DeShields v. Commonwealth, Department of Corrections

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT DESHIELDS, :

Plaintiff, :

: No. 1:19-cv-198

v. :

: (Judge Rambo)

COMMONWEALTH, :

DEPARTMENT OF :

CORRECTIONS, et al., :

Defendants. :

MEMORANDUM

This matter is before the Court pursuant to the motion for summary judgment

filed by Defendants Commonwealth, Department of Corrections (“DOC”), Kyle

Confer (“Confer”), and Karen Merritt-Scully (“Merritt-Scully”). (Doc. No. 18.)

Despite being directed to do so (Doc. No. 21) and receiving an extension of time

(Doc. Nos. 22, 23), pro se Plaintiff Robert DeShields (“Plaintiff”) has not responded

to the motion for summary judgment. Accordingly, because the time period for

Plaintiff to respond has expired, Defendants’ motion for summary judgment is ripe

for disposition.

I. BACKGROUND

While incarcerated at the State Correctional Institution in Coal Township,

Pennsylvania (“SCI Coal Township”), Plaintiff initiated the above-captioned action

by filing a complaint pursuant to 42 U.S.C. § 1983 as well as the Religious Land

Use and Institutionalized Persons Act (“RLUIPA”) against Defendants in the Court

of Common Pleas for Northumberland County, Pennsylvania, on December 8, 2018.

(Doc. No. 1-2.) Defendants removed the matter to this Court on February 5, 2019.

(Doc. No. 1.) Plaintiff subsequently filed an amended complaint on February 27,

2019. (Doc. No. 6.) He alleges that Defendants violated his rights under the First

Amendment and RLUIPA by mandating that he undergo tuberculosis testing via a

PPD injection, which he argues violated his religious beliefs. (Id.) On May 8, 2019,

Plaintiff notified this Court that he had been released from custody. (Doc. No. 10.)

After engaging in discovery, Defendants filed their motion for summary

judgment and supporting materials, arguing, inter alia, that Plaintiff failed to exhaust

his administrative remedies. (Doc. Nos. 18, 19, 20.) In its December 5, 2019 Order,

the Court informed the parties that, pursuant to Paladino v. Newsome, 885 F.3d 203

(3d Cir. 2018), it would consider the exhaustion issue in the context of summary

judgment, and by doing so, would consider matters outside the pleadings in its role

as factfinder. (Doc. No. 21.) Accordingly, the Court directed Plaintiff to respond to

Defendants’ motion within twenty-one (21) days. (Id.) As noted above, however,

Plaintiff has not responded.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 56(a) requires the court to render summary

judgment “if the movant shows that there is no genuine dispute as to any material

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fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).

“[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).

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

affect the outcome of the case under applicable substantive law. Id. at 248; 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

Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court

must view the facts and all reasonable inferences in favor of the nonmoving party.

Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963

F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59

(3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party

may not rest on the unsubstantiated allegations of his or her pleadings. When the

party seeking summary judgment satisfies its burden under Rule 56 of identifying

evidence which demonstrates the absence of a genuine issue of material fact, the

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nonmoving party is required by Rule 56 to go beyond his pleadings with affidavits,

depositions, answers to interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986). The party opposing the motion “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Electric

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56 shifts the

burden of production to the nonmoving party, that party must produce evidence to

show the existence of every element essential to its case which it bears the burden

of proving at trial, for “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 Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.

1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party. White,

826 F.2d at 59. In doing so, the Court must accept the nonmovant’s allegations as

true and resolve any conflicts in his favor. Id. (citations omitted). However, a party

opposing a summary judgment motion must comply with Local Rule 56.1, which

specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to

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be filed by the movant], as to which it is contended that there exists a genuine issue

to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply

by citing the fact that he is a pro se litigant. These rules apply with equal force to

all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL 2853261, at *5 (M.D.

Pa. July 20, 2010) (pro se parties “are not excused from complying with court orders

and the local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 WL

2590488, at *4 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules

of Civil Procedure).

III. STATEMENT OF MATERIAL FACTS1

1 The Local Rules of Court provide that in addition to filing a brief in opposition to the moving

party’s brief in support of its motion, “[t]he papers opposing a motion for summary judgment shall

include a separate, short and concise statement of material facts responding to the numbered

paragraphs set forth in the statement [of material facts filed by the moving party] . . . as to which

it is contended that there exists a genuine issue to be tried.” M.D. Pa. L.R. 56. 1. The Rule further

requires the inclusion of references to the parts of the record that support the statements. Id.

Finally, the Rule states that the statement of material facts required to be served by the moving

party will be deemed to be admitted unless controverted by the statement required to be served by

the opposing party. See id. Unless otherwise noted, the factual background herein is taken from

Defendants’ Rule 56.1 statement of material facts. (Doc. No. 19.)

Plaintiff did not file a response to Defendants’ statement of facts in compliance with M.D.

Pa. L.R. 56.1. However, he has filed a verified amended complaint, which may be treated as an

affidavit in opposition to summary judgment. See Ziegler v. Eby, 77 F. App’x 117, 120 (3d Cir.

2003) (noting that “the complaint was not verified, thereby precluding the District Court from

treating it as the equivalent of an affidavit for purposes of Federal Rule of Civil Procedure 56(e)”);

Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985) (treating verified complaint as an affidavit on

summary judgment motion); see also Boomer v. Lewis, No. 06-850, 2009 WL 2900778, at *2 n.4

(M.D. Pa. Sept. 9, 2009) (“A verified complaint may be treated as an affidavit in support of or in

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DOC policy DC-ADM 13.2.1 requires that inmates who refuse tuberculosis

testing must be kept in administrative custody. (Doc. No. 15 ¶ 16.) The only

exception to the policy regards inmates who have been previously documented to

have a reaction to the test by health care professionals. (Id. ¶ 17.) Plaintiff did not

qualify for this exception. (Id. ¶ 18.) The DOC policy was promulgated to ensure

the safety of staff, visitors, and inmates from the spread of tuberculosis. (Id. ¶¶ 19,

22.)

On November 13, 2017, Plaintiff was summoned to the medical department,

where Defendant Confer told him that he would have to take the tuberculosis test.

(Doc. No. 1 ¶ 9.) Plaintiff informed Defendant Confer that the tuberculosis “PPD”

injection would violate his religious tenets as a Muslim and asked if he could “submit

to a chest x-ray or sputum sample.” (Id.) Defendant Confer told Plaintiff that

alternative testing was not offered. (Id. ¶ 10.) Plaintiff was given the option of

taking the test or going into administrative custody, and he chose to take the test.

(Doc. No. 19 ¶ 24.) Plaintiff also took the test again in 2018. (Id. ¶ 25.)

opposition to a motion for summary judgment if the allegations are specific and based on personal

knowledge.”). However, this Court is not “required to accept unsupported, self-serving testimony

as evidence sufficient to create a jury question.” Hammonds v. Collins, Civ. No. 12-236, 2016

WL 1621986, at *3 (M.D. Pa. Apr. 20, 2016) (citing Brooks v. Am. Broad. Co., 999 F.2d 167, 172

(6th Cir. 1993)). Accordingly, unless otherwise noted, the Court deems the facts set forth by

Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R. Civ. P. 56(e)(2).

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Plaintiff filed a grievance asserting that being compelled to take the

tuberculosis test violated his religious rights. (Doc. No. 1 ¶ 20.) Plaintiff was aware

of his responsibility to properly exhaust his administrative remedies. (Doc. No. 19

¶ 9.) Pursuant to DC-ADM 804, the DOC’s policy setting out the grievance

procedure, any inmate appealing a grievance to final review is responsible for

providing all documentation relevant to the appeal, including: (1) a legible copy of

the initial grievance, (2) a copy of the initial review response/rejection and/or

remanded initial review response/rejection, (3) a legible copy of the inmate’s appeal

to the facility manager, (4) a copy of the facility manager/designee’s decision and/or

remanded facility manager/designee’s decision, and (5) a written appeal to the

Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”). (Id. ¶ 11.)

“[F]ailure to provide any of the documentation noted above may result in the appeal

being dismissed.” (Id.) Plaintiff did not provide a copy of the facility manager’s

appeal decision to SOIGA, and his final review appeal was dismissed. (Id. ¶ 12.)

IV. DISCUSSION

Defendants argue that they are entitled to summary judgment because: (1)

Plaintiff failed to fully exhaust his administrative remedies and (2) Defendants had

legitimate medical and institutional reasons for requiring the tuberculosis testing.

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(Doc. No. 20 at 2-3.) The Court first considers Defendants’ arguments regarding

Plaintiff’s failure to exhaust.

Under the PLRA, a prisoner must pursue all available avenues for relief

through the prison’s grievance system before bringing a federal civil rights action.

See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n

inmate must exhaust irrespective of the forms of relief sought and offered through

administrative avenues.”). Section 1997(e) provides, in relevant part “[n]o action

shall be brought with respect to prison conditions under section 1983 of the Revised

Statutes of the United States, 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. § 1997(e). The exhaustion requirement is

mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); Booth, 532 U.S.

at 742 (holding that the exhaustion requirement of the PLRA applies to grievance

procedures “regardless of the relief offered through administrative procedures”).

Moreover, while Plaintiff was released from prison after filing the above-captioned

case (Doc. No. 10), he is still bound by the exhaustion requirement because he has

raised claims concerning events that occurred prior to his release. See Ahmed v.

Dragovich, 297 F.3d 201, 210 (3d Cir. 2002).

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The United States Court of Appeals for the Third Circuit has further provided

that there is no futility exception to § 1997e’s exhaustion requirement. Nyhuis v.

Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts have typically required across-the-

board administrative exhaustion by inmates who seek to pursue claims in federal

court. Id. Additionally, courts have imposed a procedural default component on

this exhaustion requirement, holding that inmates must fully satisfy the

administrative requirements of the inmate grievance process before proceeding into

federal court. Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Courts have concluded

that inmates who fail to fully, or timely, complete the prison grievance process are

barred from subsequently litigating claims in federal court. See e.g., Bolla v.

Strickland, 304 F. App’x 22 (3d Cir. 2008); Booth v. Churner, 206 F.3d 289 (3d Cir.

2000).

This broad rule favoring full exhaustion allows for a narrowly defined

exception. If the actions of prison officials directly caused the inmate’s procedural

default on a grievance, the inmate will not be held to strict compliance with this

exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).

However, case law recognizes a clear “reluctance to invoke equitable reasons to

excuse [an inmate’s] failure to exhaust as the statute requires.” Davis v. Warman, 49

F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will only be

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excused “under certain limited circumstances,” Harris v. Armstrong, 149 F. App’x

58, 59 (3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust only by

showing “he was misled or that there was some extraordinary reason he was

prevented from complying with the statutory mandate.” Warman, 49 F. App’x at

368.

In the absence of competent proof that an inmate was misled by corrections

officials, or some other extraordinary circumstances, inmate requests to excuse a

failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot

excuse a failure to timely comply with these grievance procedures by simply

claiming that his efforts constituted “substantial compliance” with this statutory

exhaustion requirement. Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005).

Nor can an inmate avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. Warman, 49 F. App’x at

368. Thus, an inmate’s confusion regarding these grievances procedures does not,

standing alone, excuse a failure to exhaust. Casey v. Smith, 71 F. App’x 916 (3d Cir.

2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well

established that ‘ignorance of the law, even for an incarcerated pro se petitioner,

generally does not excuse prompt filing.’”) (citations omitted).

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Recently, the Supreme Court considered what renders administrative

remedies unavailable to an inmate such that a failure to exhaust can be excused. See

Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “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 not available “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.” Id. Second, a procedure is not available

when it is “so opaque that it becomes, practically speaking, incapable of use.” Id.

Finally, a procedure is unavailable when “prison administrators thwart inmates from

taking advantage of a grievance process through machination, misinterpretation, or

intimidation. Id. at 1860.

The Third Circuit recently joined other circuits to hold “that administrative

remedies are not ‘available’ under the PLRA where a prison official inhibits an

inmate from resorting to them through serious threats of retaliation and bodily

harm.” Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018). To defeat a

failure-to-exhaust defense based on such threats, “an inmate must show (1) that the

threat was sufficiently serious that it would deter a reasonable inmate of ordinary

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firmness and fortitude from lodging a grievance and (2) that the threat actually did

deter this particular inmate.” Id. at 269.

Finally, failure to exhaust is an affirmative defense that must be pled by the

defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). “In a motion for summary

judgment, where the movants have the burden of proof at trial, ‘they [have] the

burden of supporting their motion for summary judgment with credible evidence . .

. that would entitle [them] to a directed verdict if not controverted at trial.’” Foster

v. Morris, 208 F. App’x 174, 179 (3d Cir. 2006) (quoting In re Bressman, 327 F.3d

229, 237 (3d Cir. 2003) (internal quotations omitted)). If “the motion does not

establish the absence of a genuine factual issue, the district court should deny

summary judgment even if no opposing evidentiary matter is presented.” Id.

(quoting Nat’l State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1582 (3d

Cir. 1992) (internal quotations omitted)).

Here, Defendants argue that Plaintiff’s grievance record demonstrates that he

failed to properly exhaust his administrative remedies prior to filing the instant

action because he did not follow the proper procedures for submitting his final

review appeal to SOIGA. (Doc. No. 19 ¶¶ 11-13; Doc. No. 20 at 4-5.) The record

before the Court establishes that while Plaintiff did pursue a final appeal to SOIGA,

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he failed to include a copy of the facility manager’s appeal decision with his appeal.

As a result, Plaintiff’s appeal to SOIGA was dismissed. (Doc. No. 19 ¶ 12.)

Plaintiff has not responded to Defendants’ motion for summary judgment.

However, in his verified amended complaint, he avers that he “exhausted all

administrative remedies regarding the matters described in the Complaint.” (Doc.

No. 6 at 3.) He references Exhibit 1, which consists of copies of his grievances, of

his initial complaint in support. (Id.) Plaintiff’s own exhibit, however, indicates that

his appeal to SOIGA was dismissed for failure to included required documentation.

(Doc. No. 1-2 at 20.) This Court and the Third Circuit have recognized that “[w]hen

the SOIGA dismisses an inmate’s grievance for failure to provide the required

documentation with the appeal, dismissal of the related claims in federal court is

appropriate due to lack of PLRA exhaustion.” Fattah v. Rackovan, No. 3:10-cv-

1607, 2020 WL 708916, at *4 (M.D. Pa. Feb. 12, 2020); see also Sanders v. Sec’y

Pa. Dep’t of Corr., 602 F. App’x 54, 57 (3d Cir. 2015) (concluding that inmate

plaintiff failed to exhaust his administrative remedies when he failed to provide

SOIGA with all required documentation for proper review).

Plaintiff, therefore, has not refuted the defense that he failed to properly

exhaust his claims against them. Accordingly, because the PLRA requires full and

proper exhaustion prior to the initiation of Plaintiff’s claims in federal court, and this

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Court cannot excuse compliance with those requirements, Defendants’ motion for

summary judgment will be granted on the basis that Plaintiff failed to properly

exhaust his administrative remedies as to his claims against them.2

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Doc.

No. 18) will be granted. An appropriate Order follows.

s/ Sylvia H. Rambo

United States District Judge

Date: March 17, 2020

2 Given the Court’s conclusion that Plaintiff did not properly exhaust his administrative remedies,

the Court declines to address Defendants’ alternative argument that they are entitled to summary

judgment because they had “legitimate medical and institutional reasons” for requiring

tuberculosis testing. (Doc. No. 20 at 3.) The Court notes, however, that Plaintiff’s release from

incarceration moots his RLUIPA claim. See Varsanyi v. Piazza, No. 3:10-cv-2072, 2015 WL

1643036, at *7 n.3 (M.D. Pa. Apr. 9, 2015) (noting that only injunctive relief is available under

RLUIPA and that claims for injunctive relief become moot upon release from incarceration).

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