United States District Court, M.D. Pennsylvania
November 21, 2005.
MARIAH RIVERS, Plaintiff,
SGT WIRT, ET AL., Defendants.
The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
Plaintiff Mariah Rivers, an inmate formerly confined at the
Camp Hill State Correctional Institution ("SCI-Camp Hill"), Camp
Hill, Pennsylvania,*fn1 proceeding pro se, filed this
action pursuant to 42 U.S.C. § 1983, claiming he lost his job,
was sent to the Restricted Housing Unit ("RHU"), and transferred
to SCI-Huntingdon in retaliation for his filing of an
institutional grievance. He also claims defendants allowed other
inmates to take, or gave other inmates, his personal property
while he was housed in the RHU. Named as defendants are the
following SCI-Camp Hill employees: Sgt. Wirt, David Hoover, John
Horner, Stephen Matusheski, and Donald Kelchner. On April 4, 2004, Defendants filed a Motion to Dismiss based,
in part, on Rivers' alleged failure to properly exhaust
administrative remedies. After being granted additional time to
oppose the dispositive motion, Rivers filed "Plaintiff Reply
Brief in Support of Motion to Challenge or Quash Defendants'
Motion to Dismiss," (Dkt. Entry 25), which will be treated as his
response to defendants' motion. Included with his opposition
materials is a Motion for Appointment of Counsel. (Id. at p.
After careful consideration, defendants' motion will be granted
as it is clear that Rivers failed to properly exhaust available
administrative remedies. Rivers' Motion for Appointment of
Counsel will be denied as moot.
Rivers alleges that while at SCI-Camp Hill, Unit Manager
Matusheski allowed subordinate staff to abuse their authority and
act outside of policy when they purportedly stole his personal
property and then tried to say he loaned it to other inmates
contrary to Department of Corrections ("DOC") regulations. (Dkt.
Entry 1.) Rivers claims he was in the institution's Restricted
Housing Unit ("RHU") when his property was pilfered. Additionally
he claims that in retaliation for filing a grievance against a
non-defendant corrections officer, Sgt. Wirt and Mr. Hoover
removed him from his prison job. (Id.) Mr. Hoover, who is
Rivers' counselor, is also referenced as verbally threatening
Rivers about the grievance and is believed to "have somethin
(sic) to do with" his transfer to another correctional facility
and his placement in the RHU. (Id.)
Under the Prison Litigation Reform Act ("PLRA"), exhaustion of
administrative remedies is required for all actions concerning
prison conditions brought under federal law. See
42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 739 (2001). This
"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 v. Nussle, 534 U.S. 516, 532 (2002). The PLRA
"completely precludes a futility exception to its mandatory
exhaustion requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d
Cir. 2000). The PLRA also "require[s] `proper' exhaustion,
meaning that the inmate must follow the procedural requirements
of the prison grievance system." Lock v. Nash, 2005 WL 2465249,
at *1 (3d. Cir. Oct. 6, 2005) (citing Spruill v. Gillis,
372 F.3d 218, 228-231 (3d Cir. 2004). Failure to substantially comply
with procedural requirements of the applicable prison's grievance
system will result in a procedural default of the claim.
Spruill, 372 F.2d at 227-32. "[I]t is beyond the power of [any]
court . . . to excuse compliance with the exhaustion
requirement." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000)
(quoting Beeson v. Fishkill Corr. Facility,
28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)).
A prisoner does not have to allege in his complaint that he has
exhausted administrative remedies. Ray v. Kertes, 285 F.3d 287
(3d Cir. 2002). Failure to exhaust available administrative remedies is an affirmative defense.
(Id.) As such, the failure to exhaust available administrative
remedies must be pleaded and proven by the Defendants. Brown v.
Croak, 312 F.3d 109, 111 (3d Cir. 2002). Defendants here have
properly raised the question of the failure to exhaust
The Pennsylvania Department of Corrections ("DOC") has an
Inmate Grievance System which permits any inmate to seek review
of problems that may arise during the course of confinement.
37 Pa. Code § 93.9(a) (West 2003); see also www.cor.state.pa.us,
DOC Policies, DC-ADM 804, Inmate Grievance System Policy. After
an attempt to resolve any problems informally, an inmate may
submit a written grievance to the prison Grievance Coordinator
for initial review. An inmate may then appeal an adverse decision
of the Grievance Coordinator to the Superintendent of the
institution, and can finally appeal to the Secretary of the
Department of Corrections Office of Inmate Grievances and
Appeals. See Booth, 206 F.3d at 292 n. 2 (discussing
Pennsylvania's Inmate Grievance System).
The DOC's Administrative Grievance System outlines the
procedural responsibilities of both staff and inmates under the
policy. The policy specifies the form on which a grievance must
be initiated, time frames within which grievances must be
initiated and appealed. The policy also requires inmates
appealing to final review to include "photocopies of the initial
grievance, Initial Review, Initial Review Response, and the
Appeal to the Facility Manager along with the Facility Manager's
decision." (Dkt. Entry 23-3, Exhibit B, Kyler Declaration and DC-ADM 804, Inmate Grievance System Policy, VI,
D, 1, h.) The policy clearly states that an inmate's failure to
comply with these requirements may result in the grievance being
dismissed. The policy, however, is not so rigid that it does not
allow, upon a properly filed request, extensions of time to
comply with any of the mandated time frames, or for a limited
anticipation of monetary funds from an indigent inmates' account
for the purpose of submitting the required photocopies to the
Secretary's Office of Inmate Grievances and Appeals for final
review of an inmate's grievance. See Id., VI, B, 1, c; VI, C,
2, a; and VI, D, c and i.
Defendants assert that Rivers failed to properly exhaust his
available administrative remedies with respect to all claims
raised in this action. Defendants have submitted the unsworn
declaration of Tshanna Kyler, the Grievance Officer in the
Secretary's Office of Grievances and Appeals. (Dkt. Entry 23-3,
Exhibit B, Kyler Declaration.) Ms. Kyler avers that although
Rivers did write to the Office of Inmate Grievances and Appeals,
he failed to accompany his letters with any evidence that he
properly pursued the grievance process at the institutional
level. Specifically, she points out that Plaintiff failed to
submit the required related documentation as outlined in DC-ADM
804. (Id. at ¶ 7.) Ms. Kyler also notes that the letters that
Rivers sent the Secretary's Office of Inmate Grievances and
Appeals did "not amount to a formal inmate grievance in
accordance with DC-ADM 804." (Id. at ¶ 8.)
Rivers does not contest Defendants' representation of the
pertinent facts. (Dkt. Entry 25, Plaintiff Reply Brief in Support
of Motion to Challenge or Quash Defendants' Motion to Dismiss, p. 3.) Rather, he cites the following cases for the
proposition that exhaustion is not required prior to initiating a
§ 1983 action. Wilwording v. Swenson, 404 U.S. 249 (1971); and
Houghton v. Shafer, 392 U.S. 639 (1968). According to Rivers,
these cases establish that "a prisoner does not have to exhaust
his administrative remedies before filing a section 1983 suit."
(Dkt. Entry 25.)
Plaintiff's reliance on these cases is misplaced as they
pre-date enactment of the Prison Litigation Reform Act and its
mandate that prisoners exhaust administrative remedies before
filing a lawsuit. While it is true that a prisoner does not have
to allege in his complaint that he has exhausted administrative
remedies, Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002), the
United States Supreme Court has clearly affirmed the statutory
requirement of exhaustion of administrative remedies prior to
initiation of a federal civil rights action. See Booth v.
Churner, 206 F.3d 289, 300 (3d Cir. 2000). To highlight the
shift of the mandatory nature of the exhaustion of administrative
remedies as a prerequisite to the initiation of litigation by
incarcerated individuals, the Supreme Court in Porter v.
Nussle, 534 U.S. 516, 532 (2002), held that while "[p]risoner
suits alleging constitutional deprivations while incarcerated
once fell within this general rule [of non-exhaustion], . . .
exhaustion in cases covered by § 1997e(a) is now mandatory."
Id. at 523-524.
As noted previously, Rivers does not contest that he failed to
properly exhaust administrative remedies related to any of the
claims asserted in the Complaint. Rivers improperly filed letters to final review without supporting
documentation from the initial two levels of review. Plaintiff's
failure to comply with the procedural requirements of the
Grievance Policy precludes pursuit of this action. Rivers'
Complaint is subject to dismissal in its entirety.*fn2
Defendants have met their burden of showing that Plaintiff
failed to exhaust available administrative remedies before filing
his complaint. Consequently, I will dismiss Plaintiff's action
due to his failure to exhaust administrative remedies. His motion
for appointment of counsel is moot. An appropriate order follows. ORDER
AND NOW, for the reasons set forth in the accompanying
Memorandum, IT IS ORDERED THAT:
1. Defendants' Motion to Dismiss (Dkt. Entry 14) is
2. Rivers' Motion for Appointment of Counsel (Dkt.
Entry 25, p. 4) is DENIED.
3. The Clerk of Court shall mark this matter
4. Any appeal from this Order will be deemed
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