United States District Court, W.D. Pennsylvania
PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.
hereby recommended that this action be dismissed as legally
frivolous in accordance with 28 U.S.C. § 1915(e). It is
further recommended that Defendants' motion to dismiss
(ECF 22) be denied as moot.
Complaint, Plaintiff Joseph Hensley (“Hensley”)
requests injunctive relief “to not be moved off the SNU
unit due to mental health reasons.” ECF No. 8, p. 3. He
claims that Defendant Trempus “is trying to send [him]
to a block where [he] will get killed and not get the mental
health treatment that [he] need[s].” Id. at p.
Hensley was granted leave to proceed in forma
pauperis (ECF 7), he is subject to the screening
provisions in 28 U.S.C. § 1915(e). Pursuant to 28
U.S.C. § 1915(e)(2), a court “shall dismiss the
case at any time if the court determines that . . . the
action or appeal . . . fails to state a claim on which relief
may be granted.” Id. (emphasis added). This
screening obligation “is not excused even after
defendants have filed a motion to dismiss” or motion
for summary judgment. Banks v. County of Allegheny,
568 F.Supp.2d 579, 587-89 (W.D. Pa. 2008); Burton v.
Verano, 2016 WL 4697361, at *2 (M.D. Pa. July 14, 2016)
(invoking § 1915 at the summary judgment stage). In
performing this mandatory screening function, a district
court applies the same standard applied to motions to dismiss
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
Banks, 568 F.Supp.2d at 588.
general matter, the Prison Litigation Reform Act
(“PLRA”) provides that “[n]o action shall
be brought with respect to prison conditions under section
1983 of this title, 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). See also
Small v. Camden Cnty., 728 F.3d 265, 269 (3d Cir. 2013)
(“Under the PLRA, exhaustion is a precondition for
bringing suit under § 1983.”). The exhaustion of
available administrative remedies is thus mandatory,
Booth v. Churner, 532 U.S. 731, 739 (2001), and
“applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes,
and whether they allege excessive force or some other
wrong.” Porter v. Nussle, 534 U.S. 516, 532
(2002). Exhaustion is a “threshold issue that courts
must address to determine whether litigation is being
conducted in the right forum at the right time.”
Small, 728 F.3d at 270 (quoting Dillon v.
Rogers, 596 F.3d 260, 272 (5th Cir. 2010)).
the statute of limitations, the failure to exhaust
administrative remedies is an affirmative defense.
McPherson v. United States, 392 Fed.Appx. 938, 943
(3d Cir. 2010). “And as with the statute of
limitations, dismissal under Fed.R.Civ.P. 12(b)(6) based on
the failure to exhaust is appropriate only if it is apparent
from the complaint that the plaintiff failed to exhaust
available administrative remedies.” Escalera v.
Harry, 2016 WL 6694502, at *5 (M.D. Pa. Sept. 28, 2016)
(citing Thomas v. Brinich, 579 Fed.Appx. 60, 62 (3d
Cir. 2014) (“While the failure to exhaust
administrative remedies may form a basis for a dismissal for
failure to state a claim, dismissal on that ground is
appropriate only in those circumstances where the complaint
reveals the exhaustion defense on its face.”);
Jones v. Bock, 549 U.S. 199, 215-216 (2007) (holding
that a prisoner's failure to exhaust available
administrative remedies is an affirmative defense, but noting
that “that is not to say that failure to exhaust cannot
be a basis for dismissal for failure to state a claim”
and that “[w]hether a particular ground for opposing a
claim may be the basis for dismissal for failure to state a
claim depends on whether the allegations in the complaint
suffice to establish that ground, not on the nature of the
ground in the abstract”). Because a court may only
dismiss a complaint on exhaustion grounds where the complaint
itself reveals the failure to exhaust, “cases in which
the failure to exhaust is appropriately raised on a motion to
dismiss will be rare.” Escalera, 2016 WL
6694502, at *5 (citing Albino v. Baca, 747 F.3d
1162, 1169 (9th Cir. 2014) (concluding that “in those
rare cases where a failure to exhaust is clear from the face
of the complaint, a defendant may successfully move to
dismiss under Rule 12(b)(6) for failure to state a
claim”); Aquilar-Avellaveda v. Terrell, 478
F.3d 1223, 1225 (10th Cir. 2007) (stating that “only in
rare cases will a district court be able to conclude from the
face of the complaint that a prisoner has not exhausted his
administrative remedies and that he is without a valid
instant case presents the rare scenario where the
plaintiff's failure to exhaust his claim is apparent on
the face of his pleading. Hensley utilized a form complaint
to initiate this action. On that form, Hensley was asked to
indicate whether “there [is] a prisoner grievance
procedure in [his] institution.” ECF No. 8, p. 3.
Hensley answered that question in the affirmative.
Id. The form then asked, “Did you present the
facts relating to your complaint in the state prisoner
grievance procedure?” Id. Hensley responded by
checking the box marked “No.” Id. By way
of explanation for his failure to exhaust, Hensley stated:
“I am working on it now. I need an injunction or TRO. I
went in front of the deputy superintendent on this matter and
they don't want to deal with it.” Id.
Hensley's failure to administratively exhaust his claims
is clearly established by the averments in his own Complaint,
dismissal is appropriate. See, e.g.,
Ball v. SCI Muncy, 385 Fed.Appx. 211, 213 (3d Cir.
2010) (affirming dismissal of claims for failure to exhaust
where “[plaintiff] conceded, on the face of her
Complaint, that she had not completed the grievance process
at the prison and, therefore, had not exhausted her
claim.”); Austin v. Beard, 351 Fed.Appx. 780,
782 (3d Cir. 2009) (affirming dismissal where
“[plaintiff] himself acknowledged that he had failed to
complete the DOC's grievance process”);
Chillcott v. Erie County Prison, 2018 WL 5982441, at
*5 (W.D. Pa. Nov. 14, 2018) (dismissing based on lack of
exhaustion where “the plaintiff's failure to
exhaust his claim [was] apparent on the face of his
pleading”). Hensley's statement that he “is
working on it now” cannot cure his failure to exhaust.
See Washington-El v. Beard, 562 Fed.Appx 61, 64 (3d
Cir. 2014) (“inmates must exhaust their administrative
remedies before filing a suit[.]”) (emphasis
foregoing reasons, it is respectfully recommended that this
action be dismissed as legally frivolous in accordance with
28 U.S.C. § 1915(e). It is further recommended that
Defendants' motion to dismiss (ECF 22) be denied as moot.
accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P.
72, the parties must seek review by the district court by
filing Objections to the Report and Recommendation within
fourteen (14) days of the filing of this Report and
Recommendation. Any party opposing the Objections shall have
fourteen (14) days from the date of service of the Objections
to respond thereto. See Fed.R.Civ.P. 72(b)(2).
Extensions of time will not be granted. Failure to file
timely objections may constitute a ...