Opinion
1:22-CV-00194-SPB-RAL
12-06-2023
GREGORY DEVON OBEY, Plaintiff v. UNIT MANAGER COLLEY, OFFICER DONOGHUE, OFFICER BAILEY, FCI MCKEAN HEALTH SERVICE WORKER ON SHIFT DURING THE DAY OF INCIDENT, JOHN AND JANE DOES 1-10; J. WALKER, AND LT. BLANKENSHIP, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION RE DISMISSAL OF CLAIMS AGAINST REMAINING DEFENDANTS BASED ON PLAINTIFF'S FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES
RICHARD A. LANZILLO CHIEF UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that Plaintiff Gregory Devon Obey's Complaint against Defendant Colley and the Defendant identified as “FCI McKean Health Service Worker on Shift During the Day of Incident” be dismissed pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b).
II. REPORT
A. Introduction and Procedural History
Plaintiff Gregory Devon Obey, an inmate in the custody of the Federal Bureau of Prisons (“BOP”), commenced this pro se civil rights action against four individuals employed at the Federal Correctional Institution at McKean (“FCI-McKean”): Unit Manager Colley, Officer Donoghue, Lt. Blankenship, J. Walker, and “FCI McKean Health Service Worker on Shift During the Day of Incident.” Obey's Complaint alleges that the Defendants failed to provide him with appropriate medical care during his incarceration at FCI-McKean in violation of his rights under the United States Constitution and Pennsylvania tort law. ECF No. 10.
Blankenship, Donoghue, and Walker (collectively, “Moving Defendants”) previously moved to dismiss the Complaint pursuant to Fed R. Civ. P. 12(b)(6) and, alternatively, for summary judgment pursuant to Fed.R.Civ.P. 56. In support of their request for summary judgment, the Moving Defendants argued that Obey had failed to exhaust his available administrative remedies. Id.
The motion also noted that Obey had not served Defendant Colley and the Defendant described as “FCI-McKean Health Services Worker on Staff the Day of the Incident." ECF No. 17 n.3. The motion further advised that Colley was no longer employed by the BOP or “in the BOP system” and that the BOP had been unable to identify the “FCI-McKean Health Services Worker on Staff the Day of the Incident" because it lacked sufficient information to do so. Id. On October 14, 2022, the Court notified Obey that Colley was no longer employed at FCI-McKean and could not be served at that institution. ECF No. 13. The Court further directed Obey to provide an updated address and USM285 for Colley within thirty days. Id. To date, Obey has not provided an updated address or USM285 for Colley.
The undersigned recommended that the Court grant the Moving Defendants' motion for summary judgment and deny the motion to dismiss as moot. See ECF. No. 28. The Court adopted this recommendation and again referred the matter to the undersigned “for consideration of whether summary judgment should be entered by this Court in favor of the remaining Defendants based on Plaintiffs failure to exhaust his administrative remedies in compliance with the Prison Litigation Reform Act.” ECF No. 33. Thereafter, on November 6, 2023, the undersigned ordered Obey to show cause why all claims against Colley and the John Doe Defendant should not be dismissed based on his failure to exhaust his administrative remedies as to these claims. ECF No. 36. Obey timely filed a response to the order on November 21, 2023. See ECF No. 37. In his response, Obey did not dispute his failure to exhaust his administrative remedies or challenge the record provided by the Moving Defendants showing that Obey had not filed any grievance concerning allegedly deficient medical care he received at FCI-McKean. See ECF No. 37.
The order to show cause also raised potential dismissal of these claims pursuant to Fed.R.Civ.P. 4(m), which directs a district court-on motion or on its own after notice to the plaintiff-to dismiss an action without prejudice if a plaintiff fails to serve a defendant within ninety days of the filing of the complaint. This rule also “requires a district court to extend time [for service] if good cause is shown ...” Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1305 (3d Cir. 1995). The Third Circuit generally “equate[s] ‘good cause' with the concept of ‘excusable neglect' of Federal Rule of Civil Procedure 6(b)(2), which requires ‘a demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.”' MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir.1995), cert, denied, 519 U.S. 815 (1996) (citing Petrucelli, 46 F.3d at 1312 (Becker, J., concurring in part and dissenting in part). Colley and the John Doe Defendant remain unserved. The undersigned's order to show cause notified Obey that it was considering dismissal pursuant to Rule 4(m) and provided him with the opportunity to respond. ECF No. 36. Obey responded that FCI McKean's policies prohibited inmates from learning “any personal information concerning staff, including full names, addresses, etc.” and he “d[id] not have access to the internet in order to download/research the requisite forms.” ECF No. 37. Because the undersigned finds that the claims against Colley and the John Doe Defendant must be dismissed because Obey failed to exhaust his administrative remedies as to these claims, the Court need not determine whether these claims are also subject to dismissal under Rule 4(m).
B. Standard of Review
The claims against Colley and the John Doe Defendant are “subject to sua sponte screening for dismissal pursuant to 28 U.S.C. § 1915(e)(2) and 28 U.S.C. § 1915A because [Obey] is a prisoner proceeding pro se and is seeking redress from a governmental employee or entity.” Sanchez v. Coleman, 2014 WL 7392400, at *4 (W.D. Pa. Dec. 11, 2014) (citing Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008)). See ECF No. 10. The Prison Litigation Reform Act (“PLRA”), Pub.L. No. 104-134, §§ 801-810, 110 Stat. 1321-66 to 132177 (April 26, 1996), requires a district court to assess a civil complaint in which a prisoner proceeds in forma pauperis (28 U.S.C. § 1915(e)(2)) or seeks redress against a governmental employee or entity (28 U.S.C. § 1915A). See e.g, Sanchez, 2014 WL 7392400, at *4; Hill v. Carpenter, 2011 WL 8899478, at *2 (M.D. Pa. Aug. 3, 2011), report and recommendation adopted, 2012 WL 3779364 (M.D. Pa. Aug. 30, 2012) (citing 28 U.S.C. § 1915(e)(2)(B)(ii) (“This Court has a statutory obligation to conduct a preliminary review of pro se complaints brought by plaintiffs given leave to proceed in forma pauperis in cases which seek redress against government officials.”). Among other things, that statute requires the Court to dismiss any action in which the Court determines that the action is “frivolous or malicious; fails to state a claim upon which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); Muchler v. Greenwald, 624 Fed.Appx. 794, 796-97 (3d Cir. 2015). A frivolous complaint is one which is either based on an indisputably meritless legal theory (such as when a defendant enjoys immunity from suit) or based upon factual contentions which are clearly baseless (such as when the factual scenario described is fanciful or delusional). Neitzke v. Williams, 490 U.S. 319, 327 (1989). The determination of whether complaint fails to state a claim upon which relief may be granted is governed by the same standard applicable to motions to dismiss under Rule 12(b)(6). D'Agostino v. CECOM RDEC, 436 Fed.Appx. 70, 72 (3d Cir. 2011) (citing Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999)).
Failure to exhaust administrative remedies is an affirmative defense that Defendants typically must plead and prove. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Because Colley and the John Doe Defendant have not been served, neither has filed an answer or motion raising the exhaustion as a defense. However, each is alleged to be a current or former employee of the BOP. Had Obey served these Defendants, counsel for the Moving Defendants presumably also would have represented them. As discussed below, the record upon which the Moving Defendants demonstrated their entitlement to summary judgment based on Obey's failure to exhaust administrative remedies also demonstrates Colley and the John Doe Defendant's entitlement to judgment as a matter of law. “Even though exhaustion is an affirmative defense, sua sponte dismissal of an action is proper where failure to exhaust available administrative remedies available to a prisoner-plaintiff is abundantly clear.” Jones v. Lorady, 2011 WL 2461982, at *3 (M.D. Pa. June 17, 2011) (citing McPherson v. U.S, 2010 WL 3446879, *3-4 (3d Cir. 2010)). The Court previously notified Obey that it was considering dismissal of the claims against Colley and the John Doe Defendant based on the exhaustion defense and provided him with an opportunity to respond. See ECF No. 36. Obey responded but did not dispute his failure to file any grievance regarding the claims asserted in this action or raise any basis upon which failure to exhaust could be excused. See ECF No. 37.
C. Discussion
The PLRA requires a prisoner to exhaust any available administrative remedies before he may commence a lawsuit challenging the conditions of his confinement. 42 U.S.C. § 1997e(a). “Exhaustion is thus a non-jurisdictional prerequisite to an inmate bringing suit and, for that reason ... it constitutes a ‘threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time.'” Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018) (quoting Small v. Camden County, 728 F.3d 265, 270 (3d Cir. 2013)) (internal quotations omitted). The PLRA's exhaustion requirement applies to all claims relating to prison life which do not implicate the duration of the prisoner's sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002).
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). Individual prisons provide these procedural rules. Jones v. Bock, 549 U.S. 199, 218 (2007); 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, “prison grievance procedures supply the yardstick” for the district court to measure procedural default. Spruill, 372 F.3d at 230-31. This includes the strict compliance with deadlines for submissions of grievances and appeals. Woodford, 548 U.S. at 95. A procedurally defective administrative grievance, even if pursued to final review, precludes action in federal court. Fennell v. Cambria Cty. Prison, 607 Fed.Appx. 145,149 (3d Cir. 2015).
The BOP has a four-step administrative-remedies process federal inmates must complete to satisfy the PLRA's exhaustion requirement. 28 C.F.R. §§ 542.10-542.19. First, an inmate must informally present an issue of concern to the staff, who will try to resolve the issue. 28 C.F.R. § 542.13(a). Second, if the inmate is dissatisfied with the informal resolution of the issue, the inmate must submit a formal, written Administrative Remedy Request (Request) on a BP-9 form for resolution by the Warden within 20 days following the date on which the basis for the Request occurred. 28 C.F.R. § 542.14. Third, an inmate who is not satisfied with the Warden's response may submit an appeal on a BP-10 form to the Regional Director within 20 days from the date that the Warden signed the response. 28 C.F.R. § 542.15. Fourth, an inmate who is not satisfied with the Regional Director's response may submit a final appeal on a BP-11 form to the General Counsel at the Central Office of Appeals within 30 calendar days of the Regional Director's signed response. Id.
The Complaint alleged that between April 30, 2022 and May 5, 2022, Defendants and medical staff at FCI-McKean ignored Obey's repeated reports of severe abdominal pain and his pleas for medical attention until he was transported to a hospital in Olean, New York, where he was diagnosed with a ruptured ulcer and received surgery. See ECF No. 10. Obey averred that Defendants' conduct violated his Eighth and Fourteenth Amendment rights and constituted medical malpractice.
The undersigned set forth in detail the factual allegations of the Complaint in its Report and Recommendation on Moving Defendants Rule 12(b)(6) motion to dismiss. See Obey v. Colley, 2023 WL 6545833, at *2 (W.D. Pa. July 24, 2023), report and recommendation adopted, 2023 WL 6282907 (W.D. Pa. Sept. 27, 2023).
The Moving Defendants' motion for summary judgment argued that Obey had not exhausted his administrative remedies as to any claim relating to the alleged inadequate medical care he received at FCI-McKean. See ECF No 19. In support of this position, they produced properly authenticated BOP records showing that Obey last filed an Administrative Remedy Request in October 2019, years before the conduct at issue in this case. See ECF No. 16-1. Obey's responsive filings did not address the Moving Defendants' exhaustion argument and did not produce any evidence to support that he commenced, let alone exhausted, the grievance process concerning his claims. Accordingly, the undersigned found that no genuine issue of material fact existed regarding Obey's failure to exhaust his administrative remedies and recommended that his claims against the Moving Defendants be dismissed with prejudice. See ECF No. 28. The Court adopted the Report and Recommendation and granted Moving Defendants' motion for summary judgment based upon Obey's failure to exhaust. See ECF No. 33.
The same record and finding that mandated dismissal of the claims against the Moving Defendants also require dismissal of the claims against Colley and the John Doe Defendant. Obey argues that the Court should not dismiss his claims because "[h]e has begun the Administrative Remedy Process," and he asks the Court to stay his case until the process is complete. ECF No. 37. See ECF No. 35. However, the PLRA "mandates that an inmate exhaust 'such administrative remedies as are available' before bringing suit to challenge prison conditions.” Ross v. Blake, 578 U.S. 632, 635 (2016) (quoting 42 U.S.C. § 1997e(a)) (emphasis added). See also Oriakhi v. United States, 165 Fed.Appx. 991, 993 (3d. Cir. 2006) (“[T]here appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court”). The date by which Obey could initiate the administrative grievance process has long since expired. See 28 C.F.R. § 542.14. Therefore, his belated attempt to initiate and complete the administrative process is futile. See Rodriguez Ramos v. Smith, 2005 WL 3054291, at *7 (E.D. Pa. Nov. 14, 2005), aff'd sub nom. Ramos v. Smith, 187 Fed.Appx. 152 (3d Cir. 2006) (citing Berry v. Kerik, 366 F.3d 85, 86, 86 n.3 (2d Cir. 2004)) (dismissed Plaintiffs Complaint with prejudice because his administrative remedies were no longer available to him and so his “failure to exhaust administrative remedies c[ould] not... be cured.”). Accordingly, Defendants Colley and John Doe are entitled to judgment as a matter of law, and the claims against them should be dismissed with prejudice.
Sua. sponte dismissal based upon exhaustion is inappropriate unless the plaintiff's failure to exhaust is "apparent from the complaint or other documents before the District Court." See Ray, 285 F.3d at 297 (3d Cir. 2002). "Otherwise, the district court must provide parties with notice and an opportunity to respond before .resolving any factual disputes" regarding exhaustion. Caiby v. Haidle, 785 Fed.Appx. 64, 65 (3d Cir. 2019) (citing Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018)). Here, Obey's failure to exhaust is clear from the summary judgment record. 'Further, the undersigned's November 6, 2023, order to show cause notified Obey that the Court was considering dismissal based on failure to exhaust and provided him with an opportunity to respond. Obey's response did not dispute any of the material facts supporting the exhaustion defense.
This action is also subject to dismissal because “an action cannot be maintained solely against Doe defendants.” Hindes v. F.D.I.C., 137 F.3d 148, 155 (3d Cir. 1998) (citations omitted).
III. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the claims against remaining Defendants Colley and John Doe be dismissed with prejudice and this action be marked as closed.
IV. 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 waive appellate rights. Brightwell v. Lehman, 637 F.3d 187, 194 n.7 (3d Cir. 2011); Nara v. Frank, 488 F.3d 187 (3d Cir. 2007).