Opinion
1:19-cv-169
01-10-2022
JOSEPH D. SCOTT, Plaintiff v. CCPM MICHAEL R. CLARK, et al., Defendants
SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO,UNITED STATES MAGISTRATE JUDGE
I. Recommendation
Defendants' motion for summary judgment raising the defense of failure to exhaust administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), is pending before the Court. It is respectfully recommended that the Defendants' motion be GRANTED.
II. Report
A. Background and Relevant Procedural History
Plaintiff Joseph D. Scott (Scott) is a prisoner in the custody of the Pennsylvania Department of Corrections (DOC) at its State Correctional Institution at Albion (SCI-Albion). Acting pro se, he commenced this civil rights action pursuant 42 U.S.C. § 1983 against seven employees of the DOC based on allegations that they failed to protect him from being assaulted by another inmate, Stratton Peay (Peay), who had a history of violent behavior. See ECF No. 7 (Complaint) and ECF No. 10 (Amended Complaint). The Court previously dismissed all claims against two of the Defendants. See ECF Nos. 35, 36. The remaining Defendants later moved for summary judgment arguing that the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e(a), bars Scott's claims because he failed to exhaust his administrative remedies as dictated by the DOC's grievance policy. See ECF Nos. 43-46. Scott's response raised issues of fact concerning whether administrative remedies at SCI-Albion were reasonably available to him. See ECF Nos. 50, 58. To resolve these issues, the Court conducted an evidentiary hearing pursuant to Small v. Camden County, 728 F.3d 265 (3d Cir. 2013) on October 28 and 29, 2021. The following summarizes the evidence received at the hearing and sets forth the Undersigned's proposed findings of fact and conclusions of law.
B. Evidence Received and Admitted During the Hearing
1. Exhibits
Without objection, the Court admitted the following exhibits during the evidentiary hearing:
1 Policy Statement: Inmate Grievance System: DC-ADM 804, effective May 1, 2015;
2 Inmate Handbook, 2017 Ed.;
3 SCI-Albion Inmate Handbook Supplement;
4 Inmate Handbook Receipt signed by Scott and dated March 10, 2014;
5 Cell history for Scott;
6 Grievance No. 684171 and related appeal records; and
7 Inmate Grievance Log
2. Witnesses
Scott testified on his own behalf and called another inmate, Gary Eugene Prisk (Prisk), to provide additional testimony. They testified in material part as follows:
Scott
Scott was attacked by Inmate Peay on June 10, 2017, while both were housed in the Residential Treatment Unit (RTU) on I Block at SCI-Albion. Scott testified, and DOC records confirmed, that Scott submitted Grievance No. 684171 on June 26, 2017. This is Scott's only grievance relating to the June 10th incident. Scott's grievance included only two requests for relief: (1) that he be separated from Peay, and (2) that he be allowed to file a report with the Pennsylvania State Police (PSP). Scott acknowledged that prison officials ultimately granted both of his requests-he was separated from Peay, and he was permitted to submit a complaint to the PSP regarding Peay's attack. Scott also acknowledged that his grievance did not complain about guards or other prison personnel failing to protect him from Peay or request monetary relief. When asked why he did not raise these claims in his grievance, Scott initially explained that he did not know about Peay's prior history of violence and other attacks on inmates when he filed his grievance and only learned this information when he spoke with Unit Manager Lantz. Scott's testimony regarding when he spoke with Lantz, however, was inconsistent. He first testified that he spoke with Lantz in his office after filing his grievance and that this meeting occurred within 48 hours after the incident. He further testified that Lantz advised him at that meeting that Peay had been involved in multiple incidents involving acts of violence. But Scott did not file his grievance until June 26, as evidenced by the date he handwrote on the grievance as well as the DOC's records. On cross-examination, Scott testified that he spoke with Lantz before he filed his grievance. The sequence and timing of Scott's discussion with Lantz and the filing of his grievance are important. If Lantz told Scott about Peay's prior assaults before he filed his grievance, Scott would have no justification for having failed to include those facts in his grievance or for having failed to request monetary relief based on those facts.
Scott testified that he is dyslexic and has difficulty understanding terminology used in the DOC's inmate handbook. Scott did acknowledge, however, that he has filed grievances both before and after Grievance No. 684171. He also testified that he asked staff members for assistance in prosecuting his grievance, but they told him “they couldn't get involved.” In his grievance, Scott noted that he had “[s]poken to and request slips to Platz, Lantz, Thompson, Lieutenant Cleveland, Security Lieutenant; Lieutenant Basher, Lieutenant Skinner, Captain Jones, Superintendent Clark, Sergeant Scalise, Sergeant McIntosh, C.O. Carr.” Ex. 6, §B. Scott testified that “they all told me pretty much the same thing; that it's-this is out of their hands.” Scott testified that after he had learned that Peay had assaulted other prisoners, he asked staff members “what would be the next steps” and “the correct forms” he would need to proceed. In response, he was told that “there was pretty much nothing I could do; that my grievance process was expired, which I only -they tell you-they told me I only had 15 days from the incident.”
Prisk
Prisk was an inmate at SCI-Albion at the same time as Scott. He testified that he was present when Scott had a discussion with Stephen Scalise, the property Sergeant at SCI-Albion, regarding a grievance Scott had filed or intended to file regarding Peay's assault. Prisk recalled that Scott asked Scalise for a grievance form. Prisk could not recall the date of the conversation but did remember that the conversation occurred while he and Scott were “going to chow.” Prisk testified that Scalise advised Scott that there might be “repercussions” if he continued to pursue his grievance.
The Defendants called three witnesses, Michelle Tharp (Tharp), Kevin Lantz (Lantz), and Stephen Scalise (Scalise). They testified in material part as follows
Tharp
Michelle Tharp, the Superintendent's Assistant and Grievance Coordinator at SCI-Albion, testified on behalf of the defense. She explained the grievance procedures under DC- ADM 804, described the availability of grievance forms at the prison, and reviewed Scott's submission of his Grievance No. 684171. The Court inquired of Ms. Tharp regarding the procedure an inmate should follow if he learns additional facts pertinent to a pending grievance.
Specifically, the Court asked:
[U]nder Policy 804, if an inmate .. .submits a grievance raising certain claims based upon information that he is aware of at the time, then after submission of the grievance learns additional information that either gives rise to an additional claim or identifies individuals who may have had a role.. .what is the inmate to do as far as amending or supplementing the grievance? Do you understand my question?
Ms. Tharp responded as follows:
Yes, sir. Many of the inmates, if they come across further information after they have submitted their initial grievance, they do normally write my office an addendum. Most of the time I do accept those, unless the grievance has already been responded to by the grievance officer.
If that's the case, then they have the opportunity to bring those new finding up in their appeal to the facility manager. And at that point the facility manager can review the appeal and has the option to remand it back to the grievance officer for further review if needed.
Ms. Tharp acknowledged, however, that she did not know whether the “addendum” procedure she described is stated in writing anywhere. The Court further inquired of Ms. Tharp:
What if the information becomes known to the - to the inmate more than 15 days after the incident? Would it be your policy to accept that submission?
Ms. Tharp responded:
Per policy, they have 15 business days from the date of the incident to submit it. However, I am normally, generally, very lenient. So if they still submit their grievance within, I'd say, at least two to three weeks after the incident, after the 15 business days, I normally accept it, especially for certain situations.
Ms. Tharp acknowledged that she is unaware whether her general leniency about supplementing a grievance had been communicated to Scott or the general inmate population.
Lantz
Lantz worked as a Unit Manager of I Unit, B-Block, where Scott was housed at SCI-Albion. He was familiar with Scott and characterized him as “not problematic” and an inmate who “followed the rules.” Lantz testified that he knew Peay's identity before his June 10, 2017 attack on Scott but did not learn that he had engaged in prior violent behavior until after that date. He testified that he researched Peay's background within a few days after the assault and that is when he learned that Peay had a history that included prior acts of violence. Lantz acknowledged that he met with Scott on multiple occasions after the assault. He explained that his primary concern and reason for speaking with Scott was to ensure that he had received proper medical attention after the assault. Lantz testified that he did not have any discussions with Scott regarding supplementing his grievance with additional information concerning Peay's history. .
Scalise
Scalise was the property Sergeant at SCI-Albion in June 2017. He and Scott were both on I Block in 2017, and he would speak to Scott every day. He testified that he was not involved in the grievance process except, upon request, he would provide an inmate with a grievance form. Scalise did not recall ever speaking with Scott or Prisk about Scott's grievance or the grievance process. He likewise did not recall discussing the June 10, 2017 incident with Scott. He denied making any statement to Scott discouraging him from submitting a grievance.
III. Proposed Findings of Fact
1. On June 10, 2017, Scott was attacked by Peay when both were housed in the RTU on I Block at SCI-Albion. .
2. Following the attack, Scott had multiple conversations with Unit Manager Lantz during which they discussed Peay and Lantz inquired about Scott's medical condition.
3. Shortly after Peay's assault upon Scott, Lantz investigated Peay's background and learned that he had a history of violence or other misconduct. Lantz disclosed this information to Scott a few days later.
4. Scott offered inconsistent testimony concerning when Lantz disclosed to him Peay's history of violent behavior. Based on the totality of his testimony and other relevant evidence, including the date Scott submitted Grievance No. 684171, the Court finds that Scott was informed of Peay's history shortly after the assault and in advance of date he submitted his grievance.
5 On June 26, 2017, after Lantz had disclosed the information concerning Peay's history, Scott submitted Grievance No. 684171 in which he requested that: (1) he be separated from Peay, and (2) he be allowed to file a report with the PSP.
6. Scott's grievance did not raise any factual or legal assertions to put prison officials on notice that he was asserting a claim against any prison officials based on Peay's history or their failure to protect him from Peay.
7. Scott's grievance also did not request compensatory or punitive damages.
8. Although Scott's grievance listed twelve prison staff members, including three of the Defendants in this action, as individuals with whom he had spoken or to whom he had submitted information request slips after the assault, it did not assert any misconduct or wrongdoing against any individual except Peay.
9. Grievance No. 684171 is the only grievance Scott submitted concerning the June 10, 2017 assault.
10. Prison officials granted or accommodated each of the two requests Scott made in Grievance No. 684171. Scott was separated from Peay, and he was permitted to submit a complaint to the PSP.
11. While Lantz and Sergeant Scalise did not assist Scott in understanding or navigating the grievance process, neither threatened, misled, or intimidated Scott or otherwise sought to deter him from including in his grievance a claim that prison officials had knowledge of Peay's violent history or that prison officials failed to protect him from Peay.
IV. Proposed Conclusions of Law
1. The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997(e), “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, 637-38 (2016); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000).
2. Failure to exhaust available administrative remedies under the PLRA is an affirmative defense that defendants must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). The Defendants in this action have properly pled and presented their exhaustion defense for disposition by the Court.
3. “[E]xhaustion of administrative remedies under the PLRA is a question of law to be determined by the judge....” Jacobs v. Pittsburgh Police Dep't, 2014 WL 3401656, at *4 (W.D. Pa. July 10, 2014) (quoting Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)). Likewise, the availability of administrative remedies to a prisoner is a question of law reserved for the court even if determining whether such remedies were available requires the resolution of disputed facts. Jacobs, 2014 WL 3401656, at *4.
4. “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,' rules that are defined not by the PLRA, but by the prison grievance process itself.” Jones v. Block, 5439 U.S. 199, 218 (2007) (citation omitted) (quoting Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
5. Completion of the administrative review process means “substantial” compliance with the prison's grievance procedures. See Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004) (citing Nyhuis, 204 F.3d at 77-78).
6. Inmates who fail to complete the prison grievance process in a full and timely manner have not properly exhausted their claims and are barred from subsequently litigating those claims in federal court. See, e.g., Bolla v. Strickland, 304 Fed.Appx. 22 (3d Cir. 2008); McCain v. Smith, 2021 WL 5205870, at *2 (M.D. Pa. Nov. 8, 2021).
7. The DOC's Inmate Grievance Policy, DC-ADM 804, applies to most inmate concerns regarding their conditions of confinement, including Scott's Eighth Amendment failure to protect/deliberate indifference claim.
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, as currently written has been effective since February 16, 2016, and is the relevant policy here. See, e.g., Mccain v. Smith, et al., 2021 WL 5205870, at *3 (M.D. Pa. Nov. 8, 2021).
8. The DC-ADM 804 grievance process consists of three steps or stages. First, within fifteen days of the incident, the prisoner must submit a written grievance for review by the facility manager or the regional grievance coordinator, who, in turn, must respond in writing within fifteen business days. Second, if the grievance is denied, the inmate must submit a written appeal to intermediate review within fifteen working days, and again the inmate is to receive a written response within fifteen 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 (2001).
9. Scott's only grievance concerning the June 10, 2017 assault, Grievance No. 684171, did not include facts or other information to support an Eighth Amendment failure to protect or deliberate indifference claim and did not assert any wrongdoing on the part of any individual except Peay.
10. “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 v. Bock, 549 U.S. 199, 219 (2007).
11. DC-ADM 804, § 1(A)(11) states the following regarding the facts an inmate must include in a grievance:
The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim.
a. The statement of facts shall include the date, approximate time, and location of the event(s) that gave rise to the grievance.
b. The inmate shall identify individuals directly involved in the event(s).
c. The inmate shall specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law.
12. Restated slightly, an inmate's grievance must include facts sufficient to place prison officials on fair notice of the claim or claims to be investigated. See Travillion v. Wetzel, 765 Fed.Appx. 785, 789 (3d Cir. 2019); Abney v. Younker, 2015 WL 463243, at *14 (M.D. Pa. Feb. 4, 2015).
13. Scott's Grievance No. 684171 did not place prison officials at SCI-Albion on notice that he was asserting any claim based on their alleged failure to protect him from Peay despite being on notice that Peay had engaged in violent or assaultive behavior in the past.
14. 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). 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).
15. “[I]n 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).
16. Although Scott's grievance mentioned the names of prison staff members with whom he spoke after Peay's assault upon him, he did not state that any of them committed an act or omission that led to the assault. Therefore, Scott failed to comply with the requirement of DC-ADM 804 that he identify individuals “directly involved in the events” at issue. This failure constitutes a further procedural default.
17. 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.
18. Here, the prison's response to Scott's grievance did not acknowledge an understanding or belief that the acts or omissions of any defendant in this case were the subject of the grievance. To the contrary, the response to the grievance responded directly to the two requests for relief raised by Scott and in no way evidenced an understanding on the part of prison officials that Scott was asserting a claim based on any official's failure to protect Scott from Peay.
19. Scott has failed to exhaust his administrative remedies under DC-ADM 804 regarding the Eighth Amendment failure to protect/deliberate indifference claim asserted in this action.
20. Where a failure to exhaust the “on-the-books” administrative remedies has been shown, “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 v. United States, 904 F.3d 257, 268 (3d Cir. 2018)).
21. “Three kinds of circumstances” have been recognized where “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 v. Blake, 578 U.S. 632, 644 (2016)). 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).
22. DC-ADM 804 is ambiguous concerning how an inmate should proceed when he learns of additional facts relevant to a pending grievance, such as facts that give rise to an additional claim or additional relief or facts that identify other responsible individuals.
23. Section 1 (A)(14) of DC-ADM 804 states, “A grievance based on separate events must be presented separately, unless it is necessary to combine the issues to support the claim.”
24. Section 1 (A)(15) of DC-ADM 804 states in pertinent part, “Any grievance issue that has been or is currently being addressed will not be re-addressed in a subsequent grievance.”
25. No provision of the policy addresses whether or how an inmate may amend or supplement a pending grievance based on additional facts he learns after the filing of the grievance. However, because the Court has found that Scott knew of Peay's history of violence before he submitted Grievance No. 684171, this ambiguity did not prejudice him or render any administrative remedy unavailable.
26. Scott has failed to demonstrate that his administrative remedies under DC-ADM 804 were not reasonably available to him.
V. Conclusion
Based on evidence admitted during the evidentiary hearing and for the reasons set forth above, it is respectfully recommended that Defendants' Motion for Summary Judgment (ECF No. 43) be GRANTED.
VI. 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).