The opinion of the court was delivered by: Judge Conaboy
This pro se civil rights action was initiated by Leonard Wilkins, an inmate presently confined at the Federal Correctional Institution, Otisville, New York (FCI-Otisville). Service of the complaint was previously ordered.
Named as Defendants are the following officials at the Plaintiff's prior place of incarceration, the Allenwood Federal Correctional Institution, White Deer, Pennsylvania (FCIAllenwood): Disciplinary Hearing Officers (DHO) Kevin Bittenbender and Al Farley; Correctional Officers Nathaniel Carper and Jesse Henninger; Warden S.A. Yates; Counselor Viola Hursh; Lieutenants Lamar Shepard and Jim Lyons; Associate Warden Joe Dubascus; UNICOR Factory Foremen Steve Tafelski*fn1 and Kathy Cool; Legal Advisor Joseph McCluskey; and Case Manager Brandyn Cozza-Kozicki. The Plaintiff is also proceeding against seven (7) John Doe Defendants who are described as being prison mail room employees.
Plaintiff states that during August, 2000, the UNICOR smoking room at FCI-Allenwood was converted into a smoking room/laundry room. The purpose of the conversion was to permit in house laundering of dirty rags and clothing from the UNICOR staining operation. Wilkins indicates that this new operation was not properly authorized and its existence was withheld from UNICOR supervisory officials. During August, 2000, Wilkins began working full time in the smoking/laundry room. According to the complaint, Factory Foreman Tafelski informed the Plaintiff that if he "could make this laundry venture successful," he would be given a pay grade increase. Doc. 1, ¶ 20.
Plaintiff indicates that he subsequently informed Tafelski that the ventilation in the smoking/laundry room was inadequate due to the large amount of cigarette smoke. Although Defendant Tafelski eventually installed an ineffective twelve inch (12") wall fan eighteen (18) months later, the ventilation was never altered nor was the smoking room relocated.
On or about October 29, 2002, Plaintiff sent a request slip to Foreman Cool informing her of the pay grade agreement between he and Tafelski (who was out of work for health reasons). Cool informed Plaintiff that his job position was not entitled to the requested increased pay grade. The Defendant also purportedly subjected Wilkins to verbal harassment including a threat of a pay demotion. Plaintiff adds that during this same time period, Cool gave the same pay grade increase that he was requesting to another prisoner having the same job title.
Wilkins then sought immediate relief from Factory Manager Brannon McGrady, who denied relief on the basis that "it was up to Cool to grant plaintiff a promotion." Id. at ¶ 25. Within the next month, Counselor Hursh allegedly refused to accept two (2) separate grievances submitted by Plaintiff regarding the denial of the pay increase and his exposure to second hand smoke.*fn2
Plaintiff next asserts that he submitted a request to the prison's Health Services Department on December 10, 2002, asking to be tested for adverse effects from working in an environment where he was subjected to second hand smoke. A John Doe member of the Health Services staff allegedly forwarded Wilkins' request to Manager McGrady, who threatened the prisoner with job termination or pay reduction unless he withdrew his request for medical testing. Due to his failure to withdraw the request, Plaintiff contends that he was reassigned to another prison job.
After seeking administrative relief from Case Manager Dewart on December 17, 2002, Plaintiff contends that he became a target for harassment. The complaint proceeds to set forth a variety of retaliatory actions allegedly undertaken by prison officials against Wilkins including: loss of the Plaintiff's work locker and chair; daily cell searches by Defendant Henninger for a period of approximately four (4) weeks (December 10, 2002 to January 5, 2003); verbal threats; being falsely labeled as an informant; having the water and electricity shut off to his cell; various incidents of confiscation of personal legal materials; interference with both incoming and outgoing legal mail; baseless disciplinary charges*fn3 ; excessive disciplinary sanctions by DHOs Bittenbender and Farley; wrongful placement on refusal status with respect to the Inmate Financial Responsibility program by Defendant Cozza-Kozicki; unwarranted limitations placed on submission of institutional grievances; denial of inmate grievance forms; improper placement in the prison's Special Housing Unit (SHU); loss of institutional employment. Plaintiff seeks injunctive and declaratory relief as well as compensatory and punitive damages.
Defendants have filed a motion to dismiss or in the alternative, for summary judgment. See Doc. 21. The motion has been briefed and is ripe for consideration.
Defendants claim entitlement to entry of dismissal or in the alternative summary judgment on the grounds that: (1) Wilkins failed to exhaust his available administrative remedies; (2) he has not proved any physical injuries and cannot recover damages for mental anguish; (3) Wilkins' request for injunctive relief are moot; (4) the allegations against DHOs Bittenbender and Farley are subject to dismissal for lack of subject matter jurisdiction and (5) the numerous claims of misconduct cited set forth in the complaint do not rise to the level of a constitutional violation.
Defendants' motion is accompanied by evidentiary materials [documents] outside the pleadings which are relevant for purposes of both determining the issue of administrative exhaustion as well as their alternative arguments. Rule 12(b) provides in part as follows:
If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56. Fed. R. Civ. P. 12(b). The Court will not exclude the evidentiary materials [documents] accompanying Defendants' motion. Thus, their motion will be treated as solely seeking summary judgment. Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a)...."
The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The moving party can discharge that burden by "'showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden, the nonmoving party must present "affirmative evidence" to defeat the motion, consisting of verified or documented materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment. Id. In evaluating a motion for summary judgment, the entire record must be examined in the light most favorable to the nonmoving party. The parties' pending cross summary judgment motions will be addressed in accordance with the above standards.
Defendants' initial argument maintains that Wilkins has failed to exhaust his available administrative remedies with respect to his: Second Cause of Action (denial of due process with respect to UNICOR job assignment and allegation of being exposed to environmental tobacco smoke): Third Cause of Action (equal protection violation); Fourth Cause of Action (infliction of mental anguish for seeking to redress his grievances); and Fifth Cause of Action (conspiracy for purpose of subjecting Plaintiff to retaliation). Wilkins indicates that exhaustion should be excused because the Defendants prevented or interfered with his submission of institutional grievances.
42 U.S.C. § 1997e(a) provides as follows:
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.
Section 1997e(a) requires administrative exhaustion "irrespective of the forms of relief sought and offered through administrative avenues." Porter v. Nussle, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Claims for monetary relief are not excused from the exhaustion requirement. Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an inmate's claim is appropriate when a prisoner has failed to exhaust his available administrative remedies before bringing a civil rights action. Ahmed v. Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000). "[E]xhaustion must occur prior to filing suit, not while the suit is pending." Tribe v. Harvey, 248 F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)).
An inmate's failure to comply with the administrative exhaustion requirement constitutes an affirmative defense. See e.g., Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 2000), cert. denied, 532 U.S. 1065 (2001); Jenkins v. Haubert, 179 F.3d 19, 29 (2d Cir. 1999); Robinson v. Dalton, 107 F.3d 1018, 1021 (3d Cir. 1997)(holding, in the context of a Title VII case, that failure to exhaust administrative remedies is an affirmative defense). Consequently, 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). Rather, it is the burden of a defendant asserting the defense to plead and prove it. Id.; Williams v. Runyon,130 F.3d 568, 573 (3d Cir. 1997); Charpentier v. Godsil, 937 F.2d 859 (3d Cir. 1991); Fed. R. Civ. P. 8(c).
The BOP has established a multi-tier Administrative Remedy Program whereby a federal prisoner may seek review of any aspect of his imprisonment.*fn4 See 28 C.F.R. §§ 542.10-542.19 (1998). "This program applies to all inmates confined in institutions operated by the Bureau of Prisons, to inmates designated to Community Corrections Centers (CCCs) under Bureau of Prisons' responsibility, and to former inmates for issues that arose during their confinement but does not apply to inmates confined in other non-federal facilities." Id. at § 542.10.
The program provides that, with certain exceptions, "... 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."*fn5 Id. at § 542.13(a). Next, if informal resolution fails, the inmate must submit "a formal written Administrative Remedy Request, on the appropriate form (BP-9)," within 20 "calendar days following the date on which the basis for the Request occurred." Id. at § 542.14(a). If a valid reason for delay is given, an extension of the filing time may be granted. Id. at 542.14(b). The Warden has 20 calendar days from the date the Request or Appeal is filed in which to respond. Id. at § 542.18.
If not satisfied with the Warden's response, an inmate may appeal on the appropriate form (BP-10) to the Regional Director within 20 calendar days of the date the Warden signed the response. Id. at § 542.15. Finally, if the inmate is dissatisfied with the Regional Director's response, that decision may then be appealed on the appropriate form (BP-11) to the General Counsel within 30 calendar days from the date the Regional Director signed the response. Id. "When the inmate demonstrates a valid reason for delay, these time limits may be extended." Id. The Regional Director has 30 calendar days to respond and the General Counsel has 40 calendar days in which to respond. Id. at § 542.18.
The response time provided for at each level may be extended in writing "once by 20 days at the institution level, 30 days at the regional level, or 20 days at the Central Office level." Id. Additionally, "[i]f the inmate does not receive a response within the time allotted for reply, including extension, the inmate may consider the absence of a response to be a denial at that level." Id.
In support of their argument, Defendants have submitted a declaration under penalty of perjury by the BOP's Assistant General Counsel Douglas S. Goldring, Esq. Attorney Goldring states that based on a review of the BOP's computerized records, Plaintiff has initiated a total of one hundred and sixteen (116) requests for administrative relief. See Doc. 31, Exhibit 1, ¶ 11. According to Goldring, grievances regarding thirteen (13) issues were administratively exhausted.
A review of the record, particularly the opposing brief and accompanying exhibits submitted by Wilkins, shows that there are issues of material fact in dispute as to whether the Plaintiff's purportedly unexhausted claims should be dismissed for non-exhaustion. Wilkins has set forth facts which could provide a proper basis as to why he should be excused from the exhaustion requirement. Accordingly, the Defendants' request for summary judgment on the basis of non-exhaustion with respect to said claims will be denied.
Defendants' second argument notes that Wilkins' First and Fourth Causes of Action allege that he suffered mental anguish as a result of the Defendants' alleged harassment. They note that since Plaintiff does not alleges that he suffered any physical injury, his complaint to the extent that it seeks to recover for emotional injury is barred under 42 U.S.C. § 1997e(e). In his opposing brief, Plaintiff acknowledges "that he cannot show physical injuries." Doc. 42, p. 7.
Section 1997e(e) provides that "[n]o federal civil action may be brought by a prisoner confined in a jail, prison or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." In Allah v. Al-Hafeez, 226 F.3d 247,250 (3d Cir. 2000), the United States Court of Appeals for the Third Circuit recognized that where a plaintiff fails to allege actual injury, Section 1997e(e) bars recovery of compensatory damages. However, the Court added that an inmate alleging a violation of his constitutional rights may still pursue the action to recover nominal and/or punitive damages even in the absence of compensable harm.
Under the standards announced in Allah, Wilkins' civil rights claims which clearly assert violation of his constitutional rights and seek both compensatory and punitive damages are not barred by Section 1997e(e) to the extent that they seek non-compensatory damages. See Ostrander v. Horn, 145 F. Supp. 2d 614, 618 (M.D. Pa. 2001).*fn6 Verbal Harrassment Incorporated in their § 1997e(e) argument is the Defendants' claim that Plaintiff's assertions regarding use of inappropriate language do not rise to the level of a constitutional violation. See Doc. 30, p. 14.
It has been held that the use of words generally cannot constitute an assault actionable under § 1983. Johnson v. Glick, 481 F.2d 1028, 1033 n.7 (2d Cir.), cert. denied, 414 U.S. 1033 (1973); Maclean v. Secor, 876 F. Supp. 695, 698-99 (E.D. Pa. 1995); Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993) ("Mean harassment . . . is insufficient to state a constitutional deprivation."); Prisoners' Legal Ass'n v. Roberson, 822 F. Supp. 185, 189 (D.N.J. 1993) ("[V]erbal harassment does not give rise to a constitutional violation enforceable under § 1983."); and Jones v. Superintendent, 370 F. Supp. 488, 491 (W.D. Va. 1974).
Mere threatening language and gestures of a custodial officer do not, even if true, amount to constitutional violations. Fisher v. Woodson, 373 F. Supp. 970, 973 (E.D. Va. 1973); see also Balliet v. Whitmire, 626 F. Supp. 219, 228-29 (M.D. Pa.) ("[v]erbal abuse is not a civil rights violation . . ."), aff'd, 800 F.2d 1130 (3d Cir. 1986) (Mem.).
Further, it has also been held that a constitutional claim based only on verbal threats will fail regardless of whether it is asserted under the Eighth Amendment's cruel and unusual punishment clause, see Prisoners' Legal Ass'n, 822 F. Supp. at 189, or under the Fifth Amendment's substantive due process clause, see Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir.), cert. denied, 502 U.S. 879 (1991).
Verbal harassment or threats, with some reinforcing act accompanying them, however, may state a constitutional claim. For example, a viable claim has been found if some action taken by the defendant escalated the threat beyond mere words. See Northington v. Jackson, 973 F.2d 1518 (10th Cir. 1992) (guard put a revolver to the inmate's head and threatened to shoot); Douglas v. Marino, 684 F. Supp. 395 (D.N.J. 1988) (involving a prison employee who threatened an inmate with a knife). It has also been found that verbal harassment can rise to a constitutional level in a situation where fulfillment of the threat was conditioned on the inmate's exercising some constitutionally protected right. Bieros v. Nicola, 860 F. Supp. 226, 233 (E.D. Pa. 1994); see also Prisoners' Legal Ass'n, 822 F. Supp at 189; Murray, 809 F. Supp. at 384.
Wilkins has not alleged that the purported verbal harassment was accompanied by the type of reinforcing physical act contemplated under Northington and Douglas. Likewise, since Wilkins did not suffer a change or denial of a constitutionally protected right or status, his allegations of verbal abuse and threats do not rise to the level of a viable civil rights claim.
It is next argued that the Plaintiff's transfer to FCIOtisville, which occurred prior to the initiation of this action, renders his claims for prospective relief (restoration of his pay grade and longevity) moot. Plaintiff's opposing brief asserts that he is still suffering adverse effects after his ...