United States District Court, M.D. Pennsylvania
ARNOLD J. HARRIS, #LD-5834, Plaintiff,
J.A. ECKARD, Superintendent, et al., Defendants.
REPORT AND RECOMMENDATION
F. SAPORITO, JR. United States Magistrate Judge
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
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.
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)).
matter is now ripe for disposition.
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
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.
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
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.
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.
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.
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.
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).
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
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).
§ 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).
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)).
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.(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.
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.
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.
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).
Evidence Received into the Record
Testimony of Derrick Moore
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.