Opinion
3:19-cv-148-SLH-KAP
09-01-2021
JEVONTE PRESSLEY, Plaintiff v. CO1 MATT MILLER, et al., Defendants
REPORT AND RECOMMENDATION
Keith A. Pesto, United States Magistrate Judge
Recommendation
Defendants Hershenberg and Miller's motion for summary judgment, ECF no. 38, should be granted.
Report
Plaintiff, an inmate in the custody of the Pennsylvania Department of Corrections, named corrections officers Miller and Hershenberg defendants for their role in events alleged to have taken place at S.C.I. Houtzdale on and after October 28, 2018, which allegedly began with plaintiff covering his cell windows and ended days later when he allegedly was finally allowed to decontaminate from being sprayed with oleoresin capsicum gas. Defendants deny liability on the merits, but here move for summary judgment on the ground that plaintiff failed to exhaust his administrative remedies as to the claim asserted by plaintiff against them.
The Prison Litigation Reform Act's exhaustion of remedies requirement, codified at 42 U.S.C.§ 1997e(a), supplies the relevant law:
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), 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.
There is no dispute that plaintiff did not file a grievance naming Miller and Hershenberg. Plaintiff filed Grievance no. 769218 on November 4, 2018 in response to the events of October 28, 2018, and it is part of the record at ECF no. 41-1. The PLRA's exhaustion requirement serves the important purpose of allowing prison officials an opportunity to resolve disputes before “being haled into court.” Jones v. Bock, 549 U.S. 199, 204. Proper exhaustion of administrative remedies is necessary to satisfy the PLRA's exhaustion requirement: failure to properly exhaust administrative remedies defaults any claim in a civil action. Woodford v. Ngo, 548 U.S. 81, 84 (2006); Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir.2004). It is undisputed that the administrative remedy provided by the Department of Corrections requires an inmate to name the staff member the inmate has a grievance with. See DC ADM-804, § I.A.11.
If prison staff thwart an inmate's ability to exhaust his administrative remedies, those remedies are not considered available within the meaning of § 1997e, and exhaustion is excused. Spada v. Martinez, 579 Fed.Appx. 82, 85 (3d Cir. 2014), citing Brown v. Croak, 312 F.3d 109, 113 (3d Cir.2002).
The question of exhaustion is a preliminary matter for the court to decide under the same rules as with other disputed questions of fact. Sometimes, as in Spada v. Martinez, the matter requires a hearing. Other times the matter is so free from doubt that it can be decided on summary judgment. A party moving for summary judgment bears the initial burden of pointing the district court to the basis in the record for its argument that there is no genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). If the moving party does so, Fed.R.Civ.P. 56 then obliges the party opposing summary judgment to show by competent evidence that there is a genuine factual dispute, that is, that sufficient evidence exists so that a reasonable jury applying the relevant law could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986). Where there is a factual dispute, all reasonable inferences must be drawn in favor of the nonmoving party, in this case the plaintiff. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff claims that prison officials did thwart his access to the grievance system by refusing to give him Miller and Hershenberg's names. It is doubtful that refusing to aid plaintiff can be construed as “thwarting” his access to the remedial process. But if that point is overlooked, all of plaintiff's evidence is compiled at Exhibit N of his brief in opposition to summary judgment at ECF no. 42. He argues that he was on “paper restriction” for the first eight days after October 28, 2018 (although that clearly had no effect on his ability to file a timely grievance), and asserts that “Everyday I verbally requested the names of those whom escorted me to that inhumane cell and was denied every time.” The only other evidence he presents is Exhibit N, five requests to staff at Houtzdale in October and November of 2019, in other words after he filed his complaint. By comparison, plaintiff was compiling affidavits on the merits of his complaint as early as November 2, 2018, and they are Exhibits A-M to ECF no. 42.
Does plaintiff's bare assertion in response to a summary judgment motion that he asked “every day” for and “everyone” he asked refused to identify anyone on duty during the relevant time period create an issue of fact about whether staff members thwarted plaintiff's use of DC-ADM 804? Bare assertions do not do so in other contexts. A plaintiff's bare assertion of non-receipt of mail does not create a genuine issue of material fact that the mail was not received. See Gamel v. Grant Prideco, L.P., 625 Fed.Appx. 690, 696 (5th Cir. 2015). It is black-letter law that defendant's assertion that threats or promises were the real motivation for a guilty plea do not create an issue of fact about the voluntariness of the plea when the allegations are “inconsistent with the bulk of his conduct, and when he offers no detailed and specific facts.” Lesko v. Lehman, 925 F.2d 1527, 1537-38 (3d Cir. 1991). A litigant's bare assertion that a judge did not consider his testimony does not create an issue of fact about whether the judge did so. Cau v. Barr, 831 Fed.Appx. 860, 862 (9th Cir. 2020).
Plaintiff was preparing the basis for a lawsuit even while he was on “paper restriction.” By his own account when he did so he understood that defendants had to be named because he asked every day from October 28 to November 4, 2018 for the defendants' identity, but he made no further attempt to identify defendants until October 2019. His bare assertion that defendants thwarted his use of the administrative remedy is insufficient to excuse his filing of a grievance that failed to identify defendants. Judgment should be entered for the defendants.
Pursuant to 28 U.S.C.§ 636(b)(1), the parties can within fourteen days file written objections to this Report and Recommendation. The parties are advised that in the absence of timely and specific objections, any appeal would be severely hampered or entirely defaulted. See EEOC v. City of Long Branch, 866 F.3d 93, 100 (3d Cir.2017) (describing standard of appellate review when no timely and specific objections are filed as limited to review for plain error).