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Wright v. Sauers

United States District Court, W.D. Pennsylvania

August 30, 2017

JAMES OSCAR WRIGHT, Plaintiff,
v.
DEBRA K. SAUERS, et al., Defendants.

          MEMORANDUM OPINION [1]

          SUSAN PARADISE BAXTER UNITED STATES MAGISTRATE JUDGE.

         I. Introduction

         A. Relevant Procedural History

         Plaintiff James Oscar Wright initiated this civil rights action pursuant to 42 U.S.C. § 1983 on December 13, 2013, by filing a pro se complaint. Plaintiff subsequently filed an amended complaint, also pro se, on May 5, 2014. [ECF No. 17]. Thereafter, counsel entered an appearance on Plaintiff’s behalf and filed a second amended complaint. [ECF No. 44]. Named as Defendants in the second amended complaint are: Debra K. Sauers, former Superintendent at SCI-Forest ("Sauers"); Michael Overmyer, former Deputy Superintendent for Facilities Management at SCI-Forest ("Overmyer"); Eric Tice, former Deputy Superintendent for Centralized Services at SCI-Forest ("Tice"); Corrections Officers Anthony Gatto (incorrectly identified by Plaintiff as "Gotto") ("Gatto"), D.E. Clever ("Clever"), and Lt. Raymond Burkhart ("Burkhart"); Nancy McGarvie, Medical Director at SCI-Forest ("McGarvie"); Kim Smith, Corrections Health Care Administrator at SCI-Forest ("Smith"); and Wexford Health Sources, Inc. ("Wexford").

         On August 13, 2015, this Court issued a Report and Recommendation (“R&R”) to deny the motion to dismiss, or in the alternative, motion for summary judgment filed by Defendants Wexford and McGarvie. [ECF No. 76]. The R&R was adopted by Order of District Judge Barbara Rothstein, dated September 10, 2015. [ECF No. 82]. Soon after, this Court entered an Order granting Plaintiff leave to file a third amended complaint to add Defendant Corizon Health, Inc. (“Corizon”) as the employer of Defendant McGarvie. [ECF No. 89]. Plaintiff’s third amended complaint was subsequently docketed on October 2, 2015 [ECF No. 90], and is the operative pleading in this case.[2] For ease of reference, all Defendants other than Defendants Gatto, McGarvie, Wexford, and Corizon will be collectively referred to as “Commonwealth Defendants.”

         In his third amended complaint, Plaintiff claims that (1) Defendants Gatto, Clever, Sauers, Overmyer, and Tice violated his Eighth Amendment right to be free from cruel and unusual punishment by using and/or allowing the use of excessive force against him, and (2) Defendants Sauers, Overmyer, Tice, Gatto, Burkhart, Smith, McGarvie, Wexford, and Corizon were deliberately indifferent to his serious medical needs in violation of his Eighth Amendment rights. As relief for his claims, Plaintiff seeks injunctive relief and monetary damages.

         The parties completed discovery on or about October 30, 2015. On January 14, 2016, the Commonwealth Defendants, including Gatto, filed a motion for summary judgment as to all claims against them. [ECF No. 115]. With the exception of Plaintiff’s excessive force claim against Gatto, the Commonwealth Defendants raised Plaintiff’s failure to properly exhaust available administrative remedies as a complete defense, due to his failure to appeal initial grievances and his failure to grieve specific incidents alleged in his operative complaint. On February 26, 2016, Defendant Corizon filed a motion for summary judgment as to Plaintiff’s claims against it on the grounds that the evidence was insufficient to establish the existence of a policy or custom of inadequate medical care or a failure to supervise and train personnel. [ECF No. 137]. On February 29, 2016, Defendants Wexford and McGarvie filed their own motion for summary judgment as to all of Plaintiff’s claims against them, raising, inter alia, failure to exhaust administrative remedies as a complete defense. The parties stipulated to the dismissal of all of Plaintiff’s claims against Defendants Wexford and Clever, and those Defendants were terminated from this case. [ECF Nos. 175 and 176].

         On September 1, 2016, this Court issued an R&R recommending that: (1) the Commonwealth Defendants' motion for summary judgment be granted as to Plaintiff's claims against all Commonwealth Defendants, except Defendant Gatto, for failure to exhaust administrative remedies; (2) Defendant Corizon's motion for summary judgment be denied as to Plaintiff's claims that Corizon had a custom of not following established policies, and failed to train or supervise its employees, with regard to the provision of special medical items that implicate security concerns; and (3) Defendant McGarvie's motion for summary judgment be granted for failure to exhaust administrative remedies. [ECF No. 182]. On September 14, 2016, Defendant Corizon filed timely objections to this Court's R&R, raising for the first time Plaintiff's failure to exhaust administrative remedies as a complete defense to Plaintiff’s claims. [ECF No. 183]. Plaintiff opposed consideration of the issue, contending that Defendant Corizon could not establish excusable neglect to permit the belated assertion of exhaustion as a complete defense. [ECF No. 187, at pp. 2-5].

         By Order entered March 31, 2017, Judge Rothstein adopted this Court’s R&R as to the Commonwealth Defendants’ motion for summary judgment, denying summary judgment as to Plaintiff’s excessive force claim against Defendant Gatto, granting summary judgment to the remaining Commonwealth Defendants on the grounds that Plaintiff failed to exhaust available administrative remedies against them, and granting summary judgment in favor of Defendant McGarvie, concluding that Plaintiff did not properly exhaust his medical claims against her. [ECF No. 189]. As to Defendant Corizon, however, Judge Rothstein determined that, while Corizon failed to raise the issue of exhaustion in its initial summary judgment motion, Corizon was entitled to judgment in its favor because it pled failure to exhaust as an affirmative defense in its Answer to Plaintiff’s complaint. In addition, Judge Rothstein concluded that presenting and fully briefing the issue would have been cumulative, given that Plaintiff’s failure to exhaust medical claims had been raised and briefed by the Commonwealth Defendants and McGarvie. (Id., at pp. 10-11). Accordingly, the Court entered judgment in favor of Defendant Corizon as to all of Plaintiff's claims against it based on Plaintiff's failure to exhaust administrative remedies. [ECF No. 189]. Accordingly, all Defendants other than Defendant Gatto were terminated from this case and the only claim remaining is Plaintiff's excessive use of force claim against Defendant Gatto.

         On June 9, 2017, Defendant Gatto filed a motion for leave to file a second motion for summary judgment [ECF No. 202], contending that Plaintiff procedurally defaulted on his remaining excessive force claim because Plaintiff failed to request monetary damages when he submitted his original inmate grievance. Counsel for Defendant Gatto asserted that he only recently learned of “substantial case law” concluding that an inmate’s failure to comply with all grievance form instructions, including a demand for monetary or other remedy available at law, foreclosed further relief.[3] [ECF No. 203, at p. 1]. Over Plaintiff’s objections that Defendant Gatto failed to show good cause or excusable neglect for the delay in raising exhaustion, Judge Rothstein issued an Order [ECF No. 206] granting Defendant Gatto leave to file the requested motion [ECF No. 203-2], stating:

Here, Defendant affirmatively pled that plaintiff failed to exhaust his administrative remedies. Answer, Doc. 93 at 5…. While unfortunate that Defendant did not previously brief his exhaustion argument as to Grievance 422147, Defendant’s ‘failure to make a timely dispositive motion based on this affirmative defense does not mean that [he] ha[s] waived the defense.’ Sanders v. Beard, 2013 WL 1703582, at *4 (M.D. Pa. Apr. 19, 2013)(citing Drippe v. Gototweski, 434 Fed. Appx. 79, 81 (3d Cir. 2011). Moreover, whether a prisoner has properly exhausted his administrative remedies is a question of law, and thus for the court to determine (citations omitted).

         (ECF No. 206, at pp. 2-3). Plaintiff has since filed a response in opposition to Defendant Gatto's motion. [ECF No. 209]. This matter is now ripe for consideration.

         B. Relevant Factual History[4]

         Plaintiff is an inmate formerly incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania (“SCI-Forest”).[5" name= "FN5" id="FN5">5] On July 23, 2012, while Plaintiff was housed in SCI-Forest’s restricted housing unit (“RHU”), Corrections Officers Defendant Gatto and former Defendant Clever escorted Plaintiff to the RHU shower. (ECF No. 117, Commonwealth Defendants’ Concise Statement of Undisputed Material Facts, at ¶¶ 1, 3). At the same time, security team officers Sharrar and Dombrowski went to Plaintiff’s cell to conduct a random cell search. (Id. at ¶ 4). Plaintiff became upset in the shower because he did not want his cell searched. (Id. at ¶ 6). When Plaintiff finished his shower, he was handcuffed and escorted by Gatto and Clever to stand outside of his cell so he could be present for the cell search. (Id. at ¶ 10).[6] Gatto held Plaintiff by a tether during the escort. (Id. at ¶ 11). Plaintiff was angry that he was wet and did not have the opportunity to get dressed, and he stated three times that the officers could not search his cell. (Id. at ¶¶ 16-17). Nonetheless, Officer Dombrowski began to search Plaintiff’s cell, which further angered Plaintiff. (Id. at ¶¶ 18, 20). Plaintiff became verbally aggressive, pulled and tugged on the tether, turned to face Defendant Gatto, and then forcefully kicked his left foot at Defendant Gatto’s lower leg. (Id, at ¶¶ 26-28, 31; ECF No. 118-1, DVAR Video, at 2:39:28-49).[7] Defendant Gatto and Clever immediately attempted to take Plaintiff to the ground, but Plaintiff resisted. (ECF No. 118-1, DVAR Video, at 2:39:50). When Plaintiff was ultimately brought to the ground, Clever fell on Plaintiff’s right foot, causing Plaintiff to feel a sharp pain in the foot. (ECF No. 117, at ¶¶ 38-39; ECF No. 118-9, Plaintiff’s Deposition Transcript, at pp. 17, 27).[8] It was later revealed that Plaintiff suffered a fracture of three metatarsal joints, and after a period of conservative treatment, Plaintiff underwent surgical repair of the affected joints.

         On July 27, 2012, Plaintiff filed Grievance 422147, describing the incident and alleging an excessive use of force claim against Clever and Gatto. [ECF No. 203-5, at p. 5]. The Department of Corrections Grievance Policy in effect at the time of Plaintiff s incident sets forth the following requirements for submitting a grievance:

The statement of facts must not exceed two pages and must be handwritten or typed on writing paper (one DC-804, Part 1 and one onesided 8 ½”x 11” page). In Section B of the DC-804, Part 1, the inmate should include information on any attempt to resolve the matter informally. The inmate will also specifically state any claims he/she wishes to make concerning violations of Department directions, regulations, court orders, or other law. If the inmate desires compensation or other legal relief normally available from a court, the inmate shall request the specific relief sought in his/her initial grievance.

DC-ADM 804 §1.A.12 (bold and italics in original). [ECF No. 2-3-5, p. 19]. The Official Inmate Grievance form used by Plaintiff to submit his complaint states that an inmate is to “[p]rovide a brief, clear statement of your grievance. Additional paper may be used, maximum two pages (one DC-804 and one one-side 8 ½” x 11” page). State all relief you are seeking.” [ECF No. 203-5, at p. 5]. ...


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