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Whitenight v. Elbel

United States District Court, W.D. Pennsylvania, Pittsburgh.

December 27, 2019



          Cynthia Reed Eddy Chief United States Magistrate Judge

         This a pro se civil rights action initiated by Plaintiff, Shawn Whitenight. At the time of the events giving rise to this lawsuit, Whitenight was a pretrial detainee incarcerated at Jefferson County Jail. The defendants are Warden Thomas Elbel and Deputy Sheriff Jacob Nunley. Both are sued in their individual and official capacities.

         Pending is Defendants' motion for summary judgment, with brief in support (ECF Nos. 158 and 161) and Plaintiff's cross motion for partial motion for summary judgment, with brief in support. (ECF Nos. 163 and 165). The issues have been fully briefed and the factual record has been thoroughly developed. (ECF Nos. 159, 160, 164, 172, 173, 174, 175, 176, 177, 179, 180, 181, 182, and 183).

         After careful consideration of the motions, the memoranda of the parties in support and opposition thereto, the material in support and opposition thereto, the relevant case law, and the record as a whole, the Court will grant Defendants' motion for summary judgment in its entirety and deny Whitenight's partial motion for summary judgment.

         Background [2]

         The relevant background is well known to the parties and was fully discussed in the Court's Report and Recommendation filed April 10, 2017 (ECF No. 50), adopted as the opinion of the Court on May 19, 2017. (ECF No. 64).[3] Whitenight was a pre-trial detainee being held on a number of state charges which were filed in the Court of Common Pleas of Jefferson County at Criminal No. CP-33-CR-0000001-2014. Whitenight alleges that while at Jefferson County Jail awaiting his criminal trial, his constitutional rights were violated in several respects. Initially, Whitenight alleged a plethora of claims against both Defendants based on alleged violations of his civil rights under the First, Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. He also asserted claims against Warden Elbel under federal and state criminal statutes, the Pennsylvania constitution, and state common law for civil conspiracy. After the Court's ruling on Defendants' motion to dismiss, which substantially limited Whitenight's claims, “[t]he only remaining claims in this lawsuit are as follows: Plaintiff's Fourth Amendment claims, the Federal Wiretap Act claims, and the Pennsylvania Wiretapping and Electronic Surveillance Act claims.” Memorandum Order, 5/19/2017 (ECF No. 64 at 4). The Second Amended Complaint remains Whitenight's operative pleading. (ECF No. 34).

         Standard of Review

         The standard for assessing a Motion for Summary Judgment under Rule 56 of the Federal Rules of Civil Procedure is well-settled. A court should grant summary judgment if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Furthermore, “summary judgment will not lie if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 250.

         On a motion for summary judgment, the facts and the inferences to be drawn therefrom should be viewed in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). The moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support its claim. The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts, ” Matsushita, 475 U.S. at 586, and must produce more than a “mere scintilla” of evidence to demonstrate a genuine issue of material fact. See Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

         Notably, these summary judgment rules do not apply any differently where there are cross-motions pending. Lawrence v. City of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated by the Court of Appeals for the Third Circuit,"' [c]ross-motions are no more than a claim by each side that it alone is entitled to summary judgment, and the making of such inherently contradictory claims does not constitute an agreement that if one is rejected the other is necessarily justified or that the losing party waives judicial consideration and determination whether genuine issues of material fact exist.'" Id. (quoting Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d Cir. 1968)). If review of cross-motions reveals no genuine issue of material fact, then judgment may be granted in favor of the party entitled to judgment in view of the law and undisputed facts. Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir. 1998) (citation omitted).

         This standard is somewhat relaxed with respect to pro se litigants. Where a party is representing himself pro se, the filings are to be construed liberally. Thus, if the Court can reasonably read plaintiff's pleadings together with his summary judgment submissions to show an entitlement to relief, the Court should do so despite any failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969) (although a filing prepared by a prisoner may be inartfully drawn, it should be read “with a measure of tolerance”). Nonetheless, at the summary judgment stage of the proceedings, the Court is not required to credit any “bald assertions” or “legal conclusions” that are unaccompanied by evidentiary support. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000); see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment.”).


         Whitenight alleges that while at Jefferson County Jail his telephone calls with his attorneys were improperly recorded, “eavesdropping” occurred on another call; and his legal material was improperly searched and read during his transport on May 12, 2014, from the Jefferson County Jail to the Jefferson County courthouse. Discovery has closed and the parties have filed cross-motions for summary judgment. Defendants seek summary judgment on all claims arguing that Whitenight has failed to exhaust his administrative remedies or, in the alternative, that he has failed to establish a violation of his constitutional rights. Whitenight seeks summary judgment only as to the claims against Deputy Nunley. The motions are fully briefed and ripe for disposition by the Court.

         A. Exhaustion under the Prison Litigation Reform Act

         Defendants argue they are entitled to summary judgment because Whitenight's claims are barred procedurally by the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the “PLRA”), as he failed to exhaust his administrative remedies before filing his action in federal court. Therefore, before turning to the merits of any claim, the Court must decide whether Whitenight exhausted his administrative remedies.

         As the United States Court of Appeals for the Third Circuit stated:

The PLRA states that ‘[n]o action shall be brought with respect to prison conditions under [§ 1983], 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). Exhaustion is considered separately for each claim brought by an inmate, and if a complaint includes both exhausted and unexhausted claims, courts will dismiss the latter but not the former. See Jones v. Bock, 549 U.S. 199, 219-20 (2007). The Supreme Court has held that the PLRA requires what is known as ‘proper exhaustion,' meaning that inmates must comply with the rules and procedures of prison administrative systems. See Woodford v. Ngo, 548 U.S. 81, 90-91 (2006) (“Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules because no adjudicative system can function effectively without imposing some orderly structure on the course of its proceedings.”). We have held that these procedural requirements are drawn from the policies of the prison in question rather than from any free-standing federal law. Spruill [v. Gillis], 372 F.3d [218, 231 (3d Cir. 2004)].

Shifflett v. Korszniak, -- F.3d --, 2019 WL 3772104, at *6 (3d Cir. Aug. 12, 2019). Because “prison grievance procedures supply the yardstick for measuring procedural default, ” Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004), inmates who fail to fully complete the prison grievance process are barred from subsequently litigating those claims in federal court. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000), aff'd, 532 U.S. 731 (2001). With these standards in mind, the Court will proceed to address the exhaustion issue, and if necessary, will then address Whitenight's claims on their merits.

         In a recent unpublished opinion, our court of appeals reiterated the analytical structure for a failure-to-exhaust affirmative defense:

As formulated in this Circuit, the failure-to-exhaust affirmative defense has two distinct stages. The first inquiry is whether the prison-employee defendants can demonstrate that the inmate failed to exhaust the on-the-books remedies. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (explaining that the prison's grievance policy supplies “ ‘the yardstick' for determining what steps are required for exhaustion” (quoting Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004))); see also Ross v. Blake, 136 S.Ct. 1850, 1859 (2016); Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). If the defendants can make that showing, then at the second stage, the inmate plaintiff bears the onus of producing evidence that the on-the-books remedies were in fact unavailable to him or her.1 See Rinaldi, 904 F.3d at 268.
1This order of evaluation is not absolute, and it is permissible to consider the second stage first, see, e.g., Small, 728 F.3d at 271-72, but this ordering is consistent with the prison-employee defendants bearing the burden of production at the first stage, before the inmate plaintiff inherits the burden at the second.
The state of facts dictates the appropriate legal standard for evaluating the exhaustion defense. If there is no genuine dispute of material fact, then the exhaustion defense may be evaluated as a matter of law at summary judgment. If there is a genuine dispute of material fact related to exhaustion, then summary judgment is inappropriate . . . .

West v. Emig, No. 18-3806, -- Fed.Appx. --, 2019 WL 5061417, *2 (3d Cir., Oct. 9, 2019) (non-precedential). Here, because Defendants have moved for summary judgment, the analysis turns on whether any genuine issue of material fact exists and whether Defendants are entitled to judgment as a matter of law.

         No analysis of exhaustion may be made absent an understanding of the administrative process available to those incarcerated at Jefferson County Jail. Jones v. Bock, 549 U.S. 199, 218 (2007). The Jefferson County Jail Inmate Handbook outlines the multi-tier process for the grievance procedure including the appeal process:

Step #1 - Address the problem with correctional staff to see if they can resolve the problem. Many times an officer can resolve the situation without a grievance being filed.
Step #2 - Submit a request for a grievance form giving details about the problem. At times the deputy warden can resolve the problem before there is actually a need for a grievance. If this is not possible, you will be given a grievance form.[4]
Step #3 - Complete the grievance form and forward it to the deputy warden. He/she will respond to the grievance within ten (10) business days, unless detailed research is needed. If the grievance cannot be answered within the ten (10) day ...

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