United States District Court, M.D. Pennsylvania
ANTHONY L. LIVINGSTON, Plaintiff,
LIEUTENANT SHERMAN, et al., Defendants.
JOHN E. JONES III
Plaintiff Anthony L. Livingston (“Livingston” or
“Plaintiff”), a federal inmate formerly confined
in the Special Management Unit (“SMU”) at the
United States Penitentiary at Lewisburg
(“USP-Lewisburg”), Pennsylvania, commenced this
this Bivens action on January 11, 2016. (Doc. 1).
Livingston names Lieutenants Sherman, Miller, and Agones as
pending is Defendants' motion (Doc. 16) to dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(6) or, in
the alternative, motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56. For the reasons set forth
below, the motion for summary judgment will be granted.
SUMMARY JUDGMENT STANDARD OF REVIEW
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
summary judgment; the requirement is that there be no
genuine issue of material fact.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (emphasis in original); Brown v.
Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990). A
disputed fact is “material” if proof of its
existence or nonexistence would affect the outcome of the
case under applicable substantive law. Id.; Gray
v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.
1992). An issue of material fact is “genuine” if
the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Anderson, 477 U.S.
at 257; Brenner v. Local 514, United Brotherhood of
Carpenters and Joiners of America, 927 F.2d 1283,
1287-88 (3d Cir. 1991).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358,
1366 (3d Cir. 1996). Once such a showing has been made, the
non-moving party must go beyond the pleadings with
affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which
give rise to a genuine issue. Fed.R.Civ.P. 56;
Celotex, 477 U.S. at 324; Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)
(stating that the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts”); Wooler v. Citizens Bank, 274
F. App'x 177, 179 (3d Cir. 2008). The party opposing the
motion must produce evidence to show the existence of every
element essential to its case, which it bears the burden of
proving at trial, because “a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Celotex. at 323; see also Harter v. G.A.F.
Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he
non-moving party ‘may not rely merely on allegations or
denials in its own pleadings; rather, its response must . . .
set out specific facts showing a genuine issue for
trial.'” Picozzi v. Haulderman, 2011 WL
830331, *2 (M.D. Pa. 2011) (quoting Fed.R.Civ.P. 56(e)(2)).
“Inferences should be drawn in the light most favorable
to the non-moving party, and where the non-moving party's
evidence contradicts the movant's, then the
non-movant's must be taken as true.” Big Apple
BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
STATEMENT OF MATERIAL FACTS
motion for summary judgment filed pursuant to Federal Rule of
Civil Procedure Fed.R.Civ.P. 56 shall be accompanied by a
separate, short and concise statement of the material facts .
. . as to which the moving party contends there is no genuine
issue to be tried.” See L.R. 56.1. The
opposing party shall file a separate statement of the
material facts as to which it is contended that there exists
a genuine issue to be tried. Id. “All material
facts set forth in the statement required to be served by the
moving party will be deemed to be admitted unless
controverted by the statement required to be served by the
opposing party.” Id.
October 3, 2016, an Order (Doc. 24) entered directing
Livingston to file a brief in opposition to Defendants'
motion and a statement of material facts specifically
responding to the numbered paragraphs in Defendants'
statement of material facts (Doc. 18). The order cautioned
him that, in accordance with the Local Rules of Court, his
failure to respond to the statement of material facts would
result in the facts being deemed admitted, and his failure to
file an opposition brief would result in the motion being
deemed unopposed. On October 17, 2016, he filed an opposition
brief (Doc. 26), and a document (Doc. 27) entitled
“Plaintiff Statement of Material Facts.” The
statement of material facts does not comport with the Local
Rules of Court in that it is simply one paragraph and does
not specifically respond to the numbered paragraphs in
Defendants' statement. Consequently, Defendants'
statement of material facts will be deemed admitted.
Administrative Remedy Program is a multi-tier process that is
available to inmates confined in institutions operated by the
BOP for review of an issue which relates to any aspect of
their confinement. (Doc. 18, ¶ 3, citing 28 C.F.R.
§542 et seq.). An inmate must initially attempt
to informally resolve the issue with institutional staff by
completing a BP-8 form. (Id. at 4, citing 28 C.F.R.
§ 542.13(a)). If informal resolution fails an inmate may
submit a request via a BP-9 form to the Warden
within 20 days of the date on which the basis for the request
occurred. (Id. at 5, citing 28 C.F.R. §
542.14(a)). An inmate who is dissatisfied with the
Warden's response may submit an appeal using a BP-10 form
to the Regional Director of the BOP within 20 days of the
date the Warden signed the response. (Id. at 6,
citing 28 C.F.R. § 542.15(a)). The Regional Director has
30 calendar days to respond to the appeal. (Id. at
8, citing 28 C.F.R. § 542.18). If the Regional Director
denies the appeal, the inmate may then appeal to the
BOP's Central Office within 30 days of the denial.
(Id.at 7). The Central Office has 40 calendar days
to respond to an appeal. (Id. at 11). Appeal to the
Central Office is the final administrative appeal.
(Id. at 12). Upon conclusion of the appeal, the
inmate may file a civil action. (Id. at 10).
is a federal inmate in the custody of the Federal Bureau of
Prisons (“BOP”) formerly designated to the
Special Management Unit (“SMU”) at USP-Lewisburg,
alleging that he suffered scars and dark spots on his body
after being placed in restraints by the Defendants.
(Id. at 2, 19). A July 18, 2016 search of BOP
records revealed that Livingston utilized the administrative
remedy process on two occasions, Remedy Nos. 717824-R1 and
729172-R1. (Id. at 19, 22, 30). Each involved appeal
of a Disciplinary Hearing Officer's adjudication of two
separate Incident Reports received by Livingston.
(Id. at 20). The BOP records search further revealed
that Livingston failed to seek administrative review of the
claims alleged in the complaint. (Id. at 21).
the Prison Litigation Reform Act of 1996 (the
“PLRA”), a prisoner is required to pursue all
avenues of relief available within the prison's grievance
system before bringing a federal civil rights action
concerning prison conditions. See 42 U.S.C. §
1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d
Cir. 2000). Specifically, “[n]o action shall be brought
with respect to prison conditions . . . until such
administrative remedies as are available are
exhausted.” 42 U.S.C. § 1997e(a). As the
statute's language makes clear, the exhaustion of
available administrative remedies prior to filing suit is
mandatory. See Nyhuis v. Reno, 204 F.3d 65, 73 (3d
Cir.2000) (“[I]t is beyond the power of this court-or
any other- to excuse compliance with the exhaustion
requirement, whether on the ground of futility, inadequacy or
any other basis.”) (quoting Beeson v. Fishkill
Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y.
1998)). Whether an inmate has exhausted administrative
remedies is a question of law that is to be determined by the
court, even if that determination requires the resolution of
disputed facts. See Small v. Camden County, 728
F.3d. 265, 268 (3d Cir. 2013); see also Drippe v.
Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010).
“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.” Woodford v. Ngo,
548 U.S. 81, 90-92 (2006). It requires compliance with the
prison's “deadlines and other critical procedural
rules.” Porter v. Nussle, 534 U.S. 516, 532
(2002). “The level of detail necessary in a grievance
to comply with the grievance procedures will vary from system
to system and claim to claim, but it is the prison's
requirements, and not the PLRA, that define the boundaries of
proper exhaustion.” Jones v. Bock, 549 U.S.
199, 211-212 (2007). “[F]ailure to satisfy the
procedural rules of the [BOP's] ...