United States District Court, M.D. Pennsylvania
M. MUNLEY UNITED STATES DISTRICT COURT
Alan Toaz (“Toaz” or “Plaintiff”), a
federal inmate incarcerated at the Allenwood Low Security
Correctional Institution (“LSCI-Allenwood”),
White Deer, Pennsylvania, filed the instant
Bivens-type civil rights complaint (Doc. 1) on
August 11, 2017. See Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). Toaz
sets forth three “counts” in his complaint,
alleging violations of his First, Fifth and Eighth Amendment
rights stemming from a June 28, 2017, mass shakedown in his
housing unit at LSCI-Allenwood, that resulted in the denial
of the use of the bathroom and the deprivation of legal and
personal property. (Doc. 1, pp. 8-10).
pending is Defendants' motion (Doc. 15) for summary
judgment pursuant to Federal Rule of Civil Procedure 56(a),
on the sole issue of whether Toaz exhausted the
administrative remedy procedure prior to filing suit in
federal court. Because we conclude that the administrative
remedy procedure was rendered unavailable to Toaz, the motion
will be denied.
Summary Judgment Standard of Review
judgment “should be rendered if the pleadings, the
discovery and disclosure materials on file, and any
affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as
a matter of law.” Fed.R.Civ.P. 56(c); Turner v.
Schering-Plough Corp., 901 F.2d 335, 340 (3d Cir. 1990).
“[T]his standard provides that the mere existence of
some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue
of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (emphasis in
original); Brown v. Grabowski, 922 F.2d 1097, 1111
(3d Cir. 1990). A disputed fact is “material” if
proof of its existence or nonexistence would affect the
outcome of the case under applicable substantive law.
Id.; Gray v. York Newspapers, Inc., 957
F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is
“genuine” if the evidence is such that a
reasonable jury could return a verdict for the nonmoving
party. Anderson, 477 U.S. at 257; Brenner v.
Local 514, United Brotherhood of Carpenters and Joiners of
America, 927 F.2d 1283, 1287-88 (3d Cir. 1991).
party moving for summary judgment bears the burden of showing
the absence of a genuine issue as to any material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986);
Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358,
1366 (3d Cir. 1996). Once such a showing has been made, the
non-moving party must go beyond the pleadings with
affidavits, depositions, answers to interrogatories or the
like in order to demonstrate specific material facts which
give rise to a genuine issue. Fed.R.Civ.P. 56;
Celotex, 477 U.S. at 324; Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986)
(stating that the non-moving party “must do more than
simply show that there is some metaphysical doubt as to the
material facts”); Wooler v. Citizens Bank, 274
Fed.Appx. 177, 179 (3d Cir. 2008). The party opposing the
motion must produce evidence to show the existence of every
element essential to its case, which it bears the burden of
proving at trial, because “a complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Celotex, . at 323; see also Harter v. G.A.F.
Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he
non-moving party ‘may not rely merely on allegations or
denials in its own pleadings; rather, its response must . . .
set out specific facts showing a genuine issue for
trial.'” Picozzi v. Haulderman, 2011 WL
830331, *2 (M.D. Pa. 2011) (quoting Fed.R.Civ.P. 56(e)(2)).
“Inferences should be drawn in the light most favorable
to the non-moving party, and where the non-moving party's
evidence contradicts the movant's, then the
non-movant's must be taken as true.” Big Apple
BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
Statement of Material Facts
Administrative Remedy Program is a multi-tier process that is
available to inmates confined in institutions operated by the
BOP for review of an issue which relates to any aspect of
their confinement. (Doc. 16, ¶ 1, citing 28 C.F.R.
§542 et seq.; Doc. 20, ¶ 1). An inmate
must initially attempt to informally resolve the issue with
institutional staff by completing a BP-8 form. (Id.
at 2 citing 28 C.F.R. § 542.13; Id. at 2). If
informal resolution fails an inmate may submit a request
via a BP-9 form to the Warden within 20 days of the
date on which the basis for the request occurred.
(Id. at 3, citing 28 C.F.R. § 542.14(a);
Id. at 3). An inmate who is dissatisfied with the
Warden's response may submit an appeal using a BP-10 form
to the Regional Director of the BOP within 20 days of the
date the Warden signed the response. (Id. at 4,
citing 28 C.F.R. § 542.15(a); Id. at 4). If the
Regional Director denies the appeal, the inmate may then
appeal to the BOP's Central Office within 30 days of the
denial. (Id. at 5, 6; Id. at 5, 6). If, at
some level, the inmate does not receive a response within the
time allotted for reply, the inmate may consider the absence
of a response to be a denial at that level. (Id. at
7, citing 28 C.F.R. § 542.18; Id. at 7). An
inmate is not deemed to have exhausted his administrative
remedies until the grievance has been pursued through all
levels. (Id. at 8, citing § 542.15(a)).
complaint, Toaz alleges, that on June 28, 2017, June 29, 2017
and June 30, 2017, and every day thereafter until July 14,
2017, Defendants Rothermel and Brown refused to provide him
with Administrative Remedy forms. (Doc. 20, ¶ 8, citing
Doc. 1, ¶¶ 26, 29, 32, 33, 34, 41, 43). He did not
file a request for administrative relief related to his
Eighth Amendment claim of the denial of the bathroom. (Doc.
16, ¶18). Toaz states that he did not file a grievance
related to the bathroom access because when he requested a
grievance form, “Rothermel, clearly stated ‘that
I'm not going to give you any f***ing grievance forms,
nor will my staff. If you don't like it f***ing sue
me'.” (Doc. 20, ¶ 18).
filed two requests for administrative relief related to the
June 28, 2017, unit shakedown. (Doc. 16, ¶ 10; Doc. 20,
¶ 10). On October 16, 2017, in Administrative Remedy
Number 918430-F1, he sought the immediate return of
“all confiscated legal materials.” (Id.
at 11-13; Id. at 11, 12). The appeal remained
pending as of the filing of Defendants' motion for
summary judgment. (Id. at 14; Id. at 14).
On October 16, 2017, he filed Administrative Remedy Number
918436, arguing that Federal Regulation 28 C.F.R.
§543.11, is invalid and should be amended to permit
assisting another inmate in preparing post-conviction
proceeding filings. (Id. at 15, 16; Id. at
15, 16). The appeal remained pending as of the filing of
Defendants' motion for summary judgment. (Id. at
17; Id. at 18).
seek an entry of summary judgment on the grounds that Toaz
failed to fully exhaust his administrative remedies, as
required by 42 U.S.C. § 1997e(a), prior to initiating
this action. The Prison Litigation Reform Act of 1996 (the
“PLRA”) “mandates that an inmate exhaust
‘such administrative remedies as are available'
before bringing suit to challenge prison conditions.”
Ross v. Blake, __U.S. __; 136 S.Ct. 1850, 1856
(2016); see Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.
2000) (“[I]t is beyond the power of this court-or any
other-to excuse compliance with the exhaustion requirement,
whether on the ground of futility, inadequacy or any other
basis.”). The text “suggests no limits on an
inmate's obligation to exhaust- irrespective of
‘special circumstances.'” Id.
“And that mandatory language means a court may not
excuse a failure to exhaust, even to take such circumstances
into account. See Miller v. French, 530 U.S. 327,
337, 120 S.Ct. 2246, 147 L.Ed.2d 326 (2000) (explaining that
“[t]he mandatory ‘shall' ... normally creates
an obligation impervious to judicial
discretion”).” Id. at 1856-57.
“the PLRA contains its own, textual exception to
mandatory exhaustion, ” i.e. the PLRA requires
exhaustion of “available” administrative
remedies. Id. at 1858. “Available” is
defined as “capable of use for the accomplishment of a
purpose” and that which “is accessible or may be
obtained.” Id. at 1858-59, quoting Booth
v. Churner, 532 U.S. 731, 737-38 (2001). There are three
instances in which administrative remedies are unavailable.
“First, as Booth made clear, an administrative
procedure is unavailable when (despite what regulations or
guidance materials may promise) it operates as a simple dead
end-with officers unable or consistently unwilling to provide
relief to aggrieved inmates.” Id. at 1859.
“Next an administrative scheme might be so opaque that
it becomes, practically speaking, incapable of use.”
Id. Finally, administrative remedies are unavailable
“when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.” Id.
whether an inmate has exhausted administrative remedies is a
question of law that is to be determined by the court, even
if that determination requires the resolution of disputed
facts. See Small v. Camden County, 728 F.3d. 265,
268 (3d ...