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Abney v. Basial

United States District Court, M.D. Pennsylvania

March 30, 2018

LISA W. BASIAL, et al., Defendants

          Judge Kane


          Carlson, Magistrate Judge

         Before the Court in the above-captioned action is the January 30, 2018 Report and Recommendation of Magistrate Judge Carlson (Doc. No. 63), recommending that the Court grant in part and deny in part Defendants' Motion for Partial Summary Judgment (Doc. No. 44), and the parties' objections (Doc. Nos. 64, 69). Upon consideration of the briefing filed in connection with the motion for partial summary judgment, Magistrate Judge Carlson's Report and Recommendation, the objections of the parties, and the applicable law, for the reasons provided herein, the Court will adopt the recommendation set forth in the Report and Recommendation and grant in part and deny in part Defendants' motion for partial summary judgment.

         I. BACKGROUND

         As set forth at length in Magistrate Judge Carlson's Report and Recommendation, this case and a companion case, Abney v. Younker, No. 1:13-cv-1418, share a complicated factual and procedural history. Due to the protracted litigation history and the parties' intimate familiarity with the factual allegations and background of this action, the Court limits its description of the background to the facts relevant to the pending motion and Report and Recommendation. As noted above, this civil rights action has its origins in another civil action pending in this Court, Abney v. Younker et al., No. 1:13-cv-1418 (“Abney-I”), in which Plaintiff asserts claims against several Department of Corrections employees arising out of a beating he sustained at the State Correctional Institution (“SCI”) at Huntingdon, in June 2012. In this action, Plaintiff alleges that after sustaining the beating that formed the basis of his later lawsuit, Defendants Younker, Snyder, Hills, Booher, Nickum, and Meyers (the “Huntingdon Defendants”), engaged in verbal and physical harassment of inmate-witnesses in retaliation for information provided to the Department of Corrections in connection with its investigation of the incident. (Doc. No. 22 ¶¶ 17-22.) Further, Plaintiff alleges that Defendant Basial, who was then a senior deputy attorney general in the Pennsylvania Office of Attorney General representing all but one of the defendants in Abney-I, refused to intervene in retaliatory conduct arising after the filing of Abney-I on May 24, 2013, and affirmatively took steps to interfere with Plaintiff's access to his attorney. (Id. ¶¶ 30-72.) In addition, Plaintiff alleges that Defendant Basial was aware of/involved in the actions of Defendants Whalen, Shoop, and Fisher, who, Plaintiff alleges: (1) deprived him of his thyroid medication and interfered with a phone call to his attorney while he was incarcerated at SCI-Camp Hill (Defendant Whalen); (2) forced Plaintiff to stand in his underwear in a cold cell surrounded by fully clothed prisoners for two hours while he was housed at SCI-Smithfield during a stopover on his return trip from SCI-Camp Hill to SCI-Houtzdale (Defendant Shoop); and (3) acquiesced in the practice of holding prisoners without clothing for long periods of time while Superintendent at SCI-Smithfield (Defendant Fisher). (Id. ¶¶ 76-91, 93-111.)

         On May 22, 2017, Defendants filed the pending motion for partial summary judgment as to Plaintiff's claims against all Defendants except Defendant Shoop, either for failure to exhaust administrative remedies, or as barred by the applicable two-year statute of limitations. (Doc. No. 44.)


         The Magistrate Act, 28 U.S.C. § 636 et seq., and Rule 72(b) of the Federal Rules of Civil Procedure provide that any party may file written objections to a magistrate's proposed findings and recommendations. The written objections must “specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections.” M.D. Pa. L.R. 72.3. When a party objects to a report and recommendation of a magistrate judge, this Court must “make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b); M.D. Pa. L. R. 72.3. The Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.


         In his Report and Recommendation, Magistrate Judge Carlson recommends: (1) granting Defendants' motion as to Plaintiff's claims against Defendants Whalen and Fisher for failure to exhaust administrative remedies; (2) granting Defendants' motion as to Plaintiff's claims against the Huntingdon Defendants as barred by the statute of limitations; and (3) denying the motion as to Plaintiff's claim against Defendant Basial. (Doc. No. 63.)

         A. Failure to Exhaust - Defendants Whalen and Fisher

         As to Plaintiff's claims against Defendants Whalen and Fisher, Magistrate Judge Carlson resolved the question of whether Defendants met their burden to establish Plaintiff's non-exhaustion in the following manner:

Abney did not name Fisher in any of the grievances he filed related to his improper transport and the misconduct that occurred during the transport. With allegations such as those made in this case - mainly, a conspiracy among multiple DOC employees and officials that spans three state prisons - an allegation of misconduct against “DOC staff” or “staff at SCI-Smithfield” does not sufficiently alert the prison officials about sufficient relevant information so that they can address the inmate's alleged problem or concern. If that were the case, the exhaustion requirement of the PLRA would be meaningless, as inmates could bring claims in federal court against multiple DOC employees, and the prisons would have never been put on sufficient notice that there was a problem that was capable of being adequately addressed. A practice of permitting generalized grievances that fail to identify alleged wrongdoers would undermine both the plain language and the stated purpose of Pennsylvania's grievance procedure, which is to try and resolve problems within the prison before bringing claims in federal court. . . . Thus, we find that the plaintiff's claims against Fisher have not been properly exhausted because his identity was relevant to the claims that Abney was making against him, and the failure to include this information was improper under the DOC's policy.
As for Defendant Whalen, Abney's counsel contends that Abney filed a grievance regarding Whalen's allegedly retaliatory acts - depriving him of his thyroid medication while at SCI-Camp Hill and interfering with a phone call with his attorney - and attaches a “page 2" that is a statement of facts this attorney prepared for him to attach to the grievance. (Doc. No. 58-4, at 12.) Abney's counsel claims that he received no response to that grievance, although she twice attempted to contact SCI-Camp Hill to find out what happened to it. (Doc. No. 59, at 10.) However, there is no indication, such as a cover page or grievance number, that a grievance was ever actually filed against Whalen by Abney. This absence of such corroborating proof of the filing of such a grievance is particularly noteworthy on at least two scores, both of which support the argument that Abney did not fully and properly exhaust his grievance against this defendant. First, the five grievances filed by the plaintiff with respect to other claims in this action all have a cover sheet that contains the date on which it was filed. (Doc. 47-3, at 31, 38, 42, 50, 61.) Thus, it is apparent that Abney was able to fully access and utilize the ...

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