Opinion
Civil 4:20-CV-929
08-25-2021
JOSHUA CAREY, Plaintiff, v. WEAVER, et al., Defendants.
Brann, Chief Judge.
REPORT AND RECOMMENDATION
Martin C. Carlson, United States Magistrate Judge.
I. Introduction
This case involves federal constitutional and statutory claims brought by an inmate, Joshua Carey, who alleges that he was assaulted by staff and other inmates when he was briefly incarcerated at the United States Penitentiary at Canaan in October of 2019 through February of 2020. (Doc. 1). Carey has sued seventeen correctional defendants, alleging that they conspired to assault him and instructed other inmates to assault him because he was a convicted child predator. Thus, Carey asserts constitutional claims under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), as well as claims under the Federal Tort Claims Act (FTCA) based on the alleged assault.
The defendants have now filed a motion for summary judgment, which asserts that Carey's claims are entirely unexhausted, as Carey did not file any administrative remedies through the prison before filing this suit. (Doc. 25). This motion is fully briefed and is, therefore, ripe for resolution.
For the reasons set forth below, it is recommended that the motion be granted, and Carey's complaint be dismissed.
II. Statement of Facts and of the Case
This statement of facts is taken from the parties' submissions to the extent that those submissions are supported by independent evidence.
Joshua Carey is a federal inmate and convicted child predator who was briefly incarcerated at USP Canaan in Waymart, Pennsylvania in 2019 and 2020 before he was transferred to another facility in the Bureau of Prisons (“BOP”). Carey's complaint alleges that he was assaulted on several occasions while at USP Canaan, both by correctional officers and inmates. He claims that when he arrived at USP Canaan in October of 2019, he informed the staff that he was a convicted sex offender and should not be placed in general population, as it would pose a safety risk to him. He alleges that the staff, including Defendants Weaver, Quinn, Burko, and Case, laughed at him and told him that he “had it coming” because he was a child molester. Carey also claims that the correctional defendants told his cell mate that he was a child molester so that his cell mate would beat him up. Carey was ultimately housed in the Special Housing Unit (“SHU”) at Canaan until he was transferred to another facility in February of 2020.
Carey then filed this civil rights action in May of 2020. (Doc. 1). The complaint alleges violations of Carey's 5th, 8th, and 14th Amendment rights, as well as a civil conspiracy claim against the defendants pursuant to 42 U.S.C. §§ 1985 and 1986. In sum, Carey asserts that the defendants conspired to assault him and directed other inmates to assault him because of his status as a convicted child molester. The defendants have now filed a motion for summary judgment. (Doc. 25). In their motion, they argue that the plaintiff's FTCA claim fails because Carey did not sue the United States as a proper FTCA defendant. In addition, they assert that Carey failed to exhaust his administrative remedies with respect to his Bivens claims.
With respect to this administrative exhaustion issue relating to Carey's Bivens claims, while Carey avers that he was not provided access to grievance forms, there is a complete paucity of proof supporting this averment. Instead, the undisputed evidence appears to contradict this claim. Thus, three different correctional staff- Patrick Kurilla, Joseph Mushala and Francis Gambone-have attested that they were case managers or counsellors on Carey's housing unit during his brief confinement at USP Canaan. These correctional officials have stated that they conducted regular unit rounds while Carey was housed in the unit and would routinely provide grievance forms to inmates who requested them. However, without exception, these correctional staff indicate that they have no recollection of receiving any request whatsoever from Carey. (Docs. 28-2, 34).
These staff declarations are further buttressed by the declaration of Megan Marlow, an attorney advisor for the Bureau of Prisons, who conducted a comprehensive search of the computerized inmate grievance retrieval system. That search revealed that Carey never filed any grievances while housed at USP Canaan. Moreover, there is no indication that Carey attempted to grieve these matters once he was transferred from USP Canaan to other BOP facilities in February of 2020. On these facts, for the following reasons, it is recommended that the motion be granted, and Carey's complaint be dismissed.
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendants have filed this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
B. Carey's Claims Should Be Dismissed
As we have noted, in their motion for summary judgment the defendants argue that Carey has failed to name the United States as an FTCA defendant, and further, that he has failed to exhaust his administrative remedies with respect to his Bivens claims. (Doc. 25). Upon consideration, we agree that these claims run afoul of insurmountable legal obstacles and compel the dismissal of this case.
1. Carey's FTCA Claims Fail.
In this case, the plaintiff seems to cast his complaint as both a Bivens constitutional tort action and as a lawsuit brought under the Federal Tort Claims Act, 28 U.S.C. § 2675, et seq. While the plaintiff may bring an FTCA action against the United States, to the extent that the plaintiff wishes to bring a Federal Tort Claims Act action in this lawsuit, it is clear that he may not maintain that action against the individual federal official currently named in this complaint. Bivens constitutional tort actions and FTCA lawsuits have very different requirements in terms of the parties that may properly be named as defendants. With respect to inmate claims made under the FTCA, as a threshold matter, “[t]he FTCA allows federal inmates to sue the United States for injuries sustained while incarcerated. 28 U.S.C. § 2674.” Moshier v. United States, No. 05-180, 2007 WL 1703536, at *9 (W.D. Pa. June 11, 2007); Baker v. United States, No. 05-146, 2006 WL 1946877, at *4 (W.D. Pa. July 11, 2006). In this regard, “[t]he FTCA ‘was designed primarily to remove the sovereign immunity of the United States from suits in tort, with certain specific exceptions, to render the Government liable in tort as a private individual would be under like circumstances.' ” Sosa v. Alvarez-Machain, 542 U.S. 692, 700 (2004) (quoting Richards v. United States, 369 U.S. 1, 6 (1962)); CNA v. United States, 535 F.3d 132, 138 (3d Cir. 2008).
Federal district courts have jurisdiction over civil actions against the United States for damages, or
[I]njury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the circumstance where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.28 U.S.C. § 1346(b)(1). A person is permitted to sue under the FTCA to recover damages from the United States for personal injuries that he suffered during confinement in a federal prison that resulted from the negligence of a government employee. See Rinaldi v. United States, 2010 WL 2650528, at *4 (M.D. Pa. July 1, 2010) (Rambo, J.) (citing United States v. Muniz, 374 U.S. 150 (1963)).
However, due to the exclusive nature of the remedy available under the FTCA, and its jurisdictional prerequisites, a court may not entertain a civil suit for a claim cognizable under 28 U.S.C. § 1346(b) against “any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. § 2679(b)(1); see also FDIC v. Meyer, 510 U.S. 471, 476 (1994). As the Court of Appeals observed in affirming the dismissal of individual defendants from an inmate FTCA action: “The only proper defendant in an FTCA suit is the United States itself. The FTCA waives the United States' sovereign immunity for claims arising out of torts committed by federal employees ‘under circumstances where ... a private person ... would be liable' under applicable state tort law.” Feaster v. Federal Bureau of Prisons, 366 F. App=x 322, 323 (3d Cir. 2010) (citing 28 U.S.C. §§ 2671, 1346(b)(1)). Therefore, when inmates bring actions against individual government officers for negligence under the FTCA, the proper course to follow is to substitute the United States for these individual defendants and dismiss the individual defendants. Id.
In contrast to FTCA actions, which must be brought against the United States, Bivens constitutional tort lawsuits can only be lodged against individual government officials. Indeed, it is well-settled that Bivens actions against the United States- and, by extension, against federal agencies or officials sued in their official capacity-are barred by sovereign immunity, absent an explicit waiver of that immunity. Meyer, 510 U.S. at 483; Huberty v. United States Ambassador to Costa Rica, 316 F. App=x 120 (3d Cir. Aug. 21, 2008); Douglas v. United States, 285 F. App=x 955 (3d Cir. 2008); Jaffee v. United States, 592 F.2d 712, 717 (3d Cir. 1979); Bell v. Rossott, 227 F.Supp.2d 315, 320 (M.D. Pa. 2002) (dismissing claim against individual federal defendants sued in their official capacity because the claims are essentially made against the United States). Therefore, a Bivens action cannot be brought against the United States, or a federal agency, since such claims are plainly barred by the doctrine of sovereign immunity.
These principles defining proper parties in Bivens and FTCA actions control here and compel dismissal of some of the claims currently lodged in this case. The plaintiff's complaint makes it unmistakably clear that the plaintiff is currently proceeding, in part, under the FTCA, and there appears to be no question that the individual defendants named in the complaint were acting within the scope of their employment with the Bureau of Prisons at the time of the incidents alleged. Accordingly, the United States of America is the only proper defendant with respect to these FTCA claims, and the individual defendants should be dismissed from these FTCA claims.
3. Carey's Bivens Claims are Unexhausted.
As we have explained, Carey asserts violations of his 5th, 8th, and 14th Amendment rights, alleging that the correctional defendants conspired to assault him, and to have other inmates assault him because he was a convicted child predator. The defendants, for their part, contend that the plaintiff's Bivens claims are entirely unexhausted because Carey never filed an administrative remedy while in BOP custody. We agree.
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must pursue all avenues of relief available within a prison's grievance system before bringing a federal civil rights action concerning prison conditions. 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). This “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 exhaustion requirement is mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth v. Churner, 532 U.S. 731, 741 (2001) (holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). Moreover, “it is beyond the power of [any] court . . . to excuse compliance with the exhaustion requirement.” Nyhuis, 204 F.3d at 73 (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y. 1998)).
To exhaust administrative remedies, an inmate must comply with all applicable grievance procedures and rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA requires not only technical exhaustion of administrative remedies, but also substantial compliance with procedural requirements. Id. at 22732; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
On this score, “[t]o properly exhaust the BOP's administrative remedies, an inmate must generally: (1) attempt an informal resolution with staff at the institution; (2) file a formal complaint with the institution; (3) file an appeal to the appropriate regional director; and (4) file an appeal to the General Counsel at the Central Office.” Bakhtiari v. Spaulding, 779 Fed.Appx. 129, 133 n.3 (3d Cir. 2019) (citing 28 C.F.R. § 542.10-.15). An inmate's failure to comply with the exhaustion requirement prescribed by the PLRA is an affirmative defense, Jones v. Bock, 549 U.S. 199, 216 (2007), and the burden of proving a failure to exhaust rests with the defendants, Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
In the instant case, Carey concedes that he did not file any administrative remedies with the institution. For his part, he alleges that the staff at USP Canaan refused to give him the forms he needed to file administrative remedies. Thus, he contends that his administrative remedies were unavailable to him. See Rinaldi v. United States, 904 F.3d 257, 266 (3d Cir. 2018) (noting that an inmate's administrative remedies will be considered unavailable when “prison administrators thwart inmates from taking advantage of a grievance process”) (citations omitted). However, while the burden to show the failure to exhaust rests with the defendant, “the onus falls on the inmate to show that such [administrative] remedies were unavailable to him.” Id. at 268.
On this score, Carey's complaint vaguely asserts that the correctional staff at Canaan refused to provide him with the correct forms. This assertion, however, is now contradicted by multiple staff declarations. Thus, three different correctional staff-Patrick Kurilla, Joseph Mushala, and Francis Gambone-have attested that they were case managers or counsellors on Carey's housing unit during his brief confinement at USP Canaan. These correctional officials have stated, without contradiction by Carey, that they conducted regular unit rounds while Carey was housed in the unit and would routinely provide grievance forms to inmates who requested them. However, without exception, these correctional staff indicate that they have no recollection of receiving any request whatsoever from Carey. (Docs. 28-2, 34). The defendants also attach sign in logs for the SHU between October 2019 and February 2020, which show that Kurilla, Mushala and Gambone made rounds weekly in the SHU during which time Carey could have requested forms from him. (Id., at 6-39). Finally, the defendants attach the declaration of Megan Marlow, an attorney advisor for the BOP, in which she states that a records search revealed that Carey never filed an administrative remedy or tort claims action while in BOP custody. (Doc. 28-3, at 1-2). Carey's only rebuff to these declarations is the bald, argumentative assertion that “BOP staff commit fraud on their logs, please see Jeff[rey] Epstein[']s case.” (Doc. 40, at 4). In our view, this is simply not enough to meet his burden to show that his administrative remedies were unavailable. Moreover, Carey alleges that he was subjected to on-going abuse while at USP Canaan, but there is no indication that he ever attempted to grieve this alleged ongoing abuse in a timely manner once he was transferred from that facility.
Thus, while Carey makes the bare assertion that the defendants refused to provide him with administrative remedy forms, in our view he has fallen short of his burden to show that the administrative remedies were unavailable to him. Rather, the record indicates that there were ample opportunities for Carey to request the proper forms from BOP staff, including Mr. Kurilla and others, and he simply failed to do so. Accordingly, we conclude that Carey has entirely failed to exhaust his administrative remedies with respect to his Bivens claims, and these claims should be dismissed.
IV. Recommendation
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 25) be GRANTED, and that the plaintiff's complaint be dismissed.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.