United States District Court, M.D. Pennsylvania
MARTIN C. CARLSON, Magistrate Judge.
I. Statement of Facts and of the Case
This pro se civil rights action was initially brought by the plaintiff, a federal prisoner, through the filing of a complaint on December 3, 2013. (Doc. 1.) In this complaint, Smith leveled claims of constitutional violations involving the alleged use of excessive force by prison staff against two correctional defendants, defendants Lindsey and Gonzalez. (Id.) These claims have now been dismissed. (Doc. 51.)
Smith's complaint also named a third defendant, Lieutenant Sudol, and asserted that this defendant had retaliated against Smith. (Id.) In particular, Smith alleged that "since plaintiff's inception in USP, Canaan's Special Housing Unit, plaintiff experienced a kaleidoscope of arbitrary retaliatory actions on behalf of Defendant K. Sudul in light of plaintiff pursuing his administrative remedy rights...." (Id.)
Defendant Sudol has filed a motion for summary judgment relating to this retaliation claim, arguing that this claim should be dismissed due to Smith's failure to exhaust his administrative remedies with respect to this particular claim prior to filing this lawsuit. (Doc. 16.) With respect to this question of administrative exhaustion, the undisputed facts reveal the following:
The Federal Bureau of Prisons ("BOP") has established a three-tier administrative remedy procedure with respect to inmate complaints, found at 28 C.F.R. § 542.10, et seq . Inmates are instructed to first informally present their complaints to the staff and the staff is to attempt to resolve the matter. 28 C.F.R. § 542.13(a). If the informal resolution is unsuccessful, the inmate is directed to then complete the appropriate form to bring the matter to the attention of the warden within twenty (20) calendar days of the complained about event. 28 C.F.R. § 542.14. The warden, in turn, is to respond to the inmate's complaint within twenty (20) calendar days. 28 C.F.R. § 542.18. If an inmate is dissatisfied with the Warden's response, he may then appeal to the Regional Director within twenty (20) calendar days. 28 C.F.R. § 542.15(a). If the response of the Regional Director is not satisfactory, the inmate then has a final avenue of redress. He may appeal to the Central Office of the Federal Bureau of Prisons within thirty (30) calendar days, which office is the final administrative appeal in the Bureau of Prisons. Id. An inmate has not exhausted all available remedies to enable him to file suit in federal district court until the complaint has been filed at all levels of the process and has been denied at all levels prior to filing suit.
In this case, with respect to the retaliation claim leveled against Lt. Sudol, the evidence reveals that Smith made only halting, and procedurally incomplete efforts to exhaust his administrative remedies before filing this complaint. Specifically, while Smith alleges in his complaint that he had been experiencing "arbitrary retaliatory actions" by defendant Sudol "since plaintiff's inception in USP, Canaan's Special Housing Unit, " Smith only filed seven administrative remedies which related to events which occurred at that facility. (Doc. 18 Ex. 1 at pp. 21-24, 26, "EVT FACL: CAA", indicating USP Canaan to be the facility where the event/subject of remedy occurred, )
One of these administrative remedies alleged retaliation by Lieutenant Sudol, but the undisputed evidence shows that this administrative grievance was never fully, properly or timely exhausted by Smith. Specifically, on August 8, 2013, Smith filed a administrative remedy at the institutional level alleging staff was retaliating against him. (Id. at 24.) A copy of the remedy, which Smith attached to his brief in opposition to the defendant's motion for summary judgment, recites as follows:
This writer is being subject [to] a kaleidoscope of retaliatory action based on my pursuit of my administrative remedy rights, to wit:
On 7/31/13, I have been capriously [sic] placed on disciplinary segregation without provocation. As I was sanctioned 60 days [administrative segregation] time on April 13, 2013. Moreover, I have made several attempts thru Lt. Sudul, AW Miller, etc., to review my personal property since the very same inmate I assaulted for stealing was allowed access to my property outside of my presence. Notwithstanding I have made several verbal and written requests to Lt. Sudul for copies of my Form 40 property inventory to no avail.
And, finally, I have requested several times for cell move in light of my cellmate and I have had verbal confrontation. Consequently, [illegible] to physical altercation. My cellmate is currently held in SHU for purporttly [sic] stealing. This arbitrary action is without provocation and subject me additional incident report or possible criminal prosecution.
(Doc. 22, p. 50.)
While this initial grievance form seems to relate to the subject matter of the plaintiff's complaint against defendant Sudol, the evidence reveals that this grievance was not fully exhausted prior to filing this lawsuit. Thus, within days of submitting this initial grievance, the administrative remedy request was rejected by prison officials for multiple reasons-including Smith's attempt to raise more than one issue-and Smith was provided five days to resubmit his request in proper form. (Id. at 49.) The rejection notice was mailed to Smith at USP Canaan on or about August 13, 2013. (Id.)
There is no record that Smith took further steps to exhaust this grievance prior to filing the instant lawsuit on December 3, 2013. While Smith has alleged that he "was never informed" that he could not raise multiple claims in an administrative remedy, (Doc. 21 pp. 5-6.), the prison regulations governing grievances are very clear on this score and state that: "The inmate shall place a single complaint or a reasonable number of closely related issues on the form. If the inmate includes on a single form multiple unrelated issues, the submission shall be ...