The opinion of the court was delivered by: Judge McClure
Presently before the Court is a motion for summary judgment pursuant to Fed. R. Civ. P. 56 filed on behalf of Remaining Defendants Ron Laino and Angel Levi ("Defendants"). (Rec. Doc. No. 119.) For the reasons set forth below, the motion will be granted.
This pro se civil rights action was filed on February 10, 2005 by Plaintiff Lawrence Lombardi ("Plaintiff" or "Lombardi"), an inmate presently confined at the United States Penitentiary at Tuscon ("USP Tuscon") in Tuscon, Arizona. His original Complaint raised Bivens*fn1 claims against four (4) Bureau of Prisons ("BOP") employees employed at the Allenwood United States Penitentiary ("USP Allenwood") in White Deer, Pennsylvania, where Lombardi previously was incarcerated. By Order dated December 11, 2006, Plaintiff's motion for leave to file an amended complaint was granted, and Lombardi's proposed Amended Complaint (Rec. Doc. No. 53) was accepted.
The sole remaining claim of Lombardi's Second Amended Complaint is that Defendants Laino, Health Services Administrator, and Levi, Unit Manager, engaged in retaliatory misconduct which resulted in Lombardi becoming a target of abuse from fellow inmates and ultimately led to his SHU placement and transfer to another institution. (See Rec. Doc. No. 88 at 31-32.)
On April 11, 2008, the instant motion for summary judgment was filed on behalf of Defendants. (Rec. Doc. No. 119.) On April 25, 2008, Defendants filed a supporting brief (Rec. Doc. No. 121), supporting exhibits (Rec. Doc. 121-3), and a statement of material facts (Rec. Doc. No. 122). Following a request for an extension of time, which was granted, on July 1, 2008, Plaintiff filed an opposition brief (Rec. Doc. 127), supporting exhibits (Rec. Doc. No. 129), and a statement of material facts (Rec. Doc. No. 128) responding to Defendants' statement. On July 17, 2008, Defendants filed a reply brief.*fn2 (Rec. Doc. No. 130.) Accordingly, the motion for summary judgment is ripe for consideration.
It is appropriate for a court to grant a motion for summary judgment "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "Material facts" are those which might affect the outcome of the suit. Id.; Justofin v. Metropolitan Life Ins. Co., 372 F.3d 517, 521 (3d Cir. 2004).
A party seeking the entry of summary judgment 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 Corp. v. Catrett, 477 U.S. 317, 325 (1986).
Once the moving party meets its burden of showing an absence of genuine issues of material fact, the nonmoving party must provide some evidence that an issue of material fact remains. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86 (1986). However, the nonmoving party cannot do so merely by offering general denials, vague allegations, or conclusory statements; rather, the party must point to specific evidence in the record that creates a genuine issue as to a material fact. Celotex, 477 U.S. at 324; Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999). In evaluating a motion for summary judgment, the court will draw all reasonable inferences from the evidence in the record in favor of the nonmoving party. Am. Flint Glass Workers Union v. Beaumont Glass Co., 62 F.3d 574, 578 (3d Cir. 1995).
A. Facts Relating to Sole Remaining Claim of Retaliation
Lombardi initially arrived at USP Allenwood on October 25, 2000. (Rec. Doc. No. 122, Defendants' statement of material facts, ¶ 2.) He was transferred to the United States Penitentiary at Lewisburg ("USP Lewisburg") in Lewisburg, Pennsylvania, on November 17, 2004. (Id. ¶ 3.) Lombardi's allegations in his Amended Complaint (Rec. Doc. No. 53), as set forth in Defendants' statement of material facts, are as follows:
From August 2003 through October 2004, while he was an inmate at USP Allenwood, Lombardi suffered from and was treated for a rash on his body. (Id. ¶ 4.) Beginning in August 2003, a large number of inmates at USP Allenwood began to experience a similar type of body rash. (Id. ¶ 5.) On October 12, 2004, Unit 1B, the housing unit to which Lombardi was assigned, was "locked down" from the rest of the general population so that inmates in that unit could be treated for what was suspected to be an outbreak of scabies. (Id. ¶ 6.) On the same day, Lombardi was removed from Unit 1B and escorted to the prison hospital, where he received treatment for scabies. (Id. ¶ 7.)
On October 13, 2004, Lombardi was returned to Unit B1; however, he was then placed in the SHU by Defendant Levi. (Id. ¶ 8.) Initially, Levi told him that he was not coming back into her unit because she had enough problems right now, but later she told him that he was placed in the SHU because of a lack of bed space. (Id. ¶¶ 9, 10.) Two days later, Levi told Lombardi that "although an inmate who had been transferred back in July had scabies the unit's perception is different." (Id. ¶ 11.) In response to a request to staff, he was told that "staff received information in reference to your safety." (Id. ¶ 12.)
On November 12, 2004, Levi told Lombardi that the warden was "shipping his ass out," and stated that Lombardi "was a pain in the ass." (Id. ¶ 13.) Lombardi remained in the SHU until he was transferred to USP Lewisburg on November 17, 2004. (Id. ¶ 14.) In his Amended Complaint, he claims that these actions represented "a pattern of events demonstrating intentional retaliation against [him] for filing inmate grievances and for contacting and involving 'outside agencies' such as Senator Santorum and Mr. Lappin." (Id. ¶ 15.)
B. Facts Regarding the Treatment Prescribed for Scabies Outbreak at USP Allenwood
The treatment that Lombardi and his fellow inmates were to receive on October 12, 2004 consisted of the application of Permethrin cream over the whole body and maintenance of that cream on the body overnight. (Id. ¶ 16.) Lombardi had been prescribed this same treatment on July 23, 2004 following a diagnosis of eczema. (See Rec. Doc. No. 121-3 at 55, 7/23/04 Telemedicine consultation.) However, during an October 6, 2004 follow-up appointment for his skin condition, Lombardi reported that he could not tolerate the July 23 treatment and washed the Permethrin cream off of his body after only five (5) minutes. (See id. at 53, 10/6/04 Telemedicine consultation.) Because Lombardi failed to comply with the instructions to keep the Permethrin cream on his body for the prescribed time in July 2004, he was removed to the prison infirmary to undergo the treatment on October 12, 2004 to ensure his compliance. (Rec. Doc. No. 122 ¶ 19.) Lombardi's previous failure to keep the cream on his body for the prescribed time was determined to be one of the reasons that he became the target of subsequent threats from other inmates, which necessitated his placement in the SHU and eventual transfer to USP Lewisburg. (Id.; Rec. Doc. 121-3 at 57-58, Defendant Levi's Responses to Lombardi's First Set of Interrogatories, Response No. 17.)
II. Exhaustion of Administrative Remedies
Defendants argue that they are entitled to summary judgment because Lombardi failed to exhaust administrative remedies with respect to his single remaining claim. The Court agrees for the reasons set forth below.
Section 1997e(a) of Title 42 of the United States Code provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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." 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). A prisoner must exhaust all available administrative remedies before initiating a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739 (2001). In Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006), the Third Circuit Court of Appeals found that the exhaustion requirement is not satisfied if the inmate files an action in the district court prior to completing the administrative remedy process. See also Ahmed v. Dragovich, 297 F.3d 201, 209 & n.9 (3d Cir. 2002). Failure to exhaust available administrative remedies is an affirmative defense. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). 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).
In disposing of the motion to dismiss or for summary judgment that previously was filed by Defendants and former Defendant Williamson, this Court determined that there still were material facts in dispute as to whether Lombardi should be excused from the exhaustion requirement with respect to his claims of retaliatory placement in the SHU and being subjected to a retaliatory transfer. (See Rec. Doc. No. 88 at 12-13.) This Court based its determination on Lombardi's statement in his declaration that he did not receive a BP-10 form as requested from USP Allenwood Counselor Fisher to enable him to continue the administrative remedy process and was transferred before he had the chance to exhaust his remedies. (See id. (citing Rec. Doc. No. 84 ¶¶ 21-23; 26).)
However, in support of the instant motion, Defendants have submitted new evidence subsequently obtained from Lombardi demonstrating that he has failed to exhaust his administrative remedies as to the sole remaining claim in this case. Defendants' statement of material facts establish the following with respect to Lombardi's filing of administrative remedies. The facts are undisputed except where noted:
On December 19, 2007, Lombardi was deposed by Defendants' counsel. (Rec. Doc. No. 122 ¶ 25.) During the course of the deposition, Lombardi testified that the first time he thought that Defendants had undertaken retaliatory action against him was on October 13, 2004, when he was placed in the SHU. (Id. ¶ 26.) The relevant exchange was as follows:
Q: At what point after you were placed in the SHU did you come to believe or did you reach the conclusion that you were there because of the retaliatory actions of Laino and/or Levi?
A: That would have been commencing on October 13th 2004, when Defendant Levi had me placed in the SHU.
(Id. ¶ 27.) BOP regulations require that an inmate who believes he has been wronged and wishes to exhaust his administrative remedies must first try to resolve a claim of improper treatment informally via a BP-8, and then formally via a BP-9. (Id. ¶ 28.) The BP-9 must be filed no later than twenty (20) days after the event about which the inmate complains. (Id. ¶ 29 (citing 28 C.F.R. § 542.14).) Absent a request for an extension, Lombardi was required to file any administrative claim regarding alleged retaliation by November 2, 2004, which ...