United States District Court, W.D. Pennsylvania
MICKEY A. WEICKSEL, Plaintiff,
CASE MGR PATRICK GRIFFITHS, ET AL., Defendants.
Michael C. Colville United States Attorney's Office.
Cynthia Reed Eddy United States Magistrate Judge.
GIBSON UNITED STATES DISTRICT JUDGE.
about November 16, 2016, Plaintiff submitted in the United
States District Court for the Eastern District of
Pennsylvania a civil rights complaint accompanied by a motion
to proceed in forma pauperis. On November 30, 2016,
the case was transferred to this District from Eastern
District of Pennsylvania. The undersigned was assigned the
case and the case was referred to United States Magistrate
Judge Cynthia Reed Eddy for pretrial proceedings in
accordance with the Magistrate Judges Act, 28 U.S.C. §
636(b)(1), and the Local Rules of Court for Magistrate
filed a motion to dismiss or in the alternative motion for
summary judgment arguing that the case should be dismissed as
Plaintiff had failed to exhaust his administrative remedies.
Because Defendants presented material outside of the
Complaint, the magistrate judge converted the motion to
dismiss into a motion for summary judgment only on the issue
of exhaustion, and allowed the parties time to submit
additional briefing and evidence.
21, 2017, Magistrate Judge Eddy filed a Report and
Recommendation (ECF No. 36) recommending that Defendants'
motion to dismiss, which had been converted into a motion for
summary judgment on the issue of exhaustion, be granted on
the ground that Plaintiff had not properly exhausted his
administrative remedies pursuant to the Prison Litigation
Reform Act. Plaintiff was served with the Report and
Recommendation at his listed address and was advised that he
had until August 10, 2017, to file written objections to the
Report and Recommendation. In response, Plaintiff filed a
"Motion for Abbeyance" (ECF No. 37) in which he
asks the Court to stay the case for a period of 12 to 18
months. According to Plaintiff, he is currently scheduled to
be released to a halfway house on 12/6/2017 and from BOP
custody on 6/1/2018, at which time he will be in a better
position to object to the Report and Recommendation, and will
be able to have "lawyers, investigators, agencies, etc.
that can / will assist him in this matter." (ECF No. 37
at 1.) This request will be denied. The Court has no way of
knowing if, and when, Plaintiff will be released from BOP
custody. Whether Plaintiff is in custody, or is released,
offers no reasoned basis for holding this case in abeyance.
to the merits of Plaintiff s objections, attached to the
motion, are four (4) pages which appear to be objections to
the report and recommendation, as well as an Affidavit from
Henry Antoine Saunders, dated June 24, 2017, who was confined
with Plaintiff in the SHU at FCI Loretto from December 1,
2015 to August 26, 2016, and describes incidents he heard
that allegedly occurred between Case Manager Mr. Griffiths
and Plaintiff. (ECF No. 37-2).
Court finds that Plaintiffs Objections do not undermine the
recommendation of the Magistrate Judge. As the report stated,
it is the law in this circuit that all available
administrative remedies must be exhausted prior to filing
suit. Oriakhi v. United States, 165 F.App'x 991,
993 (3d Cir. 2006). Under the BOP's regulations, no
administrative appeal is considered to have been fully
exhausted until a decision is reached on the merits by the
BOP's general counsel. Davis v. Miner, No.
1:CV-06-1763, 2007 WL 1237924, at *7 (M.D. Pa. Apr. 26, 2007)
(citing 28 C.F.R. §§532.13-542.15).
Plaintiff describes the four misconducts at issue in this
lawsuit as "BOGUS Incident Reports written against
Weicksel by Griffiths, " the fact remains that because a
decision was not reached on the merits by the BOP's
general counsel, Plaintiffs administrative appeals were not
fully exhausted. Plaintiffs objections as to Incident Report
Nos. 2771804, 2784364 and 2810014 can be summarily denied as
Plaintiff merely repeats the same arguments that he made in
his response to the summary judgment motion. The summary
judgment evidence of record is clear that there was no
decision by the BOP's general counsel on these three
also argues that he exhausted the second incident report, No.
2774817, because it was dismissed on January 25, 2016.
However, as the report states, the summary judgment evidence
of record reflects that No. 2774817 was partially granted by
the regional office and subsequently expunged by the
institution on January 24, 2016. The record also reflects
that on January 29, 2016, after the expungement, Plaintiff
submitted multiple requests to the regional office all
concerning No. 2774817. He was advised by the regional office
that the incident report had been expunged and that any
complaints he continued to have concerning staff or
procedures must be submitted at the institutional level. The
summary judgment evidence of record reflects that Plaintiff
took no further action after being advised that he needed to
submit his grievance to the institution. Therefore, any
requests concerning No. 2774817 made on or after January 29,
2016, were not fully exhausted.
conclusion, after de novo review of the pleadings
and documents in the case, together with the report and
recommendation, and the objections thereto, the report and
recommendation (ECF No. 36) will be adopted as the opinion of