United States District Court, M.D. Pennsylvania
M. MUNLEY JUDGE UNITED STATES DISTRICT COURT
Walter Scott ("Scott"), a state inmate who, at all
times relevant, was incarcerated at the State Correctional
Institution at Frackville, Frackville, Pennsylvania,
commenced this civil rights action pursuant to 42 U.S.C.
§ 1983, on August 12, 2019. (Doc. 1).
response to the complaint, Defendants CO Smoke
("Smoke") and CO Morgan ("Morgan") filed
a motion (Doc. 15) pursuant to Federal Rule of Civil
Procedure 12(b)(6), accompanied by a supporting brief (Doc.
16), seeking dismissal for failure to exhaust his
administrative remedies prior to commencement of the action,
inter alia. On November 7, 2019, in accordance with
Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018),
the Court placed the parties on notice that it will consider
exhaustion in its role as fact finder and afforded them the
opportunity to be heard under Small v. Camden Cty.,
728 F.3d 265 (3d Cir. 2013). (Doc. 17). Defendants
supplemented the motion on November 15, 2019. At that time
the Court also informed Plaintiff of his obligation to oppose
Defendants' motion and informed him that if he did not
file a timely brief in opposition, Defendants' motion
would be deemed unopposed. Plaintiff has failed to oppose the
motion. For the reasons that follow, the motion will be
deemed unopposed and granted.
alleges that when he exited the prison dining hall on June
30, 2019, Defendant Smoke stopped him and conducted a pat
down search of him, during which Smoke squeezed his buttocks.
(Doc. 1, pp. 1-3). He alleges that this action constituted
indicates that he wrote a grievance, but no action was taken.
(Id. at 3). He also alleges that he had a
"written Prea" but that he had not yet had a
response to the complaint. (Id.). He seeks
Standards of Review
rendering a decision on a motion to dismiss, a court should
not inquire "whether a plaintiff will ultimately prevail
but whether the claimant is entitled to offer evidence to
support the claims." Scheuer v. Rhodes, 416
U.S. 232, 236 (1974); Nami v. Fauver, 82 F.3d 63, 66
(3d Cir. 1996). The court must accept as true the factual
allegations in the complaint and draw all reasonable
inferences from them in the light most favorable to the
plaintiff. Innis v. Wilson, 334 Fed.Appx. 454, 456
(3d Cir. 2009) (citing Phillips v. Cnty of
Allegheny, 515 F.3d 224, 229 (3d Cir. 2008)). A district
court ruling on a motion to dismiss may consider the facts
alleged on the face of the complaint, as well as
"documents incorporated into the complaint by reference,
and matters of which a court may take judicial notice."
Tellabs. Inc. v. Makor Issues & Rights. Ltd.,
551 U.S. 308, 322 (2007).
"the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal
conclusions." Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) ("Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
Under the pleading regime established by [Bell Atl. Corp.
v.1 Twombly, 550 U.S. 544 (2007) and Iqbal, a
court reviewing the sufficiency of a complaint must take
three steps. First, it must "tak[e] note of the elements
[the] plaintiff must plead to state a claim."
Iqbal, 556 U.S. at 675, 129 S.Ct. 1937. Second, it
should identify allegations that, "because they are no
more than conclusions, are not entitled to the assumption of
truth." Id. at 679, 129 S.Ct. 1937. See also
Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224
(3d Cir. 2011) ("Mere restatements of the elements of a
claim are not entitled to the assumption of truth."
(citation and editorial marks omitted)). Finally,
"[w]hen there are well-pleaded factual allegations,
[the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to
relief." Iqbal 556 U.S. at 679, 129 S.Ct. 1937.
Connelly v. Lane Const. Corp., 809 F.3d 780, 787-88
(3d Cir. 2016) (internal citations, quotations and footnote
omitted). Elements are sufficiently alleged when the facts in
the complaint "show" that the plaintiff is entitled
to relief. Iqbal, 556 U.S. at 679 (quoting Fed.
R.Civ.P. 8(a)(2)). At the second step, the Court identities
those allegations that, being merely conclusory, are not
entitled to the presumption of truth. Twombly and
Iqbal distinguish between legal conclusions, which
are discounted in the analysis, and allegations of historical
fact, which are assumed to be true even if "unrealistic
or nonsensical," "chimerical," or
"extravagantly fanciful." Iqbal, 556 U.S.
at 681. Deciding whether a claim is plausible is a
"context-specific task that requires the reviewing court
to draw on its judicial experience and common sense."
seek dismissal of Scott's complaint based on his failure
exhaust his administrative remedies as required by the Prison
Litigation Reform Act of 1996 (the "PLRA"). The
PLRA "mandates that an inmate exhaust 'such
administrative remedies as are available' before bringing
suit to challenge prison conditions." Ross v. Blake,
__U.S.__; 136 S.Ct. 1850, 1856 (2016): see Nyhuis v.
Reno, 204 F.3d 65, 73 (3d Cir. 2000) ("[I]t is
beyond the power of this court-or any other-to excuse
compliance with the exhaustion requirement, whether on the
ground of futility, inadequacy or any other basis.").
The text "suggests no limits on an inmate's
obligation to exhaust- irrespective of 'special
circumstances.'" Id. "And that
mandatory language means a court may not excuse a failure to
exhaust, even to take such circumstances into account. See
Miller v. French, 530 U.S. 327, 337, 120 S.Ct. 2246,
147 L.Ed.2d 326 (2000) (explaining that "[t]he mandatory
'shall' ... normally creates an obligation impervious
to judicial discretion")." 14 at 1856-57. "Of
course, exhaustion applies only when administrative remedies
are 'available.' Under certain circumstances, a
nominally extant prison grievance policy is not truly an
'available' remedy. Ross v. Blake, __U.S.__,
136 S.Ct. 1850, 195 L.Ed.2d 117 (2016). This applies when the
procedure 'operates as a simple dead end-with officers
unable or consistently unwilling to provide any relief to
aggrieved inmates," where it is "so opaque that it
becomes, practically speaking, incapable of use,' or
'when prison administrators thwart inmates from taking
advantage of a grievance process through machination,
misrepresentation, or intimidation.' Id. at
1859-60." Shifflett v. Korszniak, 934 F.3d 356,
365 (3d Cir. 2019)
PLRA mandates that an inmate "properly" exhaust
administrative remedies before filing suit in federal court,
which demands compliance with an agency's deadlines and
other procedural rules. Woodford v. Neo, 548 U.S.
81, 92 (2006); Spruill v. Gillis,372 F.3d 218, 230
(3d Cir. 2004) (concluding that the PLRA includes a
procedural default component); Rivera v. Pa. Den't of
Corr., 388 Fed.Appx. 107, 108 (3d Cir. 2010) (stating
"[a]n inmate must exhaust his administrative remedies
prior to filing a civil action in federal court.").
Inmates who fail to fully, or timely, complete the prison
grievance process, or who fail to identify the named
defendants, are barred from subsequently litigating claims in
federal court. See Spruill, 372 F.3d 218. Notably, prison
administration must also comply with the demands of the
system. "[A]s soon as a prison fails to respond to a
properly submitted grievance or appeal ...