O'Neil v. White

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DAMON TIVEL O’NEIL, :

Plaintiff, : 1:20-cv-0085

:

v. : Hon. John E. Jones III

:

D.K. WHITE, et al., :

Defendants. :

MEMORANDUM

December 29, 2020

On January 16, 2020, Plaintiff Damon Tivel O’Neil (“O’Neil”), at the time,

a federal inmate in the custody of the Federal Bureau of Prisons (“BOP”) housed at

the Low Security Correctional Institution at Allenwood, White Deer, Pennsylvania,

filed this Bivens action pursuant to 28 U.S.C. § 1331, alleging that Defendants

violated his Eighth Amendment rights. (Doc. 1).1 He amended his complaint on

March 4, 2020. (Doc. 13). Named as Defendants are D.K. White, J. Gubbiotti, A.

Canales, A. Creveling, A.W. Sage, and the United States of America. (Doc. 13).

Presently pending is Defendants’ motion (Doc. 31) to dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6) and/or for summary judgment pursuant to

Federal Rule of Civil Procedure 56. Defendants filed the motion on September 23,

1 Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). In Bivens, the Supreme

Court created a very limited federal tort counterpart to the remedy created by 42 U.S.C. § 1983

applicable to federal officers. See also Ziglar v. Abbasi, 137 S. Ct. 1843, 1857, (2017),

disfavoring expansion of the statutory remedy.

2020, and filed a supporting brief (Doc. 32) and statement of material facts (Doc.

33) on October 7, 2020. Defendants served all documents on O’Neil.2 He has

filed neither an opposition brief nor a statement of material facts. Consequently,

the motion for summary judgment is deemed unopposed and 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

2 He has since been released from federal custody. He has been served at his new address.

(Docs. 31-33).

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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

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

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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

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

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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 FACTS3

The BOP maintains a computerized index of inmates’ requests for

administrative relief in an Inmate Management System known as SENTRY. (Doc.

33, ¶1). Staff assign each administrative remedy request a unique identifier

consisting of a case number generated consecutively on a nationwide basis and a

submission code appended to the end of the case number. (Id. at 2). The letter of

the submission code identifies the management level where the remedy was

logged: “F” for institution or warden; “R” for regional director; and “A” for the

central office or general counsel. (Id. at 3). The number following the letter

indicates the number of times a remedy has been logged at the respective

management level. (Id. at 4).

On December 18, 2019, O’Neil submitted an Informal Resolution

form, also known as a BP-8, indicating that he suffered from food poisoning after

3 Local Rule 56.1 states that “[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 required [to be filed by the moving party], as to which it is

contended that there exists a genuine issue to be tried… All material facts set forth in the

statement 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 L.R. 56.1

Motions for Summary Judgment. O’Neil failed to controvert Defendants’ statement of material

facts (Doc. 33). The facts set forth in Defendants’ statement are therefore deemed admitted.

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eating a beef taco meal on December 16, 2019. (Id. at 5). On January 9, 2020,

O’Neil submitted Administrative Remedy 1002402-F1 to the Warden, also referred

to as a BP-9, claiming that he experienced health issues as a result consuming the

poisoned taco. (Id. at 6). He sought $10,000.00 in monetary damages and

requested a transfer to an institution with a lower security level. (Id. at 7). On

January 24, 2020, the Warden responded as follows:

A thorough review of your medical file performed on January 14,

2020, revealed that on December 17, 2019, you were evaluated and

treated in Health Services for diarrhea and vomiting. You did

not report any pain during this encounter. At that time, you were

advised to follow up at sick-call as needed.

You claim you suffered anal and anus pain, as well as weight

loss and severe stomach pain due to food poisoning, loss of

fluid and using the restroom 40 times. Of note, you did not make these

complaints during your sick call visit on December 17, 2019, and since

that date, you have not returned to Health Services or sick-call

with any complaints. You have had the opportunity to return to sick-

call with any complaints. You have had the opportunity to return to

sick-call each Monday, Wednesday, Thursday and Friday morning.

If your condition has worsened, you should report to sick call.

(Id. at 8). The Warden notified O’Neil that he had the ability to appeal if

dissatisfied with the outcome and informed him of the timeframe for filing such an

appeal and the address of the Northeast Regional Office. (Id. at 9).

On February 3, 2020, O’Neil appealed by submitting Administrative

Remedy 1002402-R1 to the BOP’s Northeast Regional Office. (Id. at 11). The

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Regional Office rejected the Administrative Remedy on February 19, 2020,

because two pages were illegible (Code LEG and Remarks). (Id. at 12). The

Regional Office afforded him the opportunity to resubmit the appeal within ten

days of the date of the rejection notice (Code RSR). (Id.). On February 28, 2020,

he resubmitted the appeal, Administrative Remedy Appeal 1002402-R2, stating

that he experienced health problems after contracting food poisoning due to

contaminated beef tacos, that he experienced an Eighth Amendment violation due

to the BOP’s refusal to contain the virus which spread through the compound, and

that medical staff failed to record his complaints of pain and excessive use of the

restroom. (Id. at 13). He renewed his request for compensation in the amount of

$10,000 and requested a transfer to a lesser security institution. (Id. at 14).

On April 28, 2020, the Regional Director denied Administrative

Remedy 1002402-R2, stating:

A review of your appeal reveals the Warden adequately addressed your

complaint in his response. According to your Bureau Electronic

Medical Record (BEMR), you were evaluated on December 17, 2019,

during sick call. You complained of diarrhea, nausea, vomiting and

dizziness. You were provided IV fluids and advised to follow

up as needed. On January 30, 2020, you complained of

continued diarrhea for over one month and provided a stool sample.

Lab work was ordered and you were advised to hydrate, rest and

eat bland foods. You were provided a medical idle and advised to

follow up as needed. Your stool sample and lab work revealed negative

findings and you were last evaluated on March 10, 2020. You

complained of continued diarrhea with abdominal cramping,

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worsening after eating beef and chicken. Your physical examination

was consistent with Irritable Bowel Syndrome (IBS) and you were

advised to purchase Fibercon from Commissary. You were

instructed on diet modifications and advised to return to sick call in two

weeks if your symptoms did not improve. According to your medical

record, you have not voiced any complaints since this encounter.

If you are still experiencing symptoms you may see your Primary

Care Provider via sick call. Accordingly you appeal is denied.

(Id. at 15). The Regional Director also informed O’Neil, that he had the option to

appeal to the General Counsel’s Office and advised him of the thirty day deadline,

and supplied him with the pertinent address. (Id. at 16).

O’Neil did not appeal the Regional Director’s denial of Administrative

Remedy 1002402-R2 to the BOP’s Central Office. (Id. at 17).

III. DISCUSSION

Defendants seek an entry of summary judgment based on O’Neil’s failure to

exhaust administrative remedies prior to initiating this action. (Doc. 32, p. 8). 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

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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 O’Neil commenced this instant action on January 16,

2020, 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

requirement. O’Neil’s failure to fully exhaust available administrative remedies

prior to bringing this action compels an entry of summary judgment in favor of

Defendants. Moreover, it is clear that he failed to pursue his request for

administrative relief to the final level of review.

IV. CONCLUSION

Based on the above, Defendants’ motion (Doc. 31) for summary judgment

pursuant to Federal Rule of Civil Procedure 56, will be deemed unopposed and

granted.

A separate Order will issue.

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