United States District Court, Middle District of Pennsylvania
REPORT AND RECOMMENDATION
Carlson Magistrate Judge
I. Statement of Facts and of the Case
The plaintiff, Willis Davis, is a federal inmate housed at the United States Penitentiary, Lewisburg. Davis is also a prodigious, and prodigiously unsuccessful, civil litigant, who has had numerous cases dismissed either as frivolous, for failure to exhaust administrative remedies or on the grounds that the lawsuit failed to state a claim upon which relief could be granted.
It is against the backdrop of this history of unsuccessful, unexhausted and meritless filings that Davis instituted the current lawsuit on August 30, 2013. (Doc. 1) Davis’ pro se complaint alleged that he had been subjected to excessive force, and had experienced deliberate indifference to his medical needs, during and immediately following a cell extraction which had taken place six days earlier, on August 24, 2013. (Id.)
When he filed this complaint Davis candidly acknowledged that he had not exhausted his administrative remedies with respect to these matters, something he is required to do prior to proceeding to federal court. (Id.) Davis then provided a series of conflicting, contradictory, and mutually inconsistent reasons for this acknowledged failure to exhaust his administrative remedies, noting first in his complaint that some non-party correctional staff allegedly discouraged him from exhausting these remedies. (Id.) As to this initial claim made by Davis, Davis asserted that staff attempted to dissuade him from grieving this matter on August 26, 2013, (id.), yet Davis signed and submitted his civil complaint to the Court on the following day, August 27, 2013. (Id.) Thus, it is apparent that Davis was not dissuaded in the slightest from pursuing this matter. Davis provided no explanation regarding why this alleged, but wholly unsuccessful, staff effort at dissuading him from litigating this matter should excuse his complete failure to exhaust his administrative remedies.
Davis has now abandoned this implausible argument, preferring instead to contend that his complaint, which makes allegations of retaliation, is somehow exempt from any statutory exhaustion requirement. (Docs. 21-23)
In fact, it is clear that Davis had administrative remedies available to him at the time of this August 24, 2013, incident. It is undisputed that the Federal Bureau of Prisons has an administrative remedy procedure with respect to inmate complaints. 28 C.F.R. § 542.10. The procedure allows an inmate to seek formal review of an issue relating to any aspect of his own confinement. See 28 C.F.R. § 542.10(a). If an inmate raises an issue in a request or appeal that cannot be resolved through the Administrative Remedy Program, the BOP will refer the inmate to the appropriate statutorily-mandated procedures. See id. § 542.10(c). Inmates are to informally present their complaints to the staff and staff are to attempt to resolve the matter. See id. § 542.13(a). If the informal resolution is unsuccessful, the inmate is then to execute the appropriate form to bring the matter to the attention of the warden. The warden then responds to the inmate’s complaint within 20 calendar days. Id., § 542.18. If an inmate is dissatisfied with the warden’s response, he may then appeal to the Regional Director within 20 calendar days. See id. § 542.15(a). If the response of the Regional Director is not satisfactory, the inmate may then appeal to the Bureau of Prisons Central Office within 30 calendar days, which office is the final administrative appeal in the federal prison system. No administrative remedy appeal is considered to have been fully exhausted until rejected by the Bureau of Prisons’ Central Office. Given the timetables prescribed by these prison rules for the exhaustion of grievances, it is also apparent that it would have been physically impossible for Davis to fully exhaust his grievances before commencing this lawsuit, since Davis drafted his complaint three days after the incident alleged in the complaint, and filed this action a mere six days after these events.
Presented with this plainly unexhausted grievance and complaint, the defendants have filed a motion for summary judgment in this case. (Doc. 14) That motion, in part, raises Davis’ admitted failure to exhaust as a defense to this lawsuit. (Id.) Davis has now responded to this motion, filing pleadings styled as a motion to dismiss this summary judgment motion, (Docs. 21-23), which is, in reality, a response in opposition to this dispositive motion. In these pleadings, Davis now seems to abandon his prior, wholly implausible claim that he was completely dissuaded from filing a grievance, but was not persuaded in the slightest to refrain from filing a federal lawsuit. Instead, Davis simply argues that the exhaustion requirement otherwise prescribed by law should not apply to inmate retaliation claims. (Id.) On the basis of this thin reed, Davis resists summary judgment on his admitted, and complete, failure to exhaust his administrative remedies.
For the reasons set forth below, it is recommended that the defendants’ motion for summary judgment, (Doc. 14), be granted on the grounds that Davis failed to exhaust his administrative remedies, and Davis’ motion to dismiss this summary judgment motion, which is in reality a response in opposition to that motion, (Doc. 21), be denied.
A. Rule 56–The Legal Standard
The defendants have moved for judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P., Rule 56. Through summary adjudication a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int’l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id. at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the nonmoving party’s claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving 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 at trial, ” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the nonmoving party and more than some metaphysical doubt as to the material facts. Id. at ...