Pressley v. Huber

          MANNION, D.J.

          REPORT AND RECOMMENDATION

          KAROLINE MEHALCHICK United States Magistrate Judge

         Before the Court are two motions for summary judgment (Doc. 127; Doc. 145) filed by the Defendants to this § 1983 action; each motion argues that pro se Plaintiff Sean Pressley failed to exhaust administrative remedies prior to initiation of this lawsuit. Defendants argue that exhaustion cannot be accomplished under DC-ADM 001 (Doc. 128) and that Pressley did not pursue relief to final review as required for exhaustion under DC-ADM 804 (Doc. 146). For the rationale contained in this Report and Recommendation, the Court recommends finding that Pressley failed to exhaust under DC-ADM 804, but that he did exhaust under DC-ADM 001. However, Pressley failed to identify some of the Defendants to this action, as required for proper exhaustion.

         I. Background and Procedural History

         On March 3, 2008, Pressley initiated this § 1983 action for excessive force and failure to protect under the Eighth Amendment and a violation of his due process rights under the Fourteenth Amendment.^[1] (Doc. 1; Doc. 1-2). In his complaint, ^[2] Pressley asserts that on October 30, 2006, Defendants Huber and Zimmerman attacked him without provocation; punching him in the face, head, and upper body. (Doc. 1-2, ¶ 13-14). After the initial attack, Defendants Yohn, Gerber, Ayers, Tabias, and Taylor joined in. (Doc. 1-2, ¶ 15 - as amended by Doc. 31). This attack resulted in “swelling of the face and head, a fracture or partial fracture to a tooth, lacerations to his lips, and back and chest pains.” (Doc. 1-2, ¶ 16).

         For nearly three years, Pressley had warned Defendants Steigerwalt, Marsh, Jr., Chambers, Taggart, Kelchner, O'Hara, and Beard that Defendant Huber was stalking and harassing him. (Doc. 1-2, ¶ 18). Pressley asserts each is liable for a failure to protect him from Huber, who was involved in “many” incidents of abuse on the cell block prior to the one at the heart of this action. (Doc. 1-2, ¶ 20-22). Pressley seeks compensatory and punitive damages, as well as costs for litigation. (Doc. 1-2, at 6).

         The collective Defendants filed a motion for summary judgment on July 16, 2015; arguing Pressley failed to exhaust his claims through the prison's administrative grievance process. (Doc. 99; Doc. 100). Pressley did not respond, despite Court Order (Doc. 103), instead filing a motion to stay (Doc. 105) received by the Court on October 9, 2015; the same day that the Court issued a Report and Recommendation to grant the motion for summary judgment. (Doc. 104). The District Court denied Pressley's motion to stay, but also declined to adopt the Report and Recommendation in order to allow for Pressley to respond. (Doc. 113). The parties filed their brief in opposition and reply on March 7, 2016, and March 21, 2016, respectively. (Doc. 118; Doc. 120).

         With the benefit of additional briefing, the Court granted summary judgment on the failure to protect and due process claims for Pressley's failure to exhaust, but denied summary judgment without prejudice on exhaustion of Pressley's claims of excessive force. (Doc. 122; Doc. 123). The Court allowed a renewed summary judgment motion to be filed within 30 days. On May 8, 2017, Pressley filed a “motion for relief from Order”, which the Court considered a motion for reconsideration on the basis of newly discovered evidence. (Doc. 126). The Defendants filed their renewed summary judgment motion on May 22, 2017, addressing only exhaustion under DC-ADM 001. (Doc. 127; Doc. 128). The parties fully briefed the motion for summary judgment, however the Court found merit to Pressley's motion for reconsideration and vacated the portion of the March 21, 2017, Order entering summary judgment on Pressley's claims for a failure to protect. (Doc. 141; Doc. 142). The Court ordered any desired additional motion and briefing on the issue of exhaustion under DC-ADM 804 in light of the newly discovered evidence to be submitted by September 6, 2017. (Doc. 144).

         The Defendants complied on August 25, 2017. (Doc. 145; Doc. 146). Therein they argue that Pressley failed to exhaust his claims under DC-ADM 804 because he failed to request monetary relief, failed to follow proper procedures in his initial appeal, failed to pursue his appeal to the final stage, and failed to name parties in his grievances that are now parties to this action. (Doc. 146, at 9-11). Pressley responds he did not have current prisoner handbooks and thus did not have available administrative remedies to pursue, that D.O.C. policy does not consider a failure to request relief as a procedural default, that his grievance was improperly denied because he was forced to combine all his pending grievances into one appeal, and that prison officials prevented his attempts at appealing to final review. (Doc. 153, at 2-4). The Defendants respond Pressley's arguments are belied by his prior assertions, that what D.O.C. policy dictates is distinct from the requirements for a federal lawsuit, and that the final appeal document is fabricated because it is addressed to someone who did not work at the prison until seven months after the purported appeal is dated. (Doc. 154, at 3-5).

         Fully briefed, the matter is now ripe for review.

         II. Standard of Review

         While the evidentiary support for evaluating whether Pressley failed to exhaust administrative remedies has changed, the standards for evaluating exhaustion provided in the Court's prior Report and Recommendation have not.

         The Prison Litigation Reform Act provides that “[n]o action shall be brought with respect to prison conditions under . . . [42 U.S.C. § 1983], 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.” 42 U.S.C. § 1997e(a). Section 1997e's exhaustion requirement applies to a wide-range of inmate complaints, including damages complaints like those made here grounded in alleged violations of the Eighth Amendment. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000).

         While the exhaustion requirement is not a jurisdictional bar to litigation, this requirement is strictly enforced by the courts. The plaintiff must exhaust administrative remedies prior to bringing a civil rights action, not while the action is pending. Millbrook v. United States, 8 F.Supp.3d 601, 611 (M.D. Pa. 2014) (citations omitted). This rigorous enforcement is mandated by a fundamental recognition that § 1997e's exhaustion requirement promotes important public policies. As the United States Court of Appeals for the Third Circuit has noted:

[c]ourts have recognized myriad policy considerations in favor of exhaustion requirements. They include (1) avoiding premature interruption of the administrative process and giving the agency a chance to discover and correct its own errors; (2) conserving scarce judicial resources, since the complaining party may be successful in vindicating his rights in the administrative process and the courts may never have to intervene; and (3) improving the efficacy of the administrative process. Each of these policies, which Congress seems to have had in mind in enacting the PLRA, is advanced by the across-the-board, mandatory exhaustion requirement in § 1997e(a). ... [A] comprehensive exhaustion requirement better serves the policy of granting an agency the “opportunity to correct its own mistakes with respect to the programs it administers before it is haled into federal court.” Moreover, “even if the complaining prisoner seeks only money damages, the prisoner may be successful in having the [prison] halt the infringing practice” or fashion some other remedy, such as returning personal property, reforming personal property policies, firing an abusive prison guard, or creating a better screening process for hiring such guards. And when a prisoner obtains some measure of affirmative relief, he may elect not to pursue his claim for damages. In either case, local actors are given the chance to address local problems, and at the very least, the time frame for the prisoner's damages is frozen or the isolated acts of abuse are prevented from recurring. An across-the-board exhaustion requirement also promotes judicial efficiency. … Moreover, even if only a small percentage of cases settle, the federal courts are saved the time normally spent hearing such actions and multiple appeals thereto. … In cases in which inmate-plaintiffs exhaust their remedies in the administrative process and continue to pursue their claims in federal court, there is still much to be gained. The administrative process can serve to create a record for subsequent proceedings, it can be used to help focus and clarify poorly pled or confusing claims, and it forces the prison to justify or explain its internal procedures. All of these functions help courts navigate the sea of prisoner litigation in a manner that affords a fair hearing to all claims.

Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000) (citations omitted).

         Because of the important policies fostered by mandating exhaustion, it has been held that there is no futility exception to § 1997e's exhaustion requirement. Nyhuis, 204 F.3d at 71. Instead, courts have typically required across-the-board administrative exhaustion by inmate plaintiffs who seek to pursue claims in federal court. Moreover, courts have also imposed a procedural default component on this exhaustion requirement, holding that inmates must fully satisfy the administrative requirements of the inmate grievance process before proceeding into federal court. Spruill, 372 F.3d at 230. Applying this procedural default standard to § 1997e's exhaustion requirement, courts have concluded that inmates who fail to fully, or timely, complete the prison grievance process are barred from subsequently litigating claims in federal court. See, e.g., Booth v. Churner, 206 F.3d 289, 300 (3d Cir. 2000); Bolla v. Strickland, 304 F.App'x 22, 23 (3d Cir. 2008) (not precedential); Jetter v. Beard, 183 F. App'x 178, 180 (3d Cir. 2006) (not precedential). Furthermore, applying this procedural default component to the exhaustion requirement, it has been held that:

[a]s for the failure to the identify named defendants on the grievance form, . . . to the extent the identity of a defendant was “a fact relevant to the claim, ” . . . in the absence of any justifiable excuse, a[n] inmate's failure to properly identify a defendant constituted a failure to properly exhaust his administrative remedies under the PLRA.

Williams v. Pa. Dep't. of Corr., 146 F. App'x 554, 557 (3d Cir. 2005) (not precedential).^[3]Thus, “it is clear, regardless of the purpose of the requirement, that Spruillrequires the prisoner-grievant-plaintiff to name in the grievance those he eventually sues, upon pain of procedural default.” Hemingway v. Ellers, No. 07-1764, 2008 WL 3540526, *11 (M.D. Pa. Aug. 12, 2008).

         This broad rule favoring full exhaustion has one, narrowly defined exception. If the actions of prison officials directly caused the inmate's procedural default on a grievance, the inmate will not be held to strict compliance with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (finding administrative remedies “unavailable” when correctional officers told prisoner that his grievances would not reach the Grievance Coordinator). However, case law recognizes a clear “reluctance to invoke equitable reasons to excuse [an inmate's] failure to exhaust as the statute requires.” Davis v. Warman, 49 F. App'x 365, 368 (3d Cir. 2002). Thus, an inmate's failure to exhaust will only be excused “under certain limited circumstances”, Harris v. Armstrong, 149 F. App'x 58, 59 (3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust only by showing “he was misled or that there was some extraordinary reason he was prevented from complying with the statutory mandate.” Davis, 49 F. App'x at 368. See also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (assuming that prisoner with failure to protect claim is entitled to rely on instruction by prison officials to wait for outcome of internal security investigation before filing grievance); Camp, 219 F.3d at 281(exhaustion requirement met where Office of Professional Responsibility fully examined merits of excessive force claim and defendants did not “refute[]” prisoner's account of the facts).

         However, in the absence of competent proof that an inmate was misled by corrections officials, or some other extraordinary circumstances, inmate requests to excuse a failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot excuse a failure to timely comply with these grievance procedures by simply claiming that his efforts constituted “substantial compliance” with this statutory exhaustion requirement. Harris, 149 F. App'x at 59. Nor can an inmate avoid this exhaustion requirement by merely alleging that the Department of Corrections policies were not clearly explained to him. Davis, 49 F. App'x at 368. Furthermore, an inmate's confusion regarding these grievances procedures does not, standing alone, excuse a failure to exhaust. Casey v. Smith, 71 F. App'x 916 (3d Cir. 2003). Moreover, an inmate cannot cite to alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust, if it also appears that the prisoner did not pursue a proper grievance once those impediments were removed. Oliver v. Moore, 145 F. App'x 731 (3d Cir. 2005) (failure to exhaust not excused if, after staff allegedly ceased efforts to impede grievance, prisoner failed to follow through on grievance).

         III. Discussion

         Consideration of whether Pressley exhausted his claims pursuant to administrative remedies provided in D.O.C. policy is governed by two provisions; DC-ADM 804 and DC-ADM 001. As summarized in the March 21, 2017 Memorandum allowing supplemental briefing on the issue of exhaustion:

[t]he Pennsylvania DOC has established several methods by which Pennsylvania inmates can grieve their claims of abuse before seeking redress in federal court. First, the Pennsylvania DOC has an “Inmate Abuse Allegation Monitoring” policy expressing the principle that an inmate should “not [be] subjected to corporal or unusual punishment, or personal abuse or injury.” DOC Policy Statement DC-ADM 001, “Inmate Abuse Allegation Monitoring, ” Part V, “Policy, ” available at http://www/cor.state.pa.us (emphasis in original). In part, “abuse” is defined in the policy as “[c]onduct by an employee ... that involves ... the use of excessive force ...