Opinion
2:19-cv-1443
06-22-2022
DANIEL RUSSELL ANDREWS, SR., Plaintiff, v. JOHN WETZEL, et al., Defendants.
J. NICHOLAS RANJAN JUDGE
REPORT AND RECOMMENDATION
PATRICIA L. DODGE UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion for Summary Judgment of Defendant Traci Parkes (ECF No. 115) be granted.
Plaintiff identifies this defendant as “Tracy Parks.” The Court will identify her as “Traci Parkes,” which is the spelling used by Ms. Parkes in her pleadings.
II. Report
A. Relevant Procedural History
Plaintiff Daniel Russell Andrews, Sr. (“Andrews”), proceeding pro se, commenced this civil rights action under 42 U.S.C. § 1983 in November 2019. Andrews is a state prisoner in the custody of the Pennsylvania Department of Corrections who is currently housed at SCI Forest.
The events in question stem from an incident that occurred while Andrews was incarcerated at SCI Pine Grove. Andrews alleged that Troy Nelson (“Nelson”), his cellmate, violently attacked him, resulting in various injuries. See ECF No. 74 at p. 4, ¶ 9. Andrews, who was eventually transferred to SCI Huntingdon, brought suit against several defendants claiming that this attack represented cruel and unusual punishment in violation of his Eighth Amendment rights.
Andrews later amended his complaint but only included claims against Correct Care Solutions (“CCS”), Paula Price (“Price”) and Parkes. His Second Amended Complaint (ECF No. 74), which is the operative pleading, includes his claims against all of the defendants named in his Complaint and Amended Complaint.
Andrews alleges that Parkes, a Well Path employee who served as a health care administrator at SCI Huntingdon, denied him necessary medical testing which had been ordered by SCI Huntingdon medical staff in violation of his Eighth Amendment rights. See ECF No. 74, p. 7. Andrews sought injunctive relief related to his medical treatment at SCI Huntingdon as well as compensatory and punitive damages. See Id. at p. 8, § VI. Andrews' claim for injunctive relief was later dismissed as moot because Andrews is no longer housed at SCI Huntingdon.
Well Path was formerly known as CCS. CCS was dismissed as a defendant to this case when Judge Ranjan adopted the Report & Recommendation (ECF No. 99) as the opinion of the Court (ECF Nos. 101, 109). Judge Ranjan later affirmed this decision in an Amended Order (ECF No. 138).
Parkes subsequently filed a Motion for Summary Judgment (ECF No. 115), a Brief in Support (ECF No. 116), and a Statement of Uncontested Facts (ECF No. 117). The Court ordered Andrews to respond to Parkes' motion and twice extended the deadline for his response. See ECF Nos. 143, 146. Despite these extensions, Andrews has not opposed or otherwise responded to Parkes' motion for summary judgment. Further, he did not file a response to the Statement of Facts in accordance with the Court's Local Rules. See L.Cv.R. 56.C.1. Accordingly, the facts in Parkes' Statement of Facts are deemed undisputed. See L.Cv.R. 56.E.
These facts are based on Andrews' Second Amended Complaint (ECF No. 74) and Parkes' Statement of Uncontested Facts (ECF No. 117). In determining whether genuine issues of material fact exist in this case, the Court has reviewed the Second Amended Complaint, which Andrews signed under penalty of perjury, and the undisputed facts as set forth by Parkes. The Court will consider the factual assertions Andrews makes to the extent that they are based on his personal knowledge, set out facts that would be admissible in evidence, and state competent testimony on the matters at issue. See Rule 56(c)(4). Any conflict between Parkes' Statement and Andrews' rendition of the facts will be noted.
On November 17, 2017, while Andrews was incarcerated at SCI Pine Grove, he was attacked by Nelson, his cellmate, and was rendered unconscious. See ECF No. 74 at p. 4, ¶¶ 8, 9. Upon regaining consciousness, Andrews notified an officer and was taken to medical personnel for an examination of his injuries. See id. Andrews sought a prison transfer after the attack which was denied on several occasions. Eventually, he was transferred from SCI Pine Grove to SCI Huntingdon. See id. at pp. 4-8.
On August 25, 2018, after his transfer to SCI Huntington, Andrews submitted a sick call request for pain that stemmed from the injuries he sustained during Nelson's attack. See id. at p. 7; ECF No. 47-1. His request stated that “[d]ue to a prior assault last year I am having sever [sic] pain in my upper and lower back and pain on one side of my head.” Id. Andrews was seen the same day by a physician's assistant, Barbara Buckley. Ms. Buckley ordered further evaluation by a doctor and ordered therapy. See id. Ms. Buckley and Doctor Delbionco agreed that an MRI and CAT scan should be performed on Andrews. See id.
When these orders reached Parkes and Price, both of whom are health care administrators at SCI Huntington responsible for the overall management and medical operations at the prison, they denied the medical directives. As a result, Andrews did not receive the MRI or CAT scan. See ECF No. 74 at ¶ 18 and at p. 7.
In his Second Amended Complaint, Andrews states the basis for his claims against Parkes as follows:
Defendants Paula Price and Tracy Parks had no legal reason to undermine these two physicians nor was it necessary to deny plaintiff the recommended treatment. The conduct by these two defendants is beyond negligence and due to the fact that these two defendants undermine both physicians [sic] recommendations clearly shows within the record that they were indifferent…Plaintiff has suffered and continue [sic] to suffer from injuries sustained from the assault and lack of inadequate [sic] medical treatment. Due to the denial of the recommended treatment, plaintiff has been limited to being able to participate in recreational activities that he once enjoyed. This also applies to certain jobs he once enjoyed.
ECF No. 74 at p. 7. While not expressly stated as such, the Court construes this claim as an Eighth Amendment claim of deliberate indifference to serious medical needs based upon the denial of medical care.
To state an Eighth Amendment claim in this context, Andrews must allege that a prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993), which cited Monmouth County Correctional Inst. Inmates v. Lanzaro, 834 F.2d 326, 346- 47 (3d Cir. 1987)).
After this denial, Andrews filed prison Grievance #858488 on March 28, 2020. See ECF Nos. 74 at p. 7; ECF 116-2 at p. 6. As relevant here, Andrews states in his grievance that he “request[s] a follow up on … the recommendation ordered by former Dr. Delbionco to have cat [sic] scans and MRI done by outside sources. Paula Price and Tracy Parks is [sic] both wrong due to the denial of these recommendations which undermines these physicians.” See ECF 116-2 at p. 6.
Andrews indicates that both PA Buckley and Dr. Delbionco no longer work at SCI Huntingdon. See ECF No. 74 at p. 7.
Grievance #858488 was denied on March 30, 2020, because it included two different events (Andrews also complained of receiving improper allergy eye drops) and because it was not submitted within fifteen working days after the event upon which the claims occurred. See ECF No. 116-2 at p. 5. Andrews appealed the decision stating, “Paula Price and Tracy Parks are both wrong to undermine these physicians and deny me these recommended procedures.” ECF No. 116-2 at p. 4. “This is a timely Grievance due to post injury problems.” Id. The grievance was again denied based on the same rationale (Andrews included the eye drop issue in the appeal). Id. at p. 3. Andrews then filed an appeal on April 8, 2020, stating:
DC-804, § 1(A)(13).
DC-804, § 1(A)(14).
Can you please address the facts stated within this grievance [sic]. I am asking you to overturn the rejection because the matter in question about my back pain and migrans [sic] are ongoing issues that stems [sic] from an assault by my former cellie. This matter is a post injury problem that was never followed up on with recommendations by the two stated former physicians. PA Barbra Buckley and Dr. Delbionco. I do not remember the dates of the recommendations but this information should be available in my medical records.ECF No. 16-2 at p.2. A final denial was issued on May 4, 2020, because Andrews had not provided the date that his MRI and CT scan were rejected by Price and Parkes. See id. at p. 1. The Facility Manger also noted that Andrews should have resubmitted a proper grievance rather than an appeal because he included two events in the initial grievance and subsequent appeal. See id.
Andrews did not request monetary damages as a form of relief in any version of his grievance or appeal.
The DOC has an official Inmate Grievance System that governs the grievance and appeals process in Pennsylvania correctional institutions. See 37 Pa. Code § 93.9. The Inmate Grievance System is set forth in DC-ADM 804 and “is intended to deal with a wide range of issues, procedures, or events that may be of concern to an inmate.” DC-ADM 804, Inmate Grievance System Procedures Manual § 1(A)(2).
The policy is posted on the DOC website and is accessible at: https://www.cor.pa.gov/About%2 0Us/Pages/DOC-Policies.aspx.
DC-ADM 804 is not meant to address “[i]ssues concerning a specific inmate misconduct charge, conduct of hearing, statements written within a misconduct and/or other report, a specific disciplinary sanction, and/or the reasons for placement in administrative custody[,]” which must be addressed through DC-ADM 801, Inmate Discipline and/or DC-ADM 802, Administrative Custody Procedures. Id. at § 1(A)(7).
DC-ADM 804 sets forth a three-tier administrative remedy system. A prisoner is required to present his grievance to the Facility Grievance Coordinator for initial review. See Id. at § 1(C). The prisoner is required to appeal an adverse determination by the Facility Grievance Coordinator to the Facility Manager. See Id. at § 2(A). From there the prisoner must appeal to the Secretary's Office of Inmate Grievances and Appeals for appeal to final review. See Id. at § 2(B).
Andrews' Grievance #858488 proceeded through two determinations with the Facility Grievance Coordinator (ECF No. 116-2 at pp. 5, 3) and a determination by the Facility Manager (ECF No. 116-2 at p. 1).
Relevant to this case § 1(A)(12) of DC-ADM 804 requires: “… 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.”
C. Standard and Scope of Review
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. See Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. See Moore v. Tartler, 986 F.2d 682, 685 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323; see e.g., Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
The Court may consider Andrews' allegations that are based upon personal knowledge and contained in a verified complaint to oppose Parkes' motion for summary judgment because it can be treated as an affidavit or declaration. See Tustin v. Strawn, No. 2:18-cv-505, 2020 WL 3084064, at *2, n.7 (W.D. Pa. June 10, 2020); see, e.g., Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on summary judgment motion); Ziegler v. Eby, 77 Fed.Appx. 117, 120 (3d Cir. 2003); 11 Moore's Federal Practice - Civil § 56.94 (2022) (“A verified pleading may serve as an affidavit or declaration for purposes of summary judgment to the extent that it meets the requirements for summary judgment affidavits and declarations discussed above. However, an unverified pleading may not be used as summary judgment evidence.”).
Nevertheless, because Andrews failed to respond to, or refute, Parkes' Statement of Uncontested Facts, or submit any evidence in opposition to the motion for summary judgment, the Court will treat the facts stated in Parkes' Statement of Uncontested Facts as “undisputed for the purpose of resolving the Motion for Summary Judgment at issue. Fed.R.Civ.P. 56(e)(2); Local Rule 56.E.” Tustin, No. 2:18-cv-505, 2020 WL 3084064, at *2-3 (citing Hughes v. Allegheny Cnty Airport Authority, No. 15-cv-221, 2017 WL 2880875, *1-2 (W.D. Pa. July 6, 2017)).
D. Discussion
Parkes asserts that Andrews failed to exhaust his administrative remedies because he did not assert a claim for monetary damages in Grievance #858488, the grievance associated with his claim against Parkes. As such, she argues, Andrews is procedurally barred from proceeding with his claim against her.
Exhaustion is a “non-jurisdictional prerequisite to an inmate bringing suit” and when raised by a defendant it constitutes a threshold issue to be addressed by the court. See, e.g., Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018). The Prison Litigation Reform Act (“PLRA”) mandates that an inmate exhaust “such administrative remedies as are available” before bringing a suit challenging prison conditions. 42 U.S.C. § 1997e(a). The 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.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
The Supreme Court has repeatedly observed that the PLRA's exhaustion requirement “is ‘mandatory': An inmate ‘shall' bring ‘no action' (or said more conversationally, may not bring any action) absent exhaustion of available administrative remedies.” Ross v. Blake, 136 S.Ct. 1850, 1856 (2016) (citing Woodford v. Ngo, 548 U.S. 81, 85 (2006) and Jones v. Bock, 549 U.S. 199, 211 (2007)). Exhaustion is mandatory under the PLRA regardless of the type of relief sought and the type of relief available through administrative procedures. See Booth v. Churner, 532 U.S. 731, 741 (2001). Courts are not given discretion to decide whether exhaustion should be excused, Ross, 136 S.Ct. at 1858, and there is no exception to the exhaustion requirement based on “futility.” Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) (citations omitted). The PLRA's mandatory exhaustion requirement means not only that a complaint filed before administrative remedies are exhausted is premature and cannot be entertained, it also means that failure to exhaust administrative remedies in accordance with a prison's grievance procedures constitutes procedural default. See Woodford, 548 U.S. at 93-95; see also Spruill v. Gillis, 372 F.3d 218, 227-30 (3d Cir. 2004). That is because “the PLRA's exhaustion requirement requires proper exhaustion.” Woodford, 548 U.S. at 93; Spruill, 372 F.3d. at 227-30. The Court of Appeals 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). “If there is no genuine dispute of material fact, then the exhaustion defense may be evaluated as a matter of law at summary judgment.” Id.
The prison's grievance policy is what “define[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 231 (the “prison grievance procedures supply the yardstick for measuring procedural default.”). Therefore, the procedural requirements for exhaustion in a given case “are drawn from the polices of the prison in question rather than from any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill, 372 F.3d at 231).
Parkes has the initial burden of demonstrating that Andrews failed to resort to the available administrative remedies. See, e.g., Rinaldi, 904 F.3d at 268. She has satisfied that burden. It is undisputed that Andrews failed to seek monetary relief in his grievance. Courts within the Third Circuit have held that in light of the mandatory nature of the language set forth in DC-ADM 804 § 1(A)(12) regarding a request for “compensation or other legal relief normally available from a court,” an inmate procedurally defaults any claim for monetary relief if he did not seek such relief in his grievance. See, e.g., Wright v. Sauers, 729 Fed.Appx. 225, 227 (3d Cir. 2018) (affirming the district court's grant of summary judgment for defendant on plaintiff's excessive force claim because plaintiff failed to request monetary relief in his initial grievance) (citing Spruill, 372 F.3d at 233-35); Cunningham v. Zubsic, No. 1:16-cv-127, 2019 WL 134209, *5 (W.D. Pa. Jan. 8, 2019) (plaintiff's request for monetary relief barred because he did not request that relief in his grievance); Camacho v. Beers, No. 2:16-cv-1644, 2018 WL 6618410, *3 (W.D. Pa. Dec. 18, 2018) (holding that, because “Plaintiff failed to request the specific relief of monetary compensation in the grievances he filed as to the subjects of this lawsuit...he did not exhaust all administrative remedies with regard to such claims...[and] may not pursue an action in federal court based on the claims raised in his procedurally defective grievances.”); Sanders v. Beard, 3:09-cv-1384, 2013 WL 1703582, *6 (M.D. Pa. Apr 19, 2013) (dismissing claims for monetary damages brought by plaintiffs who did not request monetary damages in their initial grievances as required by DC-ADM 804).
The Court of Appeals in Wright explained that in Spruill it had “rejected a procedural default claim based on an inmate's failure to specifically request monetary relief on a prior version of DC-ADM 804” that did not require an inmate to seek such relief in a grievance. Wright, 729 Fed.Appx. at 227. It further explained that “[c]rucially…we also observed that-to the extent [the Prison] was dissatisfied with our ruling-the Prison could ‘alter the grievance system to require more (or less) of inmates by way of exhaustion.'” Id. (quoting Spruill, 372 F.3d at 235). “Subsequently, the Prison amended its policy to include the mandatory language deemed lacking in Spruill.” Id.
As the district court in Wright explained:
[A] requirement to set forth the compensation or legal relief requested places the agency on notice of the prisoner's demand or valuation of his or her claim, and furthers the PLRA's underlying litigation avoidance goals by supporting early settlement or accommodation. Proper exhaustion, including adherence to a requirement to delineate the relief requested, therefore promotes the efficiency recognized in Woodford, permitting claims to be “resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Woodford at 87, 126 S.Ct. 2378. Given the underlying goals of the PLRA, and the state of the law requiring adherence to clearly stated content requirements, this Court must conclude that the mandatory nature of the language at issue gives rise to procedural default as a result of Plaintiff's failure to set forth the desired monetary or other legal relief on his initial grievance form.Wright v. Sauers, No. 13-cv-358, 2017 WL 3731957, 7-8 (W.D. Pa. Aug. 30, 2017), affirmed, 729 Fed.Appx. 225 (3d Cir. 2018).
Because Andrews did not request monetary compensation in his grievance, the burden shifts to him to demonstrate that administrative remedies were unavailable to him for his Eighth Amendment claim against Parkes. See, e.g., Rinaldi, 904 F.3d at 268. The Supreme Court explained in Ross that the term “available” means “capable of use” to obtain “some relief for the action complained of.” 136 S.Ct. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)).
The Supreme Court identified “three kinds of circumstances in which an administrative remedy, although officially on the books,” is not “available” because it is “not capable of use to obtain relief”: (1) when “it operates as a simple dead
end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates”; (2) when it is “so opaque that it becomes, practically speaking, incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3) when “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”Rinaldi, 904 F.3d at 266-67 (quoting Ross, 135 S.Ct. at 1859-60). See also Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020) (misleading or deceptive instructions from a prison official, as well as clearly erroneous statements, can render a grievance process unavailable); Shifflett, 934 F.3d at 365 (holding “that as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies, it has made its administrative remedies unavailable and the prisoner has fully discharged the PLRA's exhaustion requirement” but only as to the matters complained of and the relief sought in the grievance.) Absent a situation where administrative remedies are not “available,” a court may not excuse an inmate's failure to exhaust “irrespective of any ‘special circumstances.'” Ross, 136 S.Ct. at 1856.
Andrews has not presented any evidence to suggest that administrative remedies were unavailable to him. In fact, it is undisputed that Andrews filed Grievance #858488 and that it proceeded to a final appeal and resolution. Furthermore, Andrews knew when he filed his grievance that he had been denied what he viewed as necessary medical tests for his ongoing injuries and pain. Thus, he possessed sufficient information at that time to request monetary relief. See, e.g., Wright, 729 Fed.Appx. at 227 n.12 (rejecting plaintiff's argument that the grievance process was “unavailable” to him because he was unaware of the severity of his injury when he filed his grievance; concluding that “[a]lthough [plaintiff] may not have known the extent of his injury” when he filed his grievance, “he knew he suffered an injury.”) (emphasis in original). Moreover, DC-ADM 804 § 1(A)(12) clearly instructs an inmate that he is required to request the specific relief he seeks in his initial grievance. Thus, even if Andrews had asserted that administrative remedies were unavailable to him, there is no evidence in the record that would support such a claim.
Andrews failed to request the specific relief of monetary compensation in the grievance he filed regarding his claim against Parkes. Because he did not exhaust all administrative remedies with regard to this claim, he may not pursue his claim against Parkes, which only seeks monetary damages. Thus, because Andrews procedurally defaulted his claim against Parkes, she is entitled to judgment in her favor as a matter of law.
III. Conclusion
For reasons stated herein, it is respectfully recommended that the Court grant the Motion for Summary Judgment of Traci Parkes.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B)&(C), and Rule 72.D.2 of the Local Rules of Court, the parties have fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. The failure to file timely objections will constitute a waiver of their appellate rights.