The opinion of the court was delivered by: Judge Conner
Robert Panton ("Panton"), an inmate confined at the United States Penitentiary at Allenwood, who originally commenced this Bivens*fn1 action on April 19, 2006, is proceeding via an amended complaint filed on September 25, 2006. (Doc. 27). Presently before the court is a motion (Doc. 28) to dismiss plaintiff's amended complaint pursuant to FED. R. CIV. P. 12(b), or, in the alternative, for summary judgment pursuant to FED. R. CIV. P. 56(b). Also pending is plaintiff's motion for "injunctive release to be removed from USP Allenwood." (Doc. 42). For the reasons set forth below, the motion for summary judgment will be granted due to Panton's failure to exhaust his administrative remedies. The motion for injunctive relief will be denied as moot.
Panton commenced this action on April 19, 2006, naming Matlack, and others, as defendants. (Doc. 1). He amended the complaint on September 25, 2006, naming Matlack as the sole defendant, and alleging the following:
On or about June 30, 2006[,] defendant Matlack falsified a[n] incident report against me and had me locked up for approximately 45 days, and incited co-defendants to deny me my religious meal, medical bottom bunk permit, regular contact visits, phone, and 26 days good time, by unindicted coconspirator DHO Cereny. (Doc. 27, pp. 2-3). As relief, Panton seeks compensatory and punitive damages, and injunctive relief. (Doc. 27, p. 3).
On June 29, 2006, defendant Matlack wrote incident report 1484432 charging Panton with four prohibited acts: (1) refusing an order, in violation of Code 307; (2) insolence toward a staff member, in violation of Code 312; (3) interfering with a staff member in the performance of his duties, in violation of Code 398; and, (4) encouraging a group demonstration, in violation of Code 212. (Doc. 30-2, p. 6). A disciplinary hearing was held and he was found guilty of Code violations 307 and 312 and was sanctioned to disciplinary segregation, loss of good conduct time and loss of telephone privileges. (Id. 30-2, pp. 10, 11). The other charges were expunged. (Id. at p. 10).
An inmate may challenge any aspect of his or her confinement using the Bureau of Prison's ("BOP") administrative remedy procedure, which is set forth at 28 C.F.R. §§ 542 et seq. Complaints must first be informally presented to staff, and staff shall attempt to resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. § 542.13(a). If unsuccessful at informal resolution, the inmate may raise his complaint with the warden of the institution where he is confined. Id. at §542.14(a). If dissatisfied with the response, he may then appeal an adverse decision to the Regional Office and the Central Office of the BOP. Id. at §§542.15(a) and 542.18. No administrative appeal is considered finally exhausted until a decision is reached on the merits by the BOP's Central Office.
On August 7, 2006, Panton filed grievance number 423007 with the warden, complaining that defendant Matlack wrote incident report 1488432 for retaliatory reasons. Because the grievance was considered a challenge to the disciplinary proceedings, and such a grievance must be filed at the regional level, the grievance was rejected and Panton was directed to re-file it with the Regional Office. (Doc. 30-2, p. 55; Doc. 36-2, p. 3). Panton believed that this grievance was properly filed because it involved retaliation, not a challenge to the disciplinary hearing. However, he did not appeal this finding to the next level of review. (Doc. 35, p. 2).
Two days later, Panton filed grievance 423007-R1 with the Regional Office challenging the validity of the sanctions imposed at the disciplinary hearing. (Id. at p. 58). On August 10, 2006, the grievance was denied on the merits. (Id. at p. 59). He did not pursue an appeal to the Central Office because "the sanctions all would have been served by the time the response came." (Doc. 35, p. 4).
On September 1, 2006, he filed administrative remedy request number 425999-F1, complaining that staff was retaliating against him and harassing him for having filed a civil suit against them. (Doc. 30-2, p. 63). He claims that staff was retaliating against him for having sued Matlack and the others. Id. The warden denied his request on the merits September 19, 2006. (Doc. 30-2, p. 61). He did not pursue an appeal.
"Summary judgment serves as a minimal but important hurdle for litigants to overcome before presenting a claim to a jury." Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 314 (M.D. Pa. 2004). Faced with such a motion, the adverse party must produce affirmative evidence, beyond the disputed allegations of the pleadings, in support of the claim. FED. R. CIV. P. 56(e); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Corneal v. Jackson Township, 313 F. Supp. 2d 457, 464 (M.D. Pa. 2003), aff'd, 94 Fed. Appx. 76 (3d Cir. 2004). "Such affirmative evidence--regardless of whether it is direct or circumstantial--must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989). Only if this burden is met can the cause of action proceed. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see FED. R. CIV. P. 56(c), (e).
The Prison Litigation Reform Act (PLRA) requires prisoners to present their claims through an administrative grievance process before seeking redress in federal ...