GARDNER v. WETZEL

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY GARDNER , :

Plaintiff, : 1:18-cv-2285

:

v. : Hon. John E. Jones III

:

SECRETARY JOHN E. WETZEL, :

Defendant. :

MEMORANDUM

March 16, 2020

I. BACKGROUND

Plaintiff Anthony Gardner (“Gardner”), an inmate incarcerated at the State

Correctional Institution at Dallas (SCI-Dallas), commenced this action on

November 29, 2018, pursuant to 42 U.S.C. § 1983, challenging the

constitutionality of a legal mail policy implemented by the Pennsylvania

Department of Corrections (“DOC”) in September 2018. The sole Defendant is the

Secretary of the DOC, John Wetzel.

Presently pending is Defendant’s motion (Doc. 25) for summary judgment

pursuant to Federal Rule of Civil Procedure 56.1 For the reasons set forth below,

the Court will grant Defendant’s motion.

1 Because Defendants relied on documents outside the pleadings in arguing that Gardner’s claim

for injunctive relief is moot, they recognize in their supporting brief that pursuant to Federal Rule

of Civil Procedure 12(d), the Court may treat the Rule 12 motion to dismiss as a motion for

summary judgment under Rule 56. (Doc. 26, p. 5).

II. STANDARD OF REVIEW

Summary judgment “should be rendered if the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue

as to any material fact and that the movant is entitled to judgment as a matter of

law.” FED. R. CIV. P. 56(c); Turner v. Schering-Plough Corp., 901 F.2d 335, 340

(3d Cir. 1990). “[T]his standard provides that the mere existence of some alleged

factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of

material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)

(emphasis in original); Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990).

A disputed fact is “material” if proof of its existence or nonexistence would affect

the outcome of the case under applicable substantive law. Id.; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is

“genuine” if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d 1283, 1287-88 (3d

Cir. 1991).

The party moving for summary judgment bears the burden of showing the

absence of a genuine issue as to any material fact. Celotex Corp. v. Catrett, 477

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U.S. 317, 323 (1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d

Cir. 1996). Although the moving party must establish an absence of a genuine

issue of material fact, it need not “support its motion with affidavits or other

similar materials negating the opponent's claim.” Celotex, 477 U.S. 317, 323

(1986). It can meet its burden by “pointing out ... that there is an absence of

evidence to support the nonmoving party’s claims.” Id. at 325.

Once such a showing has been made, the non-moving party must go beyond

the pleadings with affidavits, depositions, answers to interrogatories or the like in

order to demonstrate specific material facts which give rise to a genuine issue.

FED. R. CIV. P. 56; Celotex, 477 U.S. at 324; Matsushita Elec. Indus. Co. v. Zenith

Radio, 475 U.S. 574, 586 (1986) (stating that the non-moving party “must do more

than simply show that there is some metaphysical doubt as to the material facts”);

Wooler v. Citizens Bank, 274 F. App’x 177, 179 (3d Cir. 2008). The party

opposing the motion must produce evidence to show the existence of every

element essential to its case, which it bears the burden of proving at trial, because

“a complete failure of proof concerning an essential element of the nonmoving

party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at

323; see also Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992). “[T]he

non-moving party ‘may not rely merely on allegations or denials in its own

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pleadings; rather, its response must . . . set out specific facts showing a genuine

issue for trial.’” Picozzi v. Haulderman, 2011 WL 830331, *2 (M.D. Pa. 2011)

(quoting FED. R. CIV. P. 56(e)(2)). “Inferences should be drawn in the light most

favorable to the non-moving party, and where the non-moving party’s evidence

contradicts the movant’s, then the non-movant’s must be taken as true.” Big Apple

BMW, Inc. v. BMW of North America. Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

If the non-moving party “fails to make a showing sufficient to establish the

existence of an element essential to that party’s case, and on which that party will

bear the burden at trial,” summary judgment is appropriate. Celotex, 477 U.S. at

322. The adverse party must raise “more than a mere scintilla of evidence in its

favor” and cannot survive by relying on unsupported assertions, conclusory

allegations, or mere suspicions. Williams v. Borough of W. Chester, 891 F.2d 458,

460 (3d Cir. 1989). The mere existence of some evidence in support of the non-

movant will not be adequate to support a denial of a motion for summary

judgment; there must be enough evidence to enable a jury to reasonably find for

the non-movant on that issue. Anderson, 477 U.S. at 249–50.

III. STATEMENT OF MATERIAL FACTS

A. Injunctive Relief

Gardner seeks to enjoin Defendant Wetzel from unlawfully seizing, copying

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and destroying legal mail pursuant to the DOC policy, DC-ADM 803, effective

October 3, 2018. (Doc. 1, pp. 3, 4). The Court approved a Settlement Agreement

on March 25, 2019, between the DOC and the Plaintiffs in the matter of 1:18-cv-

2100, PILP, et al. v. Wetzel, et al., addressing the parties’ challenges to the DOC’s

legal mail policy, DC-ADM 803 (effective October 3, 2018). As of April 6, 2019,

the DOC ceased copying legal mail and reinstituted the procedures governing the

inspection and delivery of legal mail utilized prior to September 2018. See Exhibit

F, DC-ADM 803, Inmate Mail and Incoming Publications (Section 1 updated on

April 6, 2019 to conform to the Settlement Agreement). Additionally, any legal

mail saved by the DOC was destroyed or returned to the sender. Id.; see also

Exhibit E, Settlement Agreement for 1:18-cv-2285.

B. Exhaustion of Administrative Remedies

DOC inmates are notified of the Inmate Grievance System policy, DC-

ADM-804, in the Inmate Handbook. (Doc. 28, ¶ 6, 7). The policy is intended to

deal with a wide range of issues, procedures, or events that are of concern to the

inmate who is personally affected by a DOC or facility action and policy. (Id. at 8,

10). Because it provides formal resolution of an inmate’s issues or concerns,

inmates are encouraged to first try informal avenues, such as communicating with

the staff at his or her institution prior to filing a grievance. (Id. at 9, 11). If

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informal avenues prove unsuccessful, the policy provides a three-step process for

resolution of inmate grievances: (1) the initial grievance and staff response that

must be submitted to the Facility Grievance Coordinator; (2) the appeal to the

Facility Manager or Superintendent and response; and (3) and the final appeal to

the Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”) and response.

(Id. at 12).

If the inmate is dissatisfied with the decision of the Grievance Coordinator,

he may appeal to the Facility Manager. (Id.) If dissatisfied with the outcome of

that appeal, he may seek review with the SOIGA, which is the final level of appeal

from a grievance under the DOC’s Inmate Grievance System. (Id. at 13, 14).

Kyle Fagan (“Fagan”), Assistant to the Superintendent at SCI-Dallas, is

responsible for the review, tracking and referral of all grievances to an appropriate

grievance officer. (Id. at 15). Fagan reviewed the grievance records and found that

Gardner has not filed a grievance in the last five years. (Id. at 17).

Dorina Varner (“Varner”) is the Chief for the SOIGA who, inter alia, is the

custodian of the records of inmate grievances appealed to final review. (Id. at 18).

Varner reviewed the grievance appeal records; there is no record of Gardner having

filed any grievances. (Id. at 19, 20).

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Gardner does not dispute the facts set forth above. Rather, he contends that

he utilized other avenues of administrative exhaustion prior to suit and that 42

U.S.C. § 1997e(a) does not state that the “DOC exhaustion requirement is the only

form applicable to administrative exhaustion.” (Doc. 34, p. 7).

IV. DISCUSSION

A. Injunctive Relief

Defendant seeks dismissal of the Gardner’s claim seeking to enjoin the DOC

from inspecting and copying his legal mail as moot. (Doc. 26, p. 5). The

amendment to DC-ADM 803, effective April 6, 2019, which ceased the seizing,

copying, and destroying of legal mail, and reinstated the prior legal mail policies in

place, renders Gardner’s request for injunctive relief moot. See Khodara Envtl.,

Inc. ex rel. Eagle Envtl., L.P. v. Beckman, 237 F.3d 186, 192-93 (3d Cir. 2001)

(“Article III of the Constitution grants the federal courts the power to adjudicate

only actual, ongoing cases or controversies.”); Blanciak v. Allegheny Ludlum

Corp., 77 F.3d 690, 698-99 (3d Cir. 1996) (“If developments occur during the

course of adjudication that eliminate a plaintiff's personal stake in the merit of a

suit or prevent a court from being able to grant the requested relief, the case must

be dismissed as moot.”). Defendant Wetzel is entitled to an entry of summary

judgment on this claim.

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B. Failure to Exhaust Administrative Remedies

Defendant also seeks an entry of summary judgment based on Gardner’s

failure to exhaust his administrative remedies as required by the Prison Litigation

Reform Act, 42 U.S.C. § 1997(e)a. The Prison Litigation Reform Act of 1996 (the

“PLRA”) “mandates that an inmate exhaust ‘such administrative remedies as are

available’ before bringing suit to challenge prison conditions.” Ross v. Blake, 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.”). “A prisoner may not satisfy the ... exhaustion requirement by exhausting

administrative remedies after initiating suit in federal court.” Jenkins v. Dancha,

723 F. App’x 174, 175 (3d Cir. 2018). “If exhaustion is incomplete when an

inmate files suit, dismissal is mandatory.” Ryder v. Bartholomew, 715 F.App’x.

144, 149 (3d Cir. 2017); see also Turner v. Sec’y Pennsylvania Dep’t of Corr., 683

F. App’x. 180, 182 n.1 (3d Cir. 2017) (“An inmate cannot cure non-compliance

with § 1997e(a) by exhausting remedies after filing his complaint.”); see also

Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (“Whatever the parameters

of ‘substantial compliance’ referred to [in Nyhuis, 204 F.3d 77–78] it does not

encompass ... the filing of a suit before administrative exhaustion, however late,

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has been completed. It follows that Ahmed cannot cure the defect in his action by

the proffered amendment of the complaint.” (footnote omitted)). 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”).” Id. at 1856-57.

While recognizing that the PLRA requires that prisoners comply with the

procedural demands of a system created by their jailors, the United States Court of

Appeals for the Third Circuit recently noted that the jailors must comply with the

demands of the system they created. Shifflett v. Korszniak, 934 F.3d 356, 365 (3d

Cir. 2019). The Court went on to hold that “as soon as a prison fails to respond to

a properly submitted grievance or appeal within the time limits prescribed by its

own policies, it has made its administrative remedies unavailable and the prisoner

has fully discharged the PLRA’s exhaustion requirement.” (Id.).

“The only limit to § 1997e(a)’s [exhaustion] mandate is the one baked into

its text: An inmate need exhaust only such administrative remedies as are

‘available.’” Ross, 136 S. Ct. at 1862 (quoting § 1997e(a)). In other words, “the

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exhaustion requirement hinges on the ‘availab[ility]’ of administrative remedies:

An inmate, that is, must exhaust available remedies, but need not exhaust

unavailable ones.” Id. at 1858 (quoting § 1997e(a)). “[T]he ordinary meaning of

the word ‘available’ is ‘capable of use for the accomplishment of a purpose,’ and

that which ‘is accessible or may be obtained.’” Id. (quoting Booth, 532 U.S. at

737–38 (internal citations and quotation marks omitted)). “Accordingly, an inmate

is required to exhaust those, but only those, grievance procedures that are ‘capable

of use’ to obtain ‘some relief for the action complained of.’” Id. at 1859 (Booth,

532 U.S. at 738).

There exists “three kinds of circumstances in which an administrative

remedy, although officially on the books, is not capable of use to obtain relief.” Id.

at 1859. “First, ... an administrative procedure is unavailable when (despite what

regulations or guidance materials may promise) it operates as a simple dead end—

with officers unable or consistently unwilling to provide any relief to aggrieved

inmates,” such as when “a prison handbook directs inmates to submit their

grievances to a particular administrative office—but in practice that office

disclaims the capacity to consider those petitions.” Id. Next, “an administrative

scheme might be so opaque that it becomes, practically speaking, incapable of

use.” Id. Finally, administrative remedies are unavailable “when prison

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administrators thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860,

1860 n.3 (citing Davis v. Hernandez, 798 F.3d 290, 295 (5th Cir. 2015)).

It is undisputed that Gardner failed to exhaust his administrative remedies

through the DOC’s Inmate Grievance System prior to commencing this action. He

takes the position that he satisfied the exhaustion requirement by availing himself

of two other avenues of administrative relief, use of an administrative law judge of

the Department of Justice, or the United States Postal Service (because mail is

involved).2 (Doc, 34, pp. 7, 8). It is his position that there is no requirement that he

exhaust the DOC’s inmate grievance system. (Id. at 7). He is mistaken. The

PLRA clearly requires exhaustion of available administrative remedies and

Gardner fails to come forward with any evidence that the DOC’s Inmate Grievance

System policy was not available to him. The Court will grant Defendant’s motion

for summary judgment.

V. CONCLUSION

Based on the above, Defendant’s motion (Doc. 25) for summary judgment

pursuant to Federal Rule of Civil Procedure 56, will be granted.

An appropriate Order follows.

2 Gardner fails to provide the Court with any documents indicating that he actually utilized these

avenues of administrative review.