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Carvalho v. Bledsoe

United States District Court, M.D. Pennsylvania

August 13, 2019

DORIAN CHRISTIAN CARVALHO, Plaintiff,
v.
WARDEN BRYAN BLEDSOE, et al., Defendants.

          MEMORANDUM

          Malachy E. Mannion, U.S. District Judge.

         I. BACKGROUND

         Dorian Christian Carvalho, formerly a federal inmate, filed this amended Bivens[1] and Federal Tort Claims Act[2] 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 USP-Lewisburg.

         The 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).

         Following 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.[3] (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 82-85).

         In 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.[4] (Doc. 170 at 13-14; see Id. at 22-40).

         Because 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.

         II. DISCUSSION

         “Summary 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).

         A. Exhaustion of Administrative Remedies

         The 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 prison:

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).

         Prisoners 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[5] 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, 8).

         Despite 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 (2006)). Thus,

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.

         “The 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).

         As an 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).

         As to 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).

         The key 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.[6]

         This 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.

         Specifically, Carvalho asserts that his failure to administratively exhaust his claims is due largely to Edinger's machinations.[7] (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).

         Taken 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.

         Defendants 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, 174).

         Second, 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).

         The 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.

         B. Merits of Summary Judgment Motion

         Defendants 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).

         Carvalho 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).

         i. Eighth Amendment ...


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