IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
March 6, 2012
TYRONE WALLACE PLAINTIFF,
LT. MILLER, ET AL., DEFENDANTS
The opinion of the court was delivered by: Magistrate Judge Blewitt
REPORT AND RECOMMENDATION
On August 15, 2011, Plaintiff Tyrone Wallace, an inmate at the United States Penitentiary at Lewisburg ("USP-Lewisburg"), Lewisburg, Pennsylvania, filed, pro se, another Bivens*fn1 civil action, pursuant to 28 U.S.C. Â§1331.*fn2 (Doc. 1). Plaintiff also filed two in forma pauperis motions. (Docs. 2 & 7).
Plaintiff's form Complaint consists of four pages with five handwritten pages of the Statement of Claim attached. In total, Plaintiff's Complaint consists of nine pages. Plaintiff names three (3) Defendants: Lieutenant Miller, S. Cross, Correctional Officer ("CO") and prison vehicle driver, and John Doe, escort team CO. All Defendants were employed at USPLewisburg during the relevant times of this case.
On August 30, 2011, we issued an Order and granted Plaintiff 's in forma pauperis Motions, and directed the Clerk of Court to issue process to the U.S. Marshal to serve Plaintiff 's Complaint on Defendants. (Doc. 10). Specifically, we directed service of Plaintiff's Complaint on the three Defendants, namely, Lt. Miller, S. Cross, and John Doe, team escorting CO. Plaintiff stated that Defendants were all employed at USP-Lewisburg. Initially, only the United States Attorney's Office, Middle District of Pennsylvania, was served with Plaintiff's 11-1503 Complaint.
On September 1, 2011, a return of service was filed by the United States Marshal Service ("USMS") indicating that Defendants Lt. Miller and CO Cross were served and, that it was not able to serve Defendant CO John Doe since it was not able to identify this unnamed Defendant. The USMS also indicated that there was "multiple staff who perform escort operations at USP Lewisburg" and that "Plaintiff needs to provide first/last names for USMS to serve Complaint." Consequently, on September 6, 2011, we issued the following Order in Plaintiff's 11-1503 case:
1. The United States Marshals Service has advised the Court that service in the above-captioned matter has not been effected as to the following defendant: Defendant John Doe (see Doc. 11).
2. If Plaintiff wishes his suit to proceed against this Defendant, he shall provide the Court, within fifteen (15) days of the date of this Order, with more specific information as to this individual so that service can be effected upon him.
3. Failure to so notify the Court will be construed as a decision by Plaintiff not to pursue the action as to this Defendant.
4. The Clerk of Court shall provide Plaintiff with a copy of Doc. 11. (Doc. 12, 11-1503).
In response to the Doc. 12 Order we issued in Plaintiff's 11-1503 case, Plaintiff filed a Motion for Reconsideration and a support Affidavit with exhibits on October 25, 2011. In his Motion, Plaintiff incorrectly stated that the Court directed him to identify all three of his Defendants. However, the Order only directed Plaintiff to identify Defendant John Doe. Plaintiff also stated that he needed more time to identify the three Defendants and that on September 20, 2011, he filed an administrative remedy with the prison requesting that he be provided with the names of the three escorting officers who took him from USP-Lewisburg to an outside hospital on May 4, 2011. Plaintiff averred that as a result of his administrative remedy, he was retaliated against and sexually harassed by prison staff, including the prison psychologist Ms. Mink and Defendant Lt. Miller. Plaintiff averred that Ms. Mink sexually harassed him by placing a mat over his cell door window. Plaintiff stated that on September 24, 2011 and October 5, 2011, he filed an administrative remedy against Ms. Mink and other administrative staff members due to the alleged sexual harassment.*fn3 Plaintiff also stated that his Unit Counselor (Shuck) responded to his administrative remedy requesting the names of the three officers who escorted him to the hospital and told Plaintiff to obtain the information by submitting a FOIA request to the BOP Office of General Counsel in Washington, DC. As relief in his Doc. 15 Motion, Plaintiff requested that the Court reconsider its Doc. 12 Order and "direct the Clerk of Court to get the (3) three officers names that took him to outside hospital." (Doc. 15, p. 4, 11-1503).
As stated, Plaintiff was only directed to provide the Court with more information as to the identity of the Defendant John Doe. Plaintiff named his two other Defendants and the Court was awaiting the USMS to personally serve them. There was no indication from the USMS that it would not be able to serve Defendants Lt. Miller and S. Cross at USP-Lewisburg in Plaintiff 's 11-1503 case. Thus, only Defendant John Doe needed to be identified for service.
Thus, in our October 28, 2011 Order, we stated cited to the Third Circuit case of Singletary v. PA DOC, 266 F.3d 186, 201, n. 5 (3d Cir. 2001), in which the Court stated, "[i]t is certainly not uncommon for victims of civil rights violations (e.g., an assault by police officers or prison guards) to be unaware of the identity of the person or persons who violated those rights. This information is in the possession of the Defendants, and many Plaintiffs cannot obtain this information until they have had a chance to undergo extensive discovery following institution of a civil action."
In the October 28, 2011 Order issued in Plaintiff's 11-1503 case, we reconsidered our Doc. 12 Order, and held it in abeyance. We indicated that "[a]s a litigant proceeding in forma pauperis, Plaintiff is not responsible for the service of process; rather 28 U.S.C. Â§1915(d) directs that '[t]he officers of the court shall issue and serve all process.'" Hankins v. Pennsylvania, 2010 WL 3522094, *3 (W.D. Pa. 9-7-10) (citations omitted). Further, we stated that once reasonable steps were taken by Plaintiff to identify the Defendants named in his 11-1503 Complaint, the Court must issue process to the USMS who is required to effectuate service upon Defendants. See Crock v. Asture, 332 Fed.Appx. 777, 778 (3d Cir. 2009)(citations omitted). Thus, in the 11-1503 case, we allowed Plaintiff to conduct discovery on the two named Defendants to determine the identity of the John Doe Defendant who was a Team Officer at USP-Lewisburg and who assisted in escorting Plaintiff to an outside hospital on May 4, 2011, and who allegedly put the handcuffs on Plaintiff deliberately tight to cause Plaintiff pain. However, in the 11-1503 case, we did not direct the Clerk of Court to get the (3) three officers' names who took Plaintiff to outside hospital, as Plaintiff requested, especially since Plaintiff indicated that he knew the names of two of the officers, i.e. Defendants Miller and Cross.
After being granted an extension of time, on December 7, 2011, Defendants jointly filed a Motion for Summary Judgment, or, in the alternative, Motion to Dismiss. (Doc. 27). Also, on December 7, 2011, Defendants filed their Statement of Material Facts ("SMF") with exhibits and their support brief. (Docs. 28 & 29). Defendants further submitted unpublished opinions in support of their motion. (Doc. 30). On January 17, 2012, after an extension of time, Plaintiff filed his opposition brief and exhibits. (Doc. 38 & 39). Plaintiff failed to file his response to Defendants' SMF as required by Local Rule 56.1, M.D. Pa.*fn4 Defendants filed their reply brief on January 27, 2012. (Doc. 40).
Defendants' Motion (Doc. 27) is now ripe for disposition. In Plaintiff 's 11-1503 case, Defendants argue, in part, that Plaintiff Wallace failed to properly exhaust his BOP administrative remedies regarding his claims. Since both parties filed exhibits and since we consider them herein, we examine Defendants' Motion with respect to the exhaustion issue as one for Summary Judgment under Fed.R.Civ.P. 56. To the extent Defendants argue that Plaintiff's constitutional claims against them in their official capacities should be dismissed, we consider Defendants' Motion as one to Dismiss under Fed.R.Civ.P. 12.
II. Allegations of Complaint.
Plaintiff alleges that on May 4, 2011, he was escorted to Geisinger Hospital by the three Defendant USP-Lewisburg staff members (escort officers) and, that these escort officers conspired and retaliated against him to deprive him of medical care. Plaintiff also avers that Defendant CO Cross negligently drove too fast for the wet conditions endangering his safety.
In particular, Plaintiff Wallace alleges that he was denied his Eighth Amendment right to proper medical care for his broken middle finger of his right hand when Defendants took him from USP-Lewisburg to an outside hospital on May 4, 2011, for surgery on his broken finger and, that Defendants retaliated against him for taking time to read the hospital forms before he signed them. Plaintiff averred that Defendant Cross demanded that he sign the hospital forms or his operation for his finger would be cancelled. Plaintiff alleged that he signed the one form for the surgery, but that Defendant Cross deliberately hindered his ability to sign the other two required forms to show the hospital nurse he was in control over Plaintiff. Plaintiff also alleged that Defendant Cross told the nurse to lie and say Plaintiff threatened her. Plaintiff averred that Defendant Miller then directed the nurse at the outside hospital to cancel his finger surgery and, that Defendant Miller returned him to USP-Lewisburg without necessary treatment for his finger. Plaintiff averred that Defendant Miller knew that his broken finger was not treated when Miller ordered him to be returned to the prison. Plaintiff further averred that the unnamed Defendant John Doe escort Team Officer used excessive force on him when Defendant Miller ordered the Doe Defendant to take off the hospital gown and put Plaintiff's clothes back on him. Specifically, Plaintiff alleged that the Doe Defendant made his handcuffs extremely tight to purposely cause him pain. Plaintiff stated that he was in a lot of pain during the 45-minute van ride from the hospital back to the prison due to the tight handcuffs. Plaintiff also averred that after he was taken back to the prison, Defendant Miller filed a false incident report charging him with refusing medical treatment for his finger at the hospital despite the fact that Miller knew he was about to sign the second hospital form authorizing treatment on his finger. (Doc. 1).
As relief, Plaintiff sought monetary damages, both compensatory and punitive, as well as injunctive and declaratory relief. (Id., p. 9). Plaintiff stated that he sued Defendants in their individual and official capacities.*fn5 (Id.).
This Court has jurisdiction over Plaintiff's Bivens civil rights action pursuant to 28 U.S.C. Â§ 1331. See Oriakhi v. Wood, supra.; Latansio v. Sabol, 2010 WL 4340394 (M.D. Pa. 10-26-10).*fn6
III. Summary Judgment Standard.
A motion for summary judgment may not be granted unless the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. The court may grant a motion for summary judgment if the pleadings, depositions, answers to interrogatories, admissions on file, and any affidavits show that there is no genuine issue as to any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "'genuine' only if a reasonable jury, considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A fact is "material" if proof of its existence or non-existence could affect the outcome of the action pursuant to the governing law. Anderson, 477 U.S. at 248. "Facts that could alter the outcome are material facts." Charlton v. Aramus Bd. of Educ., 25 F. 3d 194, 197 (3d Cir.), cert. denied, 513 U.S. 1022 (1994).
The burden of proving that there is no genuine issue of material fact is initially upon the movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem. 725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party. Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by "depositions, answers to interrogatories and admissions on file" designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
In determining whether an issue of material fact exists, the court must consider the evidence in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the non-movant's allegations as true and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573 (3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977).
Under Rule 56 summary judgment must be entered where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Moreover, the Third Circuit has indicated that "although the party opposing summary judgment is entitled to 'the benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact,' and 'cannot rest solely on assertions made in the pleadings, legal memorandum or oral argument.'" Goode v. Nash, 2007 WL 2068365 (3d Cir. 2007)(Non-Precedential)(citation omitted).
Thus, "summary judgment is proper, when, viewing the evidence in the light most favorable to the non-movant, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law." Anderson v. General Motors, 2009 WL 237247, *2 (3d Cir.)(citation omitted); Page v. Trustees of Univ. of Pennsylvania, 222 Fed. Appx. 144 at 145 (3d Cir. 2007) (the court must "view the facts in the light most favorable to the party opposing the [summary judgment] motion when making [its] determination."); Burlington v. News Corp., 759 F.Supp. 2d at 589-90.
IV. Bivens Standard.
As mentioned, Plaintiff filed his Complaint as a Bivens action. The Third Circuit stated in Banks v. Roberts, 2007 WL 3096585, *1 n.1, 251 Fed. Appx. 774 (3d Cir. 10-19-07) (non-Precedential), "[a] Bivens action is a commonly used phrase for describing a judicially created remedy allowing individuals to seek damages for unconstitutional conduct by federal officials. This constitutional tort theory was set out in Bivens v. Six Unnamed Officials of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971)."
In Naranjo v. Martinez, 2009 WL 4268598, *6 (M.D. Pa.), the Court stated:
Bivens creates no substantive rights, but rather allows "a citizen suffering a compensable injury to a constitutionally protected interest [to] invoke the general federal-question jurisdiction of the district court to obtain an award of monetary damages against the responsible federal official." Butz v. Economou, 438 U.S. 478, 504, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). A civil rights claim brought under Bivens is the federal counterpart to an action brought under 42 U.S.C. Â§ 1983, and the same legal principles governing a Â§ 1983 claim apply to a Bivens claim. Brown v. Philip Morris Inc., 250 F.3d 789, 800 (3d Cir.2001); Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir.1975); Cyrus v. Hogsten, No. 06-2265, 2007 WL 88745, at *3 (M.D.Pa. Jan.9, 2007). To state a claim under Bivens, the plaintiff must show that the defendant, acting under color of Federal law, deprived him of a right secured by the Constitution or laws of the United States. Brown, 250 F.3d at 800; Cyrus, 2007 WL 88745, at *3.
Civil rights claims may only be brought against "persons." 42 U.S.C. Â§ 1983. Individual liability in a civil rights action is personal in nature, and a defendant is liable only if he was personally, affirmatively involved in the alleged malfeasance. C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173, 3d Cir.2005); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1294 (3d Cir.1997), abrogated in part on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) (citing Rhode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Further, "[b]ecause vicarious liability is inapplicable to Bivens and Â§ 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the constitution." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1948, 173 L.Ed.2d 868 (2009) (collecting cases).
See also Mitchell v. Dodrill, 696 F.Supp.2d 454 (M.D. Pa. 2010).
V. Statement of Material Facts.
As their main argument in their Summary Judgment support brief, Defendants assert that Plaintiff failed to exhaust his available BOP administrative remedies, prior to filing his Complaint, with respect to his stated Eighth Amendment claims, false incident report claim and conspiracy claims. (Doc. 29, pp. 7-8).
As stated, Defendants filed their SMF with citation to the evidence (Doc. 28), as required by Local Rule 56.1, M.D. Pa., which support their position that Plaintiff did not exhaust his available BOP administrative remedies. (Doc. 28, Â¶'s 21.-31., and Doc. 28, Ex. A). Also, Defendants submitted exhibits with their SMF to support their contention. (Doc. 28, attached exhibits). Plaintiff, as mentioned, failed to file his paragraph-by-paragraph response to Defendants' SMF as he was obliged to do and as he was aware he was required to file.*fn7
In any event, none of Defendants' SMF which pertain to their failure to exhaust argument are denied by Plaintiff, and we do not find that he submitted any evidence to show that he did properly exhaust his constitutional claims against Defendants. Thus, Plaintiff does not dispute Defendants' contention and evidence which shows that he failed to exhaust his present Eighth Amendment, false incident report, and conspiracy claims against them. In fact, as Defendants points out (Doc. 40, p. 3), Plaintiff states in his opposition brief that he is presently in the process of properly exhausting all of his administrative remedies and, that he filed a BP-8, a BP-9 and BP-10, and was waiting for a response. (Doc. 38, p. 7).
Since Defendants have properly filed their SMF in support of their Summary Judgment Motion (Doc. 28), as required by Local Rule 56.1 of M.D. Pa., and their facts are all properly supported by evidence, and since Plaintiff failed to respond to Defendants' SMF, we shall accept all of Defendants' facts contained in their SMF. Further, none of Defendants' facts are properly disputed by Plaintiff with citation to evidence. Thus, we find that Plaintiff has not properly responded to Defendants' SMF as required by Local Rule 56.1, M.D. Pa. See Cyrus v. Laino, Civil No. 08-1085, M.D. Pa.; Cyrus v. Freynik, Civil No. 08-2278, M.D. Pa.; Michatavi v. Martinez, 2009 WL 5172962 (M.D. Pa.); Hemingway v. Ellers, 2008 WL 3540526 (M.D. Pa.); Accolla v. U.S., 2009 WL 3625383 (M.D. Pa.), affirmed 2010 WL 763550 (3d Cir.)(court found that since Plaintiff inmate in civil rights action did not properly respond to prison staff Defendants' statement of facts as required by L.R. 56.1, M.D. Pa., Defendants' statement of facts were undisputed). Regardless of Plaintiff's failure to properly deny Defendants' statement of facts, we accept Defendants' statement of facts since they are all supported by their evidence.
Defendants argue that Plaintiff did not fully and properly exhaust his available BOP administrative remedies with respect to his claims against them arising from his May 4, 2011 medical trip from USP-Lewsiburg to a local hospital for surgery to repair a fracture in the third digit (middle finger) of his right hand which he sustained in an April 13, 2011 fight with his cell mate. While Plaintiff alleged that he was taken to Geisinger Hospital on May 4, 2011, the records indicate that he was taken to Bloomsburg Hospital. (Doc. 28-1, p. 26). In any event, we agree with Defendants that Plaintiff did not fully and properly exhaust his available BOP administrative remedies with respect to his claims. Specifically, we find that the undisputed evidence shows that Plaintiff did not properly exhaust his available administrative remedies regarding his stated claims against Defendants. (Doc. 28, Ex. A, Â¶'s 11.-15.).*fn8
We find that Defendants' undisputed evidence concerning the exhaustion issue, namely, the December 2, 2011 Declaration of L. Cunningham, the BOP Supervisory Attorney at USP-Lewisburg, shows as follows:
2. Inmate Tyrone Wallace, Reg. No. 13602-424, has been incarcerated at USP Lewisburg as a participant in the Special Management Program since May 18, 2009.
11. A review of inmate Wallace's administrative remedy filing history via the BOP's SENTRY system records reveals [Wallace] has filed 114 requests for administrative remedy on issues arising out of USP Lewisburg. 13 of those were filed after May 4, 2011, the date of the incident at issue in this Complaint. An accurate copy of that record is attached. [Doc. 28, Ex. A, Att. 8.]
12. On May 26, 2011, Wallace filed [Administrative Remedy] ID 644058-F1 at the Central Office level complaining about his April 13, 2011, injury [i.e. broken middle finger in right hand]. This remedy was rejected on June 21, 2011, both because it was filed at the wrong level and untimely. (BOP policy as codified at 28 C.F.R. Â§542.14 provides, "the submission of a formal Administrative Remedy Request ... is 20 calendar days following the date on which the basis for the Request occurred.") See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Furthermore, courts are not permitted to "excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y.1998)); see also Woodford v. Ngo, 548 U.S. 81, 92-94, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006) (explaining that the PLRA mandates that inmates "properly" exhaust their claims before filing suit in federal court). See also Accolla, supra. Plaintiff was required to exhaust his administrative remedies before he filed his instant action. See Walker v. Health Services, Lewisburg Penitentiary, 2007 WL 1395361, * 3 (M.D. Pa.).
13. On June 17, 2011, Wallace filed [Administrative Remedy] ID 644058-F1 at the institution level [complaining about his April 13, 2011, injury, i.e. broken middle finger in right hand]. It was rejected as untimely filed.
14. On June 27, 2011, Wallace filed [Administrative Remedy] ID 644058-F1 at the Regional Office level [appealing the Warden's rejection of the Administrative Remedy]. The remedy was rejected as untimely with NERO [BOP Northeast Regional Office] noted "Concur with Warden's rejection."
15. On July 18, 2011, Wallace refiled [Administrative Remedy] ID 644058- A2 at the Central Office level [complaining about his April 13, 2011, injury, i.e. broken middle finger in right hand]. The [R]emedy was again rejected both as being filed at the wrong level and for being untimely. The Central Office informed the inmate [Wallace], "Staff must verify on BOP letterhead the reason(s) for which your untimely submission is not your fault. Resubmit to Warden." Inmate Wallace did not resubmit the [R]equest [Administrative Remedy ID 644058]. As stated, Plaintiff filed the present Bivens action on August 15, 2011, complaining about the alleged mistreatment by Defendants when he was transported from USP-Lewisburg to the hospital on May 4, 2011, for surgery on his fractured finger. One Lieutenant and two Correctional Officers were assigned to transport Plaintiff to the hospital on May 4, 2011. Defendant Lt. Miller was not assigned to the escort team on May 4, 2011. (Doc. 28, Ex. A, Â¶ 6.). The record indicates that the Officer-in-Charge on May 4, 2011, was Scampone (or Scampore) and the two escorting officers were T. Brouse and W. Cross. (Doc. 28, Ex. A, Atts. 5 & 7). Thus, as further discussed below, the undisputed evidence shows that Defendant Lt. Miller was not personally involved with Plaintiff 's constitutional claims which arose on May 4, 2011, and which are raised in the present action. At the hospital, a nurse who was employed by the hospital and not the BOP, documented that Plaintiff refused treatment for his finger and signed the document. (Id. & Att. 3). There is no evidence that the hospital nurse was forced to sign the document by any Defendant.
Further, the BOP has no record that Plaintiff received an incident report for his May 4, 2011 refusal of medical treatment at the hospital for his broken finger. (Id., Ex. A, Â¶ 9.). As such, Plaintiff's conspiracy claim is unfounded.
1. Official Capacity Claims against Defendants
As noted, we agree with Defendants (Doc. 29, pp. 8-10) that Plaintiff cannot seek monetary damages from the named Defendants in both their individual and official capacities. To the extent that Plaintiff seeks monetary damages from Defendants, he can only sue the federal Defendants in their individual or personal capacities. See Smith, supra. Thus, we agree with Defendants that Plaintiff's claims for damages against them in their official capacities should be dismissed with prejudice. Based on well-settled law, we find futility in granting Plaintiff leave to amend his damages claims against Defendants in their official capacities. See Grayson, supra.
We also agree with Defendants (Id.) that the Court lacks subject matter jurisdiction over Plaintiff's constitutional claims against them in their official capacities. In Johnson v. U.S. Attorney's, 2010 WL 2991409, *1 (E.D. Pa. 7-27-10), the Court stated the standard of review with respect to a Rule 12(b)(1) Motion as follows:
Pursuant to Federal Rule of Civil Procedure 12(b)(1), when "considering a motion to dismiss for lack of subject matter jurisdiction, the person asserting jurisdiction bears the burden of showing that the case is properly before the court at all stages of the litigation." Fed. Realty Inv. Trust v. Juniper Props. Group, No. 99-3389, 2000 WL 45996, at *3 (E.D.Pa.2000) (citing Packard v. Provident Nat'l Bank, 994 F.2d 1039, 1045 (3d Cir.1993)). The district court, when reviewing a motion to dismiss for lack of subject matter jurisdiction, "must accept as true the allegations contained in the plaintiff's complaint, except to the extent federal jurisdiction is dependent on certain facts." Id. (citing Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 496 (3d Cir.1987)). The district court is not confined to the face of the pleadings when deciding whether subject matter jurisdiction exists. Id. (citing Armstrong World Indus. v. Adams, 961 F.2d 405, 410, n. 10 (3d Cir.1992)). "In assessing a Rule 12(b) (1) motion, the parties may submit and the court may consider affidavits and other relevant evidence outside of the pleadings." Id. (citing Berardi v. Swanson Mem'l Lodge No. 48 of Fraternal Order of Police, 920 F.2d 198, 200 (3d Cir.1990)).
Insofar as Plaintiff is suing Defendants for violations of his civil rights, the law is clear that Bivens "only authorizes suit against federal officials in their individual capacities and not against the United States and federal agencies." Goodson v. Maggi, 2010 WL 1006901, *7 (W.D. Pa. 2-22-10); Debrew v. Auman, 354 Fed. Appx. 639, 641 (3d Cir. 2009)("no claims [under Bivens] could properly be brought against Defendants in their official capacities.")(citation omitted). As such, we agree with Defendants that Plaintiff's claims against them in their official capacities should be dismissed based on the doctrine of sovereign immunity. See Conway v. Lindsay, 2008 WL 2562949, *2 (M.D. Pa. 6-24-08)(citing F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994)).
The Court in Johnson stated:
An action brought against federal agencies, or federal employees in their official capacities, is effectively an action against the United States. Ky v. Graham, 473 U.S. 159, 165-66, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985). It is well settled that the United States has sovereign immunity except where it consents to be sued. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980). Sovereign immunity extends to government agencies and employees sued in their official capacities. Antol v. Perry, 82 F.3d 1291, 1296 (3d Cir.1996). In addition, a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed." Mitchell, 445 U.S. at 538.
First, regarding Johnson's constitutional claims against the Federal Defendants, Congress has never waived sovereign immunity for constitutional tort claims against the United States, its agencies, or employees sued in their official capacity. FDIC v. Meyer, 510 U.S. 471, 478, 114 S.Ct. 996, 127 L.Ed.2d 308 (1994); Graham, 473 U.S. at 166-68. In addition, Congress has not waived sovereign immunity for RICO claims, Jennette v. Holsey, No. 06-874, 2006 WL 1984734, at *1 (M.D.Pa. May 31, 2006); Delker v. United States, No. 86-2712, 1986 WL 11701, at *1 (E.D.Pa. Oct.16, 1986), or for claims for conspiracy to interfere with civil rights under 42 U.S.C. Â§ 1985, and negligent failure to prevent conspiracy to interfere with civil rights under 42 U.S.C. Â§ 1986. Davis v. U.S. DOJ, 204 F.3d 723, 726 (7th Cir.2000); Affiliated Prof'l Home Health Care Agency v. Shalala, 164 F.3d 282, 286 (5th Cir.1999); Biase v. Kaplan, 852 F.Supp. 268 (D.N.J.1994); Wilson v. Rackmill, No. 87-456, 1990 WL 63504 at *4 (E.D.Pa. May 11, 1990).
Sovereign immunity is jurisdictional in nature. Indeed, the 'terms of [the United States'] consent to be sued in any court define that court's jurisdiction to entertain the suit.' " FDIC, 510 U.S. at 475. Thus, because the United States has not waived its sovereign immunity for constitutional tort, RICO, or Â§Â§ 1985 and 1986 claims against its agencies or its federal employees in their official capacities, these claims against the Federal Defendants must be dismissed for lack of subject matter jurisdiction pursuant Federal Rule of Civil Procedure 12(b)(1). 2010 WL 2991409, *2-*3.
Since Defendants are being sued, in part, in their official capacities, we will recommend that Plaintiff's constitutional claims against them in their official capacities be dismissed with prejudice for lack of subject matter jurisdiction under Rule 12(b)(1).
2. No Personal Involvement of Defendant Lt. Miller
Defendants argue that Defendant Lt. Miller is entitled to summary judgment since the undisputed evidence shows that he was not personally involved with transporting Plaintiff from USP-Lewisburg to the hospital on May 4, 2011, for Plaintiff's finger surgery. (Doc. 29, pp. 19-20). As stated, the undisputed evidence shows that Defendant Lt. Miller was not assigned to the escort team on May 4, 2011. (Doc. 28, Ex. A, Â¶ 6.). The record indicates that the Officer-in-Charge on May 4, 2011, was Scampone (or Scampore) and the two escorting officers were T. Brouse and Defendant W. Cross. (Doc. 28, Ex. A, Atts. 5 & 7). Thus, the undisputed evidence shows that Defendant Lt. Miller was not personally involved with Plaintiff's constitutional claims which arose on May 4, 2011, and which are raised in the present action.
Plaintiff cannot name a Defendant in this civil rights action based solely on respondeat superior, rather, he must show each Defendant's personal involvement with his constitutional claims. This is true even if a Defendant is a supervisory prison official such as Defendant Lt. Miller. See Rogers v. U.S., 696 F.Supp.2d 472, 488 (W.D. Pa. 2010); Santiago v Warminister Tp., 2010 WL 5071779, * 5 (3d Cir. 12-14-10).
The Court in Rogers, 696 F.Supp.2d at 488, repeated the personal involvement necessary in civil rights action, and stated:
When a supervisory official is sued in a civil rights action, liability can only be imposed if that official played an "affirmative part" in the complained-of misconduct. Chinchello v. Fenton, 805 F.2d 126, 133 (3d Cir.1986). Although a supervisor cannot encourage constitutional violations, a supervisor has "no affirmative constitutional duty to train, supervise or discipline so as to prevent such conduct." Id. quoting Brown v. Grabowski, 922 F.2d 1097, 1120 (3d Cir.1990), cert. denied, 501 U.S. 1218, 111 S.Ct. 2827, 115 L.Ed.2d 997 (1991). The supervisor must be personally involved in the alleged misconduct. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988). Section 1983 liability cannot be predicated solely on respondeat superior. Rizzo v. Goode, 423 U.S. 362, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976); see also Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (superiors of line officers who act in violation of constitutional rights may not be held liable on a theory of vicarious liability merely because the superior had a right to control the line officer's action); Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293-1295 (3d Cir.1997) (to hold police chief liable under Â§ 1983 for violating female subordinate officer's rights, she was required to prove that he personally participated in violating the her rights, that he directed others to violate her rights, or that he had knowledge of and acquiesced in his subordinates' violations). If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official. Rode, 845 F.2d at 1208; Cooper v. Beard, 2006 WL 3208783 at *14 (E.D.Pa. Nov. 2, 2006).
As discussed above, the undisputed evidence shows that Defendant Lt. Miller was not the official in charge on May 4, 2011, when Plaintiff was transported to the outside hospital for treatment for his broken finger. Thus, the evidence shows the lack of personal involvement of Defendant Lt. Miller with respect to Plaintiff 's constitutional claims. See Rogers, supra. The evidence shows that Defendants CO Cross and CO Brouse were the escorting officers for the May 4, 2011 trip. In fact, Plaintiff has now named Defendant CO Brouse as the John Doe Defendant originally named in his Complaint. Defendants have established that Defendant Lt. Miller did not have any personal involvement in relation to Plaintiff 's stated claims.
In Carpenter v. Klopotoski, 2011 WL 995967, *7, (M.D. Pa. 3-17-11), the Court stated:
To maintain a claim for supervisory liability, plaintiff "must show: 1) that the supervising official personally participated in the activity; 2) that the supervising official directed others to violate a person's rights; or 3) that the supervising official had knowledge of and acquiesced in a subordinate's violations." Robinson v. City of Pittsburgh, 120 F.3d 1286, 1293 (3d Cir.1997); Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir.1995).
In light of the above detailed evidence, Defendant Lt. Miller has been shown not to have been personally involved with Plaintiff's constitutional claims.
Thus, we will recommend that Defendants' Summary Judgment Motion be granted with respect to Defendant Lt. Miller and, that the Court enter Judgment in favor of Defendant Miller and against Plaintiff Wallace.
3. Failure to Exhaust BOP Administrative Remedies
Based on the undisputed evidence discussed above, which Plaintiff readily admits (Doc. 38, p. 7), we agree with Defendants and find that Plaintiff did not fully and properly exhaust his available administrative remedies with the BOP with respect to his instant constitutional claims arising out of his medical trip from USP-Lewisburg to an outside hospital on May 4, 2011. There is no dispute that USP-Lewisburg has a grievance procedure and that Plaintiff tried to utilize the grievance procedure at the prison. In fact, Plaintiff indicated in his Complaint that USP-Lewisburg had a grievance procedure and that he filed a grievance regarding his present claims. However, Plaintiff incorrectly stated in his Complaint that he completed the grievance procedure at USP-Lewisburg. (Doc. 1, p. 2). As discussed, the undisputed evidence shows that Plaintiff failed to properly exhaust the BOP administrative remedy process regarding his instant claims about the alleged mistreatment by Defendants when he was transported from USP-Lewisburg to the hospital on May 4, 2011, for surgery on his fractured finger.
The PLRA 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." 42 U.S.C. Â§ 1997e(a). In Porter v. Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion requirement under Â§ 1997e(a) applies to all actions regarding prisons conditions, including Â§ 1983 actions or actions brought pursuant to any other federal law. The Porter Court held 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." Id. "A prisoner must exhaust all available administrative remedies before initiating a federal lawsuit." Lombardi v. Pugh, 2009 WL 1649908, *3(M.D. Pa. 6-9-09)(citation omitted). Further, "the exhaustion requirement is not satisfied if the inmate files an action in the district court prior to completing the administrative remedy process." Id.(citation omitted); See also Mitchell v. Dodrill, 696 F.Supp.2d at 463-64(Court stated that "most circuit courts are in agreement that a prisoner may not satisfy the PLRA's exhaustion requirement by exhausting administrative remedies after initiating suit in federal court.")(emphasis original)(citations omitted).
The Court in Mitchell v. Dodrill, 696 F.Supp.2d at 465, stated:
The United States Court of Appeals for the Third Circuit has not issued a precedential opinion on the issue. However, in a non-precedential opinion, the Court found that the lower court had properly dismissed the plaintiff's complaint because his exhaustion attempt took place after he filed his Bivens claim. Oriakhi v. United States, 165 Fed.Appx. 991, 993 (3d Cir.2006) (not precedential). "[T]he district court must look to the time of filing, not the time the district court is rendering its decision, to determine if exhaustion has occurred." Id. (quoting Johnson, 340 F.3d at 627--28). The Court further stated that "[t]he fact that [the plaintiff] 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." Oriakhi, 165 Fed.Appx. at 993 (citing Johnson, 340 F.3d at 627--28). (not precedential).
The Third Circuit has repeatedly stated in non-precedential opinions that the PLRA "requires that inmate-Plaintiffs exhaust all administrative remedies prior to filing suit in federal court." Banks v. Roberts, 2007 WL 3096585, * 1 (3d Cir. 10-19-07)(Non-Precedential) (citation omitted). The Banks Court also noted that a futility exception to the PLRA's mandatory exhaustion requirement is completely precluded. Id.; Spruill v. Gillis, 372 F.3d 218');">372 F. 3d 218, 228-230 (3d Cir. 2004).
We take judicial notice that the BOP had an administrative remedy policy at USPLewisburg during the relevant times of this case. See Cooper v. Sniezek, 2010 WL 3528848, *7-*8 (M.D. Pa. 9-7-10); Mitchell v. Dodrill, 696 F.Supp.2d at 463-64. Additionally, Defendants' evidence establishes this fact. (Doc. 28, Ex. A, Â¶ 10.). Also, as stated, Plaintiff admits in his opposition brief that he has not yet fully exhausted his BOP administrative remedies with respect to his claims.
The Cooper Court stated as follows:
An inmate may challenge any aspect of his or her confinement using the BOP's administrative remedy procedure, which is set forth at 28 C.F.R. Â§Â§ 542 et seq. An inmate first must informally present his complaint to staff, and staff shall attempt to informally resolve any issue before an inmate files a request for administrative relief. 28 C.F.R. Â§ 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 Â§ 542.14(a). The inmate has twenty (20) days following the date on which the basis for the complaint occurred in which to complete informal resolution and submit a formal written administrative remedy request. Id. The procedure further provides that an extension may be allowed where an inmate demonstrates a valid reasons for delay. Id. at Â§ 542.14(b). The regulation states, in part:
Valid reasons for delay include the following: an extended period in-transit during which the inmate was separated from documents needed to prepare the Request of Appeal; an extended period of time during which the inmate was physically incapable of preparing a Request of Appeal; an unusually long period taken for informal resolution attempts; indication by an inmate, verified by staff, that a response to the inmate's request for copies of dispositions requested under Â§ 542.19 of this part was delayed.
Id. If dissatisfied with the response to the formal written request, the inmate may then appeal an adverse decision to the Regional Office and the Central Office of BOP's General Counsel. Id. at Â§Â§ 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. Id. at Â§ 542.15(a). 2010 WL 3528848, *7-*8.
The Cooper Court also stated:
A prisoner must exhaust administrative remedies as to any claim that arises in the prison setting, regardless of any limitations on the kind of relief that may be gained through the grievance process. See Porter v. Nussle, 534 U.S. 516, 532, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). "[I]t is beyond the power ... of any ... [court] to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y.1998) (citing Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975)). The PLRA "completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis, 204 F.3d at 71. The PLRA also mandates that an inmate "properly" exhaust administrative remedies before filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 92, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). "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."Id. at 90-91. Such requirements "eliminate unwarranted federal-court interference with the administration of prisons, and thus seeks to 'affor[d] corrections officials time and opportunity to address complaints internally before allowing the initiation of a federal case." Id. at 93 (quoting Nussle, 534 U.S. at 525). Failure to substantially comply with procedural requirements of the applicable prison's grievance system will result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir.2004). 2010 WL 3528848, *7.
Moreover, we find no merit to Plaintiff 's contention that his untimely administrative remedies were due to his alleged inability to write from his swollen hands caused by the tight handcuffs used on him on May 4, 2011. Plaintiff had until May 24, 2011 to timely file an administrative remedy about the alleged mistreatment he received on My 4, 2011. Plaintiff argues that his hands were too swollen to file his administrative remedy regarding the May 4, 2011 incident by the deadline. The undisputed evidence shows that on May 24, 2011, Plaintiff did in fact submit an administrative remedy with the BOP regarding claims unrelated to the claims he raises in this case, namely, Administrative Remedy ID 640445-F1. (Doc. 28-1, p. 37). The Administrative Remedy ID regarding Plaintiff 's claims in this case was 644058-F1.
Thus, since the evidence shows that Plaintiff's hand was well enough to file his unrelated Administrative Remedy ID 640445-F1 on May 24, 2011, we agree with Defendants (Doc. 40, p. 5) that there is no merit to Plaintiff 's instant contention that he was not able to write due to swollen hands suffered on May 4, 2011, so he could not timely file his administrative remedy regarding his present claims, i.e. Administrative Remedy ID 644058-F1, by May 24, 2011. Simply stated, the evidence is abundantly clear that Plaintiff's alleged swollen hands did not prevent him from timely filing his Administrative Remedy with respect to his claims raised in this case.
Therefore, we concur with Defendants that Plaintiff failed to exhaust his BOP administrative remedies with respect to his present constitutional claims.
Based on the above, we sahll recommend that Defendants' Summary Judgment Motion (Doc. 27) be granted, and that Court enter Judgment in favor of Defendants and against Plaintiff Wallace.
Based on the foregoing, it is respectfully recommended that Defendants' Summary Judgment Motion (Doc. 27) be granted with respect to the exhaustion issue, and that the Court enter Judgment in favor of Defendants and against Plaintiff Wallace. It is also recommended that Defendants' alternative Motion to Dismiss (Doc. 27) be granted with respect to Plaintiff's constitutional claims against them in their official capacities.
THOMAS M. BLEWITT United States Magistrate Judge
IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
CIVIL ACTION NO. 1:CV-11-1503
TYRONE WALLACE Plaintiff, :: v. LT. MILLER, et al., Defendants
:: (Judge Jones)
: (Magistrate Judge Blewitt)
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated March 6 , 2012.
Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. Â§ 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
THOMAS M. BLEWITT United States Magistrate Judge
Dated: March 6, 2012