Opinion
CIVIL 1:20-cv-02333
08-26-2022
EDWARD FORD, Plaintiff, v. BROOKE WOOD, et al., Defendants.
Kane Judge
REPORT AND RECOMMENDATION
Susan E. Schwab United States Magistrate Judge
I. Introduction.
Plaintiff Edward Ford claims that because of the defendants' deliberate indifference to his serious medical needs, his foot and part of his leg had to be amputated while he was a prisoner at the United States Penitentiary at Allenwood. Currently pending is the defendants' motion for summary judgment, which we recommend that the court grant in part and deny in part. We recommend that the court grant the motion as to one of the defendants given that that defendant has statutory immunity as a Public Health Service employee. The remaining defendants contend that they are entitled to summary judgment because Ford failed to exhaust available administrative remedies. For the reasons discussed below, we recommend that the court deny the motion for summary judgment as it relates to the failure-to-exhaust argument.
II. Background and Procedural History.
Ford began this action, pro se, by filing a complaint in the United States District Court for the Eastern District of Pennsylvania on August 10, 2020. Doc. 2. After Ford was appointed counsel, doc. 6, the case was transferred to this court.
In his complaint, Ford brings a Bivens claim related to the medical treatment he received while incarcerated at USP Allenwood, naming Physician Assistant Brooke Wood, Clinical Director Brian Buschman,M.D., and Assistant Health Services Administrator Michael Magyar as defendants. Doc. 2 at 1-31 Ford's right foot and leg became infected while incarcerated at USP Allenwood. Id. at 4. He alleges that although he alerted the defendants to his infection, they failed to provide him appropriate medical care. Id. at 4-5. According to Ford, this failure to provide medical care allowed his infection to spread, which resulted in a partial amputation of his right foot and then a further amputation of his right leg, below the knee. Id. at 6-7. Ford claims that the defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Id. at 7.
Although Ford also named Tina Palmeter, C.M.A. as a defendant, by a stipulation, he later dismissed her as a defendant. See doc. 43.
On June 28, 2021, the defendants filed a motion for summary judgment along with a statement of material facts. Docs. 36, 37. They then filed a brief in support of their motion for summary judgment. Doc. 40. Following a conference with the parties, we issued an Order directing the parties to conduct limited discovery on the issue of whether Ford exhausted his administrative remedies. Doc. 42. After that discovery period closed, Ford filed his answer to the defendants' statement of material facts as well as a brief in opposition to the defendants' motion for summary judgment, and the defendants filed a reply brief. Docs. 47-49.
On March 4, 2022, after another conference with the parties, we ordered the defendants to file a revised statement of material facts and a supplemental brief in support of their motion for summary judgment. Doc. 54. We also ordered Ford to file a reply to the defendants' revised statement of material facts and a supplemental brief in opposition to the motion for summary judgment. Id. On April 4, 2022, the defendants filed their revised statement of material facts and their supplemental brief in support of their motion for summary judgment. Docs. 56, 57. And on May 3, 2022, Ford filed his response to the defendants' revised statement of material facts and his supplemental brief in opposition to the motion for summary judgment. Docs. 58, 59.
In their motion for summary judgment, the defendants argue that defendant Buschman should be dismissed because he “is a public health service employee and, therefore, entitled to statutory immunity from Bivens claims arising out of the performance of medical functions within the scope of his employment.” Doc. 36 at 1. Ford agrees. He states, “Ford does not oppose Defendants' argument that Ford's Bivens claim against Dr. Buschman is entitled to summary judgment. Because Dr. Buschman is a United States Public Health Service employee, he possesses statutory immunity to Ford's Bivens claim.” Doc. 48 at 2 n.1. Therefore, we will recommend that the motion for summary judgment be granted as to defendant Buschman without further discussion.
The defendants also argue that Ford “failed to properly exhaust his administrative remedies before initiating this Bivens action and, therefore, his claims are barred by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a).” Doc. 36 at 1. For the reasons discussed below, we recommend that the motion for summary judgment be denied in this regard.
III. Summary Judgment Standards.
The defendants move for summary judgment under Rule 56(a) of the Federal Rules of Civil Procedure, which provides that “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “Through summary adjudication the court may dispose of those claims that do not present a ‘genuine dispute as to any material fact' and for which a jury trial would be an empty and unnecessary formality.” Goudy-Bachman v. U.S. Dept. of Health & Human Services, 811 F.Supp.2d 1086, 1091 (M.D. Pa. 2011) (quoting Fed.R.Civ.P. 56(a)).
The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the nonmoving party bears the burden of proof, the moving party may discharge that burden by “‘showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case.” Id. at 325.
Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must show a genuine dispute by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or “showing that the materials cited do not establish the absence . . . of a genuine dispute.” Fed.R.Civ.P. 56(c). If the nonmoving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the nonmoving party provides merely colorable, conclusory, or speculative evidence. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at 252. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248. A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the nonmoving party. Id. at 248-49. When “faced with a summary judgment motion, the court must view the facts ‘in the light most favorable to the nonmoving party.'” N.A.A.C.P. v. N. Hudson Reg'l Fire & Rescue, 665 F.3d 464, 475 (3d Cir. 2011) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).
At the summary judgment stage, the judge's function is not to weigh the evidence or to determine the truth of the matter; rather it is to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. The proper inquiry of the court “is the threshold inquiry of determining whether there is the need for a trial-whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Id. at 250.
Further, a party that moves for summary judgment on an issue for which he bears the ultimate burden of proof faces a difficult road. United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011). “[I]t is inappropriate to grant summary judgment in favor of a moving party who bears the burden of proof at trial unless a reasonable juror would be compelled to find its way on the facts needed to rule in its favor on the law.” El v. Se. Pa. Transp. Auth., 479 F.3d 232, 238 (3d Cir. 2007) (footnote omitted). A party who has the burden of proof must persuade the factfinder that his propositions of fact are true, and “if there is a chance that a reasonable factfinder would not accept a moving party's necessary propositions of fact, pre-trial judgment cannot be granted.” Id. “Specious objections will not, of course, defeat a motion for summary judgment, but real questions about credibility, gaps in the evidence, and doubts as to the sufficiency of the movant's proof, will.” Id.
IV. Exhaustion Requirements.
To provide context and to better understand the material facts in this case, we begin by setting forth the basic exhaustion requirements under the Prison Litigation Reform Act (“PLRA”) as well as the Bureau of Prisons (“BOP”) administrative remedy process.
A. The PLRA Exhaustion Requirement.
The PLRA requires a prisoner to exhaust available administrative remedies prior to filing an action challenging prison conditions. The Act provides:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.42 U.S.C. §1997e(a). “Requiring exhaustion allows prison officials an opportunity to resolve disputes concerning the exercise of their responsibilities before being haled into court.” Jones v. Bock, 549 U.S. 199, 204 (2007). “This has the potential to reduce the number of inmate suits, and also to improve the quality of suits that are filed by producing a useful administrative record.” Id. The benefits of the exhaustion requirement “include allowing a prison to address complaints about the program it administers before being subjected to suit, reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation that does occur by leading to the preparation of a useful record.” Id. at 219.
In accordance with § 1997e(a), the exhaustion of available administrative remedies is mandatory, Booth v. Churner, 532 U.S. 731, 739 (2001), and the “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong,” Porter v. Nussle, 534 U.S. 516, 532 (2002). A prisoner must “exhaust all available administrative remedies” regardless of whether the administrative process may provide the prisoner with the relief that he is seeking. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). “[C]ompliance with the administrative remedy scheme will be satisfactory if it is substantial.” Id. at 77.
42 U.S.C. § 1997e(a) requires proper exhaustion. Woodford v. Ngo, 548 U.S. 81 (2006). In other words, it requires more than simple exhaustion, i.e., more than that there is no further process available to the prisoner within the grievance system. Spruill v. Gillis, 372 F.3d 218, 227-31 (3d Cir. 2004). Section 1997e(a) requires that a prisoner follow the procedural requirements set forth in the administrative remedy process that is available to him. Id. at 231. The prison grievance procedures supply the yardstick for measuring whether exhaustion was proper. Id.; see also Jones, 549 U.S. at 218 (“The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.”).
Failure to exhaust available administrative remedies is an affirmative defense. Jones, 549 U.S. at 216. As such, the defendant has the burden of pleading and proving that the prisoner failed to exhaust available administrative remedies. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). “But 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.” Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018).
Further, “[u]nder the PLRA, exhaustion is a precondition for bringing suit under § 1983.” Small v. Camden Cty, 728 F.3d 265, 269 (3d Cir. 2013). It is a ‘“threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time.'” Id. at 270 (emphasis in original) (quoting Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010)). There is no right to have a jury decide the issue of exhaustion. Id. at 271. Rather, “exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts.” Id. at 269. Nevertheless, when ‘“considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence.”' Paladino v. Newsome, 885 F.3d 203, 209-10 (3d Cir. 2018) (quoting Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)). “Rather, ‘the non-moving party's evidence is to be believed and all justifiable inferences are to be drawn in his favor.'” Id. at 210 (quoting Marino, 358 F.3d at 247).
Before the court can resolve factual disputes surrounding exhaustion, the court must “notify the parties that it will consider exhaustion in its role as a fact finder under Small.” Paladino, 885 F.3d at 211. Here, we have not provided such notice, and we are address the pending motion under the summary-judgment standard.
B. The BOP Administrative Remedy Process.
A multi-tier administrative-remedy process is available to federal prisoners. For a federal prisoner to exhaust administrative remedies, he must comply with the prison administrative-remedy process set forth in the Code of Federal Regulations. Except for claims for which other administrative procedures have been established, federal inmates may seek “formal review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. § 542.10(a).
Generally, an inmate must first present an issue of concern informally to staff before submitting an Administrative Remedy Request. 28 C.F.R. § 542.13(a). If the attempt at informal resolution is not successful, an inmate must submit a written Administrative Remedy Request, on a form known as a BP-9, to the institution staff member designated to receive such requests within 20 days of the date on which the basis for the request occurred. 28 C.F.R. § 542.14(a), § 542.14(c)(4). The Warden has 20 days to respond to the Administrative Remedy Request, and an inmate who is not satisfied with the Warden's response may appeal to the Regional Director, on a form known as a BP-10, within 20 days of the Warden's response. 28 C.F.R. § 542.15(a), § 542.18. The Regional Director has 30 days to respond, and an inmate who is not satisfied with the Regional Director's response may appeal to the General Counsel, on a form known as a BP-11, within 30 days of the Regional Director's response. 28 C.F.R. § 542.15(a), § 542.18. The General Counsel has 40 days to respond. 28 C.F.R. § 542.18. “Appeal to the General Counsel is the final administrative appeal.” 28 C.F.R. § 542.15(a).
The time periods for an inmate to file an Administrative Remedy Request and to file appeals to the Regional Director and to the General Counsel may be extended when the inmate demonstrates a valid reason for delay. 28 C.F.R. §542.14(b), § 542.15(a). And “[i]f the time period for response to a Request or Appeal is insufficient to make an appropriate decision, the time for response may be extended once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level.” 28 C.F.R. § 542.18. Further, “[i]f the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.” Id.
Under the BOP's administrative remedy process, sometimes a remedy request or appeal is rejected. See 28 C.F.R. § 542.17(a) (“The Coordinator at any level . . . may reject and return to the inmate without response a Request for an Appeal that is written by an inmate in a manner that is obscene or abusive, or does not meet any other requirement of this part.”). “When a submission is rejected, the inmate shall be provided a written notice, signed by the Administrative Remedy Coordinator, explaining the reason for rejection.” Id. at § 542.17(b). And “[i]f the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.” Id. “When a Request or Appeal is rejected and the inmate is not given an opportunity to correct the defect and resubmit, the inmate may appeal the rejection . . . to the next appeal level.” Id. at § 542.17(c). “The Coordinator at that level may affirm the rejection, may direct that the submission be accepted at the lower level (either upon the inmate's resubmission or direct return to that lower level), or may accept the submission for filing.” Id. And “[t]he inmate shall be informed of the decision by delivery of either a receipt or rejection notice.” Id.
V. Material Facts.
Local Rule 56.1 requires a party moving for summary judgment to file “a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.” M.D. Pa. L.R. 56.1. The Rule, in turn, requires the non-moving party to file “a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required [by the moving party], as to which it is contended that there exists a genuine issue to be tried.” Id. The “[s]tatements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements,” and “[a]ll material facts set forth in the statement required to be served by the moving party will be deemed admitted unless controverted by the statement required to be served by the opposing party.” Id.
Here, the defendants filed a revised statement of material facts and supporting documents. Doc. 56. Ford filed a response to that statement, admitting most of the facts set forth by the defendant. Doc. 58. The following facts are deemed admitted for purposes of the pending summary judgment motion.
Ford is currently housed at Butner Federal Medical Center. Doc. 56 ¶ 1; Doc. 58 ¶ 1. Ford filed 18 administrative remedy requests during his federal sentence, four of which were filed while he was at USP Allenwood and were filed before this current action. Doc. 56 ¶¶ 7-8; Doc. 58 ¶¶ 7-8.
On January 7, 2020, Ford executed and submitted an informal resolution form requesting a surgical evaluation of wounds on his right leg. Doc. 56 ¶ 9; Doc. 58 ¶ 9. The next day, Assistant Health Services Administrator Magyar responded by explaining to Ford that a vascular surgery consult had been pending but had to be rescheduled due to the surgeon's availability. Doc. 56 ¶ 10; Doc. 58 ¶ 10.
Ford admits that he executed and submitted an informal resolution form on January 7, 2020. See doc. 58 ¶ 9. But here, as elsewhere, he purports to deny the remainder of the defendants' statement of fact on the basis that it characterizes a document: “The remainder of the paragraph is denied as it characterizes the contents of a writing. Ford refers to the document for the contents thereof.” Id. Ford does not state that the defendants mischaracterized the document in any way or, if so, in what manner. Such a response does not amount to a proper denial. See Dalgic v. Misericordia Univ., No. 3:16-CV-0443, 2019 WL 2867236, at *1 n.1 (M.D. Pa. July 3, 2019) (“Denying a fact on the ground that it is based on ‘a writing which speaks for itself' is not a proper denial under Local Rule 56.1.” (citing Computer Support, Inc. v. Booker Transp. Servs., Inc., No. 08-608, 2009 WL 2957744, at *2 n.3 (M.D. Pa. Sept. 9, 2009)). Thus, we deem this fact admitted. Similarly, we deem other facts set forth by the defendants admitted where Ford merely denies the fact by noting that it characterizes the content of a document without stating if, or how, the defendants mischaracterized the document.
Ford then executed a BP-9 seeking monetary damages for losing half his foot. Doc. 56 ¶ 11; Doc. 58 ¶ 11. The BP-9 was received by the institution's Administrative Remedy Clerk and logged into SENTRY as Administrative Remedy No. 1005927-F1 on February 7, 2020. Doc. 56 ¶ 12; Doc. 58 ¶ 12. A few days later, the Warden responded with an explanation, and he advised Ford on how to appeal the response to the Regional Office; the institution then closed the remedy request. Doc. 56 ¶ 13; Doc. 58 ¶ 13.
“The BOP maintains a database known as the SENTRY Inmate Management System (“SENTRY”).” Banks v. Thompson, No. 1:21-CV-807,2021 WL 4552162, at *3 (M.D. Pa. Oct. 5, 2021). “In the ordinary course of business, computerized indexes of all formal administrative remedies filed by inmates are maintained by the Institution, Regional, and Central Offices.” Id. “SENTRY generates a report titled ‘Administrative Remedy Generalized Retrieval' which allows codes to be entered to identify the reason or reasons for rejecting a request for administrative relief.” Id.
The Warden asserted that Ford had received medical treatment consistent with community standards. See doc. 55-1 at 3.
Ford then executed a BP-10, but the top portion of the BP-10 did not contain Ford's name, registration number, unit, or institution. Doc. 56 ¶¶ 14-15; Doc. 58 ¶¶ 14-15. In early March 2020, the Regional Office received Ford's BP-10 and logged it into SENTRY as Administrative Remedy No. 1005927-R1 (“R-1”). Doc. 56 ¶¶ 17-18; Doc. 58 ¶¶ 17-18. The Regional Office rejected R-1 on March 10, 2020, informing Ford that several pages were illegible and that identifying information was omitted. Doc. 56 ¶ 19; Doc. 58 ¶ 19. The Regional Office also informed Ford that he could resubmit the appeal within 10 days of the date of the rejection notice. Doc. 56 ¶ 20; Doc. 58 ¶ 20. Although Ford did not resubmit the appeal to the Regional Office within 10 days of March 10, 2022, he did later resubmit his Regional Office appeal (“Resubmitted BP-10”), and the Regional Office received it on April 21, 2020. Doc. 56 ¶¶ 21-22; Doc. 58 ¶¶ 21-22.
Although the defendants point out that Ford's resubmission was not within 10 days, they also state that the “BOP never rejected any appeal for being untimely, and Defendants do not reference the untimeliness of his April 21, 2020[,] resubmitted appeal as a basis to find procedural default.” Doc. 57 at 16 n.2.
On May 18, 2020, Ford executed a BP-11, and the Central Office received it on May 26, 2020. Doc. 56 ¶¶ 23-24; Doc. 58 ¶¶ 23-24. On June 4, 2020, the Central Office logged Ford's BP-11 into SENTRY as Administrative Remedy 1005927-A1 (“A-1”). Doc. 56 ¶ 25; Doc. 58 ¶ 25. That same day, the Central Office rejected A-1, informing Ford that it concurred with the prior rejection and instructing him to “follow directions provided on prior rejection notices.” Doc. 56 ¶¶ 26-27; Doc. 58 ¶¶ 26-27. Ford did not submit any additional administrative remedy requests or appeals related to his medical care after this. Doc. 56 ¶ 28; Doc. 58 ¶ 28.
On June 23, 2020, the Regional Office logged Ford's Resubmitted BP-10 into SENTRY as Administrative Remedy No. 1005927-R2. Doc. 56 ¶ 29; Doc. 58 ¶ 29. That same day, the Regional Office rejected Ford's Resubmitted BP-10 on the basis that Ford had failed to provide a copy of his BP-9 and that some of the pages of his submission were illegible. Doc. 56 ¶¶ 30-31; Doc. 58 ¶¶ 30-31. According to Ford, he never received a copy of the response to his Resubmitted BP-10. Doc. 58-1 (Ford Declaration) ¶ 6. Ford submitted no additional administrative remedies related to his medical issues after his Resubmitted BP-10 was rejected. Doc. 56 ¶ 32; Doc. 58 ¶ 32. And none of the administrative remedies that he pursued have been decided on the merits by the Central Office. Doc. 56 ¶ 33; Doc. 58 ¶ 33.
Although Ford purports to deny this statement as a conclusion of law, see doc. 58 ¶ 33, it is a fact.
VI. Discussion.
The defendants contend that they are entitled to summary judgment as to Ford's Eighth Amendment medical claims because Ford failed to exhaust available administrative remedies. They argue that Ford had two paths to properly exhaust his claim: (1) he could have followed the Central Office's instructions and resubmitted his appeal to the Regional Office: or (2) he could have appealed the Regional Office's rejection of his Resubmitted BP-10. But because he did neither of those things, according to the defendants, Ford abandoned the administrative remedy process before completion. Ford, on the other hand, argues that he was excused from the PLRA exhaustion requirements because the Regional Office failed to timely respond to his Resubmitted BP-10. Ford also contends that he was “excused from the PLRA exhaustion requirement because the path for further exhaustion after the Central Office response was a dead end or so opaque as to render exhaustion unavailable.” Doc. 59 at 12. Finally, Ford contends that he never received notice that his Resubmitted BP-10 had been rejected.
“The only limit to § 1997e(a)'s [exhaustion] mandate is the one baked into its text: An inmate need exhaust only such administrative remedies as are ‘available.'” Ross v. Blake, 578 U.S. 632, 648 (2016) (quoting 42 U.S.C. § 1997e(a)). In other words, “the exhaustion requirement hinges on the ‘availab[ility]' of administrative remedies: An inmate, that is, must exhaust available remedies, but need not exhaust unavailable ones.” Id. at 642 (quoting § 1997e(a)). “[T]he ordinary meaning of the word ‘available' is ‘capable of use for the accomplishment of a purpose,' and that which ‘is accessible or may be obtained.'” Id. (quoting Booth, 532 U.S. at 737-38 (internal citations and quotation marks omitted)). “Accordingly, an inmate is required to exhaust those, but only those, grievance procedures that are ‘capable of use' to obtain ‘some relief for the action complained of.'” Id. (Booth, 532 U.S. at 738).
The Supreme Court has 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 643. “First, . . . an administrative procedure is unavailable 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,” such as when “a prison handbook directs inmates to submit their grievances to a particular administrative office-but in practice that office disclaims the capacity to consider those petitions.” Id.
Second, “an administrative scheme might be so opaque that it becomes, practically speaking, incapable of use.” Id. “In this situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate it.” Id. at 643-44. “When an administrative process is susceptible of multiple reasonable interpretations, Congress has determined that the inmate should err on the side of exhaustion.” Id. at 644. “But when a remedy is . . . essentially ‘unknowable'-so that no ordinary prisoner can make sense of what it demands-then it is also unavailable.” Id. (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007)); see also Small, 728 F.3d at 271 (“Remedies that are not reasonably communicated to inmate may be considered unavailable for exhaustion purposes.”).
Third, administrative remedies are unavailable “when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.” Ross, 578 U.S. at 644, 644 n.3 (citing Davis v. Hernandez, 798 F.3d 290, 295 (5th Cir. 2015) (“Grievance procedures are unavailable . . . if the correctional facility's staff misled the inmate as to the existence or rules of the grievance process so as to cause the inmate to fail to exhaust such process” (emphasis deleted); Schultz v. Pugh, 728 F.3d 619, 620 (7th Cir. 2013) (“A remedy is not available, therefore, to a prisoner prevented by threats or other intimidation by prison personnel from seeking an administrative remedy”); Pavey v. Conley, 663 F.3d 899, 906 (7th Cir. 2011) (“[I]f prison officials misled [a prisoner] into thinking that . . . he had done all he needed to initiate the grievance process,” then “[a]n administrative remedy is not ‘available'”); Tuckel v. Grover, 660 F.3d 1249, 1252-1253 (10th Cir. 2011) (“[W]hen a prison official inhibits an inmate from utilizing an administrative process through threats or intimidation, that process can no longer be said to be ‘available'”); Goebert, 510 F.3d at 1323 (If a prison “play[s] hide-and-seek with administrative remedies,” then they are not “available”)); see also Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir. 2016) (holding that administrative remedies were unavailable to a prisoner when the prison failed to timely respond to the prisoner's “grievance and then repeatedly ignored his follow-up requests for a decision on his claim”).
A. The Regional Office's Failure to Timely Respond to Ford's Resubmitted BP-10.
Here, the parties disagree over whether the Regional Office's lack of a response within 30 days to Ford's Resubmitted BP-10 excused him from pursuing any further administrative appeals. In support of his contention that it does, Ford cites to Shifflett v. Korszniak, 934 F.3d 356 (3d Cir. 2019). In that case, which involved a prisoner in the Pennsylvania prison system, the United State Court of Appeals for the Third Circuit concluded that administrative remedies were unavailable to Shifflett when prison officials failed to respond to his administrative appeal in a timely manner. Id. at 366. In so concluding the court noted that the applicable “procedural requirements are drawn from the policies of the prison in question,” and in that case they “look[ed] to the grievance policy at SCI Graterford to determine whether Shifflett has properly exhausted his remedies as required by the PLRA.” Id. at 364. But the court used broad language when phrasing its holding: “[W]e hold 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.” Id. at 365. Ford relies on that holding in arguing that because the Regional Office failed to respond in a timely manner to his Resubmitted BP-10, he was not required to pursue any further appeals.
The defendants, on the other hand, argue that Shifflett is inapposite because there “the state prison grievance procedure did not allow an inmate to proceed toward exhaustion in the event of an untimely response, rendering the prison's inaction to be a dead end.” Doc. 57 at 20 n.5. But here the BOP's administrative remedy process has “a built-in ‘deemed denial' provision, which permits an inmate to continue with the Administrative Remedy process in the event of a late response at any level, by providing that: ‘[i]f the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level.'” Doc. 57 at 15 (quoting 28 C.F.R. § 542.18); see also doc. 57 at 20 n.5 (pointing to the deemed-denial provision as the reason Shifflett is inapposite).
It is unclear how Shifflett applies in the context of the BOP's administrative remedy process given the deemed-denial provision. Ford argues that Shifflett “established a ‘bright-line rule' excusing exhaustion ‘as soon as a prison fails to respond to a properly submitted grievance or appeal within the time limits prescribed by its own policies[,]'” and it applies despite the BOP's deemed-denial provision. Doc. 59 at 12 (quoting Shifflett, 934 F.3d at 365). In Straker v. Valencik, No. 3:18-cv-1569, 2020 WL 729429 (M.D. Pa. Feb. 12, 2020), Judge Mariani seems to have adopted that same position. In that case, Straker, a federal prisoner, submitted an administrative remedy appeal at the regional level that was received by the Regional Office on March 21, 2018, but although according to BOP records a rejection notice was issued on April 5, 2018, Straker never received that notice. Id. And he submitted an appeal to the Central Office, which rejected his appeal. Id. at * 4-6. Citing Shifflett, Judge Mariani concluded because Straker did not receive a timely response to his regional appeal, the BOP's administrative remedy procedure was unavailable to him and “at that moment, Straker obtained the right to come to federal court.” Id. at * 6. Judge Mariani further asserted that “[a]s in Shifflett, this Court need not consider the contention that Straker was required under policy to continue his appeal through final review[,]” and that “Straker's decision to continue working through the prisoner's internal system in good faith did not waive or negate his successful exhaustion of remedies as required by the PLRA.” Id.
Although Straker seems to adopt the bright-line rule based on Shifflett that Ford advocates, language in other cases suggests that given the BOP's deemeddenial provision, Shifflett might not apply so broadly. For example, in Millhouse v. Heath, the Third Circuit, citing Shifflett, concluded that accepting Milhouse's assertions he had not received responses to his attempts at informal resolution, “he fully discharged the exhaustion requirement when Marr failed to respond to his request for informal resolution.” 815 Fed.Appx. 628, 631 (3d Cir. 2020). Again citing Shifflett, the court in Millhouse also observed that “[t]he fact that Millhouse twice appealed to the Regional Director and General Counsel and was told to refile at the prison level does not change this conclusion.” Id. Importantly for our case, however, the court in Millhouse pointed out that the deemed-denial provision of 28 U.S.C. § 542.18 does not apply at the informal-resolution stage:
Nor does the regulatory presumption that a non-response acts as a denial, see 28 C.F.R. § 542.18, apply to informal resolution.
That regulatory presumption governs filed remedy requests and related appeals-not informal resolution efforts with staff, see Id. § 542.13. On this record, therefore, Marr's non-response is just that-a non-response, as opposed to a denial of an informal request that would trigger additional exhaustion obligations.Id. That final sentence, although dicta as to the effect of the deemed-denial provision outside the informal-resolution context, suggests that when the deemeddenial provision does apply, an untimely response (as in our case at the regional level) does not render further administrative remedies unavailable, but rather the prisoner must appeal to the next level. See also Gordon v. Warden of FCI-Schuylkill, No. 1:20-cv-2419, 2021 WL 780762, at *3, *3 n.2 (M.D. Pa. Mar. 1, 2021) (citing the deemed-denial provision of 28 C.F.R. § 542.18 and stating that if the habeas petitioner had not received a response to his BP-9 within 20 days “he was entitled to consider it denied and continue to pursue his remedies by appealing to the Regional Director” and noting after citing Shifflett and Milhouse that “even if petitioner did not receive a response to his BP-9 until more than twenty (20) days had passed, such a non-response would entitled him to deem it denied, which ‘would trigger additional exhaustion obligations'” (quoting Millhouse, 815 Fed.Appx. at 631); Gambino v. FCI-McKean, No. 1:14-cv-236, 2017 WL 1190498, at *6 (W.D. Pa. 2017) (asserting (prior to Shifflett) that “when the government does not respond to a prisoner's grievance within the required timeline, the inmate may either continue waiting for a response or appeal to a higher level of review[,]” but “[t]he exhaustion procedures do not permit Plaintiff to abort the administrative process and file his grievance in federal court”), aff'dsub. nom., 712 Fed.Appx. 128 (3d Cir. 2017).
Here, we need not decide how the deemed-denial provision operates in light of Shifflett because, as discussed below, we conclude that administrative remedies were unavailable to Ford for other reasons.
B. The Confusing Instruction by the Central Office.
The Central Office's instruction to Ford to follow the directions provided at the regional level when Ford had already resubmitted his BP-10 in accordance with the direction to do so was so confusing as to render further administrative remedies unavailable to him. When the Central Office rejected Ford's appeal on June 4, 2020, the Regional Office had not yet responded to Ford's Resubmitted BP-10. The Central Office, nevertheless, rejected Ford's appeal by stating “CONCUR WITH RATIONALE OF REGIONAL OFFICE AND/OR INSITUTION FOR REJECTION. FOLLOW DIRECTIONS PROVIDED ON PRIOR REJECTION NOTICES.” Doc. 55-1 at 11 (all caps in original). Ford argues that because the Central Office provided him with instructions that he had already followed, the Central Office's response operated as a dead end or the process was so opaque that it became incapable of use. Doc. 59 at 18-19.
28 C.F.R. § 542.17(b) provides:
When a submission is rejected, the inmate shall be provided a written notice, signed by the Administrative Remedy
Coordinator, explaining the reason for rejection. If the defect on which the rejection is based is correctable, the notice shall inform the inmate of a reasonable time extension within which to correct the defect and resubmit the Request or Appeal.28 C.F.R. § 542.17(b). Here, the Central Office did not provide Ford with a reasonable time extension in which he could correct the noted defects. See doc. 551 at 11. Moreover, as noted, Ford had already resubmitted his BP-10.
Ford raised this argument in his supplemental brief in opposition. The defendants did not file a reply brief. Thus, the defendants do not respond to this argument. We note that although the order requiring supplemental briefs only mentions a supplement brief in support and a supplement brief in opposition, see doc. 54, the order did not foreclose the defendants from filing, or at least requesting leave to file, a supplement reply brief.
Although the defendants contend that by failing to comply with the Central Office's instructions Ford inexcusably abandoned the administrative remedy process, we agree with Ford that the Central Office's response rendered his administrative remedies unavailable. The Third Circuit has held that “[m]isleading or deceptive instructions from a prison official can also render a grievance process unavailable. Hardy v. Shaikh, 959 F.3d 578, 587 (3d Cir. 2020). In Hardy, the Third Circuit noted:
[T]o defeat a failure-to-exhaust defense based on a misrepresentation by prison staff, an inmate must show (1) that the misrepresentation is one which a reasonable inmate would be entitled to rely on and sufficiently misleading to interfere with a reasonable inmate's use of the grievance process, and
(2) that the inmate was actually misled by the misrepresentation.Id. at 588.
Here, it is undisputed that the Regional Office received Ford's Resubmitted BP-10 on April 21, 2020. Based on 28 C.F.R. § 542.18, after 30 days elapsed without a response from the Regional Office, Ford was entitled to deem the Regional Office's lack of a response a denial, and he appealed to the Central Office. The Central Office then instructed Ford to comply with the instructions that he received on prior rejection notices. The Central Office stated that it “concur[red] with the rationale of the Regional Office;” however, Ford had already resubmitted his BP-10 as earlier directed, and the Regional Office had not responded yet to his Resubmitted BP-10. Doc. 55-1 at 11.
The defendants suggest that Ford “cannot credibly argue that he deemed Administrative Remedy No. 1005927-R2 denied” because he prematurely appealed to the Central Office. Doc. 57 at 18 n.4. According to the defendants, Ford could not deem the Regional Office to have denied his Resubmitted BP-10 until 30 days after it was filed, and here, Ford executed his Central Office appeal “a mere 27 days after 1005927-R2 was received.” Id. Ford counters that his appeal to the Central Office was timely because the Central Office received his appeal on May 26, 2020. Doc. 59 at 15-16. 28 C.F.R. § 542.18 states that “[i]f accepted, a Request or Appeal is considered filed on the date it is logged into the Administrative Remedy Index as received.” 28 C.F.R. § 542.18. Additionally, the Central Office did not reject Ford's appeal for being too early. Accordingly, since it is undisputed that the Central Office received Ford's appeal on May 26, 2020, and Ford's Central Office appeal was not rejected as premature; we reject the defendants' suggestion that Ford cannot credibly argue that he deemed his Resubmitted BP-10 denied. Contrary to any suggestion by the defendants otherwise, we also agree with Ford that he did not combine separate lower level filings into a single appeal, as his Regional Office Appeal and his Resubmitted BP-10 have the same case number. 28 C.F.R. § 542.15(b)(2) (“An inmate may not combine Appeals of separate lower level responses (different case numbers) into a single Appeal.”).
We agree with Ford that the Central Office's instructions were “so opaque that it bec[ame], practically speaking, incapable of use.” Rinaldi, 904 F.3d at 266 (internal quotations omitted). A reasonable inmate would be confused by the Central Office's instructions to do something that he has already done. And it is reasonable to conclude that Ford was confused by the Central Office's instructions given that a reasonable inmate would be confused, there is nothing in the record suggesting that he was not confused, and he apparently accepted the Central Office's response as a final rejection.
Therefore, because the Central Office's instructions reasonably interfered with Ford's ability to exhaust his administrative remedies, further administrative remedies were rendered unavailable to Ford. See Hardy, 959 F.3d at 590 (“Instead, [the prison] provided misleading instructions on which a reasonable inmate would rely and on which the undisputed record shows Hardy did rely to his detriment. All ‘available' remedies were exhausted.”). Accordingly, the defendants are not entitled to summary judgment on the basis that Ford failed to follow the Central Office's instructions.
C. The Rejection of Ford's Resubmitted BP-10.
The defendants also argue that Ford could have appealed the Regional Office's June 23, 2020, rejection of his Resubmitted BP-10. Ford, however, avers that he never received the Regional Office's June 23, 2020, rejection notice. Doc. 58-1 (Ford's Declaration) at ¶ 6. Given Ford's assertion, there is a genuine factual dispute about whether he received the rejection notice. And that dispute is material to whether further administrative remedies were available to Ford. For this reason also, the defendants' motion for summary judgment as it relates to whether Ford exhausted his administrative remedies should be denied.
VII. Recommendations.
For the foregoing reasons, we recommend that the court grant the defendants' motion for summary judgment (doc. 36) as it relates to Dr. Buschman and deny the motion for summary judgment as it relates to the failure-to-exhaust argument.
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 31 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.