Opinion
No. 1:16-cv-350
03-30-2018
CLARENCE ABNEY, Plaintiff v. LISA W. BASIAL, et al., Defendants
( )
(Magistrate Judge Carlson)
MEMORANDUM
Before the Court in the above-captioned action is the January 30, 2018 Report and Recommendation of Magistrate Judge Carlson (Doc. No. 63), recommending that the Court grant in part and deny in part Defendants' Motion for Partial Summary Judgment (Doc. No. 44), and the parties' objections (Doc. Nos. 64, 69). Upon consideration of the briefing filed in connection with the motion for partial summary judgment, Magistrate Judge Carlson's Report and Recommendation, the objections of the parties, and the applicable law, for the reasons provided herein, the Court will adopt the recommendation set forth in the Report and Recommendation and grant in part and deny in part Defendants' motion for partial summary judgment.
I. BACKGROUND
As set forth at length in Magistrate Judge Carlson's Report and Recommendation, this case and a companion case, Abney v. Younker, No. 1:13-cv-1418, share a complicated factual and procedural history. Due to the protracted litigation history and the parties' intimate familiarity with the factual allegations and background of this action, the Court limits its description of the background to the facts relevant to the pending motion and Report and Recommendation. As noted above, this civil rights action has its origins in another civil action pending in this Court, Abney v. Younker et al., No. 1:13-cv-1418 ("Abney-I"), in which Plaintiff asserts claims against several Department of Corrections employees arising out of a beating he sustained at the State Correctional Institution ("SCI") at Huntingdon, in June 2012. In this action, Plaintiff alleges that after sustaining the beating that formed the basis of his later lawsuit, Defendants Younker, Snyder, Hills, Booher, Nickum, and Meyers (the "Huntingdon Defendants"), engaged in verbal and physical harassment of inmate-witnesses in retaliation for information provided to the Department of Corrections in connection with its investigation of the incident. (Doc. No. 22 ¶¶ 17-22.) Further, Plaintiff alleges that Defendant Basial, who was then a senior deputy attorney general in the Pennsylvania Office of Attorney General representing all but one of the defendants in Abney-I, refused to intervene in retaliatory conduct arising after the filing of Abney-I on May 24, 2013, and affirmatively took steps to interfere with Plaintiff's access to his attorney. (Id. ¶¶ 30-72.) In addition, Plaintiff alleges that Defendant Basial was aware of/involved in the actions of Defendants Whalen, Shoop, and Fisher, who, Plaintiff alleges: (1) deprived him of his thyroid medication and interfered with a phone call to his attorney while he was incarcerated at SCI-Camp Hill (Defendant Whalen); (2) forced Plaintiff to stand in his underwear in a cold cell surrounded by fully clothed prisoners for two hours while he was housed at SCI-Smithfield during a stopover on his return trip from SCI-Camp Hill to SCI-Houtzdale (Defendant Shoop); and (3) acquiesced in the practice of holding prisoners without clothing for long periods of time while Superintendent at SCI-Smithfield (Defendant Fisher). (Id. ¶¶ 76-91, 93-111.)
On May 22, 2017, Defendants filed the pending motion for partial summary judgment as to Plaintiff's claims against all Defendants except Defendant Shoop, either for failure to exhaust administrative remedies, or as barred by the applicable two-year statute of limitations. (Doc. No. 44.)
II. LEGAL STANDARD
The Magistrate Act, 28 U.S.C. § 636 et seq., and Rule 72(b) of the Federal Rules of Civil Procedure provide that any party may file written objections to a magistrate's proposed findings and recommendations. The written objections must "specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections." M.D. Pa. L.R. 72.3. When a party objects to a report and recommendation of a magistrate judge, this Court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b); M.D. Pa. L. R. 72.3. The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.
III. DISCUSSION
In his Report and Recommendation, Magistrate Judge Carlson recommends: (1) granting Defendants' motion as to Plaintiff's claims against Defendants Whalen and Fisher for failure to exhaust administrative remedies; (2) granting Defendants' motion as to Plaintiff's claims against the Huntingdon Defendants as barred by the statute of limitations; and (3) denying the motion as to Plaintiff's claim against Defendant Basial. (Doc. No. 63.)
A. Failure to Exhaust - Defendants Whalen and Fisher
As to Plaintiff's claims against Defendants Whalen and Fisher, Magistrate Judge Carlson resolved the question of whether Defendants met their burden to establish Plaintiff's non-exhaustion in the following manner:
Abney did not name Fisher in any of the grievances he filed related to his improper transport and the misconduct that occurred during the transport. With allegations such as those made in this case - mainly, a conspiracy among multiple DOC employees and officials that spans three state prisons - an allegation of misconduct against "DOC staff or "staff at SCI-Smithfield" does not sufficiently alert the prison officials about sufficient relevant information so that they can address the inmate's alleged problem or concern. If that were the case, the exhaustion requirement of the PLRA would be meaningless, as inmates could bring claims in federal court against multiple DOC employees, and the prisons would have never been put on sufficient notice that there was a problem that was capable of being adequately addressed. A practice of permitting generalized grievances that fail to identify alleged wrongdoers would undermine both the plain language and the stated purpose of Pennsylvania's grievance procedure, which is to try and resolve problems within the prison before bringing claims in federal court. . . . Thus, we find that the plaintiff's claims against Fisher have not been properly exhausted because his identity was relevant to the claims that Abney was making against him, and the failure to include this information was improper under the DOC's policy.
As for Defendant Whalen, Abney's counsel contends that Abney filed a grievance regarding Whalen's allegedly retaliatory acts - depriving him of his thyroid medication while at SCI-Camp Hill and interfering with a phone call with his attorney - and attaches a "page 2" that is a statement of facts this attorney prepared for him to attach to the grievance. (Doc. No. 58-4, at 12.) Abney's counsel claims that he received no response to that grievance, although she twice attempted to contact SCI-Camp Hill to find out what happened to it. (Doc. No. 59, at 10.) However, there is no indication, such as a cover page or grievance number, that a grievance was ever actually filed against Whalen by Abney. This absence of such corroborating proof of the filing of such a grievance is particularly noteworthy on at least two scores, both of which support the argument that Abney did not fully and properly exhaust his grievance against this defendant. First, the five grievances filed by the plaintiff with respect to other claims in this action all have a cover sheet that contains the date on which it was filed. (Doc. 47-3, at 31, 38, 42, 50, 61.) Thus, it is apparent that Abney was able to fully access and utilize the grievance process at this time, as evidenced by the multiple grievances which he successfully filed. Further, the plaintiff filed a grievance regarding lost property at SCI-Camp Hill when he was transferred, but does not list the medication among his lost property in that grievance. (Doc. 47-3, at 31-32.)
In the face of this evidence, the Court cannot accept the bare assertion that the grievance against Whalen was filed and not responded to, especially when there are other contemporaneous grievances in the system that Abney filed with respect to this alleged retaliatory misconduct, including one filed with SCI-Camp Hill
regarding lost property. In the absence of some competent evidence showing that a grievance was actually filed, Plaintiff's counsel's statement that she understood her client to have filed the grievance is not sufficient to allow us to conclude the grievance was actually filed properly in accordance with DOC procedure.(Doc. No. 63 at 12-15.)
Plaintiff has lodged a two-fold objection to Magistrate Judge Carlson's finding that Plaintiff failed to exhaust his administrative remedies regarding his claims against Defendants Fisher and Whalen. First, Plaintiff argues that Magistrate Judge Carlson erroneously assigned to him the burden of proof when he found that Plaintiff failed to submit evidence of his exhaustion of these claims. (Doc. No. 64 at 2.) He argues that, as failure to exhaust administrative remedies is an affirmative defense, it is the Defendants' burden to establish on summary judgment that there is no genuine issue of material fact as to Plaintiff's failure to exhaust relevant claims. (Id. at 3.) Plaintiff maintains that Magistrate Judge Carlson effectively imposed the burden on Plaintiff to prove that he filed grievances covering all the claims in the amended complaint asserted against Defendants Whalen and Fisher (and thereby successfully exhausted all available administrative remedies), rather than place the burden on Defendants to show that Plaintiff failed to exhaust. (Id. at 5-8.) Second, Plaintiff argues that even assuming that Magistrate Judge Carlson applied the appropriate burden of proof to Defendants' motion, Defendants have nevertheless failed to satisfy their burden to demonstrate no genuine issue of material fact entitling them to summary judgment on their affirmative defense of non-exhaustion.
As to the first part of Plaintiff's initial objection regarding the burden of proof, the Court finds Plaintiff's objection to be unavailing. The standard for evaluating a summary judgment motion by a party bearing the ultimate burden of proof on a particular issue has been previously articulated by the Court as follows:
Where a party moves for summary judgment on an issue for which he bears the ultimate burden of proof, the moving party faces a difficult road in seeking summary judgment. United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011). "[I]t is inappropriate to grant summary judgment in favor of a moving party who bears the burden of proof at trial unless a reasonable juror would be compelled to find its way on the facts needed to rule in its favor on the law." El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007) (footnote omitted). A party who has the burden of proof must persuade the factfinder that his propositions of fact are true, and "if there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted." Id. "Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof will." Id.Abney v. Younker, et al., No. 1:13-1417, 2015 WL 463243, at *10, (M.D. Pa. Aug. 4, 2014), Report and Recommendation adopted 2015 WL 463243, at *7 (M.D. Pa. Feb. 4, 2015). Accordingly, pursuant to this standard, the Court may only grant summary judgment on Defendants' failure to exhaust administrative remedies defense as to Plaintiff's claims against Defendants Whalen and Fisher if "a reasonable juror would be compelled to find [their] way on the facts needed to rule in [their] favor on the law." Id. In this case, that would mean that no reasonable juror could find, based on the record evidence before the Court, that there existed an additional grievance pertaining to the claims against those Defendants submitted by Plaintiff but never processed by Defendants. Upon careful review of the Report and Recommendation, the Court finds nothing inconsistent with this standard in Magistrate Judge Carlson's analysis.
As to the second part of Plaintiff's initial objection regarding his claim that Magistrate Judge Carlson erroneously found that the Bell Declaration satisfied Defendants' burden of proof entitling them to summary judgment, the Court similarly finds Plaintiff's argument unavailing. Plaintiff's objection hinges on his belief that the Bell Declaration, relied upon by Defendants in support of their motion for summary judgment, is deficient in that it attests to receiving a total of five grievances completed to final review during the relevant time period, but does not expressly reject that Plaintiff might have submitted more than five such grievances. According to Plaintiff, because the Bell Declaration does not deny that Plaintiff might have submitted more than five grievances to final review, Defendants fail to establish that no reasonable juror could find that Plaintiff did not exhaust his remedies. Indeed, Plaintiff maintains that in the absence of an explicit denial, the Bell Declaration leaves open room for speculation as to the existence of a hypothetical additional grievance that Plaintiff might have filed regarding Defendants Fisher and Whalen's potential involvement in the issues underlying Plaintiff's claims. The Court disagrees with Plaintiff's analysis on this point, and finds that on the record before it, no reasonable juror could find the existence of such a hypothetical grievance, and therefore, Magistrate Judge Carlson correctly resolved the issue. Accordingly, the Court will overrule Plaintiff's initial objection, and adopt Magistrate Judge Carlson's recommendation to grant summary judgment in Defendants' favor on their failure to exhaust administrative remedies defense to Plaintiff's claims against Defendants Whalen and Fisher.
With specific regard to Plaintiff's claims against Defendant Whalen, Plaintiff alternatively argues that even if the Bell Declaration suffices to meet Defendants' initial burden on summary judgment, Magistrate Judge Carlson erroneously found that Plaintiff's evidence offered in opposition to the motion failed to create a genuine issue of material fact as to Plaintiff's failure to exhaust. The evidence to which Plaintiff refers, as noted by Magistrate Judge Carlson above, consists of Plaintiff's counsel's Declaration regarding her belief that Plaintiff submitted an additional grievance addressing the conduct of Defendant Whalen, which was never responded to by SCI-Camp Hill. (Doc. No. 58-3 at 10-12.) While the Declaration attaches a "second page" that counsel prepared for Plaintiff to include with the proposed grievance addressing Defendant Whalen's conduct (Doc. No. 58-4 at 12), Plaintiff has produced no copy of any prepared grievance form addressing that conduct. Plaintiff's Declaration provides no additional evidentiary support on this point, failing even to assert that he filled out and submitted a grievance regarding Defendant Whalen's conduct, stating only that "[t]o the best of my recollection, pages 31 to 68 of docket number 47-3 are five of the grievances that I submitted and appealed at that time, but I cannot say whether that is all of them." (Doc. No. 58-8 at 4.) The Court agrees with Magistrate Judge Carlson's conclusion that such evidence proffered by Plaintiff could not support a reasonable juror's conclusion that Plaintiff filed a grievance addressing Defendant Whalen's conduct, especially where, as here, Plaintiff himself in his Declaration fails to assert that he filled out and submitted such a grievance. See Doc. No. 58-8 at 4.
The Court is similarly not persuaded by Plaintiff's argument, presented as a third objection to the Report and Recommendation, that it would be improper to grant summary judgment to Defendants on their affirmative defense of non-exhaustion of administrative remedies as to claims against Whalen and Fisher where Plaintiff sought additional discovery to oppose the motion, and that request was denied by Magistrate Judge Carlson. (Doc. No. 64 at 2.) As Magistrate Judge Carlson said in his Memorandum Opinion addressing Plaintiff's motion requesting discovery, any such evidence necessary to oppose the motion on exhaustion grounds "should be within the Plaintiff's knowledge, and thus there is no apparent reason why he cannot respond to [it] and offer supporting affidavits highlighting any specific existing factual disputes;" therefore, the discovery sought by him was unnecessary. (Doc. No. 57 at 3.) For example, such evidence could have consisted of Plaintiff's sworn statement that he filled out and submitted a grievance addressing Defendant Whalen's conduct. As described above in the margin, Plaintiff's Declaration contains no such statement. Plaintiff's objection on this point will be overruled.
B. Statute of Limitations - Huntingdon Defendants
As to Plaintiff's claims against the Huntingdon Defendants, Magistrate Judge Carlson found that these Defendants did not meet their burden to demonstrate that Plaintiff was required to administratively exhaust his claims against them. Instead, Magistrate Judge Carlson found that Defendants met their burden to establish that Plaintiff's claims against the Hungtingdon Defendants are time-barred, stating as follows:
With respect to the claim against the Huntingdon defendants, the Court agrees that this claim is barred by the two-year statute of limitations. The amended complaint alleges that the Huntingdon defendants brutally beat Gerry Mobley, Jr., an inmate-witness in Abney-I, on July 12, 2013. (Doc. 22, ¶ 33.) It is further alleged that counsel for the plaintiff sent letters to Basial on July 16, 17, and 18, 2013, to inform her of the alleged misconduct. (Doc. 22, ¶ 37.) Thus, it is clear from the amended complaint that counsel for the plaintiff knew of the alleged retaliatory beating of one of plaintiff's witnesses in July 2013, but did not attempt to file a claim until December 1, 2015.
The plaintiff claims that the statute of limitations defense fails under the continuing violations doctrine, as "violations continue to this day." (Doc. 22, ¶ 188.) We disagree both with the plaintiff's interpretation of the relevant facts and his construction of the continuing violations doctrine. The continuing violations doctrine is an "equitable exception to the timely filing requirement." West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). A continuing violation "requires the repetition, or recurrence, of acts by the alleged offender." Keslosky v. Borough of Old Forge, 66 F. Supp. 3d 592, 617-18 (M.D. Pa. 2014).(Doc. No. 63 at 22-23.)
The Third Circuit has stated that "the focus of the continuing violations doctrine is on affirmative acts of the defendants . . . . [a] continuing violation is occasioned by continual unlawful acts, not continual ill effects from an original violation." Weis-Buy Servs. v. Paglia, 411 F. 3d 415, 423 (3d Cir. 2005) (quoting Cowell v. Palmer Twp., 263 F.3d 286, 293 (3d Cir. 2001)). With respect to the claim against the Huntingdon defendants, the only claim is that they "inflicted a brutal beating on one of Plaintiff's witnesses." (Doc. 22, ¶ 149.) The claim alleges a single action taken by the Huntingdon defendants - not a recurrence of acts - and the plaintiff has presented no evidence, other than the conclusory allegation that "violations continue to this day," that there is a continuing violation.
Plaintiff objects to Magistrate Judge Carlson's conclusion, maintaining that he relied on a mistake of fact which impacted his analysis of the accrual of the statute of limitations, and resulted in his erroneous conclusion that Defendants met their burden to establish that Plaintiff's claims against the Huntingdon Defendants, first asserted by way of a motion to amend in Abney-I on December 1, 2015, are time-barred. (Doc. No. 64 at 2.) Specifically, Plaintiff takes issue with Magistrate Judge Carlson's conclusion that Plaintiff's counsel (or a reasonable person in Plaintiff's counsel's position), knew or should have known of the alleged retaliatory beating of one of Plaintiff's witnesses by the Huntingdon Defendants in July 2013, yet did not attempt to assert a claim against them until December 2015. (Doc. No. 63 at 22.) Plaintiff admits that the amended complaint asserts that his counsel sent e-mails to Defendant Basial in July 2013 related to the beating, but says that the amended complaint "does not state that counsel knew, at that early date, that the threats, bullying, and brutality were part of a campaign to prevent witnesses from testifying for Abney." Rather, "counsel expected Basial to put a stop to the intimidation of any witnesses who might be called to testify on behalf of Abney." (Doc. No. 64 at 11.) Plaintiff asserts that "[c]laims against Huntingdon Defendants accrued only when Abney's counsel came to understand the true import of their actions as components of the conspiracy that came to light in the grievance responses that implicated Basial," which Plaintiff asserts is no earlier than the first week of 2014. (Id. at 12.) Plaintiff maintains that Magistrate Judge Carlson's conclusion is based solely on his misreading of the amended complaint. (Id.) Plaintiff also points to a previous Report and Recommendation adopted by the Court wherein Magistrate Judge Carlson concluded that "it is not clear from the face of the complaint that this action is time-barred." (Doc. No. 32 at 25.)
It is well-settled that "a cause of action accrues, and the statute of limitations begins to run, when the plaintiff knew or should have known of the injury upon which its action is based." Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (quoting Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998) (internal quotation omitted).
In response to Plaintiff's objection, Defendants maintain that Plaintiff's objection should be overruled, arguing that the last act committed by the Huntingdon Defendants that Plaintiff specifically dates in the amended complaint occurred on October 1, 2013, when he alleges that they had a conversation regarding concealing information about Plaintiff's beating. (Doc. No. 74 at 4, citing Doc. No. 22 ¶¶ 46-48.)
Upon consideration of the relevant authorities, the Report and Recommendation, Plaintiff's objection and Defendants' response thereto, this Court is unpersuaded by Plaintiff's argument that Defendants have failed to establish that on the facts of record, no reasonable juror could find that a reasonable person in Plaintiff's position would not have known of his potential claim against the Huntingdon Defendants in July of 2013, or at the latest, on October 1, 2013. As the earliest date that Plaintiff attempted to assert the claims by way of a motion to amend the complaint in Abney-I was December 1, 2015, this Court finds that Magistrate Judge Carlson correctly concluded that Defendants met their burden to establish that Plaintiff's claims against the Huntingdon Defendants are time-barred. Accordingly, the Court will adopt Magistrate Judge Carlson's recommendation to grant summary judgment in Defendants' favor on their statute of limitations defense to Plaintiff's claims against the Huntingdon Defendants, and overrule Plaintiff's objection.
While that motion was pending, on February 25, 2016, Plaintiff filed this action. (Doc. No. 1.) Plaintiff's motion for leave to amend the complaint in Abney-I was ultimately denied on April 18, 2016. --------
C. Statute of Limitations - Defendant Basial
As to Plaintiff's claims against Defendant Basial, Magistrate Judge Carlson found that Defendants failed to meet their burden to demonstrate that Plaintiff was required to administratively exhaust his claims against her, and moreover, that the two-year statute of limitations does not operate as a bar to Plaintiff's claims against Defendant Basial, stating as follows:
this Court cannot conclude that the plaintiff's claims against Basial are time-barred. The defendants argue that the plaintiff should not get the benefit of equitable tolling due to the fact that he did not exhaust his administrative remedies as to Basial, and therefore the statute of limitations bars his claims against Basial because her alleged wrongful acts concluded by November 5, 2013, when the plaintiff was returned to SCI-Houtzdale. (Doc. 45, at 22.) However, the plaintiff in fact exhausted his administrative remedies with respect to the improper transport itself because he appealed the grievance relating to that conduct to a Final Appeal Decision, and we do not agree with the defendants' assertion that it would have been practicable to name Basial in his grievance, even if he had been required to name her in the grievance regarding the transfer.
Although the plaintiff did not file a grievance that named Basial, he filed a grievance about his alleged improper transport to SCI-Camp Hill on November 13, 2013, and pursued that grievance all the way to a Final Appeal Decision. The Final Appeal Decision of that grievance is dated February 20, 2014. (Doc. 47-3, at 68.) Thus, the statute of limitations would have been tolled until February 20, 2014, and the motion to supplement the complaint in Abney I was filed on December 1, 2015, within two years of the Final Appeal Decision. Furthermore, and significantly in our view, even if Abney were required to include Basial by name in the grievance his failure to do so would be excused by the DOC's response to his appeal, which informed him that his transport was done at the request of the OAG. (Doc. 47-3, at 65.) Therefore, we find that the plaintiff should be entitled to equitable tolling while he exhausted his administrative remedies as to the transfer itself, and his claims against Basial which related to that transfer are not barred by the statute of limitations.(Doc. No. 63 at 24-25.)
Defendants object to Magistrate Judge Carlson's conclusion that the two-year statute of limitations does not operate as a bar to Plaintiff's claims against Defendant Basial. Specifically, Defendants argue that Magistrate Judge Carlson erred in "concluding that the two-year period was tolled while the Plaintiff was pursuing his administrative remedies (the grievance process) against other Defendants who are DOC employees;" and further argue that "even if the Plaintiff were given the benefit of this tolling, he still failed to file in a timely fashion." (Doc. No. 70 at 2.) In connection with their argument, Defendants maintain that the Report and Recommendation erroneously utilized December 1, 2015 (the date Plaintiff sought to amend his complaint in Abney-I to include the claims asserted in this action), as the relevant date for statute of limitations purposes, rather than the date Plaintiff filed this action, February 25, 2016. (Id. at 3.)
In response, Plaintiff maintains that Magistrate Judge Carlson's recommendation should be adopted in this regard, pointing to judicial authority confirming that the statute of limitations can be tolled by a motion for leave to amend a pleading in a related case. (Doc. No. 71 at 1.) Moreover, Plaintiff argues that the December 1, 2015 filing was timely for purposes of the statute of limitations, as the statute of limitations period for claims against Basial only accrued when Abney (in grieving the conduct of other defendants related to his transport to SCI-Camp Hill), received a response from the prison superintendent dated December 23, 2013, stating that Abney "was transported for court proceedings at the request of the Attorney General's Office." (Doc. No. 47-3, at 65.)
Upon consideration of the relevant authorities, the Report and Recommendation, Defendants' objection and Plaintiff's response thereto, this Court is persuaded that, at a minimum, there exist genuine issues of material fact regarding the accrual of Plaintiff's claims against Defendant Basial, which dictate the denial of Defendants' motion for partial summary judgment as to Plaintiff's claims against her on statute of limitations grounds. Accordingly, the Court finds that Magistrate Judge Carlson correctly resolved this issue. The Court will adopt his recommendation to deny summary judgment as to the claims against Defendant Basial, and overrule Defendants' objection.
IV. CONCLUSION
For the foregoing reasons, the Court will adopt the Report and Recommendation of Magistrate Judge Carlson, and grant in part and deny in part Defendants' motion for summary judgment. An appropriate Order follows.