United States District Court, M.D. Pennsylvania
Malachy E. Mannion, U.S. District Judge.
Christian Carvalho, formerly a federal inmate, filed this
amended Bivens and Federal Tort Claims
complaint alleging that numerous defendants violated his
rights during his incarceration at Lewisburg United States
Penitentiary (“USP-Lewisburg”). (Doc. 57).
Carvalho raises several claims primarily related to assaults
that he suffered at the hands of his cellmates at
first assault occurred on November 26, 2010, when
Carvalho's cellmate, Franklin Stokes, “without
provocation or reason” attacked Carvalho. (Doc. 57 at
11). Carvalho suffered “serious bodily injury”
during the assault. (Id.). The second assault
occurred on December 11, 2010, after Carvalho was placed in a
cell with Donald Taylor. (Id. at 12-15). Taylor
viciously assaulted Carvalho; Carvalho's ears were chewed
off, he was slashed with a razor blade, and his nose,
cheekbones, and left eye socket were broken before prison
guards stopped the assault. (Id. at 15). As a
result, Carvalho spent three days in a hospital and underwent
multiple surgical procedures. (Doc. 163-2 at 2-70).
the second assault, Carvalho began to refuse cellmates-
allegedly as a result of post-traumatic stress disorder-but
Defendants continually attempted to force Carvalho to accept
cellmates. (Doc. 57 at 21-23; 25-26). Because Carvalho
refused to accept cellmates and threatened to harm anyone
with whom he was placed, on three separate occasions
Defendants placed Carvalho in ambulatory
restraints. (Id. at 33-34). Carvalho was
placed in restraints from February 16, 2011, until February
28, 2011, and again for approximately eight hours on March
11, 2011, and finally from August 19, 2011, until September
1, 2011. (Docs. 163-3 at 57, 73-74, 85; 163-4 at 37; 163-5 at
2012, Carvalho amended his complaint to allege, as relevant
here, that Defendants violated his Eighth Amendment rights by
failing to protect him from the assaults and employing
excessive force by placing him in restraints, and violated
his First Amendment right of access to the courts. (Doc. 57
at 23-26, 33-37). After several delays in the proceedings,
Defendants filed this motion for summary judgment, asserting
that (1) certain Defendants are improperly named, (2)
Carvalho failed to administratively exhaust his claims with
the exception of his First Amendment claim, and (3)
Carvalho's claims fail on the merits. (Docs. 160, 164).
Carvalho in turn contends that his failure to exhaust
administrative remedies should be excused because such
remedies were not actually available. (Doc. 170 at 15-22;
Doc. 179). As to the merits of his claims, Carvalho concedes
that summary judgment is appropriate as to several claims and
individuals, but argues that Bryan Bledsoe and Matt Edinger
are liable for failing to protect Carvalho from the assaults
and for using excessive force related to Carvalho's
placement in restraints, and under the First Amendment for
impeding his access to the courts. (Doc. 170 at 13-14; see
Id. at 22-40).
Defendants' motion for summary judgment relied in part on
the contention that Carvalho failed to exhaust his
administrative remedies, this Court issued an order, pursuant
to Paladino v. Newsome, 885 F.3d 203, 211 (3rd Cir.
2018), and permitted the parties to supplement the record
with any pertinent documents or arguments related to the
exhaustion of Carvalho's administrative remedies. (Doc.
178). Carvalho submitted a timely supplemental brief (Doc.
179), and the matter is now ripe for consideration.
judgment is appropriate when, drawing all reasonable
inferences in favor of the nonmoving party, the movant shows
that there is no genuine dispute as to any material fact, and
thus the movant is entitled to judgment as a matter of
law.” Minarsky v. Susquehanna Cty., 895 F.3d
303, 309 (3d Cir. 2018) (internal quotation marks omitted).
“A dispute is genuine if a reasonable trier-of-fact
could find in favor of the non-movant, and material if it
could affect the outcome of the case.” Bradley v.
W. Chester Univ. of Pa. State Sys. of Higher Educ., 880
F.3d 643, 650 (3d Cir.) (internal quotation marks omitted),
cert. denied, 139 S.Ct. 167 (2018). In considering a
motion for summary judgment, “the court need consider
only the cited materials, but it may consider other materials
in the record.” Fed.R.Civ.P. 56(c)(3).
Exhaustion of Administrative Remedies
Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e,
requires that federal prisoners exhaust all available
administrative remedies prior to filing suit in federal
court. Rinaldi v. United States, 904 F.3d 257,
264-65 (3d Cir. 2018). “Exhaustion is thus a
non-jurisdictional prerequisite to an inmate bringing suit
and, for that reason, . . . it constitutes a threshold issue
that courts must address to determine whether
litigation is being conducted in the right forum at the right
time.” Id. at 265 (internal quotation marks
omitted). To exhaust administrative remedies in federal
As a general matter, inmates must (1) attempt an informal
resolution with staff at the institution [by filing a BP-8
form]; (2) file a formal complaint with the institution [with
a BP-9 form]; (3) file an appeal[, using a BP-10 form, ] to
the appropriate Regional Director if the inmate is not
satisfied with the institution's response to the formal
complaint; and (4) file another appeal to the General Counsel
[with a BP-11 form] if the inmate is not satisfied with the
Regional Director's response to the appeal.
Id. (internal citations omitted).
must complete the BP-8 stage and file a BP-9 within 20 days
of the date of the incident of which the prisoner complains.
(Doc. 170-23 at 5-6). The BP-10 must then be
filed with the Regional Director within 20 days
of the date that the Warden signs his response to the
prisoner's BP-9. (Id. at 7-8). The BP-10 must be
“accompanied by one complete copy or duplicate
original” BP-9 form. (Id. at 8). Finally, the
BP-11 must be filed with the General Counsel within 30 days
of the date that the Regional Director signs the response to
the prisoner's BP-10. (Id.). All deadlines may
be extended upon a showing of good cause. (Id. at 6,
containing a strict exhaustion requirement, “[t]he PLRA
requires only ‘proper exhaustion,' meaning
exhaustion of those administrative remedies that are
‘available.'” Rinaldi, 904 F.3d at
266 (quoting Woodford v. Ngo, 548 U.S. 81, 93
the Supreme Court [has] identified “three kinds of
circumstances in which an administrative remedy, although
officially on the books, ” is not
“available” because it is “not capable of
use to obtain relief”: (1) when “it operates as a
simple dead end-with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”;
(2) when it is “so opaque that it becomes, practically
speaking, incapable of use, ” such as when no ordinary
prisoner can discern or navigate it; or (3) when
“prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.”
Id. at 266-67 (quoting Ross v. Blake, 136
S.Ct. 1850, 1859-60 (2016)). Under the third category,
administrative remedies are rendered unavailable “where
a prison official inhibits an inmate from resorting to them
through serious threats of retaliation and bodily
harm.” Id. at 267.
burden to plead and prove failure to exhaust as an
affirmative defense rests on the defendant.”
Id. at 268. “But once the defendant has
established that the inmate failed to resort to
administrative remedies, the onus falls on the inmate to show
that such remedies were unavailable to him.”
Id. When considering exhaustion in the context of a
motion for summary judgment, “a district court may not
make credibility determinations or engage in any weighing of
the evidence.” Paladino, 885 F.3d at 209-10
(internal quotation marks omitted). “Rather, the
non-moving party's evidence is to be believed and all
justifiable inferences are to be drawn in his favor.”
Id. at 210 (internal quotation marks omitted).
initial matter, Defendants concede that Carvalho exhausted
his administrative remedies regarding his claim for denial of
access to the courts. (Doc. 164 at 3-4, 20). Carvalho in turn
acknowledges that he did not fully exhaust administrative
remedies with respect to his failure to protect and excessive
force claims, but asserts that such remedies were not
available to him. (Doc. 170 at 15-22; Doc. 179). Carvalho
contends that two factors conspired to render administrative
remedies unavailable. First, Carvalho was placed in
restraints around the time that he was required to appeal the
denial of his failure-to-protect-grievance; this denied him
both the ability to draft his appeal, and access to the
documents necessary to perfect such an appeal. (Doc. 179 at
3-6). Second, Carvalho asserts that Edinger worked to thwart
Carvalho from filing grievances, which prevented exhaustion
of both claims. (Id. at 6-9).
Carvalho's first contention, he filed a BP-8 related to
the Taylor assault on January 5, 2011, which was denied on
January 7, 2011. (Doc. 179-1 at 2, 4-5). He filed a BP-9 on
January 21, 2011, which was rejected on January 27, 2011, for
containing more than one issue. (Id. at 7-8, 10;
Doc. 163-1 at 15). Carvalho was permitted to resubmit the
form within 10 days, and his timely refiled BP-9 was denied
on February 25, 2011. (Doc. 179-1 at 10, 15-16, 18; Doc.
163-1 at 16). Carvalho completed a BP-10 on March 19,
2011-which was received by the Regional Office on March 28,
2011-and that appeal was rejected as untimely on April 5,
2011. (Doc. 179-1 at 20-21, 23; Doc. 163-1 at 16).
dispute thus centers around Carvalho's failure to timely
appeal the February 25, 2011, denial of his BP-9, which
appeal must have been filed on or before March 17, 2011.
Carvalho was placed in ambulatory restraints on February 16,
2011 and was not released until the morning of February 28,
2011. (Doc. 163-5 at 86; 163-6 at 26, 28, 64). When prisoners
are placed in restraints, their personal property-including
carbon copies of BP-9 forms required for an appeal-is seized,
and they are not permitted to file grievances. (Doc. 170-19
at 38-40, 57-58). Carvalho asserts that, after his release
from restraints, his property was not returned until March 4,
2011. (Doc. 179-1 at 27). Carvalho then had
“difficulties” in obtaining a BP-10 from Edinger
(id.), and was again placed in restraints on March
11, 2011, which again deprived him of his personal property.
(Doc. 163-3 at 55-59, 75-76). Given that it took anywhere
from several days to one month for property to be returned
(Doc. 170-5 at 57; Doc. 170-19 at 57-78), Carvalho's
placement in restraints effectively ran the clock on his
ability to timely file his BP-10, since it required that he
receive his property, draft an appeal, mail that appeal, and
have the appeal reach the Regional Director within four days,
which constitutes a seemingly impossible task.
alone may be sufficient to find that administrative grievance
procedures were unavailable to Carvalho with regard to his
failure to protect claim. Carvalho's claim of
unavailability is, however, buttressed by additional facts
that strongly support the conclusion that administrative
procedures were unavailable for both his failure to protect
and excessive force claims.
Carvalho asserts that his failure to administratively exhaust
his claims is due largely to Edinger's
machinations. (Doc. 170 at 18-19; Doc 179 at 6-15).
First, although Carvalho relied on Edinger to distribute and
collect all grievance forms (Doc. 170-19 at 52-53), Carvalho
stated that Edinger “would refuse outright to give you
specific grievances. He would refuse to take your grievances
when you were trying to file them. He would return your
grievances without the appropriate copies that you . . .
would need for the next step.” (Doc. 170-5 at 30;
see Id. at 57-58). Edinger also refused to provide
Carvalho with necessary writing utensils to complete
grievance forms (id. at 57), even though it was
Edinger's job to provide prisoners with pens and pencils.
(Doc. 170-19 at 57-58).
together, these acts are sufficient to excuse Carvalho's
failure to exhaust administrative remedies. Edinger's
refusal to provide grievance forms or writing utensils, or
collect grievance forms from Carvalho, plainly rendered the
grievance process unavailable. See Mitchell v. Horn,
318 F.3d 523, 529 (3d Cir. 2003) (failure to exhaust
“excused if there were a failure to provide grievance
forms”). Additionally, because carbon copies of denied
BP-8 or BP-9 forms are required to file an appeal of that
denial, the failure to provide carbon copies similarly
rendered administrative remedies unavailable.
do little to undermine Carvalho's testimony regarding
Edinger's actions. First, Defendants note that
Carvalho's assertion is unsupported by anything other
than his own deposition testimony. (Doc. 174 at 14). While
this is true, deposition testimony alone may support a
finding of unavailability, Paladino, 885 F.3d at
209, and Defendants point to no evidence controverting
Carvalho's statements. (See Docs. 163, 164,
Defendants note that Carvalho was able to exhaust ten
administrative claims between 2010 and 2012, which they
assert undercuts Carvalho's claim that remedies were
unavailable. (Doc. 174 at 14). However, none of those claims
were exhausted around the relevant time period for this case;
one claim was exhausted prior to Carvalho's transfer to
USP-Lewisburg, and the remainder were filed in or after July
2011. (Doc. 163 ¶¶ 18-25). Moreover, none of the
exhausted grievances related to Edinger. (Id.).
Rather, it appears that between April and September 2011-
when any grievance related to Edinger-Carvalho attempted to
bypass Edinger by filing sensitive grievances, all of which
were rejected as being non-sensitive in nature. (See
Doc. 179-1 at 33; Doc. 179-2 at 6, 9-21). As the United
States Court of Appeals for the Third Circuit has observed,
“it [i]s unrealistic to expect the inmate to file a
grievance against the very people who were . . . preventing
him from obtaining the proper forms, and the fact that an
inmate files unrelated claims does not prove that remedies
were available within the system for purposes of
exhaustion.” Rinaldi, 904 F.3d at 270
(brackets and internal quotation marks omitted).
fact that Carvalho exhausted certain claims demonstrates that
he was aware of how to exhaust claims, aware that exhaustion
was necessary, and was capable of pursuing such remedies. The
claims that Carvalho exhausted were relatively unimportant as
compared to issues related to Carvalho's physical and
mental wellbeing. It defies logic that Carvalho would exhaust
certain claims yet intentionally fail to exhaust
consequential claims related to life-altering injuries
sustained in an assault or his placement in restraints for
twelve or thirteen days at a time, which Carvalho described
as “torture.” (Doc. 170-5 at 30, 67-68). Rather
than aid Defendants, the fact that Carvalho exhausted other
administrative remedies gives credence to Carvalho's
assertion that he was prevented from exhausting his
administrative remedies. Viewed in the light most favorable
to Carvalho, a reasonable factfinder could conclude that
Carvalho attempted to exhaust his administrative remedies but
was prevented from so doing by factors beyond his control.
Consequently, the Court concludes that administrative
remedies were not available to Carvalho, and his failure to
exhaust those remedies is excused.
Merits of Summary Judgment Motion
assert that, regardless of whether Carvalho exhausted his
administrative remedies, his underlying claims fail on the
merits. (Doc. 164 at 22-52; Doc. 174 at 3-13). Defendants
argue that Carvalho's failure to protect claim fails
because neither Bledsoe nor Edinger had any role in
Carvalho's cell assignments or any knowledge that he
faced a substantial risk of harm from his cellmates. (Doc.
164 at 29-33; Doc. 174 at 3-6). As to Carvalho's
excessive force claim, Defendants argue that Edinger had no
personal involvement in Carvalho's placement or
maintenance in restraints and that, in any event, the use of
restraints was justified because Carvalho refused to follow
orders and displayed signs of imminent violence. (Doc. 164 at
39-42; Doc. 174 at 7-9). Defendants further contend that
Carvalho's access to the courts claim fails because he
suffered no injury. (Doc. 164 at 42-47; Doc. 174 at 10-13).
Finally, Defendants maintain that, at the very least, they
are entitled to qualified immunity because Carvalho's
constitutional rights were not clearly established at the
time they were violated. (Doc. 164 at 48-52).
in turn asserts that both Bledsoe and Edinger were personally
involved in the constitutional violations. (Doc. 170 at
22-25). As to the excessive force claim, Carvalho asserts
that a genuine issue of material fact should preclude summary
judgment, as no emergency permitted Defendants to use
restraints for extended periods of time. (Id. at
26-33). With regard to the failure to protect claim, Carvalho
argues that Defendants were aware (1) of pervasive and
well-documented history of inmate-on-inmate violence at
USP-Lewisburg, (2) that Carvalho's cellmates had a
history of assaulting other prisoners, and (3) that
Carvalho's cooperation into the investigation of his
first assault placed him in jeopardy because he would be
viewed as a “snitch.” (Id. at 33-37).
Finally, Carvalho contends that summary judgment is
inappropriate with regard to his First Amendment claim only
if the Court concludes that he failed to exhaust his
administrative remedies, as this would effectively establish
the requisite injury required to sustain his claim.
(Id. at 37-40).
Eighth Amendment ...