Opinion
Case No. 1:18-cv-00233-SPB-RAL
05-06-2021
ALBERT HOBSON, Plaintiff v. JOHN TILLER, et al, Defendants
UNITED STATES DISTRICT JUDGE SUSAN PARADISE BAXTER ECF No. 33 REPORT & RECOMMENDATION
I. Recommendation
Defendant John Tiller's Motion for Summary Judgment [ECF No. 33] has been referred to the undersigned for Report and Recommendation pursuant to the Magistrate Judges Act, 28 U.S.C. § 636(b)(1). It is respectfully recommended that the motion be granted.
II. Report
A. Procedural History
Plaintiff Albert Hobson (Hobson), a pro se litigant formerly in the custody of the Pennsylvania Department of Corrections (DOC) at its State Correctional Institution at Albion (SCI-Albion) commenced this civil rights action pursuant to 42 U.S.C. § 1983 based on allegations that corrections officials failed to protect him from an attack by another inmate in violation of his rights under the Eighth Amendment to the United States Constitution. See ECF No. 18 (Amended Complaint). The claims against all defendants except Tiller were dismissed by prior order of this Court. See ECF Nos. 24, 25. Hobson's Amended Complaint is his most recent statement of his claim against Tiller and the operative pleading for purposes of the pending motion. ECF No. 18. Tiller filed an Answer to Hobson's Amended Complaint on May 5, 2020. ECF No. 27.
Hobson's original complaint alleged that he was assaulted at SCI-Albion on February 20, 2018, by "inmate Drake." ECF No. 5, pp. 2-3. Hobson alleged that prior to the assault, Corrections Officer Blair ordered Tiller, the manager of the housing unit where the assault occurred, to remove Drake from the Drug and Alcohol (DAT) wing of SCI-Albion, but Tiller failed to do so. Id. His Amended Complaint further alleged that Tiller "knew [inmate Drake] was Z-coded"—that is, assigned a single cell without a cellmate—and that he had engaged in assaultive conduct against other inmates and personnel in the past. The Amended Complaint further alleged that Hobson "told them if they didn't move [Drake], he was going to beat up someone else" and "would get violent." Thus, because Tiller allegedly "knew [Drake] was a risk," Hobson alleged that he "played an affirmative part" in the harm that befell him. ECF No. 18.
Tiller filed the pending Motion for Summary Judgment, a supporting brief, a Concise Statement of Material Facts, and Appendix on October 6, 2020. ECF Nos. 33-36. Tiller's Appendix included prison records regarding inmates Drake and Hobson, an incident report regarding the February 20, 2018, inmate-on-inmate attack, an affidavit from Tiller, and portions of Hobson's prison administrative grievance record. ECF No. 36-1. More than four months later, Hobson filed a short, two-page brief in opposition to the motion without any supporting documents. ECF No. 40. He did not file a Responsive Concise Statement of Material Facts as required by this Court's Local Rules. See LCvR 56(C)(1).
B. Local Rule 56.1 Violation
Before reciting the facts material to the pending motion, the Court will first address Hobson's failure to respond to Tiller's Concise Statement of Material Facts (ECF No. 35) as required by Local Rule 56(C)(1). This rule requires a party opposing a motion for summary judgment to file a responsive concise statement admitting or denying the facts of each numbered paragraph of the movant's concise statement and setting forth in separately numbered paragraphs any additional material facts upon which the non-movant relies in opposition to the motion—all with appropriate citations to the record. See LCvR 56(C)(1). See also Thomas v. Bronco Oilfield Servs., 2020 WL 7021474, at *1 n. 2 (W.D. Pa. Nov. 30, 2020); Fed. R. Civ. P. 56(c)(1) (a party asserting that a fact is genuinely disputed must support the assertion by citing to evidence in the record). Courts in the Western District of Pennsylvania require strict compliance with the provisions of Local Rule 56. See, e.g., Coleman v. Tice, 2018 WL 5724125, at *2 n. 3 (W.D. Pa. Oct. 10, 2018), report and recommendation adopted by, 2018 WL 5722316 (W.D. Pa. Nov. 1, 2018); First Guard Ins. Co. v. Bloom Services, Inc., 2018 WL 949224, at *2-3 (W.D. Pa. Feb. 16, 2018); Hughes v. Allegheny Cty. Airport Auth., 2017 WL 2880875, at *1 (W.D. Pa. July 6, 2017).
A non-moving party "faces severe consequences for not properly responding to a moving party's concise statement." Hughes, 2017 WL 2880875, at *1. Any alleged material facts "set forth in the moving party's Concise Statement of Material Facts...which are claimed to be undisputed, will for the purpose of deciding the motion for summary judgment be deemed admitted unless specifically denied or otherwise controverted by a separate concise statement of the opposing party." LCvR 56(E). See also Keith v. Charter Commc'ns, Inc., 2020 WL 2394997, at *2 (W.D. Pa. May 12, 2020). While courts provide some leniency to pro se litigants when applying procedural rules, the Court "'is under no duty to provide personal instruction on courtroom procedure or to perform any legal chores for the [pro se litigant] that counsel would normally carry out.'" Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244 (3d Cir. 2013) (quoting Pliler v. Ford, 542 U.S. 225, 231 (2004)). Nor may pro se litigants ignore procedural rules that apply to parties assisted by counsel. McNeil v. United States, 508 U.S. 106, 113 (1993) (explaining that "we have never suggested that procedural rules in ordinary civil litigation should be interpreted so as to excuse mistakes by those who proceed without counsel").
Because Hobson has failed to file a responsive concise statement, all properly supported material facts stated in Tiller's concise statement will be deemed admitted. LCvR 56(E). However, the Court will consider facts asserted in Hobson's pro se response to the motion that specifically contradict Tiller's statement of facts but only to the extent they are supported by the record. Boyd v. Citizens Bank of Pa., Inc., 2014 WL 2154902, at *3 (W.D. Pa. May 22, 2014) (stating that "[t]o the extent Plaintiff's statement of 'fact' specifically controverts Defendant's, the Court will consider these facts in determining whether summary judgment should be granted").
C. Undisputed Facts
The physical assault that is the subject of this action occurred on February 20, 2018, while Hobson was incarcerated at SCI-Albion. ECF No. 35, ¶ 7 (Defendant's Concise Statement of Material Facts). On that date, inmate Drake approached Hobson from behind and punched him with a closed fist. Id. Hobson then held on to Drake to prevent him from further hitting or assaulting him. Id., ¶ 11. Corrections officers ordered Drake to stop. Id., ¶ 12. When he refused, they sprayed Drake with OC spray, which stopped the attack. Id., ¶ 13-14. An incident report prepared by prison officials about the unplanned use of force recorded that both Drake and Hobson were taken to the medical department after the incident. ECF No. 36-1, p. 6 (Exhibit B). Drake was treated for his exposure to OC spray and then taken to the Restricted Housing Unit (RHU) while Hobson was treated for his injuries and secondary exposure to OC spray and then returned to his housing unit. Id.
Hobson's initial grievance # 722584, filed the day of the assault, alleged that Corrections Officer Blair told the unnamed "unit Manager" before this incident that inmate Drake needed to be moved to a different housing unit. Id., ¶¶ 14-15; ECF No. 36-1, p. 17 (Exhibit E, Hobson's Initial Grievance). Hobson did not request financial compensation or any other form of relief in his initial grievance. Id.
D. Standard of Review
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, 106 S. Ct. 2505, 91 L.Ed.2d 202 (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, 106 S. Ct. 2505; 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, 106 S. Ct. 2505; 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 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, 106 S. Ct. 2548, 91 L.Ed.2d 265 (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, 106 S. Ct. 2548. See also Harter v. GA.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
Hobson is proceeding pro se. When considering a motion in a pro se plaintiff's case, a court must "apply the applicable law, irrespective of whether a 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). On a motion for summary judgment, however, "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). Put another way, just because a nonmoving party is proceeding pro se, he is not relieved 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).
E. Legal Analysis
1. Tiller's Exhaustion of Administrative Remedies Defense
a. PLRA Requirements and Tiller's Burden of Production on Summary Judgment
Tiller's motion asserts that he is entitled to summary judgment because Hobson did not exhaust his administrative remedies as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a). ECF No. 34, p. 3. The Court is obliged to address Tiller's exhaustion defense as a threshold matter before evaluating the sufficiency of Hobson's Eighth Amendment "deliberate indifference" claim. See Downey v. Pennsylvania Dep't of Corr., 968 F.3d 299, 304-05 (3d Cir. 2020) (explaining that once a defendant properly raises exhaustion, the district court must consider it as a threshold matter).
The PLRA mandates that prisoners exhaust all available administrative remedies before bringing a lawsuit concerning conditions of their confinement. 42 U.S.C. § 1997e(a). This requirement applies to all claims relating to prison life that do not implicate the duration of the prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532, 122 S. Ct. 983, 152 L.Ed.2d 12 (2002). The plaintiff's failure to exhaust available administrative remedies is an affirmative defense that the defendant must plead and prove. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L.Ed.2d 798 (2007); Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)).
Proper exhaustion under the PLRA requires that an inmate "complete the administrative review process in accordance with the applicable procedural rules." Downey v. Pennsylvania Dep't of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (citing Woodford, 548 U.S. at 88, 126 S. Ct. 2378). These procedural rules are supplied by the individual prisons. Jones, 549 U.S. at 218, 127 S. Ct. 910; Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004) (determining whether "a prisoner has 'properly' exhausted a claim...is made by evaluating the prisoner's compliance with the prison's administrative regulations governing inmate grievances"). Thus, whether a plaintiff has properly exhausted administrative remedies is determined according to the procedures and rules adopted by the plaintiff's correctional institution. Spruill, 372 F.3d at 230-31 (the "prison grievance procedures supply the yardstick for measuring procedural default."). As the Supreme Court has explained:
Compliance with prison grievance procedures, therefore, is all that is required by the PLRA to "properly exhaust." 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.Jones, 107 U.S. at 217, 127 S. Ct. 910.
Three administrative remedy processes provide inmates in the custody of the Pennsylvania DOC with an avenue to challenge aspects of their confinement. See McClain v. Alveriaz, 2009 WL 3467836, at *6 (E.D. Pa. Oct. 26, 2009) (citations omitted). Those policies are: (1) the Inmate Discipline Policy, DC-ADM 801; (2) the Administrative Custody policy, DC-ADM 802; and (3) the Inmate Grievance Policy, DC-ADM 804. Id. Which of these policies applies in a given instance depends on the subject matter of the inmate's grievance and his or her custody classification. DC-ADM 801 deals with inmate misconducts. DC-ADM 802 is similar but applies only to inmates who are in administrative custody. Finally, DC-ADM 804 provides the relevant grievance procedures for all inmate grievances not connected with a misconduct citation. Id. DC-ADM 804 is relevant here.
The DC-ADM 804 grievance system consists of three separate stages. First, within fifteen days of the incident, the prisoner is required to submit a written grievance for review by the facility manager or the regional grievance coordinator, who, in turn, must respond in writing within ten business days. Second, if the grievance is denied, the inmate must submit a written appeal to intermediate review within ten working days, and again the inmate is to receive a written response within ten working days. Finally, if the inmate remains dissatisfied following this second level outcome, he 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. See Booth v. Churner, 206 F.3d 289, 293 n. 2 (3d Cir. 1997), aff'd, 532 U.S. 731, 121 S. Ct. 1819, 149 L.Ed.2d 958 (2001).
To establish the plaintiff's failure to exhaust administrative remedies at the summary judgment stage, the moving party must produce a record demonstrating his entitlement to judgment on the defense as a matter of law. Fed. R. Civ. P. 56(c)(1)(A). Typically, the most efficacious means to do so is for the defendant to produce the plaintiff's entire grievance record. See, e.g., Green v. Maxa, 2019 WL 1207535, at *6 (W.D. Pa. Mar. 14, 2019); Jackson v. Superintendent Greene SCI, 671 Fed. Appx. 23, 24 (3d Cir. 2016). Where the plaintiff misses a step in the grievance process, however, the defendant should provide an affidavit from a person with knowledge or a properly authenticated business record affirming factually that the plaintiff failed to properly exhaust. See Fed. R. Civ. Pro. 56(c)(4). This is often an affidavit from a records custodian. See Wiggins v. Correct Care Solutions, LLC, 2017 WL 11550519, at *5, *7-8 (E.D. Pa. May 9, 2017); Muhammad v. Sec'y Pa. Dep't of Corrs., 621 Fed. Appx. 725, 727 (3d Cir. 2015) (affidavit attesting plaintiff failed to appeal to SOIGA); accord Martin v. Pa. Dep't of Corrs., 395 Fed. Appx. 885, 886 (3d Cir. 2010) (affidavit stating plaintiff "never sought final review").
In support of his exhaustion defense, Tiller has produced Hobson's Initial Grievance # 722584, the Grievance Rejection, Hobson's appeal to the Facility Manager, and the Facility Manager's Response, ECF No. 36-1, pp. 13-17 (Exhibit E). Regarding Grievance # 733799, Tiller has produced Hobson's Initial Grievance, the Grievance Rejection, Hobson's appeal to the Facility Manager, the Facility Manager's Appeal Response, and a letter (not an appeal response) that SOIGA sent to Hobson in response to his questions about what to do after the Facility Manager denied his first appeal. Id., pp. 18-23 (Exhibit F).
b. Tiller's Arguments
Tiller raises three arguments in support of summary judgment based on his exhaustion defense, any of which would operate as a complete defense to Hobson's claims against him: (1) Hobson failed to appeal his grievances to final review within the DOC's administrative grievance system before filing his federal lawsuit; (2) Hobson failed to identify him in his grievances as required by the DOC's administrative grievance policy; (3) Hobson failed to request monetary relief in his initial grievance, thus barring his claims for money damages—the only relief requested in his Amended Complaint. ECF No. 33, p. 7-8.
Even if Hobson had requested injunctive relief, the request would now be moot because he has been released from the custody of the DOC.
1. Tiller has not produced a record sufficient to support his assertion that Hobson did not exhaust his administrative appeals.
The Court should reject Tiller's first exhaustion defense argument because Tiller has not produced a record sufficient to support his position that Hobson failed to appeal the denial of his grievances to SOIGA. Although Tiller has produced portions of Hobson's grievance record, the Court has no way of knowing whether they constitute the complete grievance record. The Court acknowledges that proving a negative—i.e., Hobson's failure to file a SOIGA appeal—typically will not appear on the face of the grievance record. Nevertheless, Tiller could have properly supported this assertion with an affidavit from an appropriate records custodian or other person with knowledge attesting that no appeal was filed. This initial burden of production falls to the defendant because the assertion of "failure-to-exhaust" under the PLEA is an affirmative defense concerning which the defendant bears the burden of proof. See Celotex, 477 U.S. at 323, 106 S. Ct. 2548; Ray, 285 F.3d 287. Exhaustion under the PLRA is not an element of the plaintiff's claim concerning which a defendant can raise a naked challenge on summary judgment and put the plaintiff to his proof. The burden of production on this defense will shift to the plaintiff only if the defendant first makes a prima facie showing in support of the defense. Tiller has not made the required showing in support of his first exhaustion argument.
In each of the cases cited by Tiller in support of his first exhaustion argument [ECF 34, p. 10], the court had an evidentiary record adequate to establish the exhaustion defense. In Moore v. Lamas, 2017 WL 4180378, *1-2 (M.D. Pa. Sept. 21, 2017), for example, the court conducted two evidentiary hearings and considered extensive post-hearing briefing and other filings before sustaining the exhaustion defense. In the other cases relied upon by Tiller, the record included an affidavit from either a records custodian or grievance officer from SOIGA attesting that the affiant had reviewed the inmate's grievance record and determined that he had missed a step in the appeals process. See Jackson v. Commonwealth of Pa., 2016 WL 1071023, at *4 (M.D. Pa. Mar. 17, 2016) (affidavit from SOIGA assistant chief grievance officer who declared that none of plaintiff's grievances were appealed to the Facility Manager or SOIGA for final review), aff'd, 668 Fed. Appx. 410 (3d Cir. 2016) (per curiam); Gantt v. Overton, 2014 WL 7069042, at *7-9 (W.D. Pa. 2014) (affidavit from records custodian affirming review of inmate's grievance record and that plaintiff skipped his first appeal step when he prematurely filed final appeal to SOIGA); Jackson v. Carter, 2019 WL 342685, at *3-4 (W.D. Pa. Jan. 28, 2019) (affidavit from SOIGA grievance officer affirming review of grievance record and that plaintiff only appealed one grievance to final review), aff'd in part and reversed in part on other grounds, 813 Fed. Appx. 820 (3d Cir. 2020) (per curiam). Tiller has not produced a comparable record in this case. Accordingly, he has not satisfied his threshold burden to demonstrate Hobson's failure to appeal the denial of his grievances to SOIGA for final review.
2. Hobson's grievance adequately identified Tiller by position.
It is also recommended that the Court reject Tiller's second argument that Hobson failed to exhaust his claims because Hobson did not identify Tiller in initial Grievance # 722584. ECF No. 34, pp. 7-8. The PLRA itself does not have a "name all defendants" requirement. Byrd v. Shannon, 715 F.3d 117, 127 (3d Cir. 2013) (citing Jones, 549 U.S. at 217, 127 S. Ct. 910). But Section 11(d) of the DOC's grievance policy states that the inmate "shall identify individuals directly involved in the events." See Green v. Maxa, 2020 WL 1249205, at *5 (W.D. Pa. Mar. 16, 2020); Jackson v. Carter, 813 Fed. Appx. 820, 823 (3d Cir. 2020). Regarding this requirement, the Court of Appeals for the Third Circuit has held that, "in the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly identify a defendant constitute[s] a failure to properly exhaust his administrative remedies under the PLRA." Williams v. Pa. Dep't of Corr., 146 Fed. Appx. 554, 557 (3d Cir. 2005). Such a procedural default can be excused, however, if prison administrators respond to the grievance "by identifying the unidentified persons and acknowledging that they were fairly within the compass of the prisoner's grievance." Spruill, 372 F.3d at 234-35. Applying Spruill, Third Circuit has repeatedly found prison officials to have excused an identification default when their grievance responses acknowledge involvement of the defendants. See Williams v. Beard, 482 F.3d 637, 639-40 (3d Cir. 2007); Robinson v. Johnson, 343 Fed. Appx. 778, 782 (3d Cir. 2009); Tenon v. Dreibelbis, 606 Fed. Appx. 681, 687 n. 5 (3d Cir. 2015). This is because "[t]he primary purpose of a grievance is to alert prison officials to a problem, not to provide personal notice to a particular official that he may be sued." Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007) (quoting Jones, 549 U.S. at 219, 127 S. Ct. 910). But where the inmate does not identify a defendant in the grievance and there is no indication in the record that prison administrators knew that the defendant was involved in the conduct challenged in the grievance, the prisoner has failed to exhaust administrative remedies. Byrd, 715 F.3d at 127; Johnson v. Townsend, 314 Fed. Appx. 436, 442-43 (3d Cir. 2008).
Here, Hobson sufficiently identified Tiller in compliance with Section 11(d) of the DOC's grievance policy by naming the "unit Manager" in his grievance. ECF No. 36-1, p. 17. Hobson wrote in initial Grievance # 722584, "Officer Blair told the unit Manager that Drake need [sic] to be moved but they did not move him." Id. Courts have frequently refused to dismiss claims for failure to identify a defendant by name "where it was clear that prison officials knew of defendant's involvement from the context of the grievance." Sanders v. Beard, 2013 WL 1703582, at *7 (M.D. Pa. Apr. 19, 2013) (excusing plaintiff's failure to name prison maintenance personnel by name because he identified them by position and it was not practicable that he would be aware of their identities) (citing Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007)). See also Martin v. Secretary of Corrections, 2018 WL 1158250, at *4 (W.D. Pa. Mar. 5, 2018) ("Because it was not practicable for Martin to identify the Defendants, he has not [failed to exhaust] his claims."); Robinson v. Johnson, 343 Fed. Appx. 778 (3d Cir. 2009) (holding that inmate did not fail to exhaust a claim challenging a policy where the defendants did not meet their burden of demonstrating that it was practicable for the inmate to identify them as the relevant policymakers).
Tiller has submitted an affidavit attesting that he was the Unit Manager of the housing unit where the attack took place from June 5, 2017 to January 8, 2018, when he was transferred to a different housing pod. ECF No. 36-1, p. 11, ¶¶ 3, 6 (Ex. D). Drake's attack upon Hobson occurred on February 20, 2018, after Tiller's transfer to another pod. Thus, Tiller was not the Unit Manager of Hobson's housing unit when Drake attacked Hobson. Id., p. 12, ¶¶ 9-10. However, a failure to protect claim requires an analysis of what prison officials did in the lead-up to an attack upon an inmate, not merely what could have been done at the moment of the attack. See Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012) (denying summary judgment on failure to protect claim when prison officials should have been aware of the plausible risk of one inmate harming another based on knowledge from about a month prior to the attack), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020). Tiller wrote in his affidavit that, "[a]ny recommendation regarding moving an inmate from a particular Pod, for any reason, would be made by myself as a Unit Manager; such recommendation could not be made by a Corrections Officer and a Corrections Officer could not order a Unit Manager to do so." ECF No. 36-1, p. 11, ¶ 5. Hobson placed Tiller "fairly within the compass of the prisoner's grievance," Spruill, 372 F.3d at 234-35, because he named the "unit Manager" in his initial Grievance # 722584, and Tiller possessed the authority to move Drake to a different housing unit until at least January 8, 2018. See Green v. Wetzel, 2019 WL 1427103, at *4-5 (W.D. Pa. Mar. 29, 2019) (prisoner placed defendant "fairly within the compass of [his] grievance" when his grievance identified the "acting Psychiatrist"); Sanders, 2013 WL 1703582, at *7. Hobson's grievance could reasonably have referred to either the current or previous Unit Manager, and thus it put prison officials on notice that both were fairly within the scope of his grievance. Accordingly, Tiller has not established his entitlement to judgment as a matter of law on the affirmative defense of failure to exhaust based on this failure-to-identify argument. As discussed below, however, Tiller's third exhaustion argument is properly supported by the record and meritorious.
3. Hobson procedurally defaulted his claims by failing to request compensation or other legal relief in his initial grievance.
Hobson filed his initial grievance regarding Drake's assault, Grievance # 722584, on February 20, 2018. ECF No. 36-1, p. 17 (Ex. E). This grievance did not include a request for financial compensation or any other form of relief. Id. The grievance officer rejected this grievance upon initial review on February 23, 2018 because it did not comply with the requirement that "[g]rievance[s] must be legible, understandable, and presented in a courteous manner." The grievance officer identified the defect in the grievance as it not being understandable, writing, "What are you grieving?" atop the initial grievance form. Id., pp. 16-17 (Ex. E). In his appeal to the Facility Manager on March 28, 2018, Hobson further elaborated what had happened when Drake attacked him and what led up to the attack; he also wrote, "Now I want to be compensated for my injuries." Id., p. 15 (Ex. E). Under DC-ADM 804, Hobson had the option of curing the defect by resubmitting the grievance within five days or filing an appeal. DC-ADM 804 § 1(A)(20)-(21). He opted to appeal the rejection of the grievance to the Facility Manager. The Facility Manager denied his appeal on April 18, 2018, concurring with the initial grievance officer that it was unclear what Hobson was grieving. Id., p. 14. He did not address the merits of Hobson's claim and focused on Hobson's failure to explain his claim and procedural errors in his initial grievance, adding, "In your appeal you indicate that you want 'compensated for my injuries.' This needs to be in your initial grievance and not part of an appeal." Id.
After the Facility Manager's denial of his appeal, Hobson filed another grievance about the incident—Grievance # 733799. Id., p. 23 (Ex. F). While the grievance itself is undated, it is clear from its contents that it was filed after his first initial grievance on this matter. In Grievance # 733799, he asked to be "compensated for my injuries," including specific amounts against those apparently involved in allowing inmate Drake's attack on him. Id. (Ex. F). This was rejected on initial review by the grievance coordinator for two reasons: 1) "The issue(s) presented on the attached grievance has been reviewed or is currently being reviewed and addressed. Prior grievance # 722584," and 2) "Grievance disputes previous grievances, appeal decisions or staff members who rendered those decisions." Id., p. 22 (Ex. F). Hobson appealed the denial of Grievance # 733799 to the Facility Manager on May 3, 2018, writing "I never done this befor so i didn't know what i was suppose to write on the first grievance. I want to be compensated for my injuries." Id., p. 21 (Ex. F). The Facility Manager denied the appeal on May 25, 2018, concurring with the grievance coordinator's initial denial. Id., p. 20 (Ex. F).
Then, Hobson sent a letter (not an appeal) to SOIGA and attached his Initial Grievance # 722584, its rejection, and Initial Grievance # 733799. Id., p. 19 (Ex. F). He asked what he needed to do from there. Assistant Chief Grievance Officer Keri Moore advised Hobson with some specificity on the appropriate procedure he needed to follow to properly appeal the denial of these grievances to SOIGA, directing him to DC-ADM 804. Id., p. 19 (Ex. F). As noted above, the record is silent as to whether Hobson appealed the denial of either grievance to SOIGA.
The version of DC-ADM 804 in effect when Hobson filed his initial grievance specifically stated, "If the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance." DC-ADM 804 Inmate Grievance System Procedures Manual (DC-ADM 804), at § 1(A)(11)(d) (emphasis added). This command mandates that an inmate request financial compensation in his initial grievance if he intends to demand money damages in a subsequent lawsuit. When the United States Court of Appeals for the Third Circuit decided Spruill, the court rejected a procedural default claim based on an inmate's failure to specifically request monetary relief because "the grievance policy in effect at that time permitted—but did not require—an inmate to identify the relief sought (including monetary relief) in his grievance." Wright v. Sauers, 729 Fed. Appx. 225, 227 (3d Cir. 2018) (citing Spruill v. Gillis, 372 F.3d 218, 233-34 (3d Cir. 2004) (DC-ADM 804 at that time said, "The inmate may include a request for compensation or other legal relief...)). "Subsequently, the Prison amended its policy to include the mandatory language deemed lacking in Spruill," using essentially identical language to what was suggested in the opinion. Id. The Third Circuit in Wright upheld the district court's determination that "[the plaintiff] procedurally defaulted his claim for money damages by failing to request such relief in his grievance" because the "requirement is now mandatory." Id.
Courts within the Third Circuit have followed this holding that "an inmate procedurally defaults any claim for monetary relief if he did not seek such relief in his grievance." Newsome v. Teagarden, 2021 WL 1176102, at *8 (W.D. Pa. Mar. 29, 2021) (slip copy) (only relief requested was preservation of video evidence, not money). A request for monetary relief in a grievance need not be so precise that it "sets forth a specific dollar amount" so long as a request for monetary compensation is made. Sides v. Pennsylvania Dep't of Corr., 2020 WL 1493549, at *7 (W.D. Pa. Mar. 27, 2020). Failure to request monetary compensation in an initial grievance means that a court must dismiss a legal claim in federal court seeking money damages (even if the inmate appealed those grievances to SOIGA for final review). See, e.g., Taylor v. Chesmer, 2020 WL 5366055, at *5, *8-9 (W.D. Pa. 2020) (granting summary judgment against prisoner's claim for money damages when plaintiff's grievance requested no relief); Sanders v. Beard, 2013 WL 1703582, at *6 (M.D. Pa. Apr 19, 2013) (same); Williams v. Overmyer, 2019 WL 8989847, at *5 (W.D. Pa. Nov. 15, 2019) (slip copy) (same); Wilson v. Miller, 2020 WL 1289875, at *3-4 (W.D. Pa. Feb. 6, 2020) (inmate failed to request monetary relief in initial grievance or appeal), report and recommendation adopted by, 2020 WL 1286300 (W.D. Pa. Mar. 18, 2020). See also Woodford v. Ngo, 548 U.S. 81, 85, 126 S. Ct. 2378, 165 L.Ed.2d 368 (2006) ("Indeed, as we held in Booth, a prisoner must now exhaust administrative remedies even where the relief sought - monetary damages - cannot be granted by the administrative process.")
Even if an inmate's claim for money damages is procedurally defaulted for failing to include it in the initial grievance, courts still allow claims for injunctive relief to proceed if that was specifically requested in the initial grievance. Cunningham v. Zubsic, 2019 WL 134209, at *5, *5 n. 9 (W.D. Pa. Jan. 8, 2019) (granting summary judgment in defendant's favor on claims for money damages but allowing claim for equitable relief to proceed because plaintiff's grievance requested an outside referral to a dermatologist); Tillery v. Wetzel, 2019 WL 480485, at *6 (M.D. Pa. Feb. 7, 2019) (granting summary judgment on claims for monetary relief but allowing claim for injunctive relief to proceed). Here, however, the initial grievance included no request for relief.
While Hobson's loss of his ability to pursue his claim based on an arguably technical violation of DC-ADM 804 may appear harsh, this outcome is compelled by precedent. See Wright, 729 Fed. Appx. at 227; Cunningham, 2019 WL 134209, at *5. The Court is bound by the PLRA to apply the prison's available administrative exhaustion rules, however stringent. See 42 U.S.C. 1915e(a); Jones, 549 U.S. at 218, 127 S. Ct. 910. As noted, DC-ADM 804 expressly and unambiguously directs that an inmate who desires "compensation or other legal relief normally available from a court...must request the specific relief sought in his/her initial grievance." DC-ADM 804 § 1(A)(11)(d) (emphasis added). The forms for initial grievances, grievance rejections, and grievance appeals all direct inmates to the DC-ADM 804 Inmate Grievance System Procedures Manual for instructions. Indeed, the grievance rejection form for Hobson's initial Grievance # 722584 referred multiple times to DC-ADM 804 and said that "it is the decision of this office to reject your grievance due to a failure to comply with the provisions of the DC-ADM 804..."
Upon rejection of a grievance for failure to comply with DC-ADM 804, an inmate has two choices on how to further pursue the grievance:
20. If a grievance is rejected, the grievance may be re-submitted, using the same grievance number, within five working days of the rejection notice date. A rejected grievance may only be re-submitted one time.DC-ADM 804 § 1(A)(20)-(21) (emphasis omitted). After the rejection of his initial grievance on February 23, 2018, instead of resubmitting his grievance within five days at the same grievance number for a new initial review, Hobson appealed his grievance to the Facility Manager thirty-three days later on March 28, 2018. ECF No. 36-1, p. 15 (Ex. E). The Facility Manager upheld the rejection of the grievance based on Hobson's failure to explain what he was grieving and his failure to request relief. Id., p. 14. Thus, having opted not to correct his procedural errors and resubmit his grievance as authorized by DC-ADM 804, Hobson's appeal failed for the same procedural reasons as his grievance.
21. An inmate may appeal the rejected grievance to the Facility Manager in accordance with Section 2 of this procedures manual.
Normally, an inmate must appeal a grievance denial or rejection "within 15 working days from the date of the initial review response/rejection." DC-ADM 804 § 2(A)(1)(a). However, because Tiller has not raised the timeliness of Hobson's appeal, the issue is not before the Court.
Moreover, the DOC's regulations did not allow Hobson to "cure" his procedural error by filing a subsequent grievance regarding the same issue. Hobson filed Initial Grievance # 733799 after he filed Initial Grievance # 722584 about the same assault. DC-ADM 804 states, "Any grievance issue that has been or is currently being addressed will not be readdressed in a subsequent grievance. Any concern disputing previous grievances, initial review responses, appeal decisions, or actions of staff members who rendered those decisions should be addressed through the appeal process outlined in Section 2 of this procedures manual." DC-ADM 804, § 1(A)(15). See Fields v. Doe, 2015 WL 3513367, at *4 (E.D. Pa. June 4, 2015) (rejecting procedural default argument based on this rule because the inmate's two grievances in fact addressed different issues); Frye v. SCI Benner Med. Dep't, 2017 WL 3433657, at *6-7 (M.D. Pa. Aug. 10, 2017) (dismissing prisoner's claims for failure to exhaust when inmate filed repetitious grievances regarding the same matters instead of appealing as required by DC-ADM 804). The Facility Manager upheld the grievance coordinator's denial of this grievance because it regarded a grievance currently being reviewed and disputed a prior grievance. ECF No. 36-1, pp. 20-22 (Ex. F). Therefore, even though Hobson requested monetary relief in his second grievance, it cannot form the basis of a lawsuit in federal court because it violated prison grievance rules, which the PLRA requires courts to respect.
Because Tiller has demonstrated that Hobson 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." West v. Emig, 787 Fed. Appx. 812, 814 (3d Cir. 2019) (citing Rinaldi, 904 F.3d at 268). The Supreme Court explained in Ross that there are,
"three kinds of circumstances in which an administrative remedy, although officially on the books," is not "available" because it is "not capable of use to obtain relief": (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."Rinaldi, 904 F.3d at 266-67 (quoting Ross, 135 S. Ct. at 1859-60). See also Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020) (misleading or deceptive instructions from a prison official, as well as clearly erroneous statements, can render a grievance process unavailable).
The official grievance form utilized by Hobson for Grievance # 722584 instructed, "State your grievance in Block A in a brief and understandable manner." ECF No. 36, p. 17 (Ex. E). In Wright v. Sauers, the official grievance form instructed the prisoner plaintiff to "[p]rovide a brief, clear statement of your grievance. ...State all relief you are seeking." 2017 WL 3731957, at *4 (W.D. Pa. Aug. 30, 2017) (emphasis added) (finding procedural default when plaintiff's initial grievance failed to request monetary or other relief), aff'd, 729 Fed. Appx. 225 (3d Cir. 2018). The emphasized language present on the form used in Wright appears nowhere on the form Hobson used. Nevertheless, the first instruction on the official grievance form used by Hobson directed, "Refer to the DC-ADM 804 for procedures on the inmate grievance system." ECF No. 36, p. 17 (Ex. E). Courts have held that failure to follow a mandatory portion of the prison grievance procedure constitutes a procedural default even where those instructions do not appear specifically on the initial grievance or appeal forms but those forms instead direct inmates to refer to DC-ADM 804. See, e.g., Small v. Lanigan, 656 Fed. Appx. 586, 589-90 (3d Cir. 2016) (using correspondence to appeal grievance denials violated required procedure and constituted default); Walker v. Glunt, 654 Fed. Appx. 531, 534 (3d Cir. 2016) (failing to sign grievance held to constitute procedural default). The official form Hobson used to appeal the denial of Grievance # 722584 to the Facility Manager only instructs that the inmate, "[r]efer to DC-ADM 804, Grievance Appeal Procedures, for complete instructions," and courts have held that inmates appealing their grievances are bound by prison policies. See, e.g., Mack v. Klopotoski, 540 Fed. Appx. 108, 113 (3d Cir. 2013) (finding procedural default and rejecting inmate's substantial compliance argument because he failed to provide photocopies of grievances and responses when pursuing appeal as required by policy). Hobson has failed to produce evidence to demonstrate a genuine issue of material fact that the grievance process was unavailable to him under any of the three circumstances identified in Ross.
Hobson's response in opposition to Tiller's motion for summary judgment may be read to ask the Court to invoke an equitable power to excuse his procedural default by failing to request compensation—or, put more plainly, to forgive his initial error based on his ignorance or confusion regarding grievance procedures. Hobson wrote, "I filed [a grievance] on 2/20/2018. I filed [grievance] again on 2/23/2018 because I didn't know how to fill out the [grievance]. I stated all facts, I didn't know to add compensation and his [negligence] on the first [grievance]. I did add compensation and [negligence] on the other grievances that followed. I am being backed doored because I didn't know protocol." ECF No. 40, p. 1 (spelling errors corrected). However, the Court lacks the power to excuse this error; as made clear in Ross v. Blake, "[e]xhaustion is no longer left to the discretion of the district court." 136 S. Ct. at 1858 (quoting Woodford, 548 U.S. at 85, 126 S. Ct. 2378). Unfortunately for Hobson, "ignorance and confusion regarding the Pennsylvania DOC policies do[ ] not excuse failing to adhere to these requirements." Camacho v. Beers, 2018 WL 6618410, at *3 (W.D. Pa. Dec. 18, 2018) (granting summary judgment on exhaustion grounds when plaintiff failed to request monetary relief in his grievances) (quoting Stokes v. Wenerowicz, 2017 WL 3226863, at *4 (E.D. Pa. Jul. 31, 2017)). Courts are reluctant to invoke equitable reasons to excuse failure to exhaust as the statute requires. Davis v. Warman, 49 Fed. Appx. 365 (3d Cir. 2002). "[I]t is beyond the power of the court to excuse compliance with the exhaustion requirement." Nybuis v. Reno, 204 F.3d 65, 73-74 (3d Cir. 2000) (claims for monetary relief are not excused from the exhaustion requirement). The purpose of proper exhaustion is to protect "administrative agency authority" over the matter, giving an agency "an opportunity to correct its own mistakes ... before it is haled into federal court," and "discourages 'disregard of [the agency's] procedures." Woodford, at 89, 126 S. Ct. 2378 (quoting McCarthy, 503 U.S. 140, 145, 112 S. Ct. 1081, 117 L.Ed.2d 291 (1992)). In the present case, the record does not support any basis upon which to excuse Hobson's failure to comply with this aspect of the DC-ADM 804.
Therefore, it is recommended that the Court grant summary judgment in favor of Tiller based on Hobson's procedural default and associated failure to exhaust his administrative remedies.
2. Hobson's Eighth Amendment "Failure to Protect" Claim
Even if the Court were to conclude that Hobson exhausted his administrative remedies, his claim fails on the merits because the record does not support essential elements of Hobson's failure to protect claim against Tiller. The Eighth Amendment of the United States Constitution imposes a duty on prison officials to "take reasonable measures to guarantee the safety of inmates." Hudson v. Palmer, 468 U.S. 517, 526-27 (1984). This includes the general duty to "protect prisoners from violence at the hands of other prisoners." Hamilton v. Leavy, 117 F.3d 742, 746 (3d Cir. 1997) (quoting Farmer v. Brennan, 511 U.S. 825, 833 (1994)). To state a viable failure-to-protect claim, the plaintiff must establish that: (1) he was incarcerated under conditions posing a substantial risk of serious harm; (2) the defendant was deliberately indifferent to that substantial risk; and (3) the defendant's deliberate indifference caused the plaintiff to suffer harm. Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020). The standard for deliberate indifference is subjective; thus, the prison official "must actually have known or been aware of the excessive risk to inmate safety." Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001).
Hobson has failed to go beyond his pleadings and has produced no evidence—either in the form of affidavits, depositions, answers to interrogatories or other record evidence—to demonstrate a genuine issue of material fact. Celotex, 477 U.S. at 324. His original complaint alleged that at some unspecified time before inmate Drake punched him on February 20, 2018, Corrections Officer Blair ordered Tiller to remove Drake from the DAT wing of SCI-Albion, but Tiller did not move him. ECF No. 5, pp. 2-3. He added allegations in his Amended Complaint that Drake was assigned to a cell by himself and that he had engaged in assaultive conduct against other inmates and personnel in the past. ECF No. 18. Hobson also claimed that he told Tiller that Drake was violent and would "beat up someone else." Id. But these are merely allegations. At the summary judgment stage, this is not enough as "summary judgment is essentially 'put up or shut up' time for the non-moving party: the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda or oral argument." Berckeley Investment Group, Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006). Crucially, there is not even an allegation here that Drake had ever personally threatened Hobson or had a motive to harm him, much less evidence of such. Hobson's only argument is that Tiller should have known to protect him from Drake because of his violent tendencies.
It is well-established that an official's awareness "of overall violence among the inmates or of violent propensities (or history of violence) of particular inmates does not supply an inference of deliberate indifference." Buckley v. Kowalski, 2015 Wl 179385, at *4 (D.N.J. Jan. 14, 2015) (citing Bistrian, 696 F.3d at 371). In other words, a generalized, hypothetical "risk that an inmate with a history of violence might attack another inmate" is too "speculative" to support an Eighth Amendment violation. Bistrian, 696 F.3d at 371. In Bistrian, the Third Circuit used two incidents of inmate assault, each perpetuated against the same unfortunate inmate, to illustrate the "crucial distinction" between a scenario in which prison officials were actually aware of an excessive risk to inmate safety, and one in which the risk of harm to the inmate was merely speculative. See Buckley, 2015 WL 179385, at *4 (citing Bistrian, 696 F.3d at 371). In the first scenario, the inmate, Peter Bistrian, had been recruited by prison officials to assist the FBI with an investigation into a prison gang. Bistrian, 696 F.3d at 360. Bistrian, a prison orderly, had been engaged by several gang members to assist them by passing along written notes. Id. The FBI asked Bistrian to copy each note and provide the copy to prison officials before delivering the original to the intended recipient. Id. However, the sloppy nature of the operation alerted gang members to Bistrian's participation in the FBI investigation. Id. at 360-61. Several members of the gang began threatening to "seriously harm [Bistrian] if they were placed in the recreation yard with him at the same time." Id. at 361. Despite Bistrian's repeated pleas to prison officials for protection, he was placed in a locked recreation yard pen with those same gang members less than a month later. Id. They beat him savagely, resulting in "a dislocated left shoulder, broken teeth, and multiple contusions and lacerations to his head and face that required sutures." Id.
Four months later, Bistrian was placed in the recreation yard with an inmate who had a history of random and violent attacks on other inmates. Id. at 362. While Bistrian was in hand restraints, the other inmate attacked him with a "manufactured razor-blade style weapon, repeatedly slashing and cutting [his] face, arms, and legs." Id. Bistrian sued, alleging that prison officials had failed to protect him from either attack despite their subjective awareness of the risk of harm presented by each of the attackers.
Examining the two scenarios, the Third Circuit drew a line between the first attack, which "alleged a sufficiently plausible failure-to-protect claim," and the second attack, which was "based on a mere possibility of harm." Buckley, 2015 WL 179385, at *4 (discussing Bistrian, 696 F.3d at 369-71). Addressing the first attack, the Court held:
Bistrian [has] set[ ] out sufficient factual allegations, which we must accept as true, that make his repeated pleas radically different from an out-of-the-blue and unadorned "I'm-in-trouble" entreaty. The eight officials that Bistrian claims he "repeatedly advised (both verbally and in writing)" were the very officials that orchestrated the botched note-photocopying operation. Given their familiarity with the scheme and the players involved, it is quite plausible that they knew Bistrian's cries for help were legitimate and that he faced a substantial risk of serious harm. After all, the genesis of the operation was a desire to assist an FBI investigation into violent criminal activity by [gang members] that included, among other things, substantial witness intimidation.Bistrian, 696 F.3d at 369-70 (citations omitted). In contrast, the Court held that Bistrian's allegations with respect to the second attack were too speculative to state a claim:
Bistrian does not allege that [the second attacker] had any connection to [the gang] or that [he] otherwise attacked him because he was an informant. Instead, Bistrian refers to [the second attacker's] "history of violent assaults against other inmates" ... and generally creates the impression that [the] attack was unprovoked, inexplicable, and unrelated to his participation in the note-copying operation. Thus, according to Bistrian, the risk of the harm that occurred was the risk that an inmate with a history of violence might attack another inmate for an unknown reason. We cannot conclude on these allegations that prison officials were deliberately indifferent to such a speculative risk.Id. at 371 (citations omitted).
Hobson's allegations about Drake's attack on February 20, 2018 fall into the latter category described in Bistrian but are even further afield. There is no evidence that prison officials knew of Drake personally threatening Hobson before February 20, 2018. There was nothing to put prison officials on notice that Drake was a threat to Hobson specifically, like an extortion request, a prior fight between them, or any explanation as to why his own interactions with Drake made him fear personal violence. Regarding Drake's tendency for violence, Hobson has provided only allegations—not evidence—that prison officials knew about this. There is no evidence that Drake had a well-established and well-known history of attacking other inmates.
The Third Circuit has found that something more than "an out-of-the-blue and unadorned 'I'm-in-trouble' entreaty," is necessary to substantiate a claim of failure to protect based on an inmate's complaint of the threat of violence. Ned v. Kardin, 779 Fed. Appx. 75, 76 (3d Cir. 2019). In Ned v. Kardin, the plaintiff told the prison officials that he was not getting along with his cellmate and asked to be moved. The Court of Appeals affirmed the District Court's ruling that such an unadorned complaint was insufficient to support an Eighth Amendment claim. In support of its holding, Ned v. Kardin cited Butera v. Cottey, 285 F.3d 601, 606 (7th Cir. 2002), explaining that, in Butera, the Court of Appeals for the Seventh Circuit ruled that a prisoner's reports to jail personnel that he was "having problems in the block" and "needed to be removed" were insufficient to establish deliberate indifference. Id.
Here, there is even less than "an out-of-the-blue" statement of fear because there is no evidence of a specific threat from Drake to Hobson. Ned, 779 Fed. Appx. at 76. Without communication of such a threat, Tiller could not have known that Hobson faced imminent danger. At bottom, rather than "advis[ing] prison officials of a specific violent threat made by an identified inmate" or prison official, Fantauzzi v. Ferraci, 2019 WL 6468584, at *9 (E.D. Pa. Nov. 29, 2019), Hobson's claim is based entirely on his conjectural assessment that Drake was violent and an unsubstantiated comment from one corrections officer to Tiller that Drake needed to be moved to another housing unit at an unspecified time prior to February 20, 2018. Indeed, prisoners are moved for a wide variety of reasons while incarcerated, and there is no evidence the move needed to occur because Drake made violent threats. This is precisely the type of speculative entreaty that the Third Circuit and other courts have routinely deemed inadequate to support an Eighth Amendment claim. Bistrian, 696 F.3d at 369-71 (rejecting an inference of deliberate indifference based solely on a prison official's awareness of a particular inmate's propensity for violence); Buoniconti v. City of Philadelphia, 148 F. Supp. 3d 425 (E.D. Pa. 2015) (allegation that attackers had a history of "known prior violent acts and propensity for violence" insufficient to establish deliberate indifference); Williams v. Delaware Cty. Bd. of Prison Inspectors, 2019 WL 2745759, at *9 (E.D. Pa. June 28, 2019) (general allegation that prison housed plaintiff with "violent prone inmates" insufficient to establish an Eighth Amendment claim). Hobson's failure to present evidence of a specific threat of harm to himself entitles Tiller to judgment as a matter of law.
F. Conclusion
For the foregoing reasons, it is respectfully recommended that Tiller's motion for summary judgment at ECF No. 33 be GRANTED because: (1) by failing to request financial compensation in his initial grievance as required by the DOC's regulations, Hobson failed to properly exhaust his administrative remedies as required by the PLRA, 42 U.S.C. § 1915e(a); and (2) the record does not support a reasonable inference that Tiller acted with deliberate indifference to Hobson's safety.
G. Notice
In accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72, the parties may 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).
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge Dated: May 6, 2021