The opinion of the court was delivered by: Arthur J. Schwab, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff, Miguel Jose Garcia, commenced this action pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983 and Pennsylvania state law against correctional officials and employees at the Pennsylvania State Correctional Institution at Mercer and the Pennsylvania Department of Corrections (DOC) . In his lengthy Complaint, Plaintiff makes claims of cruel and unusual punishment, retaliation, denial of equal protection and due process with respect to Plaintiff's vocational training, denial of state issued soap, denial of legal supplies, denial of automotive certification and denial of clearance for outside employment.
Both parties have submitted motions for summary judgment. Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. Rule Civ. Proc. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986) (party can move for summary judgment by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case."). The moving party bears the initial burden of identifying evidence that demonstrates the absence of a genuine issue of material fact. Once that burden has been met, the non-moving party must set forth specific facts showing that there is a genuine issue for trial or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Fed. Rule Civ. Proc. 56(c). See also Matsushita Elec. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The inquiry, then, involves determining " 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.' " Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990), cert. denied, 501 U.S. 1218 (1991) (quoting Anderson, 477 U.S. at 251-52). If a court concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted. Anderson, 477 U.S. at 249-50.
B. Exhaustion of Administrative Remedies
This Court first must determine which claims, if any, for which Plaintiff fully exhausted his available administrative remedies as required by the Prison Litigation Reform Act (PLRA), Pub. L. No. 104-134, 110 Stat. 1321 (1996). In this regard, in the PLRA, Congress amended the Civil Rights of Institutionalized Persons Act, 42 U.S.C.A. § 1997e, concerning suits by prisoners. Before the amendments, prisoners challenging the conditions of their confinement under 42 U.S.C. § 1983 were not required to exhaust administrative remedies before filing suit. The PLRA amended section 1997e(a), as follows, making exhaustion a mandatory requirement.
(a) Applicability of Administrative Remedies
No 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.
42 U.S.C. § 1997e(a), as amended.
The United States Court of Appeals for the Third Circuit analyzed the applicability of the exhaustion requirement in 42 U.S.C. § 1997e in Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000) (Bivens action brought by a federal inmate) and Booth v. Churner, 206 F.3d 289 (3d Cir. 2000) (civil rights action brought by a state prisoner). In each of these cases, the Court of Appeals announced a bright line rule that inmate-plaintiffs must exhaust all available administrative remedies before they can file an action in federal court concerning prison conditions. In so holding, the court specifically rejected the notion that there is ever a futility exception to section 1997e(a)'s mandatory exhaustion requirement. Booth, 206 F.3d at 300; Nyhuis, 204 F.3d at 66. A unanimous Supreme Court affirmed the Court of Appeals' holding in Booth v. Churner, 532 U.S. 731 (2001) where the Court confirmed that in the PLRA Congress mandated complete exhaustion of administrative remedies, regardless of the relief offered through those administrative procedures. In addition, in Porter v. Nussle, 534 U.S. 516 (2002), the Supreme Court clarified that the PLRA's exhaustion requirement applies to all inmate suits concerning prison life, whether they involve general circumstances or specific episodes and whether they allege excessive force or other conduct.
The administrative grievance procedure for Pennsylvania inmates is codified in the Pennsylvania Department of Corrections Policy Statement No. DC-ADM 804, entitled "Inmate Grievance System." The purpose of the grievance system is to insure that an inmate has an avenue through which resolution of specific problems can be sought. DC-ADM 804 Part II. The grievance system applies to all state correctional institutions and provides three levels of review: 1) initial review by the facility grievance coordinator; 2) appeal of initial review to the superintendent or regional director; and 3) final appeal to the Secretary's Office. DC-ADM 804 Parts V & VI. The administrative policy further provides that, prior to utilizing the grievance system, prisoners are encouraged to attempt to resolve problems on an informal basis through direct contact or by sending an inmate request slip to the appropriate staff member. DC-ADM 804 Part VI.A.4.
A prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after filing a complaint in federal court. Ahmed v. Dragovich 297 F.3d 201, 209 (3d Cir. 2002). Moreover, a Pennsylvania prisoner may procedurally default his claims by failing to comply with the procedural and substantive requirements of DOC's grievance policy as set forth in DC ADM 804 thereby precluding an action in federal court. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). In so holding, the Court of Appeals for the Third Circuit specifically held that failure to specifically name accused individuals in a grievance amounted to procedural default because the regulations so required. The relevant regulations provide as follows.
The inmate will include a statement of the facts relevant to the claim. The text of the grievance must be legible, understandable, and presented in a courteous manner, and the statement of facts shall not exceed two pages (one DC-804, Part 1 and one one-sided 8-1/2" x 11" page). The inmate will identify any person(s) who may have information that could be helpful in resolving the grievance. In Section B of the DC-804, Part 1, the inmate should also include information on attempts to resolve the matter informally. The inmate will also specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law. If the inmate desires compensation or other legal relief normally available from a court, the inmate shall request the specific relief sought in his/her initial grievance.
DC-ADM 804, Part VI.A.7 (January 3, 2005) (emphasis in original).
In Woodford v. Ngo, 548 U.S.81 (2006), the Supreme Court of the United States held that an untimely or otherwise procedurally defective administrative grievance or appeal does not satisfy the PLRA's mandatory exhaustion requirement.
Because exhaustion requirements are designed to deal with parties who do not want to exhaust, administrative law creates an incentive for these parties to do what they would otherwise prefer not to do, namely, to give the agency a fair and full opportunity to adjudicate their claims. Administrative law does this by requiring proper exhaustion of administrative remedies, which "means using all steps that the agency holds out, and doing so properly (so that the agency addresses the issues on the merits)." This Court has described the doctrine as follows: "[A]s a general rule AAA courts should not topple over administrative decisions unless the administrative body not only has erred, but has erred against objection made at the time appropriate under its practice." Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.
Woodford, 548 U.S. at 90 (internal citations, quotations and footnotes omitted).
The Court further noted that "[c]onstruing § 1997e(a) to require proper exhaustion also fits with the general scheme of the PLRA, whereas respondent's interpretation would turn that provision into a largely useless appendage. The PLRA attempts to eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to afford corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Woodard, 548 U.S. at 93 (internal citations omitted). The Court concluded that the benefits of exhaustion could only be realized if the prison grievance system is given a fair opportunity to consider the claims, which required the grievant to comply with all procedural rules. Woodford, 548 U. S. at 95.*fn1
In the instant action, the relevant record evidence shows the following with respect to the claims set forth in Plaintiff's Complaint. On January 29, 2008, Plaintiff filed Grievance Number 216040-08 against B counselor Ms. Kimmel complaining that she intentionally delayed his staffing for M Clearance, which was necessary for his participation in outside work in the auto shop. In his grievance, Plaintiff accused Ms. Kimmel of failing to follow DOC policy in regard to staffing him because he met all of the initial criteria for staffing.
Outside prisoner staffing is allowed under DOC policy DC-ADM 805 " Pre-Release, Outside Work and Housing Assignments, Community Works Programs, Escorted Leave, Armed Mounted Work Detail, and Forestry Units Programs." This policy provides that outside work assignment is approved by a formal staffing process and that no rights are provided for under the policy. DC-ADM, Parts III and VI. There is no mandatory requirement that inmates meeting the eligibility requirements will receive outside clearance. "Satisfying all eligibility criteria (and the absence of any exclusionary factors) does not automatically qualify an inmate for program participation. A number of other considerations will be taken into account -- such as the relevancy of the program to the inmate's reintegration needs, staff evaluation of inmate progress and adjustment, community risk/safety, and the availability of programmatic resources." DC-ADM 805 Section 1, Part B.2.
In responding to Plaintiff's Grievance, Defendant Cole advised Plaintiff that outside clearance is a privileged program and not a right and that defendant Kimmel was within her rights to review his case and get to know him as an inmate before conducing the required staffing (doc. no. 18-4, p. 12). Plaintiff appealed this decision to Superintendent Harlow who upheld the decision and notified Plaintiff as follows.
I have found no evidence in your accusations of retaliation, discrimination or harassment by any staff member of SRCF-Mercer. The classification process is a multi-faceted system that takes into consideration many aspects of an inmate's case. The Unit Management Team will staff you at their discretion. Institutional need is also multi-faceted with no one individual, staff member, or office making such a determination (doc. no. 18-4, p. 13).
On February 12, 2008, Plaintiff filed an Inmate Request to Staff Member again complaining about the failure to staff him for outside clearance. In response, Defendant Cole stated "I support Ms. Kimmel staffing you in September at your next annual review. This will give us ample time to see if you will adjust well or not." (See Doc. No. 18-4, p. 15) (emphasis in original.) Plaintiff filed a second grievance against Ms. Kimmel, Grievance Number 218406- 08, on February 15, 2008 (doc. no. 18-4, p. 17). On February 28, 2008, Defendant Cole advised Plaintiff as follows.
. . . Mrs. Kimmel has the authority to evaluate your adjustment and behavior as an inmate prior to staffing your for a 2 "M." If the institution feels you will not adjust well, have issues with authority, etc. they will not staff you. The institution can also remove any program code from an inmate if the unit staff does not believe he is adjusting well. This is according to the DC-ADM-805. As the previous grievance stated and according to the DC-ADM 805, outside clearance is neither a right nor an entitlement. It's simply a privilege that will be afforded to inmates the department feels is [sic] eligible, stable and will help the operations of the institution. This is a multi-faceted approach and simply not one person who request help in a particular area (doc. no . 18-4, p. 18).
Pursuant to these two grievances, Plaintiff has exhausted his claims with respect to Count One of his Complaint. Accordingly, these claims will be discussed on the merits below.
On March 18, 2008, Plaintiff filed Grievance Number 222252-08 against Unit Manager Defendant Woods complaining of his inability to take desired vocational classes at SRCF-Mercer and requesting a transfer to another institution (doc. no. 18-4, p. 2). In response to his grievance, it was noted that Plaintiff received an incentive based transfer to Mercer on January 8, 2008. Plaintiff was informed that the Education Department at Mercer only provided basic levels of ASE certification and that, pursuant to DOC policy, Plaintiff was not eligible for another incentive based transfer until January of 2009 (doc. no. 18-4, p. 4). Pursuant to this grievance, Plaintiff has exhausted his claims with respect to Count Two of his Complaint. Accordingly, these claims will be discussed on the merits Below.
On June 2, 2008, Plaintiff filed Grievance No. 219406-08 alleging that Defendant Cole retaliated against him by removing him from H Block and placing him into dormitory housing (doc. no. 18-5, p. 6). In response, Plaintiff was informed that, pursuant to DOC policy, the fact Plaintiff once had a Z-Code status (single cell status) did not preclude him from open dormitory housing and that housing assignments are based on various factors including security, medical and programming needs and that Plaintiff's Unit Management Team had reviewed these factors and supported Plaintiff's placement in dormitory housing (doc. no. 18-5, p. 7). Pursuant to this grievance, Plaintiff has exhausted this claim (which also was included in Count One of the Complaint) and it will be discussed on the merits below.
Sometime prior to May 8, 2008, Plaintiff filed Grievance No. 227421-08 complaining that Defendant Cole refused to give him free soap. In response, Plaintiff was informed that he was denied free soap because he was not considered indigent and, therefore, not entitled to free soap (doc. no. 18-5, p. 11). Pursuant to this grievance, Plaintiff has exhausted his claims with respect to Count Three of his Complaint. Accordingly, these claims will be discussed on the merits below.
On June 2, 2008, Plaintiff filed Grievance No.231073-08 alleging that Defendant Gilkey racially discriminated against him in conjunction with a search and seizure of his cell, which resulted in a misconduct for the destruction of DOC property. Plaintiff subsequently voluntarily withdrew this grievance (doc. no. 18-2, p. 2). Plaintiff filed a second grievance on the matter, Grievance Number 235445-08, and was informed that his claims were waived by his previous voluntary withdrawal (doc. no. 18-2, p. 9). Plaintiff did not appeal the dismissal of this grievance. As such, Plaintiff failed to ...