United States District Court, M.D. Pennsylvania
John E. Jones III Judge
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. 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
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.
reasons set forth below, the motion to dismiss will be deemed
unopposed and granted.
STANDARD OF REVIEW
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).
“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).
ALLEGATIONS OF THE AMENDED COMPLAINT
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. (Id.at 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).
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.)
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.
“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
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 ...