United States District Court, M.D. Pennsylvania
October 19, 2005.
DEMETRIUS HILL, Plaintiff,
JOSEPH SMITH, Warden, Lewisburg Pen., MR. STRATTA, Associate Warden, LT. HOOPER, MR. ADAMI, Unit Manager, JOHN DOE #1, C.O., JOHN DOE #2, C.O., JOHN DOE, Health Administrator, JOHN DOE, Physician's Assistant, Defendants.
The opinion of the court was delivered by: JAMES McCLURE JR., District Judge
Demetrius Hill, pro se plaintiff in this Bivens action,
is incarcerated in the United States Penitentiary at Lewisburg,
Pennsylvania ("USP Lewisburg") while he awaits sentencing in the
Eastern District of New York.*fn1 Hill arrived at USP Lewisburg on July 21, 2005, after being transferred from the
Metropolitan Detention Center in Brooklyn, New York ("MDC
Brooklyn"), and is housed in the Special Management Unit, or
"G-Block," at Lewisburg.
On or about August 23, 2005, Hill filed a five-count complaint
requesting money damages and equitable relief, complaining of the
conditions at the Penitentiary and the treatment he received
there. (Rec. Doc. No. 1.) Hill's claims can be grouped into four
categories: physical abuse, indifference to medical complaints,
lack of access to the legal system, and prison conditions in
general. The defendants are employees of USP Lewisburg.
Contemporaneous with the filing of his complaint, Hill filed a
motion for a temporary restraining order and preliminary
injunction, accompanied by a supporting memorandum of law (Rec.
Doc. No. 2), a proposed order (Rec. Doc. No. 4), and a "forma
pauperis declaration" (Rec. Doc. No. 5). Hill sought a
temporary restraining order and preliminary injunction compelling
Warden Joseph Smith to:
(A) Immediately install cameras in the G-Block
stairwells and closet area so that there are no blind
spots and to prevent repeated assaults and/or killings;
(B) Ensure that all Corrections Officers in G-Block
wear name tags;
(C) Allow plaintiff to call his attorney, use the law
library, have his legal material in his cell and
treat plaintiff as a pretrial detainee until he is
(D) Ventilate G-Block cells and provide plaintiff
with an examination by the facility doctor, and
sanitize and rid G-Block of excessive cockroaches and
Most troubling to the court were Hill's allegations that he had
been assaulted, threatened, and denied essential asthma
medications in retaliation for his seeking redress through the
administrative grievance and legal systems.
Because the allegations in the complaint were serious, we
issued an order dated August 25, 2005 (Rec. Doc. No. 7)
scheduling a hearing on Hill's motion for a preliminary
injunction for September 8, 2005.*fn2 We also directed the
Government to file its opposition by the date of the hearing, and
temporarily granted Hill's request to proceed in forma
pauperis. (Id.) However, we denied Hill's motion for a temporary restraining order because it did not appear from
Hill's affidavit that immediate and irreparable injury, loss, or
damage would result to Hill if we did not grant the TRO. See
Fed.R.Civ.P. 65(b); (Rec. Doc. No. 7).
On September 15, 2005, the court received correspondence from
Hill, complaining of a delay in receiving asthma medication.
(Rec. Doc. No. 13.) Attached to the letter were Hill's
handwritten request to the Physician's Assistant assigned to
G-Block for the medication and the handwritten affidavit*fn3
of another inmate averring that USP Lewisburg staff were inattentive to the
medical complaints of Hill and the affiant. On September 19,
2005, the court received a brief and five more inmate affidavits
from Hill in support of his motion for a preliminary injunction.
(Rec. Doc. No. 14.) The Government timely filed its opposition
brief on the morning of September 22, 2005. (Rec. Doc. No. 15.)
On September 22, 2005, we held a hearing on Hill's motion for a
preliminary injunction. Hill represented himself, and testified
under oath subject to cross-examination about the allegations in
his complaint and his attempts to exhaust administrative
remedies. The Government presented seven witnesses, all of whom
were cross-examined by Hill: Warden Joseph Smith, Associate
Warden Frank Strada, Unit Manager John Adami, Lieutenant Tracy
Hooper, Corrections Officer Wesley Robey, licensed pharmacist and
Assistant Health Services Administrator Joseph Zagame, III, and
Physician's Assistant/Mid-Level Practitioner Ferdinand Alama.
The court has carefully considered the allegations in the
complaint, the supporting briefs and affidavits, the Government's
opposition, the testimony of all eight witnesses, and the
parties' oral argument. Based on the following discussion, we will (1) dismiss the complaint for failure to exhaust
administrative remedies and (2) explain that we would deny Hill's
motion for a preliminary injunction even if he had exhausted his
A. The plaintiff's complaint is dismissed for failure to
exhaust administrative remedies.
"[F]ederal prisoners suing under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971), must first exhaust inmate
grievance procedures" before filing a claim in federal court.
Porter v. Nussle, 534 U.S. 516, 524 (2002). The Prisoner
Litigation Reform Act of 1995 ("PLRA") provides that "[n]o action
shall be brought with respect to prison conditions under
[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."
42 U.S.C. § 1997e(a) (2000). "[T]he PLRA's exhaustion requirement
applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether
they allege excessive force or some other wrong." Porter,
534 U.S. at 532.
The Bureau of Prisons has established a multi-tier
Administrative Remedy Program whereby a federal prisoner may seek review of any aspect
of his imprisonment. See 28 C.F.R. §§ 542.10-542.19. The
program outlines the steps an inmate must take before fully
exhausting his administrative remedies.*fn4
Failure to exhaust is an affirmative defense that can be waived
if not properly preserved by a defendant. Ray v. Kertes,
285 F.3d 287, 295 (3d Cir. 2002). In this case, the defendants
asserted the defense in their brief opposing Hill's motion for a
preliminary injunction, and presented evidence on the issue at
the hearing. They argue that Hill's complaint and his motion for
preliminary injunction are subject to dismissal for failure to
exhaust.*fn5 (Rec. Doc. 15, at 6.) We agree. Despite the litany of grievances Hill presented to
this court, the record reveals that he has attempted to file only
one administrative remedy form: a BP-9 alleging retaliation for
filing administrative grievances at MDC Brooklyn and a denial of
medical attention, access to legal materials, and other
complaints associated with USP Lewisburg. (Def. Ex. 1, at 2.)
This request was denied, and Hill was instructed to "file a
request or appeal at the appropriate level via regular
procedures." (Def. Ex. 1, at 1.) Hill did not pursue the appeal
with a BP-10, nor did he file any additional BP-8s or 9s. Furthermore, the defense witnesses all testified that Hill did
not informally complain to prison staff about the issues he now
presents to the court. According to the BOP's Administrative
Remedy Program, "an inmate shall first present an issue of
concern informally to staff, and staff shall attempt to
informally resolve the issue before an inmate submits a Request
for Administrative Remedy." 28 C.F.R. § 542.13(a). Warden Smith
testified that Hill could have complained to any member of USP
Lewisburg staff about the grievances in his complaint: "There are
so many people that make rounds, the AW, the unit managers, the
shift lieutenant, myself. He could report it to anybody and we
would take a look at it. If he had reported an assault, I would
have at a minimum turned it over to our special investigative
administrator." (Tr. at 43.) Although Hill testified that he did
complain to prison staff, the court finds serious issues with his
As an excuse for not exhausting his administrative remedies,
Hill made three arguments. First, Hill argued that he was not
provided with the appropriate forms to file and appeal
administrative grievances. (See Tr. at 16.) Specifically, Hill
contends that Unit Manager Adami refused to provide him with
BP-8s, 9s, and BP1-0s. (Tr. at 24.) Adami denies this. (Tr. at
79-80.) In fact, it was Adami who provided Hill with the sole
BP-9 he filed at USP Lewisburg. (Tr. at 82-83.)
Secondly, Hill seemed to argue that appeals of administrative
grievances within the Bureau of Prisons are routinely rejected and therefore
futile. (See Tr. at 36.) Such a conclusory argument does not
present an exception to the mandatory exhaustion requirement of
42 U.S.C. § 1997e(a).
Finally, Hill argues that the actions of the defendants
constitute a waiver of the exhaustion requirement, because
prisoners are subject to retaliation for filing administrative
grievances, and because, Hill claims, there is no independent
oversight over G-Block. (Tr. at 160-61.) The Circuits disagree on
whether the mandatory exhaustion requirement of 42 U.S.C. § 1997e
is subject to waiver. Compare Alexander v. Hawk,
159 F.3d 1321, 1326 (11th Cir. 1998) (exhaustion is mandatory under PLRA,
not subject to waiver) with Wendell v. Asher, 162 F.3d 887,
890 (5th Cir. 1998) (exhaustion requirement is "rather like a
statute of limitations, that may be subject to certain defenses
such as waiver, estoppel, or equitable tolling").
The Third Circuit has not ruled on the issue. See McEachin
v. Beard, 136 Fed. Appx. 534, 535 (3d Cir. 2005) (unpublished).
In McEachin, the plaintiff prisoner argued that the exhaustion
provisions of the PLRA "must be equitably tolled in the case of
retaliation claims" because filing repeated grievances would
result in more retaliation. Id. This is similar to Hill's
argument here. (See Tr. at 160-61.) The Third Circuit held in
McEachin that "[t]he extraordinary circumstances that would be needed to justify equitable tolling"
were not present in that case. McEachin, 136 Fed. Appx. At 535.
Likewise, even if the mandatory exhaustion provision of
42 U.S.C. § 1997e were subject to waiver, this case presents no
"extraordinary circumstances" justifying such a ruling. Hill's
waiver argument must fail.
Because Hill has not exhausted his administrative remedies as
required by the PLRA, his complaint and motion for a preliminary
injunction will be dismissed.
B. The plaintiff's motion for a preliminary injunction would
Even had Hill exhausted his administrative remedies, we would
deny his motion for a preliminary injunction.
"Preliminary injunctive relief is `an extraordinary remedy' and
`should be granted only in limited circumstances.'" KOS
Pharmaceuticals, Inc., 369 F.3d at 708 (quoting American Tel. &
Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1427
(3d Cir. 1994)). The party seeking a preliminary injunction must
show (1) a likelihood of success on the merits; (2) that he will
suffer irreparable harm if the injunction is denied; (3) that
granting preliminary relief will not result in even greater harm
to the nonmoving party; and (4) that the public interest favors
such relief. KOS Pharmaceuticals, 369 F.3d at 708 (citing
Allegheny Energy, Inc. v. DQE, Inc., 171 F.3d 153, 158 (3d Cir.
1999)). It is the movant who bears the burden of establishing a right to injunctive relief. Times
Mirror Magazines, Inc. v. Las Vegas Sports News, L.L.C.,
212 F.3d 157, 161 (3d Cir. 2000).
We analyze each of the four factors in turn and conclude that
Hill is not entitled to a preliminary injunction.
1. Hill has not demonstrated a likelihood of success on the
As mentioned above, Hill's claims can be grouped into four
categories: physical abuse, indifference to medical complaints,
lack of access to the legal system, and prison conditions in
general. On none of these issues has Hill demonstrated a
likelihood of success on the merits.
Physical abuse. Hill has claimed that Correctional Officer
Robey assaulted him in the G-Block stairwell on at least two
occasions.*fn6 C.O. Robey denies having ever assaulted Hill.
(Tr. at 111-12.) The only evidence suggesting that Hill was
assaulted is Hill's own testimony and the affidavit of one of
Hill's fellow inmates, who claims to have heard Hill "call
screaming for help and to stop one day coming back from
recreation." (Rec. Doc. 14, Ex. A.) No physical evidence supports these assertions, however. Hill claims that he suffered
"basically bruises" (Tr. at 21), "basic sore ribs" (Tr. at 32),
and was "just sore" (Tr. at 21) as a result of the alleged
assaults by C.O. Robey. Despite acknowledging that the
physician's assistant makes rounds every day (Tr. at 21), Hill
admitted on cross-examination that he never complained to the
physician's assistant about being assaulted. (Tr. at 30-31). Mr.
Alama, the physician's assistant who makes daily rounds in
G-Block, testified that Hill never complained of any pains or
bruises. (Tr. at 149.) Mr. Alama also testified that in his
physical examinations of Hill, he never encountered anything
indicating that Hill had been assaulted. (Id.) Furthermore, all
of the defendants who had contact with Hill testified that Hill
never mentioned being assaulted by C.O. Robey.
Hill has presented nothing to corroborate his claim that C.O.
Robey assaulted him in the G-Block stairwell and has not shown
that he is likely to succeed on the merits of such a claim.
Deliberate indifference to medical complaints. Hill also
claims that he has been denied essential asthma medication. The
Supreme Court has established that "deliberate indifference to
serious medical needs of prisoners constitutes the `unnecessary
and wanton infliction of pain' proscribed by the Eighth
Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976). For
Hill's medical claim to succeed, he must demonstrate (1) that the defendants were deliberately
indifferent to his medical needs, and (2) that those needs were
serious. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999) (citing Estelle, 429 U.S. at 104). While we acknowledge
that asthma can be a severe affliction, Hill has not shown that
the staff of Lewisburg was deliberately indifferent to his
Although there may have been a delay in securing the requested
medication in the requested doses, Joseph Zagame, III, Assistant
Health Services Administrator for USP Lewisburg, testified that
Hill was in possession of the "appropriate" medications for his
condition. (Tr. at 129.) Zagame also testified that should Hill
suffer a full-blown asthma attack, USP Lewisburg provides
"24-hour coverage with paramedics and physicians" who "can handle
[that] sort of emergency." (Id.) Indeed, when Hill had what he
called a "semi-asthma attack" (Tr. at 19), an unidentified
medical staffer brought a nebulizer machine to Hill's cell to
give him a breathing treatment. (Tr. at 153-54.)
Hill was also examined on a number of occasions by Physician's
Assistant Ferdinand Alama, and each time Alama reported that Hill
was in good health, despite once noting a "faint expiratory
wheezing in the right lung." (Def. Ex. 4, at6.)
Hill claims that, on the day of the hearing, he had completely
run out of medications and had no refills remaining. (Tr. at 35.) The
defendants disputed that claim, pointing to the asthma inhaler
Mr. Hill had with him in the courtroom. (Tr. 129-30.) Hill was
scheduled for an appointment to meet with a facility physician
the day after the preliminary injunction hearing.*fn7
Hill has not shown that the named defendants, or anyone else at
USP Lewisburg, have been deliberately indifferent to his claimed
serious medical needs. "`Deliberate indifference' . . . requires
`obduracy and wantonness,' which has been likened to conduct that
includes recklessness or a conscious disregard of a serious
risk." Rouse, 182 F.3d at 197 (quoting Whitley v. Albers,
475 U.S. 312, 319 (1986)). The Third Circuit has recognized that
certain conduct rises to the level of "deliberate indifference,"
including where a prison official (1) knows of the prisoner's
need for medical treatment but intentionally refuses to provide
it; (2) delays necessary medical treatment based on a non-medical
reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment. Rouse, 182 F.3d at 197 (citing
Durmer v. O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993) (citing
Monmouth County Correctional Inst. Inmates v. Lanzaro,
834 F.2d 326, 346-47 (3d Cir. 1987))). Hill has been seen on a number of occasions by
qualified medical staff at the prison, and has received adequate
medicines for his condition. While the medical care that Hill
receives at USP Lewisburg may not be everything that he desires,
none of the defendants has acted with deliberate indifference to
Hill's asthmatic condition.
Lack of access to the legal system. Prisoners have a
fundamental constitutional right of access to the courts. Bounds
v. Smith, 430 U.S. 817, 821 (1977) (Marshall, J.). This access
must be meaningful. See Lewis v. Casey, 518 U.S. 343, 351
(1996) (citing Bounds, 430 U.S. at 823). To succeed on a claim
that he has been denied meaningful access to the courts, Hill
must demonstrate that such denial has "hindered his access to
pursue a legal claim." Id.
Although Hill stated that he is involved in numerous pending
litigations including the criminal case that initiated his
federal custody Hill testified that he has not missed any
deadlines or court orders since his transfer to USP Lewisburg.
(Tr. at 26-27.) Hill is receiving legal mail from his attorney
(Tr. at 27-28), and Unit Manager Adami attempted to contact
Hill's attorney for him via telephone. (Tr. at 74-75.) Hill has
"five legal books and 12 inches" of legal papers in his cell (Tr.
at 14-15), and is allowed to exchange those 12 inches upon
request (Tr. at 90). Hill has obviously been afforded the opportunity to file the present
suit with this court.
The testimony does not show that Hill's ability to pursue
either his criminal representation or his civil suits has been
hindered. He is not likely to succeed on the merits of such a
Prison conditions, generally. Hill has complained about the
conditions of his confinement, including "excessive roaches &
mice in these cells" (Rec. Doc. 1, at 5), inadequate ventilation,
and high temperatures (Rec. Doc. 4-1, at 2). Hill has also
complained about the absence of cameras from the G-Block
stairwell (Rec. Doc. 4-1, at 2), and the failure of prison staff
to wear name tags (Rec. Doc. 4-1, at 1). Finally, Hill complains
that he was provided with substandard clothing upon arrival at
USP Lewisburg*fn8 (Rec. Doc. 1, at 3), and that C.O. Robey
steals his underwear (Rec. Doc. 1, at 4).
"A prison official may be held liable under the Eighth
Amendment for denying humane conditions of confinement only if he
knows that inmates face a substantial risk of serious harm and
disregards that risk by failing to take reasonable measures to
abate it." Farmer v. Brennan, 511 U.S. 825, 847 (1970).
"Whether one puts it in terms of duty or deliberate indifference, prison
officials who act reasonably cannot be found liable under the
Cruel and Unusual Punishments Clause." Id. at 845.
Warden Smith testified that the majority of USP Lewisburg does
not have climate control, as he lacks the economic resources to
install air conditioners throughout the institution. (Tr. at 45.)
Lieutenant Hooper, who is responsible for the daily routines of
G-Block, testified that in "the hottest summer that's ever been
recorded in central Pennsylvania, I'm sure it's very hot and
clammy in one of those cells." (Tr. at 103.)
Among other things, Lieutenant Hooper is responsible for
ensuring that inmates receive proper clothing in G-Block. (Tr. at
93-94.) Hooper testified that all inmates receive two jump suits,
two towels, three pair of underwear, three socks, and three
T-shirts upon arrival in G-Block. (Tr. At 98.) Hooper testified
that Hill "never" complained about the condition of his clothing.
(Tr. at 99.) Hooper also testified that Hill "never" complained
about the condition of his cell, but he did admit that "in a
facility that's 77 years old, there could be a mouse in there,"
and that "there probably could be" cockroaches in the cells. (Tr.
These "admittedly uncomfortable conditions . . . do not, by
themselves, articulate a situation that could be fairly characterized as
cruel and unusual punishment." Veteto v. Miller,
829 F. Supp. 1486, 1496 (M.D. Pa. 1992) (Conaboy, J.) As the Supreme Court
stated in Rhodes v. Chapman, 452 U.S. 337, 339 (1981), "the
Constitution does not mandate comfortable prisons, and prisons . . .
which house persons convicted of serious crimes, cannot be
free of discomfort." "To the extent that such conditions are
restrictive and even harsh, they are part of the penalty that
criminal offenders pay for their offenses against society." Id.
at 347. Economic constraints prevent the Warden or the Bureau of
Prisons from installing climate control in every cell. The
presence of mice and cockroaches does not appear to present a
health hazard in this case. Although Hill suffers discomfort
while incarcerated at USP Lewisburg, it cannot be said that he
faces a "substantial risk of serious harm" that has been
disregarded by prison officials. See Farmer, 511 U.S. at 847.
Hill has requested that the court order the defendants to
install cameras in the G-Block stairwell to prevent assaults in
that location. The court received the in camera and sealed
testimony of Warden Smith and is satisfied that the prison is
using its limited resources appropriately and that adequate
measures have been taken to safeguard the well-being of inmates
and the integrity of prison staff. Hill has also complained that prison staff do not wear name
tags. We heard testimony from the Warden and Lieutenant Hooper
that name tags often break or are dislodged during the normal
course of the day at USP Lewisburg. (See, e.g., Tr. at 45-46,
108.) While we have been unable to locate any Bureau of Prisons
policy mandating that prison staff wear name tags or badges at
all times, we note that it would be sound correctional practice
for officers to wear identification when practicable.
2. Hill has not shown that he will suffer irreparable harm if
his request for a preliminary injunction is denied.
Among the four factors evaluated on a motion for preliminary
injunction, the Third Circuit has "emphasized the elementary
principle that a preliminary injunction shall not issue except
under a showing of irreparable injury." Times Mirror Magazines,
Inc., 212 F.3d at 161 (citing A.O. Smith Corp. v. FTC,
530 F.2d 515, 525 (3d Cir. 1976)). "[M]ore than a mere risk of
irreparable harm must be demonstrated" before the court will
grant a motion for preliminary injunction. Continental Group,
Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980)
The movant must make a "clear showing of immediate irreparable
injury," id. (quoting Ammond v. McGahn, 535 F.2d 325, 329 (3d
Cir. 1976), or a "presently existing actual threat; an injunction may not be used simply to
eliminate a possibility of a remote future injury, or a future
invasion of rights," id. (quoting Holiday Inns of America,
Inc. v. B & B Corp., 409 F.2d 614, 618 (3d Cir. 1969)). "The
relevant inquiry is whether the movant is in danger of suffering
irreparable harm at the time the preliminary injunction is to be
issued." SI Handling Systems, Inc. v. Heisley, 753 F.2d 1244,
1264 (3d Cir. 1985). The court will not grant preliminary
injunctive relief unless "[t]he preliminary injunction [is] the
only way of protecting the plaintiff from harm." Instant Air
Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d
We find that Hill will not be irreparably harmed by our denial
of his motion for preliminary injunction. Hill has not shown a
"presently existing actual threat" that he will be assaulted or
refused medical care in the future. The evidence indicates that
Hill has access to the courts and the mail, and is permitted to
exchange the limited amount of legal materials he maintains in
his cell.*fn9 3. The granting of preliminary injunctive relief would result
in greater harm to the Government.
Hill has requested that we order the defendants to, inter
alia, ventilate his cell, wear name tags, install video cameras
in stairwells, and professionally sanitize the cells to expel
pests. Hill is incarcerated in a federal penitentiary with
limited financial means. Ordering the defendants to undertake
these actions will result in unnecessary expenditures that are
unwarranted by the complaint.
4. The public interest does not favor the issuance of a
preliminary injunction in this case.
The public interest is served by housing inmates in a safe and
adequate manner. The public also has an interest in the way
public funds are used in the prison system. The public interest
does not favor the issuance of a preliminary injunction in this
CONCLUSION: Based on the foregoing, Hill's complaint and motion for a
preliminary injunction are dismissed for failure to exhaust
administrative remedies. Even had Hill exhausted his
administrative remedies, we would have denied his motion for a
preliminary injunction. ORDER
For the reasons set forth in the accompanying memorandum, IT IS HEREBY ORDERED THAT:
1. The plaintiff's motion for preliminary injunction
is DENIED. (Rec. Doc. No. 3.)
2. The plaintiff's complaint is DISMISSED for failure
to exhaust administrative remedies. (Rec. Doc. No.
© 1992-2005 VersusLaw Inc.