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Nifas v. Beard

September 30, 2009

RASHEED NIFAS, PLAINTIFF
v.
JEFFREY A. BEARD; DAVID J. WAKFIELD; HARRY E. WILSON; BRIAN V. COLEMAN; DANIEL P. BURNS; ERIC T. ARMEL; DEBRA A. MAHLMEISTER; RHONDA HOUSE; DAVE P. LINK; SAMUEL POPOVICH; DANIEL HOOPER; MARY A. KUSHNER; SHARON M. BURKS; CINDY G. WATSON; WALLACE LEGGETT, DEFENDANTS



The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay

Re: Dkt. [46]

MEMORANDUM OPINION AND ORDER

Rasheed Nifas*fn1 is a prisoner currently in the custody of the Pennsylvania Department of Corrections at SCI-Fayette. He is serving a life sentence for first degree murder committed on or about October 24, 1989, when Plaintiff was only 20 years old.*fn2 By way of background and according to a security report (the accuracy of which Plaintiff disputes), as of November 22, 2007, Plaintiff received a total of 32 misconducts, including three for assault, six for fighting, and nine for refusing to obey an order. Three of the misconducts were dismissed without prejudice. Plaintiff also has a history of stalking or harassing females who are present in the prison. For instance, on March 27, 2003, Plaintiff was placed on administrative custody ("AC") for stalking a female intern and was released back to general population when the student's internship was completed. On April 29, 2003, Plaintiff was again placed in AC due to inappropriate exchanges with a female Corrections Officer Trainee. As a consequence, Plaintiff was transferred to another prison and a separation*fn3 was provided between him and the Trainee. Eventually, Plaintiff was transferred to SCI-Fayette for having harassed three female staff members at SCI-Dallas. A separation was placed between Plaintiff and the those SCI Dallas staff members. Plaintiff disputes the accuracy of these reports of harassing female staff. See, e.g., Dkt. [53-3] at 2.

Plaintiff's transfer to SCI-Fayette occurred on May 23, 2006. Between then and November 22, 2007, Plaintiff received a total of six misconducts, including one for fighting and one for threatening an employee. As a result, Plaintiff received total sanctions of 250 days of Disciplinary Custody ("DC"). On July 11, 2007, Plaintiff approached a female Corrections Officer Trainee and asked her whether, if he wrote a letter to her, would she accept the letter. She told Plaintiff that if he did write her a letter, she would confiscate it and write him a misconduct and warned him that his behavior would not be tolerated. Based upon his history at other institutions and this incident at SCI-Fayette with the trainee, as well as other incidents at SCI-Fayette, it was recommended that Plaintiff be transferred out of SCI-Fayette by staff there. However, that recommendation was rejected and Plaintiff was maintained at SCI-Fayette under AC and also was placed on the Restricted Release List ("RRL"), which means that Plaintiff cannot be released from AC without prior approval from the DOC Secretary or the Secretary's designee. Dkt. [47] at 3, n. 3.

Plaintiff's placement in AC and on the RRL is at the heart of Plaintiff's civil rights complaint. Plaintiff complains that his placements in AC and on the RRL were done in retaliation for his filing of grievances and without procedural due process. He also complains that while he was on AC status at SCI-Fayette, he was denied access to the courts. In addition, he makes complaints that he was denied the right to practice his religion while in AC. He also complains that his conditions in AC constituted cruel and unusual punishment. He apparently also makes state law claims.

Discovery closed in this case on January 20, 2009. See Dkt. [31]. Presently before the court are the parties' motions for summary judgment. Dkt. Nos. [46] & [56].

Standard of Review

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, "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). 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 (1986). The moving party bears the initial burden to show or point out why there is no genuine issue of material fact. Walters ex rel. Walters v. General Motors Corp., 209 F.Supp.2d 481, 484 (W.D. Pa. 2002). 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. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). In reviewing the summary judgment evidence, the Court has no duty to search the record for triable issues; rather, it need rely only on those portions of the evidentiary record to which the nonmoving party directs its attention. See Guarino v. Brookfield Township Trustees, 980 F.2d 399, 403 (6th Cir. 1992).

"The substantive law governing the dispute will determine which facts are material, and only disputes over those facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004)(internal quotations omitted). An issue of material fact is genuinely disputed 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 (1986). "Where the record taken as a whole could not lead a reasonable trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita, 475 U.S. at 587. The inquiry 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). If a court, having reviewed the evidence with this standard in mind, 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. Moreover, it is not enough for the non-movant to show that there is some dispute as to facts, rather, "only disputes over facts that might affect the outcome of the suit will prevent summary judgment." Anderson, 477 U.S. at 248. Accord Rexnord Holdings v. Bidermann, 21 F.3d 522, 525 (2d Cir. 1994) ("[T]he mere existence of some factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment[.]"); Dykes v. DePuy, Inc., 140 F.3d 31, 36 (1st Cir. 1998) ("summary judgment is not precluded by just any factual quibble").

In short, the summary judgment motion is an evidence testing device to see if there is sufficient evidence to support a party's position with respect to an issue for which that party bears the burden of proof at trial so as to justify holding a trial. See, e.g., Albiero v. City of Kankakee, 246 F.3d 927, 933 (7th Cir. 2001)(summary judgment "is the... moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to accept its version of events.").

Discussion

A. Failure to Exhaust

Plaintiff failed to exhaust his administrative remedies concerning a number of his claims prior to initiating this suit. Thus, those claims must be dismissed.

The Prison Litigation Reform Act ("PLRA") amended the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, that required prisoners to exhaust administrative remedies available to them prior to a prisoner bringing suit in federal court concerning prison conditions. See42 U.S.C. § 1997e(c)(2). See also Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000), aff'd, 532 U.S. 731 (2001). Specifically, the PLRA amended the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997e, to provide 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." 42 U.S.C. § 1997e(a). The Supreme Court has declared that "the PLRA's 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). See also Booth v. Churner, 206 F.3d at 295 (explaining the statutory phrase "prison conditions" to include claims concerning "actions... [that] make their [i.e. prisoners] lives worse."). Thus, the cCourts have made clear that any claim about prison life is subject to the exhaustion requirement, thereby interpreting the exhaustion requirement very broadly.

Furthermore, not only is the exhaustion requirement broad, it is also mandatory. The Court of Appeals for the Third Circuit has made clear that Section 1997e(a) "'specifically mandates' that inmate-plaintiffs exhaust their available administrative remedies." Nyhuis v. Reno, 204 F.3d at 73 (internal citations omitted). Therefore, "it is beyond the power of this court... to excuse compliance with the exhaustion requirement...." Id. Accordingly, the Third Circuit has concluded "[o]ur bright line rule is that inmate-plaintiffs must exhaust all available administrative remedies." Nyhuis, 204 F.3d at 75. Furthermore, institutionalized persons, such as prisoners must exhaust their administrative remedies even if the administrative remedy cannot provide them with the relief they seek, e.g., money damages. See Nyhuis v. Reno. Because Plaintiff's allegations in the complaint constitute an "action brought with respect to prison conditions" within the meaning of the PLRA, the exhaustion requirement provisions of Section 1997e(a) apply herein.

To the extent that Plaintiff relies upon the DC-ADM 804 grievance procedure to satisfy his exhaustion requirement, see, e.g., Dkt. [8] at 8, ¶¶ 83 to 86, the court notes that Plaintiff did not file some of his grievances (upon which he relies to assert his exhaustion of administrative remedies) until after he initiated this current suit.*fn4 For example, Plaintiff makes a claim of being denied his First Amendment right to practice his religion when he was allegedly denied his right to participate in a fast and when he was allegedly denied his visits from a religious adviser. See, e.g., Dkt. [65] at 21 to 22. Cf. Dkt. 8 at 6, ¶ 57; id., at 7, ¶ 68; id., at 9, ¶ 92. Plaintiff also claims that these alleged denials also violated his statutory rights under the Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act. See, e.g., Dkt. [8] at 9, ¶ 92; Dkt. [65] at 22. However, the initial stage grievance (i.e., the first step of three steps under the DOC grievance system) to which he points in order to satisfy the exhaustion requirement, i.e., Grievance No. 232345, which he himself provided, was not filed until June 16, 2008, which is the very date he signed his complaint (and so, pursuant to the prisoner mail box rule, is the date he is deemed to have filed his complaint), five days after he signed his IFP application, and only one day before the Clerk's office filed this case. Dkt. [53-51] at 2.

In a similar manner, Plaintiff claims that his First Amendment right of access to the courts was denied by denying him access to the mini law library which is located in the Restricted Housing Unit area and his right of access was also denied when he was refused a self help litigation manual that is not kept in the mini law library. See, e.g., Dkt. [8] at 11, ¶ 106.

Plaintiff points to Grievance No. 230672, which he himself provided, as establishing that he exhausted his administrative remedies, but the court notes that Plaintiff did not initiate this grievance until May 30, 2008. Dkt. [53-43] at 2. Plaintiff did not file his first level appeal until June 3, 2008. Dkt. [53-43] at 4. Plaintiff then did not file his final appeal until June 13, 2008, Dkt. [53-43] at 5, which is two days after his signed his IFP application in this case, and merely three days prior to signing his pro se civil rights complaint and four days prior to having the case officially docketed in this court. The response to the Plaintiff's final appeal, which he himself provided, was dated June 25, 2008, nine days after he signed his pro se complaint and eight days after his case was formally entered on the docket. Dkt. [53-43] at 6.

In like manner, Plaintiff claims that his right to be free of retaliation was violated as well as his equal protection rights when he was allegedly denied privileges while on AC status that were granted to others similarly situated. He claims that the members of the PRC, who are Defendants Burns, Armel, and Mahlmeister,*fn5 denied him such privileges in retaliation for his filing of grievances. Dkt. [8] at 10, ¶ 104; id., at 8, ¶ 88. Plaintiff points to Grievance No. 228547 as support for the proposition that he exhausted his administrative remedies. See, e.g., Dkt. [53-40] at 1 to 6. However, the court notes that Plaintiff did not file the first step initial grievance until May 13 or 14, 2008. Id., at 2. The first level appeal was not filed until May 28, 2008. Id., at 3. The final level appeal was not filed until June 3, 2008. Id., at 5. The response to that final level appeal was not filed until June 26, 2008, after Plaintiff had filed the instant lawsuit. Id., at 6.

The rule is that "[t]he 'available' 'remed[y]' must be 'exhausted' before a complaint under § 1983 may be entertained." Booth v. Churner, 532 U.S. 731, 738 (2001)(emphasis added). Accord Dancy v. Collier, 266 Fed.Appx. 102, 104 (3d Cir. 2008)("A prisoner who challenges prison conditions must exhaust available administrative remedies before filing suit in federal court.")(emphasis added); Oriakhi v. U.S., 165 Fed.Appx. 991, 993 (3d Cir. 2006)("Oriakhi's administrative remedies were not exhausted prior to the initiation of suit. The fact that he completed the administrative review process before the District Court reached the exhaustion question is of no consequence. Indeed, there appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court."); Thompson v. Michigan Dept. of Corrections, 23 Fed.Appx. 486 (6th Cir. 2001). Accord Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001) ("Subsequent exhaustion after suit is filed therefore is insufficient."), overruled on other grounds by, Porter v. Nussle, 534 U.S. 516(2002); Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999) ("The plain language of the statute makes exhaustion a precondition to filing an action in federal court.... The prisoner, therefore, may not exhaust administrative remedies during the pendency of the federal suit.").

Moreover, the rule contemplates that a prisoner must await the response to final appeal prior to initiating the civil rights action. Caldwell v. Jin, NO. CIV.A. 08-1465, 2008 WL 5115039, at *12 (W.D.Pa., Dec. 4, 2008)("a prisoner must await the response to final appeal prior to initiating the civil rights action"); Brower v. Georgia Dept. of Corrections, No. CV 307-031, 2008 WL 282473, *4 n. 2 (S.D.Ga. Jan. 31, 2008) ("Assuming Plaintiff appealed his grievance to the Commissioner's Office, Plaintiff has still failed to satisfy the exhaustion requirement. According to Plaintiff, he filed a formal grievance, on April 10, 2007. Defendant Washington then had thirty (30) days to issue a written response. Defendant Donald would have then had ninety (90) days, or until approximately mid-to-late August, 2007, to respond to Plaintiff's appeal. However, Plaintiff commenced this action on May 24, 2007, well prior to deadline set for the Commissioner's Office to respond to any appeal that Plaintiff may have filed.") (citations omitted).

In light of this rule, it is clear that Plaintiff's First Amendment religious exercise claims and his other statutory claims for religious freedom must be dismissed because indisputably authentic documents, which Plaintiff himself provided to the court, conclusively establish that Plaintiff failed to exhaust his ...


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