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Hensley v. Trempus

United States District Court, W.D. Pennsylvania

April 17, 2019

JOSEPH HENSLEY, Plaintiff
v.
MAJOR JOSEPH TREMPUS AND, SCI FAYETTE Defendants

          SUSAN PARADISE BAXTER, UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          RICHARD A. LANZILLO, UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         It is 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.

         II. REPORT

         In his 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. 2.

         Because 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).[1] 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.

         As a 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)).

         Like 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 excuse”).

         The 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.

         Because 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 added).

         III. CONCLUSION

         For the 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.

         In 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 ...


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