The opinion of the court was delivered by: (Judge Conner)
Presently before the court is defendants' motion for summary judgment (Doc. 149) in which defendants assert that plaintiff David Lee Womack ("Womack") failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). In the alternative, defendants claim that they are entitled to qualified immunity. For the reasons that follow, the motion will be denied.
A. Statement of Facts*fn1
The court will only briefly recite the facts as they have previously been set forth in great detail in this court's prior opinion, see Womack v. Smith, Civ. A. No. 1:06-CV-2348, 2008 WL 822114 (M.D. Pa. Mar. 26, 2008), and in the Third Circuit opinion, see Womack v. Smith, 310 Fed. App'x 547 (3d Cir. 2009), reversing and remanding this court's earlier decision.*fn2
A. Womack's History in BOP Custody
Womack was transferred into federal custody from the District of Columbia in 2001. In August 2003, he was assigned to the United States Penitentiary in Lewisburg, Pennsylvania ("USP Lewisburg"). (Doc. 150 ¶¶ 1-3; Doc. 155 ¶¶ 1-3). The dispute in this case centers around the decision of certain USP Lewisburg officials to maintain Womack in ambulatory restraints from December 8, 2004 to January 3, 2005.
From 2001 to August 2003, while in federal custody, Womack received more than fifty disciplinary incident reports for offenses including assault, destruction of property, possession of dangerous weapons, refusal of orders, threats of bodily harm, and self-mutilation. (Doc. 150 ¶ 41; Doc. 155 ¶ 41). He threatened or attempted to commit suicide on multiple occasions. (Doc. 150 ¶¶ 45, 46, 55, 66, 69; Doc. 155 ¶¶ 45, 46, 55, 66, 69). Psychology staff characterized Womack's behavior as "manipulative" and "designed to either change his environment or to elicit a staff response." (Doc. 150 ¶ 57; Doc. 155 ¶ 57). Prison officials conducted several mental health evaluations on Womack and concluded that he would be "a management problem wherever he [was] housed" (Doc. 150 ¶ 64; Doc. 155 ¶ 64).
After his transfer to USP Lewisburg in August 2003, Womack's conduct improved for several months (Doc. 150 ¶ 73; Doc. 155 ¶ 73), but turned disruptive in February 2004. Beginning in February 2004, Womack repeatedly attempted to harm himself, threatened to destroy his cell, defecated on his cell floor, lashed out at staff members by throwing objects and spitting, threatened physical harm to some staff members while refusing to acknowledge or speak to others, and hampered prison security efforts by covering the window in his cell. (See Doc. 150 ¶¶ 75-120; Doc. 155 ¶¶ 75-120).
On December 9, 2004, a physical altercation occurred between Womack and defendant Correctional Officer Kenneth Gabrielson ("Officer Gabrielson") when Officer Gabrielson attempted to return Womack to his cell after an infirmary visit.*fn3
(Doc. 150 ¶ 126; Doc. 155 ¶ 126). Officer Gabrielson maintained control of Womack's handcuffs, reapplied additional restraints and escorted Womack to another cell. (Doc. 150 ¶¶ 128, 129; Doc. 155 ¶¶ 129, 129). Thereafter, defendant Warden Joseph V. Smith ("Warden Smith") authorized institution staff to place Womack in ambulatory restraints.*fn4 (Doc. 150 ¶ 130; Doc. 155 ¶ 130).
Womack remained in ambulatory restraints from December 9, 2004 to January 3, 2005. During his period in restraints Womack's conduct was at times calm and at times disruptive. Prison officials checked Womack's restraints often and recorded his behavior. (See Doc. 151, Ex. V; id. Ex. W, at 45-50; Doc. 156, Ex. 7).*fn5 Womack exhibited multiple periods of calm in which his restraints were checked without incident. (Doc. 156, Ex. 7, at 23-26, 34, 43, 46, 61, 64, 68). However, Womack's behavior also included refusing to speak to or acknowledge staff, ignoring staff orders, refusing inspection of his restraints, flushing undergarments down the toilet, scattering food on the floor, urinating in the cell and spreading feces on the cell bars and walls, refusing to clean his cell and picking paint off the walls. (Doc. 150 ¶¶ 132-135, 138, 145, 146, 150, 151, 155, 156, 159, 160, 161, 163; Doc. 155 ¶¶ 132-135, 138, 145, 146, 150, 151, 155, 156, 159, 160, 161, 163). Additionally, Womack made threats that prison officials would be sorry if they removed his restraints (Doc. 150 ¶¶ 136, 137, 140; Doc. 155 ¶¶ 136, 137, 140), and at one point, Womack broke his left hand restraint. (Doc. 150 ¶ 139; Doc. 155 ¶ 139).
During the restraint period, a staff psychologist evaluated Womack and confirmed that he was suffering from a personality disorder. Womack made clear to the psychologist that he intended to remain disruptive. (Doc. 150 ¶ 142; Doc. 155 ¶ 142). The psychologist concluded that Womack's actions appeared to be "purposeful and calculated" attempts to exert control over his situation. (Doc. 150 ¶¶ 141-142; Doc. 155 ¶¶ 141-142).
Over the twenty six day period, Womack claims he complained to staff several times about losing the feeling in his arms and legs and about losing circulation in his wrists. (Doc. 150, Ex. E ¶ 8; Doc. 156 Ex. 2, ¶ 8). In a declaration, Womack asserts that his wounds were "big deep holes that were raw, and looked like pink and white meat. They had a terrible odor. They hurt so much that I could barely move. The parts of my hands and arms that were not in pain were numb from lack of circulation." (Doc. 151, Ex. E ¶ 8; Doc. 156, Ex. 2 ¶ 8). However the frequent medical checks lack any reference of either these complaints or any severe injuries. (See Doc. 156, Ex. E). The records do indicate the following: Womack complained about the circulation in his wrists on December 22, 2004. (Doc. 150 ¶ 143; Doc. 155 ¶ 143). Staff noted that Womack's cuffs were tight and loosened the hand restraints on December 24 and 25. (Doc. 150 ¶¶ 147, 149; Doc. 155 ¶¶ 147, 149). At that point, staff cleaned and bandaged Womack's wrists and observed "mild swelling." (Doc. 150 ¶ 149; Doc. 155 ¶ 149). On December 28, after Womack requested the bandages on his wrists be changed, medical staff cleaned his wrist abrasions. (Doc. 150 ¶¶ 151, 153; Doc. 155 ¶¶ 151, 153). Womack refused medical staff attempts to check his wrist wounds on December 31, but Womack allowed staff to clean the wrist abrasions the following day. (Doc. 150 ¶¶ 159, 162; Doc. 155 ¶¶ 159, 162). On January 2, 2005, medical staff noted that Womack's wrists were healing and he had no signs of infection. (Doc. 150 ¶ 163; Doc. 155 ¶ 163). When Warden Smith ordered that Womack's restraints be removed on January 3, 2005, medical staff evaluated Womack and determined that his only injuries were minor abrasions on his ankle and wrists. (Doc. 150 ¶ 165; Doc. 155 ¶ 165). No infection was present and medical attention was unnecessary. (Doc. 150 ¶ 164; Doc. 151 ¶ 164).
C. USP Lewisburg Grievance Procedures
When Womack arrived at USP Lewisburg in August of 2003, he received an admission and orientation booklet titled "A&O Handbook, Rules and Regulations, United States Penitentiary, Lewisburg, PA" ("Lewisburg handbook"). (Doc. 151, Ex. C; Doc. 156, Ex. 1). The Lewisburg handbook describes the administrative remedy procedures at USP Lewisburg. Prisoners are directed to first attempt to resolve their complaints informally through a BP-8 form. (Doc. 151, Ex. C at 8; Doc. 156, Ex. 1 at 8). If informal resolution is unsuccessful, prisoners must submit a BP-9 formal complaint to the Correctional Counselor for delivery to the Associate Warden's Secretary. (Doc. 151, Ex. C, at 9; Doc. 156, Ex. 1, at 9). The Lewisburg handbook provides that the BP-9 grievance form "must be filed within twenty (20) calendar days from the date on which the basis for the incident or complaint occurred, unless it was not feasible to file within that period of time." (Doc. 151, Ex. C, at 9; Doc. 156, Ex. 1, at 9).*fn6 An inmate may appeal an unsatisfactory response to the Regional Director within twenty (20) calendar days from the date of the BP-9 response. (Doc. 151, Ex. C, at 9; Doc. 156, Ex. 1, at 9). Appeal of the Regional Director's response is taken with the Central Office of the Bureau of Prisons and must be filed within thirty (30) calendar days of receipt of the Regional Director's response. (Doc. 151, Ex. C, at 9; Doc. 156, Ex. 1, at 9).
When a prisoner believes his complaint is of "such a sensitive nature that he would be adversely affected if the complaint became known to the institution," the inmate may forward the complaint directly to the Regional Director, thus bypassing the institution's warden. (Doc. 151, Ex. C, at 9; Doc. 156, Ex. 1, at 9). If the complaint is not determined to be sensitive, it will be returned and the inmate may pursue the matter by filing a BP-9 complaint at the institution. (Doc. 151, Ex. C, at 9; Doc. 156, Ex. 1, at 9).
Womack was released from ambulatory restraints on January 3, 2005. However, from January 3, 2005 to February 4, 2005, Womack was held in a "boxcar" cell, located next to another "boxcar" cell with two inmates in it. (Doc. 156, Ex. 11, at 74-76; id. Ex. 12, at 114-115). "Boxcar" cells are more secure than regular cells. A "boxcar" cell is comprised of two separate cells aligned front to back. The inmate remains in the back cell, which has a steel grill as a door to the front cell. The front cell is empty and has a closed metal door that leads to the rest of the prison. (Doc. 156, Ex. 11, at 74-76; id. Ex. 12, at 114-115).
Womack is illiterate. (Doc. 156, Ex. 2 ¶¶ 14-16). To file grievances Womack relies on cell mates or other inmates to read and write for him and to prepare the forms. (Id.) Womack states that he does not trust prison officials to read and write for him. (Id. ¶ 16). According to Womack, Warden Smith knew Womack was illiterate because Warden Smith allegedly told Officer Gabrielson to tell Womack that "if I have a issue, for him to come and deal with it because of my literacy." (Doc. 150 ¶ 40; Doc. 155 ¶ 40). Womack states that after he was removed from restraints and was placed in the "boxcar" cell he "refused to have prison officials complete a grievance form for [him] because of the necessary conflict relating to [his] grievance against the prison officials." (Doc. 156, Ex. 2 ¶ 21).
On February 4, 2005, Womack was placed in a cell with a cell mate. (Doc. 150 ¶ 19; Doc. 155 ¶ 19). That day, when a case manager moved through the tier, Womack requested BP-8 and BP-9 forms to file a complaint. (Doc. 156, Ex. 16, at 260, 272). The case manager did not have any BP-8 or BP-9 forms at the time, but an inmate across the cell block yelled to Womack to file a sensitive BP-10 form. (Id.) The case manager provided a BP-10 form which Womack had his cell mate fill out. (Id.) Womack tore up the BP-10 when it was returned to him rejected as non-sensitive sometime between February 17, 2005 and March 3, 2005. (Id.)
A case manager provided Womack with BP-8 and BP-9 grievance forms on February 19, 2005. (Doc. 156, Ex. 2 ¶ 23). On March 3, 2005, Womack filed an informal grievance (BP-8) claiming he was in ambulatory restraints for twenty-six days. (Doc. 150 ¶ 22; Doc. 155 ¶ 22). Staff responded the following day with a memo informing Womack that he did not request a remedy and asking him to resubmit his grievance specifically stating what he wanted resolved or addressed. (Doc. 150 ¶ 26; Doc. 155 ¶ 26). Instead of filing another informal grievance and requesting a remedy, on March 13, 2005, Womack submitted a formal BP-9 grievance to the warden. (Doc. 150 ¶ 28; Doc. 155 ¶ 28). Again, Womack did not request a remedy, and on April 1, 2005, Warden Smith provided a response "for informational purposes only." (Doc. 150 ¶ 30; Doc. 155 ¶ 30). On April 5, 2005, Womack submitted an appeal to the Regional Office, which was denied on grounds that Womack's original complaint was untimely. (Doc. 150 ¶¶ 31, 33; Doc. 155 ¶¶ 31, 33). On May 7, 2005, Womack filed an appeal to the Central Office, which was also denied on grounds that the original complaint was untimely. (Doc. 150 ¶¶ 34, 35; Doc. 155 ¶¶ 34, 35).
On December 7, 2006 Womack filed the instant Bivens action*fn7
against prison officials asserting that his maintenance in
ambulatory restraints for twenty six days constituted cruel and
unusual punishment in violation of the Eighth Amendment to the United
States Constitution. (See Doc. 1). Defendants filed a motion to
dismiss or, in the alternative, a motion for summary judgment. (See
Doc. 23). This court treated the filing as a motion for summary
judgment given the numerous documents outside the pleadings. (See Doc.
50, at n.1). The undersigned granted the motion on grounds that Womack
had failed to exhaust his administrative remedies and alternatively,
failed to put forth sufficient evidence to establish an Eighth
Amendment violation. (Doc. 50).
On appeal, the Third Circuit reversed. Womack v. Smith, 310 Fed. App'x 547 (3d Cir. 2009). The Third Circuit noted that the Lewisburg handbook, which has a feasibility exception not present in the BOP administrative remedy procedure in the Code of Federal Regulations, was not part of the summary judgment record before this court. Id. at 550. The court stated that applying the correct standard, questions remained as to whether Womack could feasibly file his grievance within the twenty-day period. Id. The Third Circuit also determined that this court erred in its alternative ruling on the Eighth Amendment. Id. at 551. Noting that the subjective state of mind of a prison official is a "critical inquir[y] in the Eighth Amendment analysis," the Third ...