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Harris v. Eckard

United States District Court, M.D. Pennsylvania

December 21, 2017

ARNOLD J. HARRIS, #LD-5834, Plaintiff,
v.
J.A. ECKARD, Superintendent, et al., Defendants.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. United States Magistrate Judge

         This is a pro se prisoner civil rights action. The plaintiff, Arnold J. Harris, asserts federal civil rights claims under 42 U.S.C. § 1983 against three prison officials concerning the conditions of his confinement at SCI Huntingdon, which is located in Huntingdon County, Pennsylvania. Harris alleges that the three defendants have been deliberately indifferent to the serious health risks posed by his involuntary and extended exposure to secondhand tobacco smoke from successive cellmates who smoked cigarettes in enclosed areas, including the prison cell each shared with Harris.

         The defendants have interposed an affirmative defense, asserting that Harris failed to exhaust his administrative remedies before bringing this action. In particular, they contend that Harris failed to include a claim for monetary compensation in his original inmate grievance, as required by prison regulations. Harris has countered that administrative remedies were effectively unavailable to him because prison officials failed to provide him with adequate notice of the procedural requirements of the prison grievance process.

         This matter was referred to the undersigned to conduct an evidentiary hearing on the threshold issue of exhaustion, pursuant to Small v. Camden County, 728 F.3d 265 (3d Cir. 2013). (Doc. 47; see also Doc. 45). A hearing was held before the undersigned on September 26, 2017, at which testimony and documentary exhibits were received into evidence. (See Doc. 54 (minute sheet); Doc. 55 (plaintiff's exhibit list); Doc. 56 (defendants' exhibit list); Doc. 59 (hearing transcript)).

         This matter is now ripe for disposition.

         I. Background

         Harris is a state prisoner in the custody of the Pennsylvania Department of Corrections (“DOC”). On or about March 20, 2014, Harris was transferred from SCI Camp Hill, located in Cumberland County, Pennsylvania, to SCI Huntingdon, where he continues to be incarcerated at this time.

         Harris does not smoke. Since his arrival at SCI Huntingdon, he has been celled with a series of different cellmates, some of whom did smoke. Although smoking is prohibited by policy inside all buildings at SCI Huntingdon, as well as all buildings within the DOC, Harris claims he was routinely exposed to secondhand tobacco smoke while in his cell. He claims that this exposure to secondhand tobacco smoke has negatively impacted his health. He claims to suffer from asthma and hypertension.

         Harris submitted a grievance to prison officials on or about March 27, 2015, in which he complained about the failure of prison officials to adequately enforce the DOC's no-smoking policies and their failure to protect him from the effects of secondhand tobacco smoke. In particular, Harris noted that he was repeatedly assigned cellmates who smoked in their shared cell, despite his requests that they refrain from doing so, and that his complaints to prison officials were unavailing. For relief, Harris requested that he be re-assigned to a single-inmate cell. He did not request any monetary compensation.

         On March 30, 2015, Harris's initial grievance was rejected by the facility grievance coordinator, Connie Green, as untimely. The grievance rejection notice advised Harris that he could resubmit the grievance if he could provide specific dates or other information to explain how his initial grievance was timely.

         On April 1, 2015, Harris resubmitted his grievance, and on April 2, 2015, it was once again rejected by Green as untimely. On April 7, 2015, Harris appealed that decision to the facility manager. On April 9, 2015, defendant J.A. Eckard, Superintendent of SCI Huntingdon, responded, agreeing with Harris that the grievance was timely submitted. Eckard remanded the grievance to the grievance coordinator for assignment to a grievance officer for investigation and response on its merits.

         Upon remand, the grievance was assigned to a grievance officer, defendant W.S. Walters, a major at SCI Huntingdon. Following an investigation, Major Walters responded in writing with his findings on May 1, 2015. Major Walters found that, during the month of April 2015, several misconducts were written, block card entries made, and warnings issued for inmates who were found smoking where prohibited. Major Walters further noted that tobacco is not sold at SCI Huntingdon, and that Harris had been placed on a waiting list for a cell with an individually controlled window. Major Walters further advised Harris that, if Harris could find a non-smoking inmate with whom he thought he would be compatible, Major Walters would “take steps” to ensure that they are housed together. Ultimately, however, Major Walters denied Harris's grievance request for single-cell status.

         On May 8, 2015, Harris appealed Major Walters's grievance response to the facility manager. On May 20, 2015, Superintendent Eckard upheld Major Walters's response on its merits. Harris appealed the Superintendent's decision to the Secretary's Office of Inmate Grievances & Appeals, and on July 2, 2015, the Superintendent's response was upheld on its merits by Dorina Varner, Chief Grievance Officer for the DOC.

         Harris filed the complaint in this matter on July 21, 2015. (Doc. 1). The defendants-Superintendent Eckard, Major Walters, and B. Hollibaugh, the unit manager for Harris's cellblock-filed their answer on December 4, 2015. (Doc. 18). The defendants filed a motion for summary judgment on April 22, 2016. (Doc. 25). On August 28, 2017, the defendants' summary judgment motion was granted with respect to defendant Eckard, but denied with respect to defendants Walters and Hollibaugh. (Doc. 47).

         The matter was then referred to the undersigned to conduct an evidentiary hearing on the threshold issue of exhaustion of administrative remedies, pursuant to Small v. Camden County, 728 F.3d 265 (3d Cir. 2013). (Doc. 47; see also Doc. 45). A hearing was held before the undersigned on September 26, 2017, at which testimony and documentary exhibits were received into evidence. (See Doc. 54 (minute sheet); Doc. 55 (plaintiff's exhibit list); Doc. 56 (defendants' exhibit list); Doc. 59 (hearing transcript)).

         II. Discussion

         Before bringing a § 1983 action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.”); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues.”). “[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis.” Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000).

         Moreover, § 1997e(a) requires “proper” exhaustion of administrative remedies, meaning strict compliance with DOC deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). “A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim.” McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004)). “[T]o properly exhaust administrative remedies prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules'-rules that are defined not by [§ 1997e(a)], but by the prison grievance process itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88) (citation omitted); see also Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) (“Section 1997e(a) does not delineate the procedures prisoners must follow.”). “The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not [§ 1997e(a)], that define the boundaries of proper exhaustion.” Jones, 549 U.S. at 218. “The only constraint is that no prison system may establish a requirement inconsistent with the federal policy underlying § 1983 and § 1997e(a).” Strong, 297 F.3d at 649. Thus, it follows that “grievances must contain the sort of information that the administrative system requires.” Strong, 297 F.3d at 649. But,

if prison regulations do not prescribe any particular content for inmate grievances, “a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. . . . [T]he grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming.”

Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Strong, 297 F.3d at 650).

         In adopting DC-ADM 804, the DOC has established a multi-stage administrative remedy process through which an inmate may seek formal review of “problems or other issues arising during the course of their confinement.” (Defs.' Ex. E, at 1 (DC-ADM 804 Policy Statement)). As we have previously summarized it, “DC-ADM 804 provides a three-tiered grievance process: (1) an initial review by a grievance officer; (2) an appeal to the facility superintendent; and (3) an appeal to the statewide chief grievance officer.” Adams v. Giroux, CIVIL ACTION NO. 1:15-cv-01321, 2016 WL 8229205, at *6 (M.D. Pa. Dec. 15, 2016). (See also Ex. E, at 1-1 to -8, 2-1 to -9 (DC-ADM 804 Procedures Manual §§ 1, 2 (eff. May 1, 2014))). DC-ADM 804 sets forth various substantive and procedural requirements for inmate grievances, including requirements that the initial grievance “identify individuals directly involved in the event(s), ” that it “specifically state any claims . . . concerning violations of [DOC] directives, regulations, court orders, or other law, ” and that it specifically request any “compensation or other legal relief normally available from a court.” (Ex. E, at 1-2 (DC-ADM 804 Procedures Manual § 1(A)(12) (eff. May 1, 2014)); Ex. F, at 1-2 (DC-ADM 804 Procedures Manual (excerpt) § 1(A)(12) (eff. Dec. 28, 2011)).[1]

         Here, the defendants rely on the last provision described above: “If the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance.” (Ex. E, at 1-2 (DC-ADM 804 Procedures Manual § 1(A)(12)(d) (eff. May 1, 2014)); see also Ex. F, at 1-2 (DC-ADM 804 Procedures Manual (excerpt) § 1(A)(12) (eff. Dec. 28, 2011) (“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.”)). In this civil action, Harris seeks monetary damages only from the defendants.[2](See Doc. 1, at 3). But nowhere in his initial grievance, nor in any of his subsequent grievance appeals, did Harris articulate a request for monetary compensation. Thus, the defendants contend that Harris failed to properly exhaust all available administrative remedies prior to filing suit.

         Harris concedes that he did not request monetary compensation in administrative grievance proceedings, but he contends that administrative remedies were effectively unavailable to him because he was never given notice of this particular procedural requirement of the DOC's grievance policies. Harris claims that he was never given an inmate handbook or a copy of the grievance procedures policy itself.

         In response, the defendants contend that Harris did in fact receive notice of the requirement. They contend that he received a copy of the DOC's inmate handbook, which explicitly advised of this procedural requirement, while incarcerated at SCI Camp Hill in November 2013. The defendants further contend that a copy of DC-ADM 804 itself was available to Harris at all times in the SCI Huntingdon law library, which Harris frequented. And they contend that Harris received notice of the requirement when a copy of the previous policy governing inmate grievances, containing the same requirement that any demand for monetary compensation be included in the inmate's initial grievance, was served on Harris in February 2014 in connection with a similar lawsuit filed by Harris in another federal court, concerning his exposure to secondhand smoke while incarcerated at SCI Graterford in Montgomery County, Pennsylvania, between August and November 2013.[3]

         Harris has survived summary judgment on this exhaustion issue. Under Third Circuit precedent, “exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts.” Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013) (citing Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)); see also Drippe, 604 F.3d at 781 (“Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to.”) (quoting Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008)); cf. Wilkerson v. United States, Civil Action No. 3:13-1499, 2014 WL 1653249, at *9 (M.D. Pa. Apr. 24, 2014) (“[I]f there is a dispute of material fact, the court should conduct a plenary trial on the contested facts prior to making [an exhaustion of administrative remedies] determination.”) (addressing a prisoner's FTCA claim). “Although the availability of administrative remedies to a prisoner is a question of law, it necessarily involves a factual inquiry.” Small, 728 F.3d at 271 (citations omitted).

         A. Evidence Received into the Record

         1. Testimony of Derrick Moore

         The defendants presented the testimony of non-party witness Derrick Moore, a correctional counselor at SCI Camp Hill. Moore provided testimony about the DOC inmate intake procedures in general and about particular business records generated in the course of Harris's intake processing at SCI Camp Hill. In particular, Moore testified that it was standard practice, and express DOC policy, for all inmates to receive a copy of the DOC's Inmate Handbook as part of their inmate intake orientation at SCI Camp Hill. (See Doc. 59, at 4-8, 11-12). The Inmate Handbook included a summary of the inmate grievance procedures, referring inmates to DC-ADM 804 and various other policies for additional information, and advising that copies of these policies were available on each housing unit and each facility library. (Id. at 6; see also Ex. A). Specifically, the Inmate Handbook explicitly advised: “If you desire compensation and/or other relief, you must request that compensation and/or relief in your initial grievance.” (Doc. 59, at 6; see also Ex. A). Moore further testified that it was standard practice for each inmate to acknowledge his receipt of the Inmate Handbook and other papers as part of the orientation process, and that the plaintiff signed two forms explicitly acknowledging his receipt of the Inmate Handbook on November 20, 2013. (Doc. 59, at 7-8; see also Ex. B; Ex. C). Based on the demeanor of the witness and the consistency of his testimony with the record as a whole, we find Moore's testimony to be fully credible.

         2. Testimony ...


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