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Livingston v. Sherman

United States District Court, M.D. Pennsylvania

March 1, 2017

LIEUTENANT SHERMAN, et al., Defendants.


          HON. 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[1] action on January 11, 2016. (Doc. 1). Livingston names Lieutenants Sherman, Miller, and Agones as Defendants.

         Presently 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 “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).

         The 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).


         “A 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.

         On 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.

         The BOP 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. ( 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).

         Plaintiff 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).


         Under 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).

         The “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] ...

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