United States District Court, M.D. Pennsylvania
JOSETTE M. WAKELEY, Plaintiff,
SUPERINTENDENT GIROUX, et al., Defendants.
WILLIAM W. CALDWELL, District Judge.
Plaintiff Josette Wakeley filed this Section 1983 lawsuit on December 28, 2012. (Doc. 1). Plaintiff, formerly an inmate at SCI-Muncy, was assaulted by her cell mate on March 3, 2011. Based on this assault, Plaintiff asserts an Eighth Amendment failure to protect claim against Superintendent Giroux and seven other Department of Corrections ("DOC") employees. (See Doc. 16). Presently, we are considering Plaintiff's objections to the Report and Recommendation of Magistrate Judge Blewitt (Doc. 38), which recommends that we grant Defendants' motion for summary judgment (Doc. 31) because Plaintiff failed to exhaust her DOC administrative remedies. The report also recommends that we deny Defendants' pending motion to dismiss (Doc. 23) as moot. Since objections were filed, we must "make a de novo determination of those portions of the report or specified proposed finding or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C).
The magistrate judge's report outlines the facts of this case, so we will not repeat them here.
In response to the magistrate judge's report, Plaintiff filed 57 objections in separately numbered paragraphs. (See Doc. 39). Many of these objections were duplicative. In order to address the objections in an orderly and comprehensible manner, we have grouped similar objections together, and will discuss them accordingly.
A. Defendants Have Not Waived the Exhaustion Defense
Seven of Plaintiff's objections pertain to the magistrate's finding that Defendants have not waived the defense of failure to exhaust administrative remedies. (See Doc. 39, ¶¶ 2, 8-12, 52). Plaintiff argues that, pursuant to Rule 12(g)(2), Defendants were required to raise this defense in their first Rule 12(b) response-the motion to dismiss. Plaintiff is incorrect for two reasons. First, Rule 12(g)(2) does not apply here, as that rule requires that a party "not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion." FED. R. CIV. P. 12(g)(2) (emphasis added). Defendants are moving for summary judgment pursuant to Rule 56-not making a motion under Rule 12. Moreover, while failure to exhaust administrative remedies is an affirmative defense that must be pleaded, Ray v. Kertes , 285 F.3d 287 (3d Cir. 2002), the court has held that a party may raise this defense for the first time during summary judgment proceedings. See Baker v. Beard, 05-cv-281, 2006 WL 1725557, at *3 (M.D. Pa. June 21, 2006) (Jones, J.) (defendant is not required to raise exhaustion issue in first response to complaint; as long as the defense is raised prior to adjudication, the plaintiff is not prejudiced); see also Hall v. Operative Plasterers' and Cement Masons' Int'l Ass'n Local Union 143 , 188 F.Supp.2d 1013, 1018 (S.D. Ill. 2001) (defendant did not waive exhaustion by failing to argue it in a motion to dismiss). Accordingly, we agree with the magistrate judge that Defendants have properly raised the exhaustion issue on summary judgment, and we will adopt this portion of the report.
B. The Magistrate Judge Properly Resolved Disputed Facts
Plaintiff's chief complaint-comprising 37 of her 57 objections-is that the magistrate judge resolved factual disputes regarding whether Plaintiff exhausted her administrative remedies. Plaintiff argues that the magistrate violated the summary judgment standard by making these findings, and therefore, the report should be rejected. Plaintiff is in error. Recently, the Third Circuit adopted the position of the Second, Fifth, Seventh, Ninth, and Eleventh Circuits in holding that judges may resolve factual disputes to determine whether a plaintiff exhausted her administrative remedies prior to filing suit. See Small v. Camden Cnty , 728 F.3d 265, 271 (3d Cir. 2013). The court explained that "[t]he Seventh Amendment does not promise a jury trial on all issues that might, as a practical matter, finally dispose of a case. Rather, it guarantees the right to a jury's resolution of the merits of the ultimate dispute." Id. at 270 (quoting Messa v. Goord , 652 F.3d 305, 310 (2d Cir. 2011)). That is, the Seventh Amendment right to a jury trial is not implicated unless the facts at issue are "bound up with the merits of the underlying dispute." Id . In this case, the ultimate issue is whether Defendants violated the Eighth Amendment by failing to protect Plaintiff from an assault. The facts surrounding Plaintiff's failure to file an administrative grievance are not bound up with the merits of this dispute. Accordingly, the magistrate did not violate the summary judgment standard by making factual findings and credibility determinations about the exhaustion issue.
Plaintiff also objects to the manner in which the magistrate resolved the factual disputes. Plaintiff does not deny that she failed to file an administrative grievance. Rather, she argues that she should be excused from the grievance requirement because she was totally incapacitated by the assault and unable to pursue administrative remedies. Additionally, she claims that grievance forms were not available to her.
As explained by the magistrate, the Prison Litigation Reform Act excuses plaintiffs from the grievance requirement in two limited circumstances: (1) when the plaintiff was intentionally misled by corrections officials; or (2) there was "some other extraordinary reason" for the failure to file a grievance. McMillian v. Walsh, No. 12-CV-1707, 2014 WL 310391, at *8 (M.D. Pa. Jan. 28, 2014) (Conner, C.J.) (citing Davis v. Warman , 49 F.Appx. 365, 368 (3d Cir. 2005)). Plaintiff claims that the extraordinary reason for her failure to file a grievance is that the trauma of the assault rendered her physically and mentally incapable of doing so. We agree with the magistrate that the record does not support this argument. The only record evidence submitted by Plaintiff is an affidavit in which she swears that had absolutely no memory of the assault and that grievance forms were never available to her at SCI-Muncy. (Doc. 35-3). However, according to Plaintiff's DOC medical records, in the days following the assault, she was alert, cooperative, and responsive to questions. (Doc. 35-3, at 14). Plaintiff was interviewed a few times between March 10, 2011 and March 16, 2011, and although she could not recall details of the attack, she repeatedly told police and prison investigators that she remembered being choked and yelled at by her attacker. (Doc. 37, Ex. G). The deadline for Plaintiff to file a grievance was March 24, 2011. Based on the record, Plaintiff recalled enough of the incident that she could have complied with this deadline.
We also agree that Plaintiff has failed to demonstrate that the grievance procedures were not available to her. Two DOC employees submitted declarations averring that Plaintiff could have requested grievances forms at any time, and other inmates housed in Plaintiff's unit filed grievances during this time period. (Doc. 37 at 22-31). One of the employees stated that she met with Plaintiff nearly every day, and Plaintiff never requested grievance forms or asked for any help with filing a grievance although she was capable of doing so. (Doc. 37, Ex. L). Based on this information, we agree with the magistrate's finding that ...