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McKenzie v. Warden

United States District Court, M.D. Pennsylvania

June 9, 2017

WARDEN, et al., Defendants.


          Hon. John E. Jones III Judge

         Plaintiff Alexander McKenzie (“McKenzie”), a federal inmate who, at all times relevant, was incarcerated at the United States Penitentiary at Lewisburg (“USP-Lewisburg”), Pennsylvania, commenced this action on August 14, 2015. (Doc. 1). The matter is presently proceeding via an Amended Complaint (Doc. 45) filed on September 13, 2016.[1] Named as defendants are the following individuals: Correctional Officer J. Wagner (“Wagner”); Lt. R. Johnson (“Johnson”); Hearing Officer A. Jordan (“Jordan”); Warden J. Thomas (“Thomas”); Captain F. Entzel (“Entzel”); M. Farrow (“Farrow”); J. Eck (“Eck”); J. Rummel (“Rummel”); J. Shovey (“Shovey”); and A. Klose (“Klose”).

         Pending before the Court is Defendants' motion (Doc. 54) to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b), filed on November 14, 2016. A brief (Doc. 55) in support of the motion was filed on November 28, 2016. McKenzie failed to respond or oppose the motion in any manner. On April 13, 2017, the Court ordered him to oppose the motion on or before April 26, 2017. (Doc. 57). On April 24, 2017, he sought an extension of time, which was granted. The Court afforded him until June 1, 2017, to file his brief and cautioned him that his failure to do so would render the motion unopposed. McKenzie has neither opposed the motion nor sought an enlargement of time in which to do so.

         For the reasons set forth below, the motion to dismiss will be deemed unopposed and granted.


         In rendering a decision on a motion to dismiss, a court should not inquire “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66 (3d Cir. 1996). The court must accept as true the factual allegations in the complaint and draw all reasonable inferences from them in the light most favorable to the plaintiff. Innis v. Wilson, 334 F. App'x 454, 456 (3d Cir. 2009) (citing Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008)). A district court ruling on a motion to dismiss generally “relies on the complaint, attached exhibits, and matters of public record.” Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007).

         However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”). “First, the factual and legal elements of a claim should be separated.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). Second, the court must then determine whether the complaint states a plausible claim for relief, which is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 211 (citing Iqbal, 556 U.S. at 679); see also 28 U.S.C. § 1915A(b) (directing the court to identify cognizable claims and to dismiss any portion of the complaint that fails to state a claim). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged -- but it has not ‘show[n]' -- ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679; Fed.R.Civ.P. 8(a)(2).


         On May 5, 2014, Defendant Wagner escorted McKenzie and his cellmate, in handcuffs, to a holding area for purposes of conducting a cell search. (Doc. 45, pp. 2, 3, 6). He eventually returned to his cell only to be removed again by Defendants Wagner and Johnson and placed in handcuffs for what he describes as an extended period of time. (Id. at 6). Defendant Johnson then allegedly instructed guards to place McKenzie in restraints and conduct a strip search, all of which McKenzie alleges was recorded with a camcorder. (Id.) Defendants Farrow, Eck, Rummel, Shovey and Klose applied the ankle and wrist restraints and belly chain as “tight as possible, ” causing immediate pain. ( 6, 7). He alleges that these actions involved the application of physical force without need or provocation, were done maliciously and sadistically and constituted cruel and unusual punishment in violation of the Eighth Amendment, and constituted the state law tort of assault and battery. (Id.) McKenzie alleges that he remained in restraints for over twenty-two hours, that he was placed in a cell with an open window, allowing freezing air to enter, that he was clothed in a “paper outfit, ” and that he was unable to sleep, eat, or avail himself of basic hygiene functions. (Id. at 7, 8).

         The following morning, he received an incident report “that guard J. Wagner fabricated to cover up the unjustifiable torturious [sic] act of hard restraints.” (Id. at 8). He appeared at his disciplinary hearing, over which Defendant Jordan presided. In an effort to prove his account was true, prior to his hearing, has asked his staff representative to review the videotapes of the event. (Id.) The staff representative refused. Likewise, at the hearing, the hearing officer allegedly refused to review video recordings of the events. (Id.)


         Defendants seek to dismiss the amended complaint on the grounds that McKenzie 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.

         Significantly, “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.

         The 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 ...

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