“[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.”
How later courts described this case
- “[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.”
- explaining that “[t]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JEREMY N. ROGERS, :
Plaintiff, : 1:19-cv-1380
:
v. : Hon. John E. Jones III
:
USP LEWISBURG, et al., :
Defendants. :
MEMORANDUM
April 16, 2020
Plaintiff Jeremy N. Rogers (“Rogers”), a federal inmate in the custody of the
Federal Bureau of Prisons (“BOP”) who, at the relevant time, was incarcerated at
the United States Penitentiary at Lewisburg (“USP-Lewisburg”), Pennsylvania,
commenced this Bivens1 action on August 5, 2019, in the United States District
Court for the Eastern District of Pennsylvania naming USP-Lewisburg, the United
States, and various individuals as Defendants. (Doc. 2). The Eastern District
transferred the matter to this Court on August 9, 2019. (Doc. 5).
Presently pending is Defendants’ motion (Doc. 27) to dismiss pursuant to
Federal Rule of Civil Procedure 12(b) and for summary judgment pursuant to
Federal Rule of Civil Procedure 56, raising, inter alia, Rogers’ failure to exhaust
his administrative remedies. On February 18, 2020, the Court issued an Order
1 Bivens v. Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
notifying the parties that, because Defendants raised the issue of whether Rogers
exhausted his administrative remedies prior to initiation of this action, as required
by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), in accordance with
Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018) and Small v. Camden Cty., 728
F.3d 265 (3d Cir. 2013), the Court would consider exhaustion in its role
as fact finder. (Doc. 30). In that same Order, the Court notified Rogers that he had
until March 30, 2020, to file a brief in opposition to the motion and to respond to
Defendants’ statement of material facts. He was also cautioned that his failure to
file an opposition brief would result in the motion being deemed unopposed, and
his failure to respond to Defendants’ statement of material facts would result in the
statement being deemed admitted. (Id.) Rogers filed neither an opposition brief
nor a statement of material facts. Consequently, the motion is deemed unopposed
and Defendants’ statement of material facts, infra, is deemed admitted.
The Court will proceed directly to the motion for summary judgment and,
for the reasons set forth below, grant the motion based on Rogers’ failure to
exhaust his administrative remedies prior to filing the action.
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
2
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
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
3
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
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
4
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 FACTS
The BOP has established a multi-tier system enabling a federal prisoner to
seek formal review of any aspect of his imprisonment. (Doc. 28-1, ¶ 4, citing 28
C.F.R. § 542.10-542.19). Before seeking formal review, an inmate must attempt to
informally resolve the issue with institutional staff by completing a BP-8 form.
(Id. citing §542.13). If informal resolution is unsuccessful, the inmate may present
5
the issue to the Warden within twenty days of the date of the event giving rise to
the administrative remedy request by filing a BP-9 form. (Id. citing § 542.14).
The Warden has twenty days to respond. (Id. citing § 542.18). An inmate
dissatisfied with the Warden’s response may submit an appeal on a BP-10 form to
the BOP Regional Director within twenty calendar days. (Id. citing § 542.15(a)).
The Regional Director has thirty days to respond to an appeal. (Id. citing §
542.18). If the Regional Director denies the appeal, the inmate may then appeal to
the BOP’s Central Office, General Counsel, by submitting a BP-11 form within
thirty calendar days. (Id. citing § 542.15(a)). The Central Office has forty days to
respond. (Id. citing § 542.18). No administrative remedy is considered fully
exhausted until it is decided on its merits by the Central Office. (Id. citing §§
541.10-542.19).
Each administrative remedy is given an identification number. (Doc. 28, ¶
8). Each number is followed by a letter representing the level of review and
assigned a number to indicate how many times the remedy was filed at each
particular level. (Id.).
An administrative remedy may be rejected at any level if not properly or
timely submitted. (Id. at 4). If a remedy is rejected, it is returned to the inmate
with a written notice explaining the reason for rejection. (Id. at 5, citing 28 C.F.R.
6
§ 542.17(b)). A rejection of an administrative remedy does not constitute a
decision on the merits. (Id. at 7).
On June 25, 2018, Rogers was transferred to the Special Management Unit
(“SMU”) at USP-Lewisburg. (Id. at 1). On June 18, 2019, he filed Administrative
Remedy No. 981396-FI stating that on June 10, 2019, staff denied his claim of a
Prison Rape Elimination Act (PREA) allegation. (Id. at 9). On June 24, 2019, the
Warden denied the request and notified Rogers that he had twenty calendar days
from June 24, 2019, to seek an appeal with the Regional Director. (Id. at 10, 11).
The following day, he filed an appeal to the Regional Director; the appeal is
identified as Administrative Remedy No. 981396-RI. (Id. at 12). On July 26,
2019, the Regional Director provided Rogers with a response “for informational
purposes only” and closed the appeal. (Id. at 13). In that response, the Regional
Director informed him that he could pursue an appeal to the General Counsel
within thirty calendar days if he was dissatisfied with the response. (Id. at 14). On
August 5, 2019, Rogers appealed to the Central Office; the appeal is designated as
Administrative Remedy No. 981396-AI. (Id. at 15). On September 17, 2019, the
Central Office denied the appeal. (Id. at 16).
On August 5, 2019, prior to receiving the decision from the Central Office,
Rogers commenced the instant action.
7
III. DISCUSSION
Defendants seek an entry of summary judgment based on Rogers’ failure to
exhaust administrative remedies prior to initiating this action. (Doc. 29, p. 7). 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.
It is undisputed that Rogers commenced this instant action on August 5,
2019, prior to completion of the BOP’s administrative remedy procedure. The
PLRA mandates exhaustion of available administrative remedies before bringing
suit and it is beyond the power of this Court to excuse compliance with that
8
requirement. Rogers’ failure to fully exhaust available administrative remedies
prior to bringing this action compels an entry of summary judgment in favor of
Defendants.
IV. CONCLUSION
Based on the above, Defendants’ motion (Doc. 27) for summary judgment
pursuant to Federal Rule of Civil Procedure 56, will be granted.
A separate Order will issue.