# Mayo v. Hollibaugh

> District Court, M.D. Pennsylvania · March 26, 2020

URL: https://www.frixlaw.com/law-library/cases/10408468

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** March 26, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10408468

## How later opinions describe it (automated extraction)

- explaining that “[t]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WILLIAM MAYO , :
Plaintiff, : 1:18-cv-1492
:
v. : Hon. John E. Jones III
:
LISA HOLLIBAUGH, et al., :
Defendants. :

MEMORANDUM
March 26, 2020
Plaintiff William Mayo (“Mayo”), a state inmate in the custody of the
Pennsylvania Department of Corrections (“DOC”), incarcerated at the State
Correctional Institution at Smithfield (“SCI-Smithfield”), Huntingdon,
Pennsylvania, commenced this action in the Court of Common Pleas of
Huntingdon County alleging that Defendants Lisa Hollibaugh (“Hollibaugh”), Lt.
Rhone (“Rhone”) and Eric Tice (“Tice”) violated his Fourteenth Amendment due
process rights and denied him access to the courts. (Doc. 1-2, p. 1). Defendants
removed the matter to this Court on July 27, 2018. (Doc. 1-4).
Presently pending is Defendants’ motion (Doc. 23) for summary judgment
pursuant to Federal Rule of Civil Procedure 56. For the reasons set forth below,
Defendants’ motion will be granted.
I. 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

2
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

3
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.

II. STATEMENT OF MATERIAL FACTS1
On January 9, 2018, DOC officials transferred Mayo from the State

1 Mayo’s statement of material facts is found at Docket Entry 32, pp. 14-29.
4
Correctional Institution at Fayette (“SCI-Fayette”) to SCI-Smithfield and placed
him in the Restricted Housing Unit (“RHU”). (Doc. 25, ¶¶ 5, 6; Doc. 32, ¶¶ 5,6).

Inmates housed in the RHU may retain in their cell only those personal items that
fit in one standard records center sized box. (Id. at 7; Id. at 7).
Each facility provides a method to allow for those inmates housed in the

RHU, who are litigants in a court action, to have access to legal materials. (Id. at
8; Id. at 8). Specifically, a “legal exemption” allows an inmate to have additional
boxes for legal property. (Id. at 9; Id. at 9). If an inmate wishes to apply for a legal
exemption, a formal request must be made to the Superintendent’s Assistant, who

investigates whether the inmate has open and active cases that would warrant an
exemption, and decides whether an exemption is justified. (Id. at 10; Id. at 10).
Although SCI-Fayette and SCI-Smithfield utilize the same process, a legal

exemption does not follow an inmate from one facility to another and the number
of boxes allowed under the legal exemption varies from facility to facility. (Id. at
11-13; Id. at 11-14). While housed at SCI-Fayette, Mayo was permitted to have
three extra boxes for his legal property in his cell. (Id. at 14; Id. at 14). SCI-

Smithfield only allows one extra box for a legal exemption. (Id. at 15; Id. at 15).
When Mayo transferred to SCI-Smithfield, Defendant Rhone informed him
that he had to make a request to Defendant Hollibaugh for a legal exemption. (Id.

5
at 16; Id. at 16). Mayo submitted a request on January 25, 2018. (Id. at 17; Id. at
17). In his request, Mayo enumerated the following civil actions pending in

federal and state courts:
a. Mayo v. Finley, 2:16-01514 (WDPA)

b. Mayo v. Keller, 2:16-1723 (WDPA)

c. Mayo v. Oppman, 2:17-311 (WDPA)

d. Mayo v. Newman, 2:17-1490 (WDPA)

e. Mayo v. Haines, 194 of 2017, GD (Fayette County)

f. Mayo v. Newman, 109 of 2017, GD (Fayette County)

g. Mayo v. SCI Greene’s Admin. Staff, 429 MD 2016 (Greene County)

h. Mayo v. Prison Admin., 2277 of 2016 (Fayette County)

i. Mayo v. Pa Dept of Corrections, 17 OCR 1001 (U.S. Department of
Justice)

(Id. at 18; Id. at 18). Defendant Tice issued a memo on January 29, 2018,
approving the exemption and allowing one additional storage box for the above-
referenced cases. (Id. at 19; Id. at 19). Mayo asserts that he did not receive the
memo until February 21, 2018, after the filing of his February 8, 2018 grievance.
(Doc. 32, ¶ 19).
Inmates in the RHU are also permitted to exchange legal property kept in the
cell with the property kept in storage every thirty days. (Doc. 25, ¶ 20; Doc. 32 ¶
6
20). They can also request additional legal exchanges. (Id. at 21; Id. at 21). Mayo
requests additional exchanges, but he does not feel they are a priority due to

staffing issues and other daily activities. (Id. at 22; Id. at 22).
During the relevant time, Mayo was litigating ten matters in the state and
federal courts, including “Mayo v. SCI Greene’s Admin Staff, et al., 1192 CD

2018: appeal of decision in 692 AD 2016 (Greene County).” (Id. at 41; Id. at 41).
He believes that his inability to adequately prepare resulted in an entry of summary
judgment in favor of the SCI Greene Defendants. (Id. at 42, 43; Id. at 42, 43).
Mayo timely filed his brief in opposition to the motion for summary judgment in

Mayo v. SCI Greene’s Admin Staff, et al. (Id. at 45, 46; Id. at 45, 46). Mayo has
never missed a court deadline in any of the cases litigated during the relevant time
period and has requested, and been granted, extensions of filing deadlines. (Id. at

46, 47; Id. at 46, 47).
The DOC’s applicable Inmate Grievance System policy, which provides
inmates an avenue to resolve their problems and air concerns is set forth in
Administrative Directive 804 (DC-ADM 804), effective May 1, 2015. (Id. at 23;

Id. at 23). Pursuant to DC-ADM 804, any inmate personally affected by a DOC or
institutional action or policy or by the action of a DOC employee may file a
grievance at the facility where the event occurred. (Id. at 24; Id. at 24). The

7
grievance must be submitted in writing to the Facility Grievance Coordinator
within fifteen working days after the event upon which the grievance is based

using the grievance form which is available on all housing units or blocks. (Id. at
24; Id. at 24). The grievance must include a statement of the facts relevant to the
claim, identify anyone directly involved in the event, and state any claims he or she

wishes to make concerning violations of DOC directives, regulations, court orders,
or other law. (Id. at 25; Id. at 25).
Mayo filed Grievance #720562 on February 8, 2018, grieving that he had a
three-box legal exemption at SCI-Fayette and has been denied the same number of

boxes at SCI-Smithfield. (Id. at 26; Id. at 26). Defendant Rhone responded to
Grievance #720562 on March 1, 2018, stating that SCI-Smithfield only allows one
additional box in the RHU for safety purposes and that Mayo can request an

additional legal exchange every month. (Id. at 30; Id. at 30). Although the initial
grievance does not specify individuals responsible for the legal exemption
limitation, Mayo’s appeal identifies Defendant Rhone. (Id. at 27; Id. at 27). The
response to the initial grievance was upheld on appeal. (Id. at 31, 32; Id. at 31, 32).

On February 8, 2018, Mayo grieved, in Grievance #720566, that when
Correctional Officer Bickle delivered his mail, he notified Mayo that he was
confiscating an envelope that contained legal mail but failed to provide him with a

8
confiscated items receipt. (Id. at 33-35; Id. at 33-35). Through responses to the
initial grievance and the appeal procedure, prison officials informed Mayo that the

process of confiscating the legal mail envelope and providing a copy to the inmate
is approved by the Office of Chief Counsel. (Id. at 36-38; Id. at 36-38).
III. DISCUSSION

Section 1983 of Title 42 of the United States Code offers private citizens a
cause of action for violations of federal law by state officials. See 42 U.S.C. §
1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress....

Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v.
Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a
plaintiff must allege “the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was committed by
a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
Thus, §1983 limits liability to persons who violate constitutional rights.

9
A. Exhaustion of Administrative Remedies
Defendants first seek an entry of summary judgment based on a failure to

exhaust administrative remedies. (Doc. 24, p. 11). 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.”). 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

10
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.).
Defendants first seek summary judgment based on Mayo’s failure to identify

either Hollibaugh or Rhone in the grievances. Grievance #720562 concerns the
legal exemption applicable to boxes of legal property. Although the initial
grievance does not specify individuals responsible for the limitation placed on the
legal exemption, he clearly identifies the policy, cites his objection to the policy,

and includes detailed and relevant facts. (Doc. 18-4, p. 2). “[T]he primary purpose
of a grievance is to alert prison officials to a problem, not to provide personal
notice to a particular official that he may be sued.” Williams v. Beard, 482 F.3d

637, 640 (3d Cir. 2007) (quoting Jones v. Bock, 549 U.S. 199, 219 (2007). The
Court will consider the merits of this issue.
Conversely, the claim that Defendants violated his due process rights in
reading his legal mail prior to him receiving it is wholly unexhausted in that he

failed to file a grievance raising this issue prior to commencing this action.
Mayo’s opposing argument is two-fold. He first argues that Defendants too
narrowly construe Grievance #720566 concerning Officer Bickle’s confiscation of

11
his legal mail envelope. He asserts that a liberal construction of the grievance
reveals inclusion of his unconstitutional reading of his mail claim. In the

grievance, under the heading “Brief History of Relevant Facts” Mayo states as
follows:
This grievance is being submitted to report that on the morning of
February 6, 2018 at approximately 9:30 AM I had a piece of legal mail
delivered to me (by c/o Bickle) (from the Security Dept.) which notified
me, that he’s confiscating the envelope that the legal documents’ [sic]
arrived in, in which my formal reply was “the envelope isn’t made out
of tyrant material its [sic] regular standard white paper so how is it
subsequently being deemed contraband” and because he couldn’t
provide either any logical reason that’s substantially by institutional
policy nor even a confiscated items receipt specifying the following
three (3) things: (1) that my envelope was confiscated, (2) reason for
confiscation and (3) I was provided a copy of the confiscated envelope,
so I’m asking for the meritorious basis within my claim if the foregoing
grievance could be accepted for a full investigative review.

(Doc. 25-2, pp. 18, 19) (emphasis in original). He essentially reiterates the above
in his appeal. (Id. at 22, 23). Through responses to the initial grievance and the
appeal procedure, prison officials informed Mayo that the process of confiscating
the legal mail envelope and providing a copy to the inmate is approved by the
Office of Chief Counsel. (Id. at. 17, 21,24). The grievance is devoid of any
complaint about, or reference to, the reading of his legal mail. As such, we reject
Mayo’s liberal construction argument as it has no support in the record.
12
His second argument is that he exhausted his administrative remedies because
he filed a grievance on December 17, 2018, almost five months after he initiated

the action. (Doc. 32, pp. 37, 38). This argument is unavailing. “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, has been completed. It follows that
Ahmed cannot cure the defect in his action by the proffered amendment of the
complaint.” (footnote omitted)).
Defendants are entitled to an entry of summary judgment based on Mayo’s

failure to exhaust the reading of his legal mail claim prior to commencement of the
action.

13
B. Merits
1. Access to Courts

Mayo claims that the RHU legal box exemption imposed at SCI-Smithfield,
which limited him to the two boxes of his legal property, denied him access to the
courts. In Bounds v. Smith, 430 U.S. 817(1977), the Supreme Court recognized a

prisoner’s limited right of access to the courts. Prisoners are not necessarily
“capable of filing everything” but have a right of access to “attack their sentences,
directly or collaterally, and in order to challenge the conditions of their
confinement.” Lewis v. Casey, 518 U.S. 343, 355 (1996). “The right of access to

the courts must be adequate, effective and meaningful and must be freely
exercisable without hindrance or fear of retaliation.” Milhouse v. Carlson, 652 F.2d
371, 374 (3d Cir.1981) (internal citations omitted). Following Lewis courts have

consistently recognized that such claims require some proof of an actual, concrete
injury, in the form of direct prejudice to the plaintiff in the pursuit of some legal
claim. See Oliver v. Fauver, 118 F.3d 175 (3d Cir.1997). An inmate must
demonstrate “(1) that they suffered an actual injury—that they lost a chance to

pursue a non-frivolous or arguable underlying claim; and (2) that they have no
other remedy that may be awarded as recompense for the lost claim other than in
the present denial of access suit.” Monroe v. Beard, 536 F.3d 198, 205 (3d

14
Cir.2008) (quoting Christopher v. Harbury, 536 U.S. 403, 415 (2002)) (internal
quotations omitted). Even where “actual injury” may be present, Casey cautions

that in situations involving prison security—such as heightened restrictions on
prisoners in disciplinary lockdown—certain regulations may impinge upon
inmates’ constitutional right of access but nonetheless be valid: these must be

“reasonably related to legitimate penological interests.’” Lewis, 518 U.S. at 362
(quoting Turner v. Safley, 482 U.S. 78, 89(1987)).
Mayo generally argues that “he isn’t in possession of any boxes of his
property, in which as a [sic] independent fact, placed [him] at a legal disadvantage

in terms of being able to adequately litigate his cases.” (Doc. 32, p. 42). In his
declaration, he takes issue with being afforded the opportunity to access his legal
property once every thirty days subject to the availability of the RHU staff. (Doc.

32, p. 8). He declares that “[b]ecause of the disadvantage that [he] was placed at
[he] lost several of his actions, particularly from as abovementioned not being able
to adequately prepare responsive pleadings, inter alia, all predicated from not
being in possession of [his] legal property….” (Id. at 9). He further asserts that

it’s his position that “a cursory review of the record should be sufficient proof to
substantiate, particularly because [he] was only able to utilize what little property

15
he had, in which ultimately placed [him] at a handicap regarding his responsive
pleadings.” (Id. at 42, 43) (emphasis in original).

Mayo’s general assertions that the limitations imposed by the RHU’s legal
box exemption hindered his ability to effectively litigate his claims is insufficient
to meet the actual injury requirement. Further, his “belief” that because he was not

able to adequately prepare, the matter of Mayo v. SCI Greene’s Admin Staff, et al.
did not survive summary judgment, is insufficient to meet the actual injury
requirement. As noted supra, he timely filed his brief in opposition to the motion
for summary judgment in Mayo v. SCI Greene’s Admin Staff, et al, he never

missed a court deadline in any of the cases being litigated during the relevant time
period, and has requested, and been granted, extensions of filing deadlines. He
fails to identify an “arguable,” “nonfrivolous” underlying cause of action, either

anticipated or lost, and demonstrate, as he must do at the summary judgment stage,
how the Defendants’ actions frustrated his efforts to litigate that action. Lewis, 518
U.S. at 351–53; Christopher v. Harbury, 536 U.S. at 415. Applying Lewis and its
progeny to the undisputed facts requires the entry of summary judgment on

Defendants’ behalf.
2. Deprivation of Property
To the extent that Mayo asserts a due process claim, the United States

16
Supreme Court has held that meaningful post-deprivation remedies provide
sufficient due process for negligent deprivations of property, Parratt v. Taylor, 451

U.S. 527, 530, (1981), overruled on other grounds, Daniels v. Williams, 474 U.S.
327 (1986); id. at 530, and intentional deprivations of property, Hudson v. Palmer,
468 U.S. 517, 533 (1984). The DOC grievance procedure provides an adequate

post-deprivation remedy, see, e.g., Tillman v. Lebanon County Correctional
Facility, 221 F.3d 410, 422 (3d Cir. 2000), and the existence of this post-
deprivation remedy forecloses a due process claim. Even if the prison grievance
procedure were constitutionally inadequate, Mayo could take advantage of state

tort law which may serve as an adequate post-deprivation remedy. See 42 PA.
CONS. STAT. ANN. § 8522(a), (b)(3).
Defendants are entitled to an entry of summary judgment on this claim as

well.
IV. CONCLUSION
Based on the above, Defendant’s motion (Doc. 23) for summary judgment
pursuant to Federal Rule of Civil Procedure 56, will be granted.

An appropriate Order follows.

17

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10408468. Public record. Not legal advice.