United States District Court, M.D. Pennsylvania
JOSEPH A. BROWN, Plaintiff,
MATT EDINGER, et al., Defendants.
SAPORITO MAGISTRATE JUDGE
H. RAMBO UNITED STATES DISTRICT JUDGE
the court is a report and recommendation filed by the
magistrate judge in which he recommends that judgment as a
matter of law be granted to Defendant Matt Edinger on the
ground that Plaintiff Joseph A. Brown failed to exhaust
available administrative remedies provided by the Bureau of
Prisons prior to filing his civil rights suit. For the
reasons that follow, the report and recommendation will be
alleges that, after he was exonerated from a staff assault
charge, Edinger began systematically retaliating against him
in July 2012, and refused to consider his request for a cell
change due to his incompatibility with his cell mate. On July
28, 2012, he was stabbed by the cell mate, and the following
week he requested a Bureau of Prisons BP-8 form from Edinger
in order to initiate the prison grievance procedure. Edinger
refused to provide him the form however, which Brown claims
effectively rendered his administrative remedies unavailable.
42 U.S.C. § 1997(a); see also NyHuis v. Reno,
204 F.3d 65, 68 (3d Cir. 2000).
2, 2017, the magistrate judge held a hearing to determine
whether Edinger met his burden of showing that Brown failed
to exhaust available administrative remedies. In the report
and recommendation, the magistrate judge provides his
findings and facts and conclusions of law based on the
testimony presented at the hearing. The magistrate judge
ultimately found that the testimony of Edinger and Keri
Sorce, a paralegal specialist and administrative remedy clerk
at USP-Lewisburg, was fully credible. On the other hand, he
found Brown to be less than credible based on his demeanor
and the inconsistencies in his testimony.
objections to the report and recommendation, Brown argues
that the magistrate judge's credibility determinations
were an abuse of discretion and a miscarriage of justice.
(Doc. 145, p. 8.) He alleges that Edinger's testimony was
flawed and tainted with inconsistencies and lies.
(Id. at pp. 9-10.) As to Keri Sorce's testimony,
he alleges that she was “very partial and
unreliable.” (Id. at p. 12.)
testified at the hearing that he was familiar with the
administrative remedy process. (N.T., Doc. 130, p. 5.) The
first part of the process requires the BP-8 form to be filed
within 20 days after the incident, which would have been on
or before August 17, 2012, since the incident occurred on
July 28, 2012. However, the BP-8 form was not filed until
November 20, 2012, i.e., three months late.
(Id. at p. 10.)
the evidentiary hearing, Brown admitted that he did not
allege in any of his filings that he was denied a BP-8 form
by Edinger. At one point, he agreed that he was not denied a
BP-8 form but was instead denied BP-9s, 10s, and 11s.
(Id. at p. 15.) However, these documents can be
obtained from other inmates. (Id. . at pp. 17-18.)
testified that he never denied Brown any administrative
remedy form and that when an inmate requests a BP-8 form from
a counselor, the counselor dates and signs the form.
(Id., p. 50.) If the issue presented in the BP-8
form cannot be informally resolved, the BP-8 form is given
back to the counselor and entered into a BP-8 log book for
further action. (Id. at p. 53.) The record reflects
that Brown was provided with a BP-8 form on August 2, 2012,
five days after the July 28, 2012 incident, yet the form did
not raise any issue related to the incident. (Id. at
p. 55.) This contradicts Brown's claim and testimony
indicating that Edinger refused to provide him with a BP-8
form during the relevant time period. Edinger further
testified that he gave a BP-8 form to Brown on November 20,
2012, but explained that there was no entry in the BP-8 log
book because Brown did not submit the completed form to him.
(Id., p. 61.)
Sorce testified as to her duties related to receiving
administrative remedies. As the administrative remedy clerk,
she has no responsibility with the BP-8 forms, but rather
works with BP-9 forms. She testified that if a BP-9 form is
not accompanied by a BP-8 form, the BP-9 will be rejected.
The only way she would know if an inmate completed the BP-8
requirement is if the BP-8 form is attached to the BP-9 form.
(Id., p. 84.)
did refute Brown's allegations that he was denied BP-9s,
10s and 11s from November 20, 2012 through March 22, 2013.
The administrative remedy Generalized Retrieval Report shows
that a BP-10 forms were filed by Brown on November 23, 2012,
December 5, 2012, and January 18, 2013. BP-11 forms were
filed by him on January 22, 2013 and February 25, 2013.
(Id., pp. 78-80.)
was cross-examined by Brown as to her opinion that the
administrative remedy form for Remedy I.D. 710674-R1 was
fraudulent. There is nothing in the cross-examination that
lessens the suspicion that Remedy I.D. 710674-R1 did not have
a stamp affixed to it by the remedy clerk at the regional
level and that the second page did not reference the
appropriate case number, which leaves doubt as to whether
that administrative ...