United States District Court, E.D. Pennsylvania
OPINION DEFENDANT OFFICER GEORGE CROAK'S MOTION
TO DISMISS, ECF NO. 25 - DENIED
F. LEESON, JR., United States District Judge
Jason Edward Williams initiated this action pursuant to 42
U.S.C. § 1983 against Defendants George Croak and J.
Phillips, correctional officers at the Bucks County
Correctional Facility, Doylestown, Pennsylvania for alleged
assaults and sexual harassment beginning in April 2017.
See Compl., ECF No. 9. Croak has filed a Motion to
Dismiss based on Williams's alleged failure to exhaust
administrative remedies. See Mot. Dismiss, ECF No.
For the reasons set forth below, because it is not clear from
the face of the Complaint that Williams did not exhaust
administrative remedies, the Motion to Dismiss is denied.
STANDARD OF REVIEW
rendering a decision on a motion to dismiss, this Court must
“accept all factual allegations as true [and] construe
the complaint in the light most favorable to the
plaintiff.” Phillips v. Cnty. of Allegheny,
515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002))
(internal quotation marks omitted). Only if “the
‘[f]actual allegations . . . raise a right to relief
above the speculative level'” has the plaintiff
stated a plausible claim. Id. at 234 (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 540, 555
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). However, “the
tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal
conclusions.” Id. (explaining that determining
“whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the
reviewing court to draw on its judicial experience and common
sense”). The defendant bears the burden of
demonstrating that a plaintiff has failed to state a claim
upon which relief can be granted. Hedges v. United
States, 404 F.3d 744, 750 (3d Cir. 2005) (citing
Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d
1406, 1409 (3d Cir. 1991)).
Complaint, Williams details numerous incidents of alleged
physical abuse by Croak between April 20, 2017, and August
29, 2017, while he was incarcerated at the Bucks County
Correctional Facility. See Compl. He also alleges
that Croak hit him in the private area on more than one
occasion, unsnapped his jumper on another date, grabbed his
nipple on yet another occasion while telling Williams that he
liked that sh*t, and called him a faggot on several other
dates. See Compl. supp. pages.
responding to why he did not file a grievance, Williams
states: “I only filed a grievance for the Officer
Phillips matters all other incidents I reported to staff
members and no one did anything about it.” Compl. 5. He
further explains, “I reported it to my DNA counselor
Isabella Evans and her boss.” Id.
argues that it is clear from the Complaint Williams failed to
file a grievance regarding the claims against him and the
federal claim must be dismissed as unexhausted.
Prison Litigation Reform Act (‘PLRA') prohibits an
inmate from bringing a civil rights suit alleging specific
acts of unconstitutional conduct by prison officials
‘until such administrative remedies as are available
are exhausted.'” Oriakhi v. United States,
165 Fed.Appx. 991, 993 (3d Cir. 2006) (quoting 42 U.S.C.
§ 1997e(a)). “Although exhaustion is not a
pleading requirement under the PLRA, a court may dismiss
claims if the complaint is clear on its face that the
plaintiff did not exhaust available administrative
remedies.” Livingston v. Appel, No. 11-2764,
2014 U.S. Dist. LEXIS 168579, at *10 (E.D. Pa. Dec. 5, 2014)
(citing Jones v. Bock, 549 U.S. 199, 214-15 (2007)).
Croak's suggestion, this Court does not find that
Williams's failure to exhaust administrative remedies is
clear from the face of the Complaint. Although Williams
states that he only filed a grievance regarding the Phillips
matters, he also states that he reported all other matters to
staff members. Drawing all reasonable inferences in the
Complaint in the light most favorable to Williams, all other
matters includes allegations that Croak sexually
harassed him, sexually abused him, and
physically abused him. These types of complaints may be
reported verbally to a staff member, and there is no
requirement that an inmate file a written grievance.
See DC-ADM 001; DC-ADM 008.
to the Policy Statement of the Pennsylvania Department of
Corrections and the Prison Rape Elimination Act
(“PREA”),  an inmate who is a victim of sexual abuse
or sexual harassment by a staff member may report the abuse
by making “a verbal report to a staff member.”
See DC-ADM 008, Section 3(B)(4). This Policy
Statement specifically provides that “[i]nmates shall
not utilize the inmate grievance system to report sexual
abuse or sexual harassment by a staff member. . . .”
DC-ADM 008, Section 3(B)(6). See also DC-ADM 804
(stating that the Inmate Grievance System is not meant to
address allegations of sexual abuse and that such allegations
“must be addressed through
Department policy DC-ADM 008, Prison Rape Elimination Act
(PREA)” (emphasis in original)). Although inmates may
use the grievance system to report allegations of excessive
or improper force by a corrections officer, inmates may also
report such abuse verbally to any staff member. See
DC-ADM 001(IV)(D)(1)-(2). See also Daniel v.
Wetzel, No. 1:15-cv-00850, 2016 U.S. Dist. LEXIS 39547,
at *14-16 (M.D. Pa. Mar. 24, 2016) (“Grievances
alleging abuse of an inmate by a staff member or other
noninmate may be addressed through the DC-ADM 804 grievance
process, or they may also be addressed by alternative
reporting methods set forth in DC-ADM 001.”).
stage of the case, the Court finds that because Williams
alleges that he reported the allegations of abuse and
harassment by Croak to a staff member, which is consistent
with the available reporting options in DC-ADM 001 and DC-ADM
008, it is not clear from the face of the Complaint that his
claims are not exhausted. Moreover, because DC-ADM 804 states
that the Inmate Grievance System is not available to address
allegations of sexual abuse, the grievance procedure was not
“available” to Williams regarding these claims.
See Oriakhi, 165 Fed.Appx. at 993 (holding that the
PLRA requires an inmate to exhaust “such administrative
remedies as are available”); Sarvey v. Wetzel,
No. 16-157ERIE, 2018 U.S. Dist. LEXIS 51487, at *12-13 (W.D.
Pa. Mar. 28, 2018) (finding that the opaqueness ...