility Manager. ECF No. 79-1 at 5. The document is dated December 4, 2019, and is identified by Plaintiff as an appeal of Grievance No. 819434. Id. Commonwealth Defendants provide a copy of Grievance No. 819434. The subject matter of that grievance challenges law library access at SCI - Camp Hill, and appears to initially have been submitted to SCI - Camp Hill prison officials on August 20, 2019. ECF No. 88-1 at 44. Plaintiff claimed that time limits for library sessions impeded his ability to litigate the same cases he later listed in his SCI - Houtzdale grievance. Plaintiff received a response to Grievance No. 819434 from SCI - Camp Hill's Grievance Coordinator on September 16, 2019. Id. at 46. The response stated that Plaintiff was recently transferred to a new housing block and was added to law library lines as of August 14, 2019, and that he had attended law library “since that date up to and including 9/10/19.” Id. Plaintiff did not timely appeal the grievance to the Facility Manager or for Final Review.
The parties do not dispute that Plaintiff filed a third level Appeal for Final Review of Grievance No. 834885 to the Secretary's Office of Inmate Grievance Appeals (“SOIGA”). On February 20, 2020, SOIGA notified Plaintiff that he failed to file a second level appeal. Id. at 53. The SOIGA Grievance Review Officer did not reject Plaintiff's appeal. Rather, Plaintiff was informed that he had “not yet appealed this issue to the Facility Manager.” Id. The Grievance Review Officer stated, “[f]inal review will not be granted until you do so. Upon receiving a response from the Facility Manager at the respective facility, you may once again submit a timely written appeal to this Office for final review.” Id. The Grievance Review Officer further informed Plaintiff that his “claim to have grieved and/or appealed” his concerns “at the institutional level without response does not entitle you to direct appeal to final review. Rather, contact the Grievance Coordinator or Facility Manager's office regarding the status of your appeal.” Id. Plaintiff's grievance history reflects that Plaintiff failed to further appeal either Grievance No. 819434 or submit Grievance No. 834885 for a second level appeal to the SCI - Houtzdale Facility Manager. Id. at 42.
To resolve this discrepancy, Plaintiff has provided the Court with copies of Inmate Request to Staff Member forms dated January 20, 2020, February 10, 2020, and February 24, 2020, that identify Grievance No. 834885 and request information about the status of a response from the Facility Manager. ECF No. 79-1 at 6-8. These documents do not contain a staff signature or any other indicia that they were submitted by Plaintiff or received by the Facility Manager or his staff and do not relate to the only recorded second level appeal at Grievance No. 819434. Plaintiff asserts, however, that the unauthenticated staff requests establish that he was “procedurally-barred from proceeding to the third and final level of the administrative remedy process.” Id. at 4.
Plaintiff also alleges that certain DOC Defendants learned in early March 2020 that he filed a lawsuit in federal court challenging DOC policies related to prisoner law library access and litigation support. Later, the identified DOC Defendants began to harass, threaten, and intimidate him, and, according to Plaintiff, purposefully obstructed the administrative remedy process.ECF No. 98 at 33 (citing ECF No. 79-1 ¶ 31). This alleged harassment did not prevent Plaintiff from filing a grievance on March 27, 2020, ECF No. 88-1 at 42, commencing this lawsuit on April 1, 2020, or actively litigating any number of lawsuits over the next two years.
Plaintiff's Complaint alleges that the article was published “in early March 2020” (ECF No. 79 ¶ 31) and relates to a Petition for Writ of Habeas Corpus filed on February 26, 2020, by Plaintiff and several other inmates incarcerated at SCI-Houtzdale. See Williams v Pennsylvania, No. 20-36J (W.D. Pa. Feb. 26, 2020) (ECF No. 1). That action was closed by Order dated February 28, 2020 because of a variety of filing deficiencies. In the Order, the Court also advised plaintiffs of the improper nature of the Petition given that the claims and relief requested related to conditions of confinement. Id. at ECF No. 2.
Apart from failing to properly exhaust either grievance related to his access to court claims, the record reflects that Plaintiff did not submit grievances related to any other claim set forth in his Amended Complaint against the DOC Defendants, including: (1) the alleged wrongful withdrawal of funds from his prison account, including sums received from family members and pursuant to the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) (incorrectly identified by Plaintiff as the “Coronavirus Economic Stimulization Act”), to pay statutorily mandated and court ordered costs and fees (ECF No. 79 ¶¶ 15, 42-57); (2) the lack of access to legal assistance from trained personnel (id. ¶ 10); (3) the lack of services to assist Plaintiff's pursuit of litigation required by his alleged mental disabilities; (4) COVID-related library access constraints promulgated by DOC after March 2020 (id. ¶¶ 18, 20, 22); (5) new policies effective June 8, 2021 regarding law library access (Id. ¶ 23); (6) the cost of a typewriter purchased in August 2021 (id. ¶ 24); and (7) alleged acts of retaliation for the period March 2020 through February 2022 (id ¶¶ 31-40).
The Motion to Dismiss, or in the alternative Motion for Summary Judgment, is now ripe for consideration.
B. STANDARD OF REVIEW
1. Motion to Dismiss
A complaint may be dismissed under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a claim upon which relief can be granted.” “[D]etailed pleading is not generally required.” Connelly v. Lane Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). Rather, the rules require “only ‘a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.'” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss, a complaint must “state a claim to relief that is plausible on its face” by providing facts which “permit the court to infer more than the mere possibility of misconduct....” Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
In assessing the sufficiency of a complaint, the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Twombly, 550 U.S. at 555. Thus, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678; see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels and conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice. The complaint therefore “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim.”). Id. at 233, 234.
2. Motion for Summary Judgment
The portion of the Motion to Dismiss in which Defendants raise exhaustion as a defense to this action will be treated as a motion for summary judgment. Rule 56 of the Federal Rules of Civil Procedure provides that: “[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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The Court serves as “the finder of fact with respect to the defense that a plaintiff failed to exhaust available administrative remedies as required by PLRA.” Jackson v. O'Brien, No. 1:18-CV-00032, 2021 WL 5087922, at *2 (W.D. Pa. Nov. 2, 2021) (quoting Jackson v. Shouppe, No. 17-CV-1135, 2020 WL 3574645, at *2 (W.D. Pa. June 30, 2020)). See also Hardy v. Shaikh, 959 F.3d 578, 581 n.1 (3d Cir. 2020); Paladino v. Newsome, 885 F.3d 203, 210-11 (3d Cir. 2018); Small v. Camden Cnty., 728 F.3d 265, 269-71 (3d Cir. 2013). Therefore, the Court will examine the evidence to determine whether there are any material issues of fact related to Plaintiff's exhaustion of administrative remedies that were reasonably available to him.
3. Pro Se Pleadings and Filings
Plaintiff is proceeding pro se. Pro se pleadings and filings, “however inartfully pleaded,” must be held to “less stringent standards than formal pleadings drafted by lawyers” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax, and sentence construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner ... may be inartfully drawn and should be read ‘with a measure of tolerance'”); Freeman v. Dep't. of Corr., 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Ne. Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
Even so, there are limits to the court's procedural flexibility - “pro se litigants still must allege sufficient facts in their complaints to support a claim ....they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Because the Commonwealth Defendants raise exhaustion, the Court must consider it as a threshold matter. The Court will then address the Motion to Dismiss as to remaining claims, if any.
1. PLRA Exhaustion Requirement
The Prison Litigation Reform Act (“PLRA”) provides:
No action shall be brought with respect to prison conditions under section 1983 of this title by a prisoner confined in jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. § 1997e(a). The United States Court of Appeals for the Third Circuit has explained that the PLRA's exhaustion requirement serves the following Congressional objectives: “(1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits.” Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004). Thus, as the statute's language makes clear, the exhaustion requirement is mandatory and 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002); see also Woodford v. Ngo, 548 U.S. 81, 85 (2006).
The exhaustion requirement of the PLRA is one of “proper exhaustion.” Woodford, 548 U.S. at 84. Failure to comply with the procedural requirements of the available grievance system will result in a claim being found procedurally defaulted. Id. at 90; Spruill, 372 F.3d at 227-32; Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016). In assessing default, the prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007).
The Pennsylvania Department of Corrections' administrative remedies for inmate grievances are provided for in DOC Administrative Directive 804 (“DC-ADM 804”). See DOC Policies, DC-ADM 804, Inmate Grievance System Policy. DC-ADM 804 provides a three-step process through which inmates can seek to resolve issues relating to their incarceration. Id. The three steps are: (1) file an initial grievance; (2) appeal to the superintendent; and (3) final appeal to SOIGA. Redshaw v. Pillai, No. 12-190J, 2013 WL 3802464, at *3 (W.D. Pa. July 18, 2013). An inmate must follow each of the steps to properly exhaust his administrative remedies under the PLRA. See Booth v. Churner, 206 F.3d 289, 299 (3d Cir. 2000), aff'd, 532 U.S. 731(2001) (holding that plaintiff “did not take full advantage of the administrative procedures available to him” in failing to use steps two and three of DC-ADM 804).
https://www.cor.pa.gov/About%20Us/Pages/DOC-Policies.aspx
In addition, the version of DC-ADM 804 that has been in effect since May 1, 2015 provides that inmates “shall” identify individuals directly involved in the grievance. Victor v. Burns, No. 2:17-cv-984, 2018 WL 9617254, at *2 (W.D. Pa. May 23, 2018) (citing DC-ADM 804 1.A.11.b). “[A]lthough the exact language of DC-ADM 804 has varied over the years the uniform requirement that the inmate include a statement of ‘the facts relevant to the claim,' DC ADM 804 § 1.A.11[] has been interpreted to require the inmate to identify in the initial grievance the persons he eventually names as defendant in his complaint.” Id. (citing Spruill, 372 F.3d at 234; Williams v. Pa., Dep't of Corr., 146 Fed.Appx. 554, 557 (3d Cir. 2005)) (“[plaintiff's] failure to identify defendants ... means that he failed to exhaust his administrative remedies in accordance with Pennsylvania's grievance process and the PLRA.”); Young v. Beard, No. 06-160, 2008 WL 2693860, at *4 (W.D. Pa. April 4, 2008), report & recommendation adopted as modified, 2008 WL 2693859 (W.D. Pa. June 30, 2008) (inmate failed to exhaust claims related to all defendants except the two named in the initial grievance).
The text of the grievance must also include “the date, approximate time, and location of the event(s)that gave rise to the grievance”; “specifically state any claims concerning violations of Department directives, regulations, court orders, or other law; and, “if the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance.” ECF No. 88-1 at 10 (DC-ADM 804 §1.A.11). The policy further provides that “[a]ny grievance based on separate events must be presented separately, unless it is necessary to combine the issues to support the claim.” Id. at 11 (DC-ADM 804 §1.A.14).
If an inmate is dissatisfied with the response received from the Facility Grievance Coordinator, an appeal may be submitted in writing to the Facility Manager within fifteen working days. Id. at 20 (DC-ADM 804 §2.A.1.a). The policy provides, among other requirements, that each appeal must “include the grievance number at the top of the document.” Id. (DC-ADM 804 §2.A.1.d (2)). Failure to comply with the listed appeal requirements may result in the appeal being dismissed. Id. (DC-ADM 804 §2.A.1.e).
Once an appeal is filed, the Facility Manager “will determine whether the appeal in in accordance with the procedures manual.” Id. (DC-ADM 804 § 2.A.2). If the appeal is found to be in accordance with procedures, it will then be entered into the Inmate Grievance Tracking System. Id. Once entered into the system, the Facility Manager or designee must respond in writing within fifteen working days. Id. If the inmate remains dissatisfied following this second level appeal, the inmate must submit an Appeal for Final Review to the SOIGA within fifteen working days, and then the inmate will receive a final determination in writing within thirty days. Id. at 23-28 (DC-ADM 804 §2.B). The policy provides that an appeal to the Facility Manager must be received by the inmate before submitting a final appeal. In addition, the appeal must include the grievance number, and contain the reasons for appealing the Facility Manager's decision. Id.
Failure to exhaust is an affirmative defense under the PLRA. Jones v. Bock, 549 U.S. at 216. Thus, Defendants have the burden of proving that Plaintiff failed to exhaust his available administrative remedies. See, e.g., Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The United States Court of Appeals for the Third Circuit has explained that if the defendant demonstrates that the inmate failed to exhaust his administrative remedies, then “the inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact unavailable to him or her.” West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019) (citing Rinaldi, 904 F.3d at 268). Absent a situation when administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross v. Blake, 578 U.S. 632, 639 (2016).
a. Proper Exhaustion
Defendants contend that Plaintiff did not properly exhaust Grievance No. 834885 because (1) he failed to submit a second level appeal; (2) he failed to request monetary damages in his initial grievance; and (3) he failed to identify by name any of the Commonwealth Defendants to this action. ECF No. 88 at 16-20. Thus, the Court must evaluate Plaintiff's “compliance with the prison's administrative regulations governing inmate grievances” to determine whether he “has ‘properly' exhausted a claim.” Spruill, 372 F.3d at 222. The Third Circuit has held that a claim has not been properly submitted or properly exhausted when a prisoner failed to sign the bottom of a grievance form, Walker v. Glunt, 654 Fed.Appx. 531, 534 (3d Cir. 2016), failed to provide the SOIGA with photocopies of grievances and responses received, Mack v. Klopotoski, 540 Fed.Appx. 108, 113 (3d Cir. 2013), or submitted a grievance to the incorrect office, Watson v. Fisher, 558 Fed.Appx. 141, 144 (3d Cir. 2014).
In this case, Plaintiff's failure to properly exhaust Grievance No. 834885 is straightforward. DC-ADM 804 requires an inmate to include the grievance number on an appeal to the Facility Manager. DC-ADM 804 § 2.A.d(2). To the extent that Plaintiff adhered to this requirement, he appealed only Grievance No. 819434 for second level review, and did so far later than the allotted 15 working days. See Affidavit of Helen Shambaugh, Grievance Officer for SOIGA, ECF No. 88-1 ¶¶ 13-14; and see ECF No. 88-1 at 46. Given the undisputed delay, Grievance No. 819434 was not properly submitted. As to Grievance No. 834885, Plaintiff presents no evidence that he submitted an appeal to the Facility Manager, as required by DC-ADM 804. Thus, neither Grievance No. 819434 nor Grievance No. 834885 was “properly submitted” or “properly exhausted.”
Ms. Shambaugh states that as to Grievance No. 834885, his initial grievance was received on November 18, 2019 and was not properly appealed beyond the Initial Response. “Plaintiff submitted an Inmate Appeal to Facility Manager on December 4, 2019, and received notification that the appeal had been rejected for failure to include the necessary documents on February 20, 2020. Therefore Plaintiff did not utilize all of the appeals available to him in accordance with DC-ADM 804.” ECF No. 88-1 ¶ 14. Thus while “an Inmate Appeal to Facility Manager” was submitted, it was not an appeal of Grievance No. 834885, and the notice from SOIGA on February 20, 2020 accurately reflected that Plaintiff had not included the necessary documents showing that Plaintiff had grieved his concerns at the institutional level.
The evidence also establishes that responsibility for failing to follow the required procedure to properly submit either grievance lies solely with Plaintiff. After Plaintiff submitted Grievance No. 834885 for Appeal for Final Review, SOIGA informed him that the second level appeal was missing and outlined the procedure for Plaintiff to correct the error. Despite this information, Plaintiff did not remedy the lapse as directed, but filed suit a month later, characterizing his own error in appealing Grievance No. 819434 as administrative obstruction. ECF No. 1-1 at 12-13; ECF No. 79 at 3-4. Under these circumstances, Plaintiff does not present a situation where prison officials failed to respond to a properly submitted grievance and thwarted the process, or somehow misled him. Once Plaintiff knew that the second level appeal was missing, he could have requested an extension of time and submitted an appeal of Grievance No. 834885 to the Facility Manager. His failure to do so does not result from any alleged misconduct on the part of Commonwealth Defendants and thus summary judgment is properly entered as to all claims set forth therein. See, e.g., Brown v. Sprenkle, 827 Fed.Appx. 229, 232 (3d Cir. 2020) (summary judgment properly entered when prisoner failed to request an extension to cure his failure to submit a second-level appeal to the Facility Manager after being advised by SOIGA that his initial grievance had been addressed but appeal process not completed).
b. Alleged Obstruction
Plaintiff next argues that the Court should find that all remaining and newly alleged claims in the Amended Complaint have been exhausted because the grievance process was obstructed by prison personnel. ECF No. 88 at 32-33. Plaintiff alleges that beginning in early March 2020, he experienced harassment, intimidation, and threats by prison employees after news coverage of the collective Petition for Writ of Habeas Corpus that challenged access to the law library and litigation materials. Plaintiff states that because of this alleged misconduct, he did not file grievances after publication of a local news article. Thus, administrative remedies were unavailable.
The Third Circuit has held “that administrative remedies are not ‘available' under the PLRA where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm.” Rinaldi, 904 F.3d at 267. An inmate who seeks to challenge a failure-to-exhaust defense based on intimidation or threats, “must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance and (2) that the threat actually did deter this particular inmate.” Id. at 269. The objective prong “is of chief importance because it maintains the exhaustion requirement for the vast majority of claims and allows otherwise unexhausted claims to proceed only in the exceptional circumstance where the facts alleged would reasonably give rise to a substantial fear of serious harm.” Id. at 268.
Rinaldi provides guidance for the circumstances that would reasonably give rise to a substantial fear of serious harm, and cites with approval the decision of the United States Court of Appeals for the Ninth Circuit in McBride v. Lopez, 807 F.3d 982, 985 (9th Cir. 2015). In McBride, the Ninth Circuit found that a prisoner-plaintiff did not establish the requisite fear of serious harm and thus could not excuse his failure to submit a grievance related to prison employees' use of excessive force in retaliation for assaulting a guard.
McBride alleges that while he was in ad-seg, defendants Ruggles and Lopez came by his cell and told him that he was “lucky” because his injuries “could have been much worse.” According to McBride, the guards visited him with similar comments on a number of occasions. He alleges he interpreted these statements as threats and did not immediately file a grievance against the defendants for excessive force because he feared retaliation.Id. These allegations were insufficient to excuse procedural default because a reasonable inmate would not conclude that the threats were connected to use of the grievance system.
Turning to the objective prong, we conclude that McBride failed to make the requisite showing. Even if McBride actually viewed the statements as threatening, the issue before us is whether the guards' statements could reasonably be viewed as threats of retaliation if McBride filed a grievance. As the district court recognized, the statements themselves make no reference to a grievance or to anything else, beyond the preexisting hostility, that might trigger a future attack on the part of the guards. McBride's case stands in stark contrast to the threats made to prisoners in Turner and Hemphill, which explicitly threatened retaliation if the prisoner used the prison's grievance system. See Turner, 541 F.3d at 1081; Hemphill, 380 F.3d at 684. Although the threat need not explicitly reference the grievance system in order to deter a reasonable inmate from filing a grievance, c.f. Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir. 2009), there must be some basis in the record from which the district court could determine that a reasonable prisoner of ordinary
firmness would have understood the prison official's actions to threaten retaliation if the prisoner chose to utilize the prison's grievance system. Only then will the threat render the prison grievance system effectively unavailable.Id. at 988. In contrast to the facts of McBride, the Third Circuit concluded that the prisoner-plaintiff in Rinaldi satisfied the objective prong based on the allegation that his attempts to use the grievance process led prison authorities to house him with a cellmate they knew threatened to kill him. “[W]e have little trouble concluding that ‘a reasonable inmate of ordinary firmness and fortitude' would be “deter[red] ... from lodging a grievance or pursuing the part of the grievance process that the inmate failed to exhaust.” Rinaldi, 904 F.3d at 269 (quoting Turner v. Burnside, 541 F.3d 1077, 1084-85 (11th Cir. 2008)).
Here, Plaintiff fails to establish either prong through the incidents identified in the Amended Complaint, and further fails to connect any incident to the prison grievance process.
Plaintiff alleges that he experienced the confiscation of his prisoner identification card in early March 2020 (ECF No. 79 ¶ 32); staff refusal to separate Plaintiff from an “obnoxious, threatening, and disturbing” drug abusing cellmate (id. ¶ 33); issuance of an allegedly false misconduct on March 25, 2020 (id. ¶ 34); and a later cellblock change he did not want (id. ¶ 38). As to each of these incidents, Plaintiff alleges that he lodged “numerous” verbal complaints directly with prison staff and supervisors, including the SCI - Houtzdale Superintendent, and the involved staff members. Id. Given Plaintiff's allegations that he personally and directly confronted prison staff over each of these incidents, no reasonable factfinder could conclude that Plaintiff was “actually” deterred from filing grievances. See, e.g., Jackson v. Carter, 813 Fed.Appx. 820, 824 (3d Cir. 2020) (where undisputed evidence shows prisoner-plaintiff continued to litigate his various grievances even after being threatened, including filing complaints about officers' retaliatory conduct related to his grievance-filing, no reasonable factfinder could find that the grievance system was made unavailable to Jackson due to his fear of reprisal).
Plaintiff later pleaded guilty to a charge of being in an area without authorization and was placed on cell restriction for fifteen days. ECF No. 111-21.
The rest of Plaintiff's allegations, like those identified above, are entirely unconnected to his grievance activity or concern alleged harassment or threats that no reasonable factfinder would find sufficiently serious to deter resort to the prison grievance system. These include:
1. boilerplate allegations of “aggressive or abusive language” and displays of “threatening” body language by Defendant Stewart in March 2020 whenever Plaintiff “was forced to interact with Defendant ... [to] obtain toilet paper, bath soup, cleaning supplies, Inmate Request Forms, meals, passes, or reporting a broken toilet,” ECF No. 79 ¶ 34;
2. conduct by Defendant Isenberg that began October 2020 (nearly a year after Plaintiff's litigation-related grievance and six months after filing this lawsuit) when he forgot “to let [Plaintiff] out of his cell for law library and medication line, forc[ed] Plaintiff to jump down out of the top bunk for night counts,” kicked his cell door, interrupted a conversation with another prisoner, issued an allegedly false misconduct, and tossed legal paperwork on his cell floor during a cell search, Id. ¶ 36;
3. an incident on April 27, 2021, when Defendant C/O Smith conducted a search cell, threw Plaintiff's legal paperwork on the floor, and instructed him to stop litigating or “they” would take his legal work and “he wouldn't get it back for months, if ever,” id. ¶ 37; and,
4. the denial of a position as a teacher's assistant in February 2022 by Defendant Westover, id. ¶ 39.
Of the cited incidents, none raise “serious threats of harm” such as described in Rinaldi and no incident raises any connection to Plaintiff's resort to the grievance process. Thus, despite Plaintiff's allegations that he suffered hostile interactions with guards, he does not present sufficient evidence to satisfy his burden that the administrative remedies were unavailable to him. As observed in McBride, “[t]here is no reason to allow inmates to avoid filing requirements on the basis of hostile interactions with guards when the interaction has no apparent relation to the use of the grievance system. Hostile interaction, even when it includes a threat of violence, does not necessarily render the grievance system ‘unavailable.'” McBride, 807 F.3d at 988.
Finally, Plaintiff states that as to his “RICO claims,” he “currently has a final-level grievance appeal under review by SOIGA.” ECF No. 112 at 5. Thus, Plaintiff makes clear that as to his claims related to fees and costs, he has not exhausted available administrative remedies.
Because there is no basis to excuse Plaintiff's failure to exhaust his administrative remedies, it is recommended that the Court grant the Commonwealth Defendants' motion for summary judgment as to all claims alleged in the Amended Complaint.
Based on the recommended disposition, the Court need not address in detail Plaintiff's failure to request monetary relief in his grievance or his failure to identify by name DOC Defendants. That said, Plaintiff presents no grounds to permit recovery of monetary compensatory damages. It cannot be disputed that Plaintiff failed to follow the explicit directions set forth on the prison grievance forms used to submit Grievance No. 834885 and Grievance No. 819434. (“A. Provide a brief, clear statement of your grievance. Additional paper may be used, maximum two pages (one DC-804 form and one one-sided 8 1/2 ” x 11” page). State all relief that you are seeking.”). ECF No. 88-1 at 44 and ECF No. 88-1 at 48). In addition, Plaintiff's contention that his various lawsuits were not yet dismissed and therefore he could not ascertain a dollar amount attributable to the alleged violation of his rights courts does not afford a basis for relief. ECF No.112 at 5-6; See Wright v. Sauers, 729 Fed.Appx. 225, 227 n. 12 (3d Cir. 2018) (affirming the district court's finding of procedural default because plaintiff failed to request monetary relief in his initial grievance and readily dispensing with plaintiff's claim that he was unaware of the extent of his injury (“To the extent that Wright claims the grievance process was ‘unavailable' because he was unaware of the severity of his injury when he filed his grievance, we disagree. Although Wright may not have known the extent of his injury, he knew he suffered an injury. As such, this argument fails.”)). Plaintiff also fails to present a basis to excuse his failure to identify individuals directly involved in the events at issue by name or by job title or description other than Defendant Urban, the Office of the Superintendent, and the Office of the Business Manager. It is not disputed that identification is required by DC-ADM 804 §1A.11, absent circumstances not alleged or present here. Judgment is therefore properly entered on this alternative basis in favor of all DOC Defendants except Defendants Urban, Barry Smith (identified as the SCI - Houtzdale Superintendent), Reifer (identified as the Assistant to the Superintendent), and Straw (identified as Business Manager). See, e.g., Green v. Maxa, No. 1:17-cv-223, 2020 WL 1249205, at *5 (W.D. Pa. Mar. 16, 2020) (granting summary judgment for those defendants the plaintiff failed to identify in his grievance in contravention of “the DC-ADM's directive that inmates identify the individuals involved in the event” that is the subject of the grievance); Sides v. Pennsylvania Dep't of Corr., No. 2:18-cv-145, 2020 WL 1493549, at *13 (W.D. Pa. Mar. 27, 2020) (plaintiff did not exhaust his claims brought against supervisory officials because in his grievance he did not identify them or challenge any prison policy or practice.).
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court grant the Commonwealth Defendants' alternative Motion for Summary Judgment, ECF No. 79. It if further recommended that the Court deny Plaintiff's alternative Motion for Leave to file Plaintiff's Supplemental Complaint, ECF Nos. 110, 111, as futile. See generally Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
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 the parties are permitted to file written objections within fourteen days, or seventeen days for unregistered ECF Users. 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 respond to the objections within fourteen (14) days in accordance with Local Civil Rule 72.D.2.
The Honorable Stephanie L. Haines, United States District Judge