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Baker v. Beard


June 20, 2006


The opinion of the court was delivered by: (Judge Jones)

(Magistrate Judge Smyser)



The plaintiff, Brian N. Baker ("Plaintiff" or "Baker"), a prisoner originally proceeding pro se, commenced this 42 U.S.C. § 1983 ("§ 1983") action by filing a complaint in the United States District Court for the Middle District of Pennsylvania on February 8, 2005.*fn1 (See Rec. Doc. 1). The case was referred to Magistrate Judge J. Andrew Smyser for preliminary review.

On January 26, 2006, the Corrections Defendants*fn2 filed a Motion for Summary Judgment pursuant to Fed.R.Civ.P. 56 ("the Motion"), which has been briefed by the parties. On May 1, 2006, Magistrate Judge Smyser issued a report recommending that the Corrections Defendants' Motion be granted because of Plaintiff's failure to exhaust administrative remedies. (Rep. & Rec. at 1-2). On May 15, 2006, Plaintiff filed objections to the Magistrate Judge's Report and Recommendation, to which the Corrections Defendants replied on June 1, 2006. (Rec. Docs. 109, 112). Plaintiff then filed a reply brief on June 15, 2006. (Rec. Doc. 113).


We initially note that summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." FED .R. CIV. P. 56(c); see also Turner v. ScheringPlough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary judgment bears the burden of showing "there is no genuine issue for trial." Young v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be granted when there is a disagreement about the facts or the proper inferences which a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982).

Initially, the moving party has a burden of demonstrating the absence of a genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986). This may be met by the moving party pointing out to the court that there is an absence of evidence to support an essential element as to which the non-moving party will bear the burden of proof at trial. Id. at 325.

Federal Rule of Civil Procedure 56 provides that, where such a motion is made and properly supported, the non-moving party must then show by affidavits, pleadings, depositions, answers to interrogatories, and admissions on file, that there is a genuine issue for trial. FED. R. CIV. P. 56(e). The United States Supreme Court has commented that this requirement is tantamount to the non-moving party making a sufficient showing as to the essential elements of their case that a reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23.

It is important to note that "the non-moving party cannot rely upon conclusory allegations in its pleadings or in memoranda and briefs to establish a genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511 (3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

Still, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in original). "As to materiality, the substantive law will identify which facts are material." Id. at 248. A dispute is considered to be genuine only if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

When objections are filed to a report of a magistrate judge, we make a de novo determination of those portions of the report or specified proposed findings or recommendations made by the magistrate judge to which there are objections. See United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. § 636(b)(1); Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they treat recommendations of a magistrate judge. See id. Indeed, in providing for a de novo review determination rather than a de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound discretion, chooses to place on a magistrate judge's proposed findings and recommendations. See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).


The Magistrate Judge provided a detailed rendition of the factual background that precipitated Plaintiff's original complaint. Accordingly, to summarize, Plaintiff alleges that the Corrections Defendants conspired against him by placing him in the Special Management Unit ("SMU") in retaliation for his filing of grievances against them, and that he has been denied due process because the conditions in the SMU are more restrictive and less humane than the conditions in the Restricted Housing Unit ("RHU") from which he was transferred. (Rep. & Rec. at 2-4). Plaintiff also alleges that the Corrections Defendants have violated and continue to violate his Eight Amendment rights by manifesting a deliberate indifference to his serious mental health needs. Id. at 2-3. This claim emanates from the fact that Plaintiff allegedly has not received psychological or psychiatric treatment in the SMU, that prescribed medicines were discontinued upon his placement in the SMU, and that his requests for treatment and reinstatement of his medications have been denied. Id. at 2. Finally, Plaintiff alleges that his due process rights were further violated by being placed in the SMU because there are no prescriptive programs available to SMU inmates, parole is automatically denied when prescriptive programs are not completed, prison officials do not recommend parole for any SMU inmate, and because the Pennsylvania Board of Probation and Parole does not consider SMU inmates for parole. Id. at 4.

Corrections Defendants filed a Motion for Summary Judgment regarding these allegations, which was granted by Magistrate Judge Smyser in his Report and Recommendation of May 1, 2006.


As their sole basis for summary judgment, Corrections Defendants contend that the Plaintiff has failed to exhaust available administrative remedies,*fn3 as required by statute.*fn4 Failure to exhaust available administrative remedies is an affirmative defense, Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002), that must be pleaded and proven by the Corrections Defendants, Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Plaintiff avers that Corrections Defendants have waived this affirmative defense by failing to assert it in their answer to the initial complaint. However, the case from which Plaintiff derives this proposition is factually distinguishable from the case sub judice.*fn5

The Third Circuit has traditionally held that the barometer for determining whether a post-answer exhaustion defense can be raised is whether the "opposing party has notice of the defense sufficient to avoid prejudice." Eckhaus v. Conrail, 2003 U.S. Dist. LEXIS 25045, 31 (D.N.J. 2003). While a court may utilize liberal federal pleading standards to permit a defendant to amend his answer to add a previously unpled exhaustion defense, courts have held that raising an affirmative exhaustion defense after proceeding to trial constitutes such prejudice and should not be permitted. Williams v. Runyon, 130 F.3d 568, 574 (3d Cir. 1997); see also Hall v. Operative Plasterers' and Cement Masons' Int'l Ass'n Local Union 143, 188 F. Supp. 2d 1013, 1018 (S.D. Ill. 2001). Corrections Defendants have raised their exhaustion defense at an appropriate point in time since they do so prior to adjudication*fn6 and since the Plaintiff will not suffer any appreciable prejudice if the Corrections Defendants are permitted to utilize this defense.*fn7

Corrections Defendants base their Motion for Summary Judgment upon the above-referenced exhaustion defense. As previously noted, the Motion should be granted if there exist no genuine issues of material fact regarding Plaintiff's exhaustion of remedies. Although the Plaintiff did not exhaust available administrative remedies prior to filing his complaint, he contends that exhaustion occurred subsequent to the filing of his complaint. (Rep & Rec. at 10). However, pursuant to 42 U.S.C. §1997e(a), the Plaintiff is required to exhaust available administrative remedies before filing suit. Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); see Oriakhi v. U.S., 165 Fed. Appx. 991, 993 (3d. Cir. 2006); see Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002); accord Medina-Claudio v. Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002); Neal v. Goord, 267 F.3d 116, 122 (2d. Cir. 2001). Thus, there is no genuine issue of material fact that Plaintiff failed to abide by the guidelines of 42 U.S.C. §1997e(a) by filing suit prior to the exhaustion of available administrative remedies. The Corrections Defendants' Motion for Summary Judgment is therefore granted.


1. Magistrate Judge Smyser's Report and Recommendation (doc. 106) is adopted in its entirety for the reasons cited herein.

2. Defendant's Motion for Summary Judgment (doc. 87) is GRANTED.

3. The Clerk is directed to close the file on this case.

John E. Jones III United States District Judge

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