Opinion
Civ. 3:20-CV-1829
05-07-2024
DESHAWN DRUMGO, Plaintiff, v. SERGEANT FUNK, et al., Defendants.
Brann Chief Judge
REPORT AND RECOMMENDATION
Daryl F. Bloom United States Magistrate Judge
I. Introduction
This case comes before us for consideration of a motion for summary judgment filed by the defendants-25 employees of the Pennsylvania State Correctional Institution (“SCI”) at Camp Hill. (Doc. 80). The pro se plaintiff, Deshawn Drumgo, a Pennsylvania Department of Corrections (“DOC”) inmate, filed this lawsuit against these correctional defendants, bringing claims pursuant to 42 U.S.C. § 1983 for violations of his constitutional rights. (Docs. 1, 4-5). Liberally construed, the complaint asserts a host of claims under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, all stemming from alleged retaliation for Drumgo's involvement in a 2017 prison uprising in Delaware. (Id.).
This court has previously construed Drumgo's pleadings to be comprised of the complaint and two letters filed on the same day as the complaint. (Doc. 42 at 2, n.1).
The defendants now move for summary judgment, arguing that Drumgo failed to exhaust his administrative remedies and, alternatively, that his claims fail on the merits. (Docs. 80-82). After consideration, we conclude that there are no genuine issues of material fact with respect to Drumgo's claims. Accordingly, we recommend that the court grant the defendants' motion for summary judgment.
II. Background
In 2017, while Deshawn Drumgo was incarcerated at the James T. Vaughn Correctional Center in Delaware, prisoners at that facility revolted, causing the death of a corrections officer. (Doc. 4 at 2-6; Doc. 5 at 3-4; Doc. 18 at 3-4). After that revolt-colloquially referred to as the “Vaughn Uprising”-hundreds of prisoners, including Drumgo, were transferred to correctional institutions in Pennsylvania pursuant to an interstate compact. (Doc. 18 at 4). In September of 2019, Drumgo entered SCI Camp Hill, the facility where all 25 defendants are employed. (Doc. 81-22 at 3). Drumgo alleges that during his time at SCI Camp Hill, the defendants retaliated against him based on their belief that he had murdered a corrections officer during the Vaughn Uprising. (Doc. 4 at 4-8; Doc. 5 at 2-6; Doc. 18 at 1-4). This alleged retaliation was extremely wide-ranging and included the denial of visitor privileges to Drumgo's wife, the issuance of false misconduct reports against Drumgo, verbal harassment, and the confiscation and destruction of Drumgo's legal documents. (Id.).
Drumgo filed this case on September 24, 2020, bringing claims under the First, Fifth, Eighth, and Fourteenth Amendments to the United States Constitution against 25 employees of SCI Camp Hill in their individual and official capacities. (Docs. 1, 4-5). The defendants have moved for summary judgment, arguing that Drumgo failed to exhaust his administrative remedies and, alternatively, that his claims fail on the merits. (Doc. 80-82). This motion is fully briefed and is ripe for resolution. (Docs. 80-82, 88-89).
III. Discussion
A. Motion for Summary Judgment - Standard of Review
The defendants have filed a motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Rule 56(a) provides that a 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). The materiality of the facts will depend on the substantive law. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). Thus, “[o]nly disputes over facts that might affect the outcome of the suit under governing law” will preclude summary judgment. Id. A dispute is only genuine if a reasonable juror could find in favor of the nonmoving party. Id.
The moving party bears the initial burden to “demonstrate the absence of a genuine issue of material fact,” relying on pleadings, depositions, affidavits, and other evidence in the record. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the movant “successfully points to evidence of all of the facts needed to decide the case on the law,” the nonmovant can still defeat summary judgment by pointing to evidence in the record which creates a genuine dispute of material fact and from which a jury could find in its favor. El v. Southeastern Pennsylvania Transp. Auth. (SEPTA), 479 F.3d 232, 238 (3d Cir. 2007). However, “[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (citations omitted). A court may not make credibility determinations or weigh the evidence, but “must view the facts in the light most favorable to the non-moving party.” Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
B. The Defendants' Motion for Summary Judgment Should be Granted.
Drumgo alleges that the 25 individual defendants, respectively, prevented him from associating with his wife, denied him access to the courts, and retaliated against him in violation of the First Amendment, denied him procedural due process in violation of the Fifth Amendment, subjected him to unconstitutional conditions of confinement, failed to protect him from other inmates, verbally harassed him, and subjected him to cruel and unusual punishment in violation of the Eighth Amendment, and denied him substantive and procedural due process in violation of the Fourteenth Amendment. (Doc. 4 at 3-8; Doc. 5 at 1-6). For their part, the defendants argue that Drumgo failed to exhaust his administrative remedies and, alternatively, that his claims fail on the merits. (Doc. 82 at 21-61). After consideration, we agree, and we recommend that the Court grant the defendants' motion for summary judgment.
1. Most of Drumgo's Claims are Unexhausted.
The defendants first argue that Drumgo failed to exhaust his administrative remedies with respect to any of his claims. (Doc. 82 at 2125). Under the Prison Litigation Reform Act (“PLRA”), prisoners are required to present their claims through a prison's administrative process prior to bringing claims in federal court. 42 U.S.C. § 1997e(a). This applies to any claim arising in the prison setting, regardless of the relief sought by the prisoner. Porter v. Nussle, 534 U.S. 516, 532 (2002); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001). The PLRA's exhaustion requirement is mandatory, provided that administrative remedies are available to the prisoner. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000); 42 U.S.C. § 1997e(a). A failure to exhaust available administrative remedies bars an inmate from bringing a suit in federal court. Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000).
The PLRA requires “proper exhaustion” of administrative remedies, meaning that the inmate must comply with the procedural requirements of the prison's grievance system. Woodford v. Ngo, 548 U.S. 81, 84, 90 (2006). In the Pennsylvania DOC, inmates must follow the three-tiered grievance process set forth in DC-ADM 804. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). Thus, an inmate must begin by filing a grievance with the Facility Grievance Coordinator at the institution where the incident took place. The grievance must contain a statement of facts giving rise to the grievance, identify individuals involved, state claims the inmate wishes to make regarding any violations of DOC policy or the law, and request the specific relief sought. If the grievance is denied at initial review, the inmate may then appeal to the Facility Manager, i.e., the Superintendent of the facility. If the initial response is upheld, the inmate may file an appeal to the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”) within 15 working days of the Facility Manager's decision. See DC-ADM 804 (Doc. 81-20 at 10-23).
Here, we conclude that Drumgo failed to exhaust his administrative remedies with respect to all but two of his claims. Between the time he entered SCI Camp Hill and the time he initiated this lawsuit, Drumgo filed 104 grievances, 46 of which are relevant to this case. (Doc. 81 ¶¶ 74-75). However, Drumgo failed to fully and properly exhaust 41 of those 46 relevant grievances. Specifically, he failed to appeal 27 of his grievances after they were rejected for procedural deficiencies, failed to appeal the initial denial of three of his grievances, failed to appeal 10 of his grievances to SOIGA, and appealed one grievance to SOIGA without attaching all required documentation. The five exhausted grievances encompass two causes of action-a First Amendment retaliation claim against Defendants James and Gilbert and a First Amendment denial of access to the courts claim against Defendant Ritchey. (Doc. 81-21 at 80 85, 184-87). Therefore, we conclude that Drumgo has failed to exhaust his administrative remedies with respect to all but those two claims.
Grievance Nos. 822304, 822569, 822707, 823288, 826295, 826324, 828740, 828744, 828749, 862663, 864957, 864975, 865291, 865641, 865643, 867339, 869185, 869375, 871662, 871937, 874040, 875978, 877556, 880847, 880849, 884033, and 890866. (Doc. 81-21 at 1-4, 2330, 62-68, 88-93, 106-116, 120-23, 131-35, 146-47, 155-56, 188-233).
Grievance Nos. 826234, 827878, 869135 (Id. at 50-51, 86-87, 144-45).
Grievance Nos. 822688, 825469, 825471, 826276, 826843, 866320, 867896, 869352, 869608, and 870504. (Id. at 17-22, 31-49, 52-61, 75-79, 124-30, 137-43, 152-54, 157-183).
Grievance No. 822682 (Id. at 5-13).
Five of the 46 grievances submitted by the defendants were fully exhausted. (Id. at 80-85, 94-103, 184-87). Though the defendants submitted grievance Nos. 836443 and 836444, those grievances pertain to events that are unrelated to this case. (Id. at 94-103). One grievance- No. 827182, which involved a comment made by defendant James-was construed as a complaint under the Prison Rape Elimination Act (“PREA”) and was forwarded to the PREA Compliance Manager in October of 2019. (Id. at 80-82). The defendants have not submitted the version of DC ADM 008-the DOC policy governing PREA complaints- that was operative in 2019 and that version is not available on DOC's website. Therefore, on the record before us, we cannot conclude that Drumgo failed to exhaust his administrative remedies with respect to his claim against James. Finally, as Drumgo argues, the two remaining grievances-Nos. 827870 and 871449-were exhausted because DOC did not respond to them within the timeframe prescribed by DC ADM 804. (Id. at 83-85, 184-87; Doc. 88 at 2 (citing Shifflett v. Korsznia, 934 F.3d 356, 365 (3d Cir. 2019)) (explaining 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.”)).
Drumgo argues that we should reject the defendants' exhaustion argument because they destroyed his grievances. (Doc. 88 at 4). This argument fails because Drumgo has not cited to any record evidence supporting this claim. DeShields v. Int'l Resort Properties Ltd., 463 Fed.Appx. 117, 120 (3d Cir. 2012) (explaining that “[i]f factual support for [the plaintiff's] claim existed in the record, it was incumbent upon her to direct the District Court's attention to those facts.”); see also Veloz v. New Yor, 339 F.Supp.2d 505, 516 (S.D.N.Y. 2004), aff'd, 178 Fed.Appx. 39 (2d Cir. 2006) (rejecting the plaintiff's unsupported assertion on summary judgment that the prison had a “practice of destroying or misplacing grievances....”). Drumgo also argues that the grievance system was unavailable to him because he was placed on grievance restriction. (Doc. 88 at 8). However, the Third Circuit has previously explained that being placed on grievance restriction does not prevent a plaintiff from exhausting his administrative remedies. Cummings v. Crum, 347 Fed.Appx. 725, 727 (3d Cir. 2009).
Accordingly, Drumgo has failed to exhaust his administrative remedies with respect to all but two of his claims-the First Amendment retaliation claim against James and Gilbert and the First Amendment denial of access to the courts claim against Ritchey. Therefore, we recommend that the defendants' motion for summary judgment be granted with respect to all but those two exhausted claims for failure to exhaust under the PLRA.
We note that Drumgo submitted several affidavits in opposition to summary judgment. (Docs. 88-2, 93). Because those affidavits do not pertain to the two unexhausted claims in this case, we will not consider them.
2. Drumgo's Exhausted Claims Fail on the Merits.
The defendants argue that Drumgo's First Amendment claims against James, Gilbert, and Ritchey fail on the merits. We agree.
The complaint alleges that the defendants violated the Fifth Amendment. (Doc. 1 at 2). However, any such claim would fail as a matter of law because Drumgo brings his claims against state, rather than federal officials. See Nguyen v U.S. Cath Conf., 719 F.2d 52, 54 (3d Cir. 1983) (explaining that “[t]he limitations of the fifth amendment restrict only federal governmental action). Therefore, the court should grant summary judgment as to Drumgo's Fifth Amendment claims.
(a) First Amendment Retaliation
Drumgo alleges that James and Gilbert retaliated against him in violation of the First Amendment. (Doc. 4 at 4). To prevail on a First Amendment retaliation claim, a prisoner must show (1) that he engaged in constitutionally protected conduct; (2) that he suffered an “‘adverse action' at the hands of prison officials”; and (3) that his constitutionally protected activity was “a substantial or motivating factor” in the decision to take adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001) (citations omitted). An adverse action is one that would “deter a person of ordinary firmness from exercising his [constitutional] rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). If a plaintiff establishes a prima facie case of retaliation, the burden shifts to the defendant to show “that it would have taken the same disciplinary action even in the absence of the protected activity.” Rauser, 241 F.3d at 333 (citing Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)).
Here, Drumgo's retaliation claim against James is based on James' alleged comment that Drumgo could “suck her dick” and that “nobody [wa]s scared of [him] cause [sic] [he] killed a C.O. in Delaware.” (Doc. 8121 at 81). First, and fundamentally, Drumgo has not alleged that he engaged in any protected activity. His claims are based on his allegations that he was retaliated against for his participation in the Vaughn Uprising that resulted in the murder of a corrections officer. However, murder is not a protected First Amendment activity. Timmons v. Issa, No. 1:20-CV-02035, 2023 WL 348992, at *7 (M.D. Pa. Jan. 20, 2023), appeal dismissed, No. 23-1344, 2023 WL 5521065 (3d Cir. Apr. 25, 2023) (explaining that “[c]ommitting homicide is not protected by the First Amendment.”).
Further, we note that such comments, while certainly objectionable, cannot be construed as an adverse action. Noonan v. Kane, 698 Fed.Appx. 49, 54 (3d Cir. 2017) (explaining that speech is not an adverse action unless the defendant official threatens “that a punishment will follow from the continued exercise of a plaintiff's First Amendment rights.”). Accordingly, Drumgo's retaliation claim against James fails as a matter of law.
We similarly conclude that Drumgo's retaliation claim against Gilbert fails. Drumgo's claim against Gilbert is based on Gilbert's decision to transfer Drumgo to P Block, which he referred to as the “jungle.” (Doc. 81-21 at 85). However, nothing in Drumgo's grievance- or in any admissible evidence on the record-suggests that being transferred to P Block would “deter a person of ordinary firmness from exercising his [constitutional] rights.” Allah, 229 F.3d at 225. The grievance suggests, at most, that P Block was an undesirable housing area, which is insufficient to raise a genuine issue of material fact. See Verbanik v. Harlo, 512 Fed.Appx. 120, 122 (3d Cir. 2013) (holding that being transferred to a less desirable cell was not an adverse action).
Accordingly, we recommend that the court grant the defendants' motion for summary judgment as to the First Amendment retaliation claims against James and Gilbert.
(b) First Amendment Access to Courts Claim
Drumgo alleges that Ritchey denied him access to the courts by preventing him from challenging his conviction and from litigating several civil rights cases. (Doc. 5 at 1-2). “Under the First and Fourteenth Amendments, prisoners retain a right of access to the courts.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008) (citing Lewis v. Casey, 518 U.S. 343, 346 (1996)). A plaintiff asserting that he was prohibited from presenting a claim must show “(1) that [he] suffered an ‘actual injury'-that [he] lost a chance to pursue a ‘nonfrivolous' or ‘arguable'' underlying claim; and (2) that [he] ha[s] no other ‘remedy that may be awarded as recompense' for the lost claim other than in the present denial of access suit.” Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)).
In grievance No. 871449, Drumgo alleges that Ritchey told him that three boxes of his legal materials were being stored on a different cell block. (Doc. 81-21 at 190). However, there is no evidence that Drumgo suffered an actual injury because there is no evidence that he was prevented from accessing his legal materials. In fact, Drumgo received permission to store and access more than three boxes of legal materials in June of 2020, approximately two weeks after speaking to Ritchey. (Doc. 81-23 at 2-3). Moreover, neither Drumgo's grievance nor any admissible evidence on the record explain the nature of the legal materials in the three boxes. Without that information, no reasonable trier of fact could conclude that Drumgo was prohibited from presenting a claim. See Dougan v Primecare Med., Inc., No. i:22-CV-462, 2023 U.S. Dist. LEXIS 91688, *37 (dismissing a denial of access claim because the plaintiff did not describe the nature of the legal materials that were allegedly confiscated). Accordingly, we recommend granting summary judgment on Drumgo's denial of access to the courts claim against Ritchey.
Drumgo argues that he should have been allowed to access all three boxes of legal materials when he entered SCI-Camp Hill because he had a legal storage exemption from SCI Coal Township. (Doc. 88 at 5). However, by its terms, that exemption was valid “only for the duration of [Drumgo's] confinement at SCI Coal Township.” (Doc. 88-1 at 2).
Drumgo claims that defendant Rivera destroyed three sworn affidavits in which witnesses from his criminal trial recanted their testimony against him. (Doc. 88 at 6). It is unclear if those affidavits were in any of the three boxes referenced in Drumgo's grievance. However, even if they were, Drumgo cannot assert a denial of access claim against Ritchey based on the destruction of those affidavits because there is no evidence that Ritchey was personally involved in their destruction. See Rode v. Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988).
3. Drumgo's Official Capacity Claims Are Barred by Sovereign Immunity.
Finally, to the extent that Drumgo asserts claims against the defendants in their official capacities, his claims are barred by sovereign immunity. The Eleventh Amendment provides sovereign immunity to states and state agencies that are sued by citizens in federal court. Seminole Tribe v. Florida, 517 U.S. 44, 54 (1996). The Commonwealth's immunity exists as a matter of law unless that immunity is waived or abrogated by Congress. The Commonwealth has expressly invoked its Eleventh Amendment immunity under 42 Pa. Cons. Stat. § 8521(b). As a state agency, the DOC is entitled to immunity under the Eleventh Amendment. See Durham v Dept of Corr., 173 Fed.Appx. 154, 156 (3d Cir. 2006). Moreover, it is well settled that an action against an individual in his or her official capacity is no different than an action brought against the agency itself. Will v. Michigan Dept of State Police, 491 U.S. 58, 71 (1989). Accordingly, the claims brought against the defendants in their official capacities are barred by the Eleventh Amendment.
IV. Recommendation
For the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 80) be GRANTED.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.