Opinion
1:19-cv-0007
07-21-2021
RYAN DUBOISE and SYHEED WILSON, Plaintiff v. OFFICER WOODS, ET AL., Defendants
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Introduction and Recommendation
On April 13, 2021, the undersigned conducted an evidentiary hearing to determine whether Plaintiffs' administrative remedies were rendered "unavailable" due to statements or acts of intimidation allegedly committed by Defendant Woods. . The Plaintiffs bear the burden of proving that that the grievance process was not reasonably available to them. Plaintiffs have not met that burden. Because Plaintiffs' failed to exhaust their available administrative remedies, it is respectfully recommended that a final order of judgment be entered in favor of the Defendants pursuant to Federal Rule of Civil Procedure 58.
II. Factual and Procedural Background
The factual background and procedural history of this case are detailed in the undersigned's Report and Recommendation of January 20, 2020. (ECF No. 26). Here, a summary will suffice. Plaintiffs Ryan Duboise (Duboise) and Syheed Wilson (Wilson) (collectively, Plaintiffs) are representing themselves. At the time they initiated this action, they were both inmates incarcerated at the State Correctional Institution at Forest (SCI-Forest). Duboise remains incarcerated at SCI-Forest while Wilson has since been transferred to the State Correctional Institution at Greene (SCI-Greene). See ECF No. 68. Their Complaint claimed that several employees of the Pennsylvania 1 Department of Corrections violated their rights under the First and Fourteenth Amendments to the U.S. Constitution. ECF No. 1-2, ¶ 31. Factually, the Plaintiffs alleged that the Defendants destroyed their property in retaliation for the filing of grievances and lawsuits against them and other correctional officers. Id. at ¶¶ 9-25, generally. The Plaintiffs asked for declaratory relief as well as monetary damages. Id. at ¶¶ 32-36. The Defendants asserted 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 argued that they were entitled to summary judgment on the merits of the Plaintiffs' claims. Id. at pp. 5-9.
Plaintiffs filed 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.
On January 9, 2020, the undersigned issued a Report and Recommendation. See ECF No. 26. Therein, it was recommended that the Defendants' motion for summary judgment be denied pending a hearing to determine whether Plaintiffs' administrative remedies were reasonably available. This recommendation was adopted as the decision of the Court. ECF No. 28. As to the Defendants' failure-to-exhaust argument, the Court accepted the conclusion that a state-wide lockdown, in effect from August 29, 2018 to September 10, 2018 did not render administrative remedies "unavailable" to the Plaintiffs because they still had eight days after termination of the lockdown to a timely grievance against the Defendants. Id., p. 2. Alternatively, the Court concluded that Plaintiffs could have requested an extension of time relative to their grievance deadline, as is provided for by the Department of Corrections' internal grievance procedures. Id. But the Court also determined that the record presented an issue of fact concerning whether Defendant Woods rendered the Plaintiffs' administrative remedies unavailable through intimidation. Id. Thus, the 2 only issue remaining before the Court is whether Woods engaged in intimidation that prevented the Plaintiffs from exhausting their administrative remedies.
An evidentiary hearing was held on that issue pursuant to Small v. Camden County, 728 F.3d 265 (3d Cir. 2013) on April 13, 2021. See ECF No. 66. In Small, the Court of Appeals for the Third Circuit explained that "exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts." 728 F.3d at 269. "Although the availability of administrative remedies to a prisoner is a question of law, it necessarily involves a factual inquiry." Id. at 271 (citations omitted). This Report and Recommendation follows that hearing.
III. Standards of Decision
The United States Supreme Court has determined what renders administrative remedies unavailable to an inmate such that a failure to exhaust may be excused. See Ross v. Blake, 136 S.Ct. 1850 (2016). The Court noted "three kinds of circumstances in which an administrative remedy, although officially on the books, is not capable of use to obtain relief." Id. at 1859. First, an administrative procedure is not available "when (despite what regulations or guidance materials may promise) it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates." See Id. Second, a procedure is not available when it is "so opaque that it becomes, practically speaking, incapable of use." Id. Finally, a procedure is unavailable when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misinterpretation, or intimidation." Id. at 1860. However, "once the defendant has established that the inmate failed to resort to administrative remedies, the onus falls on the inmate to show that such remedies were unavailable to him." Kendrick v. CO Hann, et al, 2021 WL 2914986, at *5 (M.D. Pa. July 12, 2021) (citing Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018)).
Here, the Plaintiffs contend that Defendant Woods threatened them with harm and that his threats reasonably intimidated them from filing a grievance. To show that a prison official's threats 3 thwarted inmates from accessing the grievance process, a plaintiff must show that "(1) the [prisoner official's] 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." Rinaldi, 904 F.3d at 268; see also Hardy, 959 F.3d at 587. Where, like here, a 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." McLaughlin v. Zavada, 2021 WL 2529793, at *15 (W.D. Pa. June 21, 2021) (quoting West v. Emig, 787 Fed.Appx. 812, 814 (3d Cir. 2019)).
IV. Discussion and Analysis
A. Undisputed Facts
The following facts are not disputed. Plaintiffs Duboise and Wilson were cellmates at SCI-Forest on September 3, 2018, and that a search of their cell occurred on that same date. It is undisputed that there was a state-wide prison lockdown from August 29, 2018, until September 10, 2018. Upon the conclusion of this lockdown period, eight days remained on the 15-day period during which the Plaintiffs would have been able to file a grievance in accordance with DC-ADM 804.
It is also undisputed that the Department of Corrections' grievance policy, DC-ADM 804, provides the relevant procedures for all grievances. The DC-ADM 804 grievance system consists of three separate stages: initial review, appeal, and final review. First, within fifteen days of the incident, the prisoner is required to submit a written grievance for review by the facility manager or die regional grievance coordinator, who, in turn, must respond in writing within fifteen business days. Second, if the grievance is denied, the inmate must submit a written appeal to the Facility Manager within fifteen working days, and again the inmate is to receive a written response within fifteen working days. Finally, if the inmate remains dissatisfied following this second level outcome, he 4 must submit an appeal to the Secretary's Office of Inmate Grievances and Appeals (SOIGA) within fifteen working days, and then the inmate will receive a final determination in writing within thirty days. Downey v. Pa. Dep't of Corrs 968 F.3d 299, 305-06 (3d Cir. 2020). If instead of a final determination, SOIGA remands the grievance to the facility, the inmate must await a new decision, and then follow applicable procedures to appeal this new decision to SOIGA. DC-ADM 804, § 2(B)(2)(g). An inmate has not properly exhausted the grievance until SOIGA issues its final determination. Plaintiffs' testimony indicates that they were both familiar with the grievance procedure.
Also undisputed is the Plaintiffs' failure to file a grievance relative to the events of September 3, 2018 -including during the eight-day period that remained on the 15-day time limit under the relevant policy. Instead, the Plaintiffs filed a lawsuit in the Court of Common Pleas for Forest County, signing their Complaint on September 5, 2018. That Complaint was docketed with the Court of Common Pleas of Forest County on September 10, 2018.
B. Testimony at the Evidentiary Hearing
As noted above, an evidentiary hearing was conducted during which both the Plaintiffs and Defendants provided witness testimony. Plaintiffs presented testimony from a fellow inmate in support of their claim that administrative remedies were unavailable. Leon Washington, the Plaintiffs' witness, was incarcerated at SCI-Forest on September 3, 2018. On September 3, 2018, Washington was housed in housing unit Alpha Bravo in cell 2047, which was the same housing unit where the Plaintiffs were housed.
From his cell, Washington could see to the back of the Plaintiffs' cell and could see the door to the Plaintiffs' cell. Washington was approximately 15 to 20 feet from the Plaintiffs' cell. Washington heard Defendants Woods state that he was searching the Plaintiffs' cell because the 5 Plaintiffs had filed a grievance against him. Most relevant, Washington testified that he heard Woods state that if the Plaintiffs filed another grievance, Woods "would come back and F you up."
Plaintiff Wilson also testified as to the events of September 3, 2018. Wilson stated that on that day, a security team approached his cell, he was told to leave the cell; he was handcuffed and told to stand outside the cell door. Three officers entered his cell, including Defendant Woods. Wilson testified that Defendant Woods then came out of the cell and made statements to the effect that the search was "payback" for the filing of grievances and lawsuits. Wilson also testified that Wood made threats that if they filed a claim, he would return and "F you up" and "beat you to a pulp." Wilson testified that Woods' actions and threatening comments intimidated him into not filing a grievance. On cross-examination, Wilson acknowledged that Woods' alleged actions and statement did not deter him from filing a lawsuit concerning the same incident a mere two days after the incident. He stated that he was afraid to file the lawsuit but did so, nevertheless.
Wilson also testified that immediately after the incident on September 3, 2021, he requested to speak with Captain Carter and requested a grievance form. Wilson testified that he was not afraid to speak with Carter because he was a higher-ranking officer. Wilson stated that Carter denied his request for a grievance form. Wilson stated he also asked officers Woods, Thornton, Barger, and Rose for grievances after the September 3, 2018, incident but that those requests were denied.
Testifying in the narrative, Plaintiff Duboise stated that Defendant Woods and other officers searched the cell he shared with Plaintiff Wilson on September 3, 2018. Duboise testified that the officers strip-searched him, then handcuffed him and placed him outside the cell. Three officers searched his cell while Defendant Woods remained outside the cell. Woods informed Duboise that the cell was being searched because "[Duboise] file[s] grievances and lawsuits."
Duboise testified that Woods told him if he filed a grievance about the search, the officers would return and would assault Duboise. Duboise acknowledged that two or three days later, he 6 filed this lawsuit in state court. Duboise testified that he was not afraid to file a lawsuit in state court because that was his "only option." He did maintain that he feared using the internal grievance process because the officers would return and assault him.
Duboise also stated that he was not afraid to speak to Captain Carter after the September 3, 2018 incident and that he asked Captain Carter for a grievance. He further acknowledged that no harm came to him from the filing of subsequent grievances and that he was not physically harmed after he filed this lawsuit in state court.
Several witnesses testified for the defense. Defendant Woods testified that he searched several cells on September 3, 2018. Woods testified that while standing outside of the Plaintiffs' cell, he did not speak to them and they did not speak to him. On that date, Woods was unaware of any lawsuits or grievances filed against him by the Plaintiffs. Woods testified that he never assaulted or threatened to assault an inmate. He testified that he did not recall either Plaintiff asking him for a grievance form. Woods testified that he would have given either of the Plaintiffs a grievance form if he had asked him for one.
Defendants Barger, Thornton, and Rose all testified that the Plaintiffs did not ask them for a grievance form following the cell search on September 3, 2018. Further, Captain Carter testified that if either Plaintiff had asked him for a grievance form, he would have made sure he or they received one.
C. Plaintiffs have not established that they were deterred from using the grievance process.
Based upon the foregoing testimony, the undersigned's determination of the credibility of the witnesses, and the reasons that follow, the Court should conclude that the Plaintiffs' administrative remedies were available and that they failed to exhaust those remedies for any claim against the Defendants related to the events of September 3, 2018. 7
The Court should assume without deciding- as the undersigned has done-that the comments Plaintiffs ascribe to Defendant Woods, if made, were "sufficiently serious" that they "would deter a reasonable inmate of ordinary firmness and fortitude from lodging a grievance." See Rinaldi, 904 F.3d at 268. But even so, the Plaintiffs have not established that Woods made the statements ascribed to him or, if made, Plaintiffs were actually deterred from utili2ing the grievance process.
First, as a matter of credibility, the undersigned finds that Plaintiffs have failed to prove by a preponderance of the evidence that Woods threaten either Plaintiff or that Woods or any other corrections officer denied either Plaintiff a grievance form. Second, despite their conclusory statements that they were afraid to file a grievance, the undersigned finds that neither Plaintiff was intimidated from filing a grievance regarding the events of September 3, 2018. Both Plaintiffs sought to initiate that process by asking for grievance forms immediately after the incident in question and asking to speak with an officer superior to Defendant Woods. Wilson testified, for example, that he and Duboise asked to speak to a higher-ranking officer and requested grievance forms on the same day Defendant Woods threatened them with reprisals. Tr. at p. 44-45. Duboise testified that he was not afraid to speak to Captain Carter after the incident. Tr. at p. 52. While asking for a grievance form is not the same thing as filing an actual grievance, that the Plaintiffs' requested the forms is, at a minimum, some evidence that they contemplated the process despite any intimidation from Woods. This weighs against their contention that they were afraid to grieve the Defendants' actions.
Further, neither Plaintiff disputes that they continued to litigate additional grievances even after being threatened by Defendant Woods. See Tr. at p. 42-43, 53. Plaintiff Wilson, for example, acknowledged that he filed grievances in October 2018, including a grievance against Defendants Thornton and Barger. Tr. at p. 45. Duboise also acknowledged filing grievances-including 8 grievances against two of the Defendants in this case-after allegedly being threatened by Woods. Tr. at p. 53. Duboise also testified that no physical harm came to him after he filed those subsequent grievances. Id. Given this testimony, the Plaintiffs have failed to demonstrate that Woods' threats, if made, actually deterred them from filing or pursing grievances, including grievances against some of the very same Defendants named in this action. See, e.g., Jackson v. Carter, 2020 WL 2494408, at *2 (3d Cir. May 14, 2020) (per curiam); Moses v. Sexauer, 2011 WL 1870220, at *5 (S.D. Ga. Apr. 5, 2011) (rejecting plaintiffs claim that the administrative remedy process was unavailable to him because the alleged threat did not deter plaintiff from filing a different grievance against defendant), report and recommendation adopted, 2011 WL 1869430, at *1 (S.D. Ga. May 16, 2011).
Finally, both Plaintiffs acknowledge that they filed the instant action in state court two days after the incident in question. See Tr. at pp. 44, 50. It is not credible that the threats allegedly made by Woods deterred Plaintiffs from filing a grievance regarding the events of September 3, 2018, but these threats did not deter them from filing a lawsuit regarding the same events a mere two or three days after those events. See, e.g., Berk v. Douglas, 2020 WL 4060276, at *3 (N.D. Tex. June 24, 2020) (holding that plaintiff failed to establish his administrative remedies were unavailable where plaintiff filed lawsuit after threats of "negative consequences" from prison guard); Dawson v. Martin, 2021 WL 2073676, at *3 (S.D. Ill. May 24, 2021) (holding that a court cannot find that the administrative process was not available when a prisoner rushed to court to file a lawsuit shordy after an administrative response was required). Thus, the Plaintiffs' own actions belie their assertions that their administrative remedies were unavailable to them. See, e.g., Whitebird v. Gibson, et al, 2021 WL 2912475, at *1 (W.D. Okla. July 21, 2021)
V. Conclusion
In light of the foregoing, the Court should conclude that Defendant Woods' alleged intimidation did not actually occur and, even if a Woods attempted to intimidate Plaintiffs, his 9 alleged statements and actions failed to deter the Plaintiffs from filing a grievance and therefore, the Plaintiffs' administrative remedies were available to them. Because they did not file a grievance about the September 3, 2018 incident, any claims relating to that incident were unexhausted and judgment should be entered in favor of the Defendants.
VI. Notice Regarding the Filing of Objections
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, Plaintiffs shall have fourteen (14) days from the date of the service of this report and recommendation to file written objections thereto. Plaintiffs' failure to file timely objections will constitute a waiver of their appellate rights. 10