Opinion
1:20-cv-50
06-02-2022
JENKINS EVERETT, Plaintiff v. CO 1 ROBINSON, et al., Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that the Motion for Summary Judgment [ECF No. 83] filed by Defendants CO2 Moore and CO3 Irwin be GRANTED. It is further recommended that Plaintiff Jenkins Everett's Motion for Summary Judgment [ECF No. 88], Motion to Amend Complaint [ECF No. 95], and Motion to Alter Judgment [ECF No. 98] each be DENIED.
This matter has been referred to the undersigned for a Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). .
II. Report
A. Factual and Procedural Background, Plaintiff Jenkins Everett is an inmate in the custody of the Pennsylvania Department of Corrections. At all relevant times, Everett has been housed at the State Correctional Institution at Forest (SCI-Forest). ECF No. 16 at 1.
Everett's claims in the instant action stem from two incidents that occurred on January 22, 2019, when corrections officers Robinson and Steele threw Everett headfirst into a wall and slammed him on the ground while escorting him to a medical appointment. ECF No. 16 at 2; ECF No. 47-1 at 4-6. Everett was restrained and compliant at the time of the incident and did nothing to provoke the use of force. Id. Everett sustained injuries to his head and leg. Id.
Everett alleges that later that same day, Moore and Irwin sprayed him with pepper spray in response to his request to be taken to medical. ECF No. 16 at 4, 9. According to Everett, Moore and Irwin left him choking on the floor for over an hour while covered in pepper spray. Id.
On February 11, 2019, Everett filed Grievance No. 786184 alleging that the force utilized by Robinson and Steele was unnecessary, unprovoked, and excessive. See ECF No. 47-1 at 6. Although he indicated that he “wish[ed] to take legal action,” Everett failed to request monetary or injunctive relief in his initial grievance. Id. After requesting an extension of time to investigate, the assigned hearing officer issued a decision on July 25, 2019, agreeing that “the force used against [Everett] by Officer Robinson and Officer Steele was unwarranted.” Id. at 4. Noting that Everett “listed no relief' in his initial grievance, the hearing officer upheld Everett's grievance but awarded no compensation. Id. Notably, Everett did not identify Moore and Irwin or reference the peppery spray incident in Grievance No. 786184. Id.
Everett filed an appeal to the facility manager on February 14, 2020, almost six months after receiving the initial hearing officer's response. ECF No. 47-1 at 3. Everett stated, for the first time, that he desired “nominal” and “monetary” damages as compensation for his pain and suffering. Id. The facility manager rejected Everett's appeal as untimely, see id. at 2, and Everett filed no further appeal. Id. at 12-13. The instant lawsuit ensued.
Defendants filed a motion for summary judgment on January 28, 2021. ECF No. 44. Although nominally filed on behalf of all four Defendants, the motion addressed only the claim against Robinson and Steele, arguing that it was procedurally defaulted due to Everett's failure to request monetary relief in his grievance. Id. Everett, in turn, filed two motions for summary judgment. See ECF Nos. 36, 39.
On July 8, 2021, the undersigned issued a Report and Recommendation that all claims be dismissed for lack of proper exhaustion. ECF No. 73. On September 27, 2021, United States District Judge Susan Paradise Baxter adopted the Report and Recommendation and dismissed the claims against Robinson and Steele. ECF No. 77. Judge Baxter correctly noted, however, that neither Defendants' motion for summary judgment nor the Report and Recommendation addressed the claims against Moore and Irwin. Id. Accordingly, she returned the matter to the undersigned for further pretrial proceedings. Id.
Moore and Irwin subsequently moved for summary judgment on October 25, 2021, accompanied by a brief in support, a concise statement of material facts, and an appendix of exhibits. ECF Nos. 83-86. Everett filed a brief in opposition, see ECF No. 93, but failed to file a responsive concise statement. Instead, Everett filed his own motion for summary judgment, ECF No. 88, as well as a motion to amend his complaint to add a Defendant, ECF No. 95, and a motion to alter judgment, ECF No. 98. Everett has since filed a motion for reconsideration, ECF No. 105, and several motions to amend (which are more accurately described as requests to submit additional exhibits in support of his claims). See ECF Nos. 96-97, 106. This matter is fully briefed and ripe for review.
B. Standards
Federal Rule of Civil Procedure 56(a) requires the court to enter summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. 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. Tartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must 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).
Finally, because Plaintiff is proceeding pro se, the court must “apply the applicable law, irrespective of whether [the] pro se litigant has mentioned it by name.” Holley v. Dep't of Veteran's Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). Nevertheless, “a pro se plaintiff is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point to competent evidence in the record that is capable of refuting a defendant's motion for summary judgment.” Dawson v. Cook, 238 F.Supp.3d 712,717 (E.D. Pa. 2017) (citation omitted). In other words, a plaintiff's pro se status does not relieve him of his “obligation under Rule 56(c) to produce evidence that raises a genuine issue of material fact.” Id. (quoting Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz, 2012 WL 4343176, *1 (W.D. Pa. Sept. 21, 2012).
C. Analysis
Defendants Moore and Irwin seek summary judgment based on Plaintiff's alleged failure to properly exhaust his administrative remedies before initiating this lawsuit. More specifically, Defendants maintain that Plaintiff's failure to include a request for relief in his initial prison grievance bars him from obtaining any form of relief in the instant action.
In broad brush, the Prison Litigation Reform Act of 1995,42 U.S.C. § 1997e(a) (the “PLRA”), requires a prisoner to exhaust any available administrative remedies before he may bring an action pursuant to 42 U.S.C. § 1983 challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). This exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the statute requires “proper exhaustion,” meaning that a prisoner's completion of the administrative review process must also satisfy the applicable procedural rules of the prison's grievance system. Fennell v. Cambria County Prison, 607 Fed.Appx. 145, 149 (3d Cir. 2015). A procedurally defective administrative grievance, even if pursued to final review, precludes action in federal court. Id. Failure to exhaust administrative remedies under the PLRA is an affirmative defense that must be pleaded and proven by defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).
The grievance system utilized in Pennsylvania's prison system requires inmates to satisfy a three-step grievance and appeals process. See Grievance System Policy DC ADM-804; Smith v. Sec. of Pa. Dept, of Corrections, 2018 WL 279363, at *2 (W.D. Pa. Jan. 3, 2018). First, the inmate must “legibly set forth all facts and identify all persons relevant to his claim in a grievance which will then be subject to ‘initial review.'” Smith, 2018 WL 279363, at *2 (citing Spruill v. Gillis, 372 F.3d 218, 233 (3d Cir. 2004)). Second, the initial review must be appealed to the Facility Administrator for a second level of review. Id. Finally, “the inmate is required to file an appeal to the Secretary's Office of Inmate Grievances and Appeals (“the Secretary's Office”).” Id. Once these three steps have been satisfied, a grievance has ordinarily been administratively exhausted for purposes of the PLRA.
Apropos to the instant case, however, DC-ADM 804 contains an additional requirement: that an inmate who “desires compensation or other legal relief normally available from a court” must “request the relief with specificity in his/her initial grievance.” DC-ADM 804 Inmate Grievance System Procedures Manual (DC-ADM 804), at § 1(A)(1 l)(d); Wright v. Sauers, 2017 WL 3731957 (W.D. Pa. Aug. 30, 2017); Spruill, 372 F.3d 218. Courts characterize the satisfaction of this requirement as “proper exhaustion.” Smith, 2018 WL 279363, at *3 (noting that a grievance must be fully exhausted to final review and “properly exhausted” with respect to remedy). Pursuant to this requirement, an inmate is precluded from seeking legal relief in a lawsuit, including monetary damages, if the inmate did not request that same relief in his grievance (whether or not that grievance might otherwise be deemed exhausted). See, e.g., . Wright v. Sauers, 729 Fed.Appx. 225, 227 (3d Cir. 2018) (affirming order granting summary judgment based on lack of proper exhaustion where plaintiff failed to request monetary relief on his initial grievance form as required by DC-ADM 804).
Conversely, an inmate's failure to properly exhaust his request for relief has been described as a form of procedural default. See, e.g., Wright, 3731957, at *6 (characterizing a failure to specifically request monetary damages in an otherwise fully-exhausted grievance as “giv[ing] rise to procedural default”).
As noted in this Court's prior Report and Recommendation, Everett filed only one grievance based on the events of January 22, 2019: Grievance No. 786184. A review of that grievance reveals two pertinent defects: Everett failed to request any monetary or injunctive relief, stating only that he wished to “take legal action” on his claims, and failed to identify Moore or Irwin or include any reference to the pepper spray incident. ECF No. 47-1 at 6. While a request for monetary relief in a grievance need not be so precise that it “sets forth a specific dollar amount,” the inmate must at least make a clear request for compensation. Hobson v. Tiller, 2021 WL 2191282, at *8 (W.D. Pa. May 6, 2021); Sides v. Pennsylvania Dep't of Corr., 2020 WL 1493549, at *7 (W.D. Pa. Mar. 27, 2020). Similarly, the inmate must identify the individuals involved in the event with enough particularity to give prison officials “a fair opportunity” to address the grievance. Stone v. Johnson, 713 Fed.Appx. 103, 105 (3d Cir. 2017). Everett plainly failed to satisfy either requirement.
In response, Everett maintains that he did not need to satisfy the DC-ADM 804 requirement because he grieved his allegations through an alternative procedure, DC-ADM 001, pertaining to inmate allegations of abuse. See ECF No. 93. This argument is the basis for both Everett's opposition to Moore and Irwin's motion for summary judgment and his request for reconsideration of the Court's prior dismissal of Robinson and Steele. According to Everett, in addition to filing his DC-ADM 804 grievance, he also made an oral complaint of abuse to a corrections officer pursuant to DC-ADM 001 in which he stated that he wanted monetary compensation. ECF No. 88 at 1-2.
As correctly noted by Everett, DOC policy DC-ADM 001 permits an inmate to report an' instance of abuse in one of three ways. He can:
1. report it verbally or in writing to any staff member;
2. file a grievance in accordance with Department policy DC-ADM 804, “Inmate Grievance System,” or
3. report it in writing to the Department's Office of Special Investigations and Intelligence (“OSH”).
DC-ADM 001, Inmate Abuse Policy § IV(D)(1)-(3). If an inmate elects to report the alleged abuse by filing a grievance in accordance with DC-ADM 804, the allegation is still handled in accordance with DC-ADM 001's investigation procedures. See DC-ADM 804 § 1(D)(2) (“A grievance dealing with allegations of abuse shall be handled in accordance with Department policy DC-ADM 001, ‘Inmate Abuse.'”).
With respect to Robinson and Steele, there is no question that Everett elected to report the alleged incident of abuse by filing a grievance pursuant to DC-ADM 804. Once he did so, “he was required to follow the requirements outlined in that policy.” Newsome v. Teagarden, 2021 WL 1176102, at *9 n. 8 (W.D. Pa. Mar. 29, 2021). As explained in Newsome'.
District courts have found in some cases that a plaintiff has exhausted his claim of abuse after the completion of an investigation when those allegations were reported under DC-ADM 001. Here, Plaintiff did not report the alleged abuse under DC-ADM 001. That is, he did not report it' directly to a staff member or in writing to OSII as set forth in DC-ADM 001, Policy Statement § IV(D)(1), (3). Instead, he elected to report the alleged abuse by filing a grievance in accordance with DC-ADM 804, and in doing so the process set forth therein was “available” to him. The PLRA is clear that an inmate must exhaust the administrative remedies that “are available,” and, therefore, since Plaintiff elected to report CO Carter's and CO Smith's alleged abuse during the April Incident by filing a grievance pursuant to DC-ADM 804, then he was required to follow the requirements outlined in that policy. In any event, it is once again noted that Plaintiff did not report his claims of abuse through DC-ADM 001, nor does he argue that Defendants' motion for summary judgment should be denied on the basis that he did exhaust his claims because they were investigated by OSII in accordance with DC-ADM 001 after he filed his grievance. Moreover, Plaintiff did actually file a grievance against CO Carter and Co Smith and appealed that grievance to final review, he just failed to exhaust his request for monetary relief and his claims against the other remaining defendants.Id. (internal citations omitted). This principle is fatal to Everett's request for reconsideration of the Court's prior dismissal of Robinson and Steele.
Accordingly, Everett's Motion to Alter Judgment [ECF No. 98] should be denied.
Everett's claim against Moore and Irwin presents a different scenario. There is no question that Everett never invoked the DC-ADM 804 procedure with respect to either Defendant. He contends, however, that he raised his abuse allegation verbally during a meeting with a prison staff member on March 19, 2019. He also contends that he requested monetary compensation during that meeting. Notably, these allegations appear only in Everett's legal briefs and are not supported by a sworn declaration or affidavit.
Although the Court of Appeals for the Third Circuit has yet to decide the issue, some district courts in this Circuit have held that an inmate who lodges a verbal or written allegation of abuse pursuant to DC-ADM 001 has exhausted his claim once the facility's investigation has been completed. See, e.g., Freeman v. Wetzel, 2020 WL 6730897, *11-14 (W.D. Pa. Aug. 6, 2020) (collecting district court cases for the proposition that “allegation of abuse do not have to be filed through all levels of the DC-ADM 804 system if the inmate reports abuse through DC-ADM 001.”). Others have disagreed, at least in dicta. See Washington v. Sedlock, 2020 WL 4353198, at *6 n. 4 (W.D. Pa. 2020) (“[T]here is nothing in DC-001 that would lead the undersigned to believe that it acts as an ‘administrative remedy' to inmates, particularly because, in contrast to DC-ADM 804, it does not state that an inmate can request any specific relief when he reports allegations of abuse directly to a staff member or in writing to OSII, whether that relief be compensation or other legal relief normally available from a court.”).
The Court need not resolve this issue in the instant case because, under either scenario, Everett has failed to adduce evidence to create a triable issue of material fact as to whether he ever requested monetary compensation during the grievance process. As an initial matter, it appears to be undisputed that Everett's only mention of Moore and Irwin occurred during the investigation that the prison initiated in response to his DC-ADM 804 grievance against, Robinson and Steele, rather than because Everett “report[ed] it directly to a staff member or in writing to OSII as set forth in DC-ADM 001, Policy Statement § IV(D)(1), (3).” Newsome, 2021 WL 1176102, at *9 n. 8. In other words, Everett did not explicitly and contemporaneously invoke DC-ADM 001 by immediately reporting to a staff member that he had been - inappropriately pepper sprayed by Moore and Irwin; rather, he filed a DC-ADM 804 grievance against Robinson and Steele and then waited over two months before reporting the alleged abuse by Moore and Irwin during the DC-ADM 804 § 1(D)(2) investigation of his prior, unrelated allegation. The distinction between these two scenarios - directly initiating a DC-ADM 001 claim versus initiating a DC-ADM 804 claim that ultimately requires an abuse of force investigation pursuant to DC-ADM 001 - was recently highlighted by the District Court in Newsome, where the inmate, like Everett, “elected to report the alleged abuse by filing a grievance in accordance with DC-ADM 804” and the process “set forth therein,” rather than by “report[ing] the alleged abuse under DC-ADM 001.” Id. As noted by the Court, once he started down the DC-ADM 804 path, Everett was “required to follow the requirements outlined in [DC-ADM 804].” He failed to do so.
Secondly, and more critically, Everett's averment that he verbally requested monetary relief during the investigation that the prison conducted in response to his DC-ADM 804 grievance finds no support in the record. The only evidence submitted by Everett relating to his claim against Moore and Irwin consists of an incident report [ECF No. 95-2] describing Defendants' version of the incident, a portion of a log entry showing that Everett lodged an allegation of abuse by filing Grievance No. 786184 [ECF No. 96-3], a document indicating that staff at SCI-Forest had requested additional time to investigate Everett's claims [ECF No. 96-5], and a memorandum from the director of the Bureau of Intelligence and Investigations to Superintendent Oberlander stating that he concurred with the initial findings of the investigation against Steele, Robinson, Moore and Irwin [ECF No. 97-2]. None of those documents includes (or even references) a request for compensation, and Everett has not submitted any other affidavit, declaration, interrogatory answer, or other document demonstrating that he sought monetary relief against any Defendant. To the contrary, the only reference to his alleged verbal request for compensation appears in his legal brief. It is axiomatic, however, that arguments made in briefs “are not evidence and cannot by themselves create a factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985).
In short, Everett's failure to create a material dispute concerning his alleged request for compensation precludes him from seeking it here. See, e.g., Wright, 729 Fed.Appx. at 227 (“[T]he Prison's policy required Wright to specifically request monetary relief in his initial grievance. Because Wright failed to do so, he defaulted his claim for money damages.”); Camacho v. Beers, 2018 WL 6618410, at *3 (W.D. Pa. Dec. 18, 2018) (holding that, because “Plaintiff failed to request the specific relief of monetary compensation in the grievances he filed as to the subjects of this lawsuit... he did not exhaust all administrative remedies with regard to such claims ... [and] may not pursue an action in federal court based on the claims raised in his procedurally defective grievances.”); Sanders v. Beard, 2013 WL 1703582, at *6-7 (M.D. Pa. Apr 19, 2013) (dismissing claims for monetary damages brought by plaintiffs who did not request monetary damages in their initial grievances as required by DC-ADM 804). While Everett's inability to pursue his § 1983 claim because of a procedural violation may appear harsh, this outcome is compelled by precedent. See Wright, 729 Fed.Appx. at 227; Hobson, 2021 WL 2191282, at *7. It is also consistent with two of the underlying purposes behind the exhaustion requirement: placing the agency on notice “of the prisoner's demand or valuation of his or her claim” and avoiding unnecessary litigation “by supporting early settlement or accommodation.” Wright, 2017 WL 3731957, at *7. See also Woodford v. Ngo, 548 U.S. 81 (2006) (proper exhaustion permits claims to be “resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.”). Indeed, those underlying goals are particularly relevant in cases such as this, where the administrative process produced a decision in Everett's favor. Under such circumstances, the prison might have been able to accommodate Everett's requests at the administrative level, precluding the need for the instant lawsuit, had Everett tendered his “demand or valuation of his ... claim.” Wright, 2017 WL . 3731957, at *7. See also ECF No. 47-1 at 3 (upholding Everett's grievance but explicitly noting the lack of a request for compensatory or injunctive relief). His failure to do so prevented the prison from potentially awarding the precise relief that Everett sought when he filed this lawsuit.
In short, the PLRA requires this Court to apply the prison's available administrative exhaustion rules, however stringent, and those rules expressly and unambiguously direct an inmate who desires compensation to request it in his initial grievance. Everett's failure to do so precludes this Court from granting any relief here. Defendants' motion for summary judgment should be granted on this basis.
For the same reasons, Everett's cross-motion for summary judgment [ECF No. 88] should be denied.
D. Motion to Amend
By separate motion, Plaintiff seeks leave to amend his complaint to add another Defendant to this suit. Plaintiff maintains that another corrections officer, Mohney, witnessed the pepper spray incident involving Moore and Irwin and failed to step in. Plaintiff seeks leave to add a claim against Mohney, presumably for failure to protect.
Plaintiff's request should be denied as futile. As noted above, Plaintiff failed to properly exhaust his claims against the four original Defendants in this action. A review of the summary judgment record does not reveal any evidence that Plaintiff included Mohney in his grievance or that Mohney was identified during the subsequent investigation. Even if he was, the Court has already determined that Plaintiff failed to request any form of compensation or relief during the administrative process. These defects apply with equal force to Plaintiffs proposed claim against Mohney. His motion to amend should be denied.
III. Conclusion
For the reasons stated herein, it is respectfully recommended that the Motion for Summary Judgment [ECF No. 83] filed by Defendants CO2 Moore and CO3 Irwin be GRANTED. It is further recommended that Plaintiff Jenkins Everett's Motion for Summary Judgment [ECF No. 88], Motion to Amend Complaint [ECF No. 95], and Motion to Alter Judgment [ECF No. 98] each be DENIED.
IV. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72, the parties must seek review by the district court by filing Objections to the Report and Recommendation within fourteen (14) days of the filing of this Report and Recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of Objections to respond thereto. See Fed.R.Civ.P. 72(b)(2). Failure to file timely objections may constitute a waiver of appellate rights. See Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).