Opinion
Case No. 1:19-cv-00007 (Erie)
01-09-2020
RYAN DUBOISE, SYHEED WILSON, Plaintiffs v. OFFICER WOODS, OFFICER THORNTON, OFFICER ROSE, OFFICER BARGER, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF NO. 18 I. Recommendation
For the reasons that follow, it is respectfully recommended that the Defendants' Motion for Summary Judgment (ECF No. 18) be DENIED. II. Report
A. Background and Procedural History
Plaintiffs Ryan DuBoise (DuBoise) and Syheed Wilson (Wilson) (collectively, Plaintiffs), proceeding pro se, are inmates currently incarcerated at the State Correctional Institution at Forest (SCI-Forest). Their Complaint alleges violations of their rights under First and Fourteenth Amendments against several employees of the Pennsylvania Department of Corrections. ECF No. 1-2, ¶ 31. Specifically, the Plaintiffs allege that the Defendants violated their rights by destroying their property in retaliation for the filing of grievances and lawsuits against them and other correctional officers. Id. at ¶¶ 9-25, generally. The Plaintiffs ask for declaratory relief as well as monetary damages. Id. at ¶¶ 32-36.
Plaintiffs Sled their Complaint in the Court of Common Pleas of Forest County, Pennsylvania, and Defendants removed the action to this Court pursuant to 28 U.S.C. §§ 1441 and 1446. See ECF No. 1.
In their pending Motion for Summary Judgment, the Defendants assert that they are entitled to judgment as a matter of law because the Plaintiffs failed to exhaust their administrative remedies in accordance with the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. ECF No. 19, pp. 3-5. In the alternative, they argue that they are entitled to summary judgment on the merits of the Plaintiffs' claims. Id. at pp. 5-9. The matter has been fully briefed and is now ready for disposition.
B. The Complaint
The Plaintiffs were cellmates at SCI-Forest in September of 2018. ECF No. 1-2, ¶ 7. On September 3, 2018, the Defendants searched the Plaintiffs' cell. Id. at ¶ 8. The Plaintiffs were also strip-searched. Id. The Plaintiffs claim that Woods told them the search was "pay back" for their filing grievances and lawsuits. Id. at ¶ 9. The Plaintiffs claim that during this process their legal work and several items of property were destroyed. Id. at ¶¶ 10-17.
The Plaintiffs raise a claim of retaliation under the First Amendment (id. at ¶¶ 26-29) and allege due process violations under the Fourteenth Amendment (id. at ¶¶ at 30-31).
C. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) requires a 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. Id. 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. 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. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Elec. 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 lack of a genuine issue of material fact, the nonmoving party must to 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. 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 Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
D. Analysis
1. Exhaustion of Administrative Remedies
Congress enacted the Prison Litigation Reform Act in 1996. See 42 U.S.C. § 1997e. Under this Act, a prisoner must pursue all avenues of relief available within the prison's grievance system before filing a lawsuit in court. See 42 U.S.C. § 1997e(a). This requirement is mandatory, not discretionary, and "applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002); Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007). Even where the relief sought is unavailable through administrative remedies, prisoners must pursue their claims through prison channels prior to initiation of litigation. Woodford v. Ngo, 548 U.S. 81, 114 (2006). Further, prisoners must see their complaints and grievances through to the final review possible under the administrative review system in place. Id. at 93.
The failure to exhaust administrative remedies is an affirmative defense that must be pleaded and proven by the defendants. Jones v. Bock, 549 U.S. 199, 216 (2007); Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). In this Circuit, the failure-to-exhaust affirmative defense has two separate and distinct points of analysis. First, a court must ask whether the defendants can demonstrate that the inmate failed to exhaust the "on-the-books" remedies. See Williams, 482 F.3d at 213 (explaining that the prison's grievance policy supplies the "yard stick" for determining what steps are required for exhaustion). Second, if the defendants can make such a showing, the onus is then on the inmate to produce evidence that the on-the-books remedies were in fact unavailable to him or her. See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018); see also West v. Emig, 2019 WL 5061417, *2 (3d Cir. Oct. 9, 2019). Here, because Defendants have moved for summary judgment, the analysis turns on whether any genuine issue of material fact exists and whether Defendants are entitled to judgment as a matter of law. Whitenight v. Elbel, et al., 2019 WL 7284251, *4 (W.D. Pa. Dec. 27, 2019). "If there is no genuine dispute of material fact, then the exhaustion defense may be evaluated as a matter of law at summary judgment. If there is a genuine dispute of material fact related to exhaustion, then summary judgment is inappropriate[.]" Id. The court should then provide adequate notice to the parties and hold an evidentiary hearing to resolve those factual disputes, or "at least provide the parties with an opportunity to submit materials relevant to exhaustion," before resolving those factual disputes. Id. (quoting Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018)).
On this record, the first-stage inquiry is straightforward. The Plaintiffs have failed to exhaust. It is undisputed that neither DuBoise nor Wilson filed a grievance about the incident they complain of. First, the incident complained of took place on September 3, 2018, and the Plaintiffs' signed and submitted their Complaint on September 5, 2018, a mere two days afterward. See ECF No. 1-2, p. 8. They could not have possibly exhausted all of the grievance procedures, including appeals, within two days. Second, the Plaintiffs do not dispute the declaration of DOC employee Michael Bell, provided by the Defendants, in which Bell states that neither Plaintiff filed a grievance relating to the events of September 3, 2018. ECF No. 20-1, ¶ 12. Thus, it is undisputed that neither Plaintiff submitted a grievance pertaining to the incidents complained of. The Court should conclude that the Defendants have shown that the Plaintiffs have failed to exhaust. See, e.g., West v. Emig, 2019 WL 5061417, *3 (3d Cir. 2019).
Michael Bell is the Assistant Chief Grievance Officer for the Department of Corrections and works in the Secretary's Office of Inmate Grievances and Appeals (SOIGA).
At the second point of inquiry, DuBoise and Wilson may still save their claims by demonstrating that the "un-exhausted remedy was unavailable." Id. The Supreme Court explained that the term "available" means "'capable of use' to obtain 'some relief for the action complained of.'" Ross v. Blake, --- U.S. ---, 136 S. Ct. 1850, 1859 (2016) (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). An administrative remedy can be unavailable in three common circumstances: "(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. See id. Here, the Plaintiffs claim that the third scenario—the thwarting of an administrative remedy by a prison employee—excuses their failure to exhaust.
The Court of Appeals for the Third Circuit has stated that these three situations of unavailability are not "comprehensive," and instead are "exemplary." See Rinaldi, 904 F.3d at 267 n.9.
Specifically, the Plaintiffs argue that two events thwarted their filing of grievances: the state-wide prison lock down that was in effect from August 29, 2018 to September 10, 2018, and intimidation by prison officials. The Defendants do not dispute that from August 29, 2018 to September 10, 2018, all Pennsylvania correctional institutions were on "lock down" because of reports of prison personnel becoming sickened by unknown substances. See ECF No. 25, p. 2. Further, the Defendants do not disagree with the Plaintiffs' indication that during this lock down no grievances could be filed. Id. See also ECF No. 24-3, ¶ 2 (Johnson declaration). Normal operations—including the filing of grievances—resumed on September 10, 2018.
Apparently, the lock down did not prevent the Plaintiffs from submitting their Complaint for mailing to the Clerk of this Court on September 5, 2018. Consistent with their position, however, prison personnel did not process and transmit the Complaint for filing until September 10, 2018, when the prison resumed normal operations.
The Pennsylvania DOC's grievance policy permits the Secretary to suspend any or all provisions of the policy for a specific time period. See Pa. DOC DC-ADM 804(V).
This lock down did not, however, render the grievance process unavailable. First, pursuant to the policy, inmates have fifteen (15) days from the date of the event in question to submit grievances. See DC-ADM 804 § 1.A.8. This incident took place on September 3, 2018, which means that the Plaintiffs had until September 18, 2018 to file a grievance. Given that normal operations at the prison resumed on September 10, 2018, they still had an additional eight (8) days to file a grievance. And even if they did not still have time to file a grievance when normal operations were resumed, the Plaintiffs could have asked for an extension of time. DC-ADM 804 allows for extensions of time in certain circumstances which include transfer or authorized absence from the facility, mail delays, and "any other reason the Facility Grievance Coordinator/designee deems appropriate." DC-ADM 804 § 1.C.2.c. Neither Plaintiff requested the grievance officer excuse what they may have thought would be a late filed grievance because of the lock down. Thus, because the Plaintiffs did not file a grievance within the remaining time allotted under the policy or request an extension, they have not substantially complied with the administrative remedy to exhaust claims. See Harper v. Jenkin, 179 F.3d 1311, 1312 (11th Cir. 1999) (prison allowed grievances to be filed late for good cause and because prisoner did not seek permission to file late, he did not exhaust administrative remedies).
But the record does include evidence that prison personnel intimidated the Plaintiffs not to file a grievance. The Third Circuit has held "that administrative remedies are not 'available' under the PLRA where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm." Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018). Thus, to defeat a failure-to-exhaust defense based on such threats, "an inmate must show (1) that the threat was sufficiently serious that it would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance and (2) that the threat actually did deter this particular inmate." Id. at 269.
The Plaintiffs have alleged in their Complaint that Woods told them if they "even thought about filing a grievance or complaining about this incident to his superior officers that him and his crew would come back and handcuff the Plaintiffs and beat them both to a pulp." ECF No. 1-2, ¶ 14. DuBoise attested to these facts in his declaration. ECF No. 24-2, ¶ 4. Wilson did the same in his declaration. ECF No. 24-4, ¶ 4. Defendants, for their part, did not file counter-affidavits or other evidentiary materials to dispute or oppose these declarations at this stage of the proceedings.
The threat of physical assault is serious enough to deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance. See, e.g., Victory v. Berks County, 2019 WL 1507769, *15 (E.D. Pa. April 5, 2019) (quoting Rinaldi, 904 F.3d at 268). And the fact that, at least on this record, the Plaintiffs did not file a grievance about this incident—or continue filing grievances about other incidents—could support a finding that they were in fact deterred from making such filings. Id. at *16. Thus, the Plaintiffs have established genuine issues of material facts as to whether their administrative remedies were unavailable, Accordingly, it is recommended that the Court deny Defendants' motion for summary judgment to the extent that it is based upon the Plaintiffs' failure to exhaust administrative remedies. While it is undisputed that the threats alleged by the Plaintiffs did not deter them from filing their present lawsuit, and one may question the credibility of their position in light of this undisputed fact, such credibility questions are not properly resolved on summary judgment. Therefore, it is further recommended that an evidentiary hearing be held to resolve the disputed issue of whether the grievance process was unavailable to the Plaintiffs, a question which must be resolved before the case may proceed on the merits. See Dillon v. Rogers, 596 F. 3d 260, 272-73 (3d Cir. 2010) (noting that exhaustion under the PLRA is a threshold issue, and that "the judge should usually resolve disputes concerning exhaustion prior to allowing the case to proceed to the merits").
"[E]xhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts." Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013) (citing Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)); see also Drippe, 604 F.3d at 781 ("Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to.") (quoting Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008); cf. Wilkerson v. United States, 2014 WL 1653249, at *9 (M.D. Pa. Apr. 24, 2014) ("[I]f there is a dispute of material fact, the court should conduct a plenary trial on the contested facts prior to making [an exhaustion of administrative remedies] determination.") (addressing a prisoner's FTCA claim). "Although the availability of administrative remedies to a prisoner is a question of law, it necessarily involves a factual inquiry." Small, 728 F.3d at 271 (citations omitted). Although this Court has held that a dispute such as the one presented in this case can be resolved on the record alone, the Court should decline to do so here given the sparse record created by the Defendants. See, e.g., Werner v. Sorbin, 2017 WL 3582382, at *3 (W.D. Pa. Aug. 18, 2017) (holding that while the exhaustion issue "normally entails an evidentiary hearing before the judge," disputed issues of fact could be resolved on the record).
As noted, Defendants did not submit any evidentiary materials responding to Plaintiffs' declarations attesting to the threats and intimidation they assert deterred them from filing a grievance. While these declarations are currently uncontested, the record does not permit the Court to grant summary judgment in favor of Plaintiffs on Defendants' exhaustion defense because Plaintiffs did not cross-move for summary judgment. Under Rule 56(f), the Court may grant summary judgment on a claim or defense in favor of a party who has not requested it only after giving the other party "notice and a reasonable time to respond." Fed. R. Civ. Pro. 56(f). No such notice was provided to Defendants in this case. In addition, before granting summary judgment in favor of a nonmoving party, the Court should be convinced that the factual record is fully developed, that the nonmoving party is clearly entitled to the relief, and that the judgment would not result in procedural prejudice to a party. See Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 280 (3d Cir. 2010); Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, 903 F.3d 113, 118 (3d Cir. 2018). Cf Gibson v. Major & Council of City of Wilmington, 355 F.3d 215, 223-24 (3d Cir. 2004) (finding no notice is required if there is a fully developed record, a lack of prejudice to the parties, and a decision on a purely legal issue).
Unlike a matter presenting a pure issue of law, the issue at hand—whether Defendants intimidated Plaintiffs not to file a grievance—is an inherently factual issue and turns on issues of credibility. While it is true that Defendants did not file affidavits to counter the declarations filed by Plaintiffs in opposition to Defendants' motion, Rule 56 did not oblige Defendants to do so because Plaintiffs did not counter-move for relief. Thus, having been presented with Plaintiffs' affidavits, but no cross-motion for summary judgment on the exhaustion affirmative defense, Defendants reasonably could have concluded that genuine issues of fact remain concerning exhaustion and concluded that their exhaustion defense would have to be resolved in an appropriate pretrial hearing. In other words, the absence of a cross-motion meant that Rule 56 never placed a burden of production on the Defendants to respond to Plaintiffs' affidavits.
Failure to exhaust administrative remedies is an affirmative defense, which the defendant bears the burden to plead and prove. Jones v. Bock, 549 U.S. 199, 216 (2007); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). An exhaustion defense presents a question of law, to be decided by the judge, even if this requires the resolution of factual disputes. Small, 728 F.3d at 269; see also Drippe, 604 F.3d 778, 781 (3d Cir. 2010). Accordingly, "judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury." Small, 728 F.3d at 271.
2. Summary Judgment Should Be Denied on the Merits of Plaintiffs' First Amendment Retaliation Claim.
The Plaintiffs first claim that the Defendants violated their rights under the First Amendment by retaliating against them for filing past grievances and lawsuits. ECF No. 1-2, ¶ 26. The Plaintiffs also claim that the Defendants threatened to "harm Plaintiffs if they filed another grievance or lawsuit." Id. at ¶ 27.
Although Plaintiffs did not specifically identify the prior lawsuits that they allege motivated Defendants' retaliatory conduct, this should not be regarded as an elemental failure of proof. Further, the Court has reviewed the CM-ECF filing system for this district and independently identified separate lawsuits against DOC personnel on behalf of Duboise (see Docket No 18-cv-0008) and Wilson (see Docket No. 18-cv-123). Both cases were pending on September 3, 2018.
In order to establish illegal retaliation for engaging in protected conduct, a plaintiff must allege and ultimately prove that: (1) his conduct was constitutionally protected; (2) he suffered an adverse action at the hands of prison officials; and (3) his constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. Watson v. Rozum, 834 F.3d 417, 422 (3d Cir. 2016) (citing Rauser v. Horn, 241 F.3d 330, 333-34 (3d Cir. 2001)). Retaliatory motive can be inferred from either: (1) an unusually suggestive temporal proximity between the protected activity and the alleged retaliatory action; or (2) a pattern of antagonism coupled with timing that suggests a causal link. Id. (citing Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).
The filing of a grievance or a lawsuit is a constitutionally protected activity. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Massey v. Holman, 2019 WL 3997845, *5 (W.D. Pa. July 23, 2019) (citing Mitchell). The Defendants fault the Plaintiffs for not identifying "any particular grievances that were submitted nor lawsuits that were filed for which they were allegedly retaliated." ECF No. 19., p. 7. But in their declarations, both Plaintiffs state that on September 3, 2018, they had filed lawsuits against DOC staff in both federal and state court. See ECF No. 24-2, ¶ 6 (DuBoise); ECF No. 24-4, ¶ 6 (Wilson). Both Plaintiffs further declare that all their legal materials pertaining to these cases were destroyed by the Defendants during the search of their cell on September 3, 2018. Id. A declaration by inmate Ayodele Oke supports the Plaintiffs' statements. Oke declares that "on September 3, 2018, I witnessed Officers Woods, Thornton, Rose and Barger enter into Ryan DuBoises [sic] and Syheed Wilson's cell. While these officers were in DuBoise and Wilson's cell, I heard Officer Woods say to DuBoise that his cell was going to get trashed because he filed lawsuits. I also seen what it appeared to be officers ripping up paperwork while the toilet was flushing." ECF No. 24-5, ¶¶ 3-4. Again, the Defendants offer nothing to contradict the Plaintiffs' declarations. And Defendants do not dispute on this record that the Plaintiffs were searched and that the contents of their cells were, to large measure, destroyed. This is an adverse action. Thus, the Court should conclude that the Plaintiffs have produced evidence sufficient to allow a reasonable jury to find in their favor on the first two elements of the Plaintiffs' retaliation claim.
The Plaintiffs have also filed a declaration of inmate Lavon Chisley in support of their version of events on September 3, 2018. However, Chisley's declaration states that he witnessed the Defendants search the Plaintiffs' cell on October 19, 2018. Thus, the Court will not consider this declaration in support of the Plaintiffs' claims because of the different date. See generally, ECF No. 24-6.
That leaves the determination whether the Plaintiffs' constitutionally protected conduct was a substantial or motivating factor in the decision to take the adverse action. The Court should also conclude that the record evidence is adequate to allow a reasonable jury to find in Plaintiff's favor on this element. Both Plaintiffs and inmate Oke declared that the Defendants themselves stated that the filing of lawsuits and grievances by the Plaintiffs was a motivating factor underlying their actions. See ECF No. 24-2, ¶ 4; ECF No. 24-4, ¶ 4; ECF No. 24-5, ¶ 4. Defendants have not pointed to anything on the record to contradict or dispute these declarations. Given this, the Court should deny the Defendants' motion for summary judgment on the Plaintiffs' First Amendment retaliation claim.
3. Summary Judgment Should be Denied on the Plaintiffs' Due Process Claim.
The Plaintiffs also raise a due process claim, arguing that the search of their persons and their cell as well as the destruction of their property amount to a due process violation in violation of the Fourteenth Amendment. See ECF No. 1-2, ¶ 30. The Court should deny the Defendants' motion for summary judgment on this claim.
Under most circumstances, "the [d]eprivation of inmate property by prison officials does not state a cognizable due process claim." Freeman v. Department of Corrections, 447 Fed. Appx 385, 387 (3d Cir. 2011). That holding, however, presupposes the availability of "an adequate post-deprivation state remedy." See, e.g., Williams v. Nutter, 2019 WL 5884477, *7 n.17 (E.D. Pa. Nov. 12, 2019) (citing Freeman, 447 Fed. Appx at 388). See also Hudson v. Palmer, 468 U.S. 517, 533 (1984). Defendants' sole argument in support of summary judgment on this claim is that the DOC's grievance procedures provided the Plaintiffs "with an adequate post-deprivation remedy" to address the destruction of their property and any alleged violation of their due process rights. See ECF No. 19, pp. 7-8. Defendants are correct that "[t]he unauthorized intentional deprivation of property by a prison official, as has been alleged here...does not violate the Due Process Clause where the inmate has a meaningful post-deprivation remedy available to him." Mearin v. Folino, 2013 WL 5332120 (W.D. Pa. Sept. 23, 2013) (citing Monroe v. Beard, 536 F.3d 198, 210 (3d Cir.2008)). Here, however, Defendants rely exclusively upon the prison's grievance process as providing an adequate post deprivation remedy. As the undersigned has recommended that the Court find the summary judgment record adequate to support a finding that the grievance process was unavailable to the Plaintiffs as to their First Amendment claim, the undersigned is likewise constrained to recommend that summary judgment on the Plaintiffs' due process claim be denied on the same basis. Although Defendants' quotation from Judge Kelly's decision in Mearin referenced an inmate's "ability to file a state tort action or use of the prison's grievance process" (see id. (emphasis added) (citations omitted)) as alternative processes that may provide an adequate post-deprivation remedy, Defendants in this case relied exclusively on the prison grievance system in support of their motion. Thus, whether a lawsuit under the Pennsylvania Tort Claims Act for the willful deprivation of property, see Shakur v. Coelho, 421 Fed. Appx 132, 135 (3d Cir. 2011), was a remedy available to satisfy the Plaintiffs' due process rights has not been presented to the Court and the undersigned declines to make the argument for Defendants in this Report and Recommendation.
The Plaintiffs assert that by means of threats and intimidation the Defendants deterred them from initiating and pursing the internal prison grievance process. They do not assert that the threats and intimidation deterred them from filing a lawsuit in state or federal court and, in fact, the record establishes that they commenced the present lawsuit in federal court within days of the events at issue.
On this record, the Court should find that Plaintiffs have demonstrated the existence of a genuine issue of material fact regarding the unavailability of the prison grievance process as an adequate post-deprivation remedy. Accordingly, it is recommended that the Defendants' motion for summary judgment on the Plaintiffs' due process claim be denied. III. Conclusion
For the reasons stated, it is recommended that the Defendants' Motion for Summary Judgment (ECF No. 18) be DENIED. It is further recommended that and that this matter be scheduled for a hearing pursuant to Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013) to resolve the issues of fact concerning the Defendants' "exhaustion of administrative remedies" affirmative defense. IV. Notice
The parties are referred to 28 U.S.C. § 636(b)(1) and Local Civil Rule 72(C)(2) for the appropriate procedure if any party desires to file objections to these findings and recommendations. Objections must be in writing and must be filed within fourteen days of this date. Failure to file timely objections may constitute a waiver of appellate rights. Angle v. Murin, 2013 WL 5888272, *1 (W.D. Pa. Oct. 31, 2013).
Submitted this 9th day of January, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge