United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE
Jackson, (“Jackson” or “plaintiff”),
a federal inmate incarcerated at the United States
Penitentiary at Allenwood (“USP-Allenwood”),
White Deer, Pennsylvania, filed this
Bivens-type civil rights action on December 14, 2015,
naming the following individuals as defendants: A. Martinez
and K. Duke, registered nurses; B. Buschman, a physician and
commissioned officer of the United States Public Health
Service; and, M. Magvar, Assistant Health Services
Administrator. (Doc. 1).
alleges that “[d]uring the time period(s) of October
1st through November 4th, 2015 at
U.S.P. Allenwood, certain and specific health-care employees
‘wilfully, knowingly, ' and ‘with wanton
recklessness' did violate plaintiff's
Constitutionally-and-civilly protected health-care
treatment(s) prescribed previously by medical doctors.”
(Doc. 1, p. 6). Specifically, he alleges that between October
1and November 4, 2015, Defendants denied him adequate medical
care with regard to the administration of post-surgery
pending is Defendants' motion (Doc. 15) to dismiss
pursuant to Federal Rule of Civil Procedure 12(b), or, in the
alternative, for summary judgment pursuant to Federal Rule of
Civil Procedure 56(a). 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
Fed.Appx. 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
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. 17-1, p, 81, ¶ 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. 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., 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., citing 28
C.F.R. § 542.15(a)). The Regional Director has 30
calendar days to respond to the appeal. (Id., 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.). Appeal
to the Central Office is the final administrative appeal.
(Id.). If a remedy is rejected, it is returned to
the inmate and the inmate is provided with a written notice
explaining the reason for the rejection. (Id.) A
copy of the remedy is not maintained by the BOP.
(Id. at 10).
alleges that from “October 1st through
November 4th, 2015, ” Defendants denied him
adequate medical care with regard to the administration of
post-surgery medication. (Doc. 1, p. 6). A February 29, 2016
search of BOP records revealed that Jackson filed
administrative Remedy No. 842214 on November 16, 2015,
seeking administration of full doses of his medication,
Vancomycin. (Doc. 17, ¶¶ 60-62). The Warden denied
the remedy on November 23, 2015. (Id. at 63).
Jackson appealed the denial to the Regional Office on
December 18, 2015. (Id. at 64). The Regional Office
rejected the remedy on December 21, 2015, with the following
rejection codes: UTR, untimely; MEM, Staff verification
stating reason untimely filing was not your fault; OTH,
Other, see remarks; and RSR, You may resubmit in proper form
within 10 days.. (Id. at 65). On January 27, 2016,
Jackson appealed to the Central Office. (Id. at 66).
On February 2, 2016, the Central Office rejected the appeal
and returned it to Jackson with the following rejection
codes: WRL, Wrong level; DIR, Agree with prior rationale for
rejection, follow direction on prior rejection notices; and,
OTH, Other, see remarks. (Id. at 67). Jackson took
no further action with regard to this administrative remedy.
seek an entry of summary judgment on the grounds that Jackson
failed to fully exhaust his administrative remedies, as
required by 42 U.S.C. § 1997e(a). The Prison Litigation
Reform Act of 1996 (the “PLRA”) “mandates
that an inmate exhaust ‘such administrative remedies as
are available' before bringing suit to challenge prison
conditions.” Ross v. Blake, 136 S.Ct. 1850,
1856 (2016); 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.”). The text “suggests no limits
on an inmate's obligation to exhaust- irrespective of
‘special circumstances.'” Id.
“And that mandatory language means a court may not
excuse a failure to exhaust, even to take such circumstances
into account. See Miller v. French, 530 U.S. 327,
337, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (explaining that
“[t]he mandatory ‘shall' ... normally creates
an obligation impervious to judicial
discretion”).” Id. at 1856-57.
“the PLRA contains its own, textual exception to
mandatory exhaustion, ” i.e. the PLRA requires
exhaustion of “available” administrative
remedies. Id. at 1858. “Available” is
defined as “capable of use for the accomplishment of a
purpose” and that which “is accessible or may be
obtained.” Id. at 1858-59, quoting Booth
v. Churner, 532 U.S. 731, 737-38 (2001). There are three
instances in which administrative remedies are unavailable.
“First, as Booth made clear, an administrative
procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple dead
end-with officers unable or consistently unwilling to provide
relief to aggrieved inmates.” Id. at 1859.
“Next an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.”
Id. Finally, administrative remedies are unavailable
“when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id.
PLRA also mandates that inmates “properly”
exhaust administrative remedies before filing suit in federal
court. Woodford v. Ngo, 548 U.S. 81, 93 (2006).
“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
because no adjunctive system can function effectively without
imposing some orderly structure on the course of its
proceedings.” Id. at 90-91. Such requirements
“eliminate unwarranted federal-court interference with
the administration of prisons, and thus seek[ ] to
‘affor[d] corrections officials time and opportunity to
address complaints internally before allowing the initiation
of a federal case.' ” Id. at 93 (quoting
Porter v. Nussle, 534 U.S. 516, 525 (2002).). The
requirement may not be satisfied “by filing an untimely
or otherwise procedurally defective . . . appeal.”
Woodford, 548 U.S. at 83; see also Spruill v.
Gillis, 372 F.3d 218, 228-29 (3d Cir. 2004) (utilizing a
procedural default analysis to reach the same conclusion).
“The level of ...