Harrell v. Barbeau

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KENNETH HARRELL, :

Plaintiff : CIVIL ACTION NO. 3:19-2083

v. : (JUDGE MANNION)

SGT. BARBEAU, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Kenneth Harrell, an inmate formerly confined at the Carbon

County Correctional Facility (“CCCF”), Nesquehoning, Pennsylvania, filed

the above caption civil rights action pursuant to 42 U.S.C. §1983.1 (Doc. 1).

The named Defendants are the CCCF Warden Timothy Fritz, Deputy

Warden Ryan Long and Sergeant Barbeau. Id.

Plaintiff alleges that from March 3-5, 2019, CCCF experienced a loss

of water pressure because of a frozen water main. (Doc. 2, Statement of

Claim). He maintains that this frozen water main caused CCCF to lose fresh

water. Id.

1 Plaintiff is currently housed in the Mahanoy State Correctional

Institution, Frackville, Pennsylvania.

At 10:20 p.m. on March 3, 2019, Plaintiff refused to “lock in” to his cell

for the night because of the lack of running water and because his “toilet bowl

was filled with human waste, feces, and urine.” Id. Plaintiff alleges that he

was subsequently pepper sprayed by Defendant Barbeau and other

corrections officers because of the refusal to “lock in.” Id. Plaintiff claims that

he “was coughing and [his] eyes were burning badly.” Id. He was not been

seen by medical staff or decontaminated after being pepper sprayed. Id. He

claims that no bottled water was provided to him to rinse his eyes and face.

According to Plaintiff, he had to “sustain [his] thirst with only a 4 oz. carton of

milk each day.” Id. Based on these allegations, Plaintiff alleges that

Defendants violated his Eighth Amendment rights. Id. As relief, he seeks

damages. Id.

On February 5, 2020, Defendants filed a motion to dismiss, in which

Defendants argue that Plaintiff’s action should be dismissed for Plaintiff’s

failure to properly exhaust his administrative remedies in accordance with

the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e(a). (Doc. 14).

On June 8, 2020, in accordance with Paladino v. Newsome, 885 F.3d

203 (3d Cir. 2018), (holding that the District Court shall provide the parties

notice that it will consider exhaustion in its role as fact finder under Small v.

Camden Cty., 728 F.3d 265 (3d Cir. 2013)), this Court issued an Order,

granting the parties an opportunity to supplement the record with supporting

evidence relevant to the exhaustion of administrative remedies. (Doc. 17).

On June 24, 2020, Defendants filed a supplemental brief in support of

their motion to dismiss. (Doc. 19). Although provided an opportunity to

respond, Plaintiff has neither filed a response nor a motion seeking an

enlargement of time do so.

Defendants’ motion is ripe for disposition. For the reasons set forth

below, the Court will grant Defendants’ motion to dismiss.

II. STANDARD OF REVIEW

Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure to

state a claim upon which relief can be granted.” Under Rule 12(b)(6), we

must “accept all factual allegations as true, construe the complaint in the light

most favorable to the plaintiff, and determine whether, under any reasonable

reading of the complaint, the plaintiff may be entitled to relief.” Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)(quoting Phillips v.

County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008)). While a complaint

need only contain “a short and plain statement of the claim,” Fed.R.Civ.P.

8(a)(2), and detailed factual allegations are not required, Bell Atlantic Corp.

v. Twombly, 550 U.S. 544, 555 (2007), a complaint must plead “enough facts

to state a claim to relief that is plausible on its face.” Id. at 570. “The

plausibility standard is not akin to a ‘probability requirement,’ but it asks for

more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft

v. Iqbal, 556 U.S. 662 (2009) (quoting Twombly, 550 U.S. at 556). “[L]abels

and conclusions” are not enough, Twombly, 550 U.S. at 555, and a court “is

not bound to accept as true a legal conclusion couched as a factual

allegation.” Id. (quoted case omitted). Thus, “a judicial conspiracy claim must

include at least a discernible factual basis to survive a Rule

12(b)(6) dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588

F.3d 180, 184 (3d Cir. 2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a two-part

analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual

elements from the legal elements and disregard the legal conclusions. Id. at

210-11. Second, we “determine whether the facts alleged in the complaint

are sufficient to show that the plaintiff has a “plausible claim for relief”.” Id. at

211 (quoted case omitted).

III. DISCUSSION

The PLRA unequivocally provides that “[n]o action shall be brought

with respect to prison conditions under section 1983 ... by a prisoner confined

in any ... correctional facility until such administrative remedies as are

available are exhausted.” 42 U.S.C. §1997e(a); Spruill v. Gillis, 372 F.3d 218,

230 (3d Cir. 2004); Woodford v. Ngo, 548 U.S. 81, 84-85 (2006) (holding that

the PLRA’s exhaustion requirement is mandatory). In Porter v. Nussle, 534

U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion

requirement under §1997e(a) of the PLRA applies to all actions regarding

prisons conditions, including Section 1983 actions and actions brought

pursuant to any other federal law. “The PLRA’s exhaustion requirement

applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive

force or some other wrong.” Id. Accordingly, “[t]he level of detail necessary

in a grievance to comply with the grievance procedures will vary from system

to system and claim to claim, but it is the prison’s requirements, and not the

PLRA, that define the boundaries of proper exhaustion.” Jones v. Bock, 549

U.S. 199, 218 (2007). The exhaustion requirement of the PLRA applies to

grievance procedures “regardless of the relief offered by the administrative

procedures.” Booth v. Churner, 532 U.S. 731, 741 (2001); see also Nyhuis

v. Reno, 204 F.3d 65, 78 (3d Cir. 2000) (explaining that “the PLRA amended

§1997e(a) in such a way as to make exhaustion of all administrative

remedies mandatory–whether or not they provide the inmate-plaintiff with the

relief he says he desires”).

“Because of the important policies fostered by this exhaustion

requirement, it has been held that there is no futility exception to §1997e’s

exhaustion requirement.” Washington-El v. Collins, 2016 WL 5338709, at *5

(M.D. Pa. June 21, 2016), report and recommendation adopted, 2016 WL

5339733 (M.D. Pa. Sept. 22, 2016). “Instead, courts have typically required

across-the-board administrative exhaustion by inmate plaintiffs who seek to

pursue claims in federal court.” Id.

Additionally, the PLRA strictly requires exhaustion prior to the filing of

his complaint. See Ahmed v. Dragovich, 297 F.3d 201, 209, n. 9 (3d. Cir.

2002); see also Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d. Cir.

2006) (non-precedential) (“[T]here appears to be unanimous circuit court

consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement

by exhausting administrative remedies after the filing of the complaint in

federal court”).

In the instant case, Plaintiff acknowledges on the face of his complaint

that CCCF has an available grievance procedure and the he failed to fully

exhaust his available administrative remedies regarding his claims. (Doc. 1

at 2). Consequently, Defendants’ move to dismiss Plaintiff’s complaint for

Plaintiff’s admitted failure to exhaust his administrative remedies as required

under the PLRA. Plaintiff does not refute this. Accordingly, the Court will

grant the Defendants’ motion to dismiss.

IV. LEAVE TO AMEND

The Third Circuit has instructed that if a civil rights complaint is

vulnerable to dismissal for failure to state a claim, the district court must

permit a curative amendment, unless an amendment would be inequitable

or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).

Here, it is clear from the facts alleged in the pro se complaint that any

attempt to amend the plaintiff’s §1983 claims against the named Defendants

would be futile. See Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004). Thus,

the Court will dismiss the Plaintiff’s §1983 claims without leave to amend.

V. CONCLUSION

For the foregoing reasons, the court will grant the Defendants’ motion

and Plaintiff's action will be dismissed without prejudice. Because Plaintiff's

complaint is procedurally premature under 42 U.S.C. §1997e(a), the court

certifies that, any appeal taken from the Court’s decision herein, will be

deemed frivolous, and not taken in good faith. See 28 U.S.C. §1915(a)(3).

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: October 13, 2020

19-2083-01