# Collazo v. Miller

> District Court, M.D. Pennsylvania · December 29, 2020

URL: https://www.frixlaw.com/law-library/cases/10409624

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** December 29, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

JAVIER COLLAZO, No. 4:20-CV-00083

Plaintiff, (Judge Brann)

v.

CAPTAIN MILLER, et al.,

Defendants.
MEMORANDUM OPINION
DECEMBER 29, 2020
Plaintiff Javier Collazo, a prisoner presently confined at the United States
Penitentiary at Allenwood in White Deer, Pennsylvania filed a complaint pursuant
to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics1 against
Defendants. Plaintiff asserts an Eighth Amendment excessive force claim alleging
that the Defendant correctional officers entered his cell without provocation and
assaulted him.2 Presently before the Court is Defendant Captain Miller’s motion for
summary judgment;3 this motion is unopposed and ripe for adjudication.4 For the
reasons that follow, the Court will grant the motion for summary judgment and
dismiss the unserved Defendants.

1 403 U.S. 388 (1971).
2 Doc. 1.
3 Defendants S.O. J. Pozza and “Use of Force Team” have not been served. As explained
infra, the Court will dismiss these parties pursuant to 28 § 1915(e)(2)(B) for failure to state a
I. FACTUAL BACKGROUND
The Federal Bureau of Prisons has established a three-tiered system whereby
a federal prisoner may seek formal review of any aspect of his imprisonment.5 First,

“an inmate shall . . . present an issue of concern informally to staff, and staff shall
attempt to informally resolve the issue before an inmate submits a Request for
Administrative Remedy.”6 Second, if an inmate is unable to informally resolve his

complaint, he may file “a formal written Administrative Remedy Request, on the
appropriate form (BP-9), [within] 20 calendar days following the date on which the
basis for the Request occurred.”7 The warden then has twenty days to respond to the
inmate’s written Administrative Remedy Request.8

An inmate who is not satisfied with the warden’s response may submit an
appeal on the appropriate form, BP-10, to the appropriate Regional Director within
twenty calendar days of the date the Warden signed the [BP-9] response.”9 “An

inmate who is not satisfied with the Regional Director’s response may submit an
Appeal on the appropriate form (BP-11) to the General Counsel within 30 calendar
days from the date of the Regional Director signed the response.”10 The regional
director then has thirty days to respond and the general counsel has forty days to

5 Doc. 20 at 2.
6 Id.
7 Id.
8 Id.
9 Id. at 2-3.
10 Id. at 3.
respond.11 No administrative remedy appeal is considered fully exhausted until
reviewed by the BOP’s Central Office.12
In the ordinary course of business, the BOP maintains computerized indices

of all administrative appeals filed by inmates so that it can rapidly verify whether an
inmate has exhausted administrative remedies on a particular issue.13
Since his incarceration with the BOP, Plaintiff has filed four administrative
remedies; however, he has never appealed any of them to the BOP’s Central Office.14

Plaintiff has also never filed an administrative tort claim.15
II. Standard of Review
Summary judgment should be granted when the pleadings, depositions,

answers to interrogatories, admissions on file, and affidavits show that there is no
genuine dispute as to any material fact and that the moving party is entitled to a
judgment as a matter of law.16 A disputed fact is material when it could affect the
outcome of the suit under the governing substantive law.17 A dispute is genuine if

the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.18 The Court should view the facts in the light most favorable to the non-

11 Id.
12 Doc. 20-1 at 2.
13 Id.
14 Doc. 20 at 3
15 Doc. 20-1 at 2.
16 Fed. R. Civ. P. 56(c).
17 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
18 Id. at 250.
moving party and make all reasonable inferences in that party’s favor.19 When the
non-moving party fails to refute or oppose a fact, it may be deemed admitted.20
Initially, the moving party must show the absence of a genuine issue

concerning any material fact.21 Once the moving party has satisfied its burden, the
non-moving party, “must present affirmative evidence in order to defeat a properly
supported motion for summary judgment.”22 “While the evidence that the non-

moving party presents may be either direct or circumstantial, and need not be as
great as a preponderance, the evidence must be more than a scintilla.”23 “If a party
. . . fails to properly address another party’s assertion of fact as required by Rule
56(c),” a court may grant summary judgment or consider the fact undisputed for

purposes of the motion.24
If the court determines that “the record taken as a whole could not lead a
rational trier or fact to find for the non-moving party, there is no ‘genuine issue for
trial.’”25 Rule 56 mandates the entry of summary judgment against the party who

19 Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
20 See Fed. R. Civ. P. 56(e)(2); Local R. 56.1 (“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.”).
21 See Celotex Corp. v. Carrett, 477 U.S. 317, 323 (1986).
22 Anderson, 477 U.S. at 257.
23 Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
24 Fed. R. Civ. P. 56(e)(2)-(3).
25 Matushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat’l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
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 of proof at trial.26
Here, Plaintiff has failed to oppose the motion or refute the facts asserted in

Defendant’s statement of facts. Pursuant to Federal Rule of Civil Procedure 56(e),27
the Court has reviewed the statement of facts as well as each fact’s citation to the
record and will consider each fact undisputed.28 A thorough and comprehensive

review of the record makes clear that no material fact is in dispute as to the
dispositive issue in this case. As such, summary judgment is appropriate in this
matter.29
III. DISCUSSION

Defendant Miller argues, inter alia, that Plaintiff has failed to exhaust his
administrative remedies, which bars his Eighth Amendment excessive force claim.
A review of the record demonstrates that Plaintiff failed to exhaust any grievance

filed during his time incarcerated with the BOP.
Section 1997e(a) provides:
No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner

26 Celotex Corp., 477 U.S. at 322.
27 See Fed. R. Civ. P. 56(e)(1).
28 See Fed. R. Civ. P. 56(e)(2).
29 See Fed. R. Civ. P. 56(e)(3) (“If a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may
. . . grant summary judgment if the motion and supporting materials — including the facts
considered undisputed — show that the movant is entitled to it.”).
confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.
Exhaustion, as a precondition for bringing suit, is a “‘threshold issue that courts must
address to determine whether litigation is being conducted in the right forum at the
right time.’”30 “[T]he . . . 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.”31 A prisoner must
exhaust all available administrative remedies even where the relief sought, such as
monetary damages, cannot be granted through the administrative process, as long as

the grievance tribunal has authority to take some responsive action.32
The applicable procedural rules for properly exhausting administrative
remedies “are defined not by [§ 1997e(a)], but by the prison grievance process itself.
Compliance with prison grievance procedures, therefore, is all that is required by [§

1997e(a)] to ‘properly exhaust.’”33 The burden of proving non-exhaustion lies with
the defendants asserting the defense.34 A court evaluating the “threshold” issue of
exhaustion looks at whether the inmate “compli[ed] with the prison’s specific

grievance procedures” and whether those procedures were available to the inmate.35

30 Small v. Camden County, 728 F.3d 265, 270 (3d Cir. 2013).
31 Porter v. Nussle, 534 U.S. 516, 532 (2002).
32 Booth, 532 U.S. at 741.
33 Jones v. Bock, 549 U.S. 199, 218 (2007). See Drippe v. Tobelinski, 604 F.3d 778, 781 (3d
Cir. 2010) (“[W]hether a prisoner properly exhausted a claim is made by evaluating
compliance with the prison's specific grievance procedures.”).
34 Jones, 549 U.S. at 212, 216–17.
35 Rinaldi v United States, 904 F.3d 257, 265 (3d Cir. 2018) (quoting Drippe, 604 F.3d at 781,
and Small, 728 F.3d at 269-71).
The BOP’s Administrative Remedy Program is a multi-tier process that
allows “an inmate to seek formal review of an issue relating to any aspect of his/her
own confinement.”36 The inmate first must attempt to informally resolve his issue

with the institutional staff.37 If informal resolution fails or is waived, the inmate then
may submit a formal Administrative Remedy Request on the appropriate BP–9 form
within twenty calendar days following the date for which the basis for the request
occurred.38 If the inmate is unsatisfied with the warden’s response to his

Administrative Remedy Request, he may submit an appeal on the BP–10 form to the
appropriate Regional Director within twenty calendar days of the date the warden
signed the response.39 An inmate who is not satisfied with the Regional Director’s

response may appeal to the General Counsel on the appropriate BP–11 form within
thirty calendar days of the date the Regional Director signed the response.40 An
inmate’s appeal to the General Counsel is the final administrative appeal.41 Thus, to

satisfy the PLRA’s exhaustion requirement, a federal inmate must complete each
step of the BOP’s administrative remedy process, which is not considered complete
until an inmate’s final appeal is considered by the Central Office.42

36 28 C.F.R. § 542.10.
37 See id. § 542.13(a).
38 See id. § 542.14(a).
39 See id. § 542.15(a).
40 See id.
41 See id.
42 See 28 C.F.R. §§ 542.14-542.15; Rinaldi, 904 F.3d at 265; Schreane v. Marr, 722 F. App’x
160, 164 (3d Cir. 2018).
In Defendant’s statement of facts, which Plaintiff does not dispute, it is clear
that while he was incarcerated with the BOP, Plaintiff failed to exhaust any of his
four filed grievances to the Central Office level; these grievances thus remain

unexhausted. This does not end the Court’s inquiry, however, as it must also
consider whether the applicable administrative remedies were “available” to
Plaintiff for his unexhausted claim.
In Ross v. Blake,43 the Supreme Court of the United States most recently

outlined the three instances in which remedies would not be “available” such that
exhaustion may be excused: (1) when an administrative procedure “operates as a
simple dead end with officers unable or consistently unwilling to provide relief to

aggrieved inmates;” (2) where the administrative remedies are so unclear that “no
ordinary prisoner can make sense of what it demands;” and (3) where prison officials
“thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.”44

Here, as Plaintiff has failed to oppose the motion at all, Plaintiff makes no
argument that he falls under one of these three categories, nor would they appear to
apply to the undisputed facts presented in the motion. Indeed, Plaintiff did utilize

the grievance process; he simply failed to complete the last step. There is simply no
fact or reasonable inference the Court can make that would support a conclusion that

43 136 S. Ct. 1850 (2016).
44 Id. at 1859-60. See also Rinaldi, 904 F.3d at 266-67.
the grievance procedure was unavailable to Plaintiff while he was incarcerated at
FCI Schuylkill.
“[O]nce the defendant has established that the inmate failed to resort to

administrative remedies, the onus falls on the inmate to show that such remedies
were unavailable to him.”45 Plaintiff has failed to establish that such remedies were
unavailable to him; indeed, he has not opposed the motion for summary judgment at

all. Accordingly, this Court finds that as a matter of law, Plaintiff failed to exhaust
the administrative remedies that were available to him, as he is required to do by §
1997e(a) prior to filing suit as to the Eighth Amendment excessive force claim, and
will grant Defendant Miller’s motion for summary judgment as to that issue.

Although in some instances it is appropriate for a court to enter summary
judgment sua sponte in favor of parties for whom judgment in their favor is proper
but for whatever reason have failed to join in the motion,46 the Court declines to do

so here because the remaining defendants have not been served.47 Under §

45 Rinaldi, 904 F.3d at 268.
46 See Celetex, 477 U.S. 317, 326 (“Our conclusion is bolstered by the fact that district courts
are widely acknowledged to possess the power to enter summary judgment sua sponte, so
long as the losing party was on notice that she had to come forward with all of her
evidence.”); Gibson v. Mayor & Council of City of Wilmington, 355 F.3d 215, 223-24 (3d
Cir. 2004) (upholding district court’s grant of sua sponte summary judgment and concluding
that such an action is appropriate and in conformance with circuit precedent when the record
is fully developed, prejudice is lacking, and the issue is purely legal). See also Chambers
Dev. Co. v. Passaic County Utilities Auth., 62 F.3d 582, 584 n.4 (3d Cir. 1995) (“[A]uthority
has developed to allow a court to grant summary judgment to a non-moving party.”).
47 It appears that these defendants have not been served because Plaintiff has failed to provide
an updated address for Defendant Pozza, who is no longer employed by the BOP, and
because Plaintiff has failed to ascertain the identities of the “Use of Force Team.”
1915(e)(2)(B) of the Prisoner Litigation Reform Act, however, the Court has an
obligation to dismiss a complaint “at any time the court determines” the complaint
is frivolous or malicious, fails to state a claim on which relief may be granted, or

seeks monetary relief against a defendant who is immune from suit.48 That section
applies to this action because Plaintiff is a prisoner proceeding in forma pauperis.49
In determining whether a prisoner’s complaint states a claim under §

1915(e)(2)(B), the Court is guided by the Rule 12(b)(6) motion to dismiss standard.
Under Rule 12(b)(6), the Court 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.”50
While a complaint need only contain “a short and plain statement of the
claim,”51 and detailed factual allegations are not required, a complaint must plead

“enough facts to state a claim to relief that is plausible on its face.”52 “The

48 28 U.S.C. § 1915(e)(2)(B). See, e.g., Brown v. Sage, 941 F.3d 655, 659 (3d Cir. 2019) (en
banc) (noting that under the PLRA the district court shall at any time dismiss any case which,
inter alia, fails to state a claim upon which relief may be granted); Lopez v. Smith, 203 F.3d
1122, 1126 n.6 (9th Cir. 2000); Bower v. Rey, 2016 WL 7324526 (M.D. Pa. Dec. 16, 2016);
Bracey v. Pa. Dep’t of Corrs., 2012 WL 1825828 (W.D. Pa. May 18, 2012) (“The Court’s
obligation to dismiss a complaint under the PLRA screening provisions is not excused even
after defendants have filed a motion to dismiss.”).
49 See 28 U.S.C. § 1915(e)(2).
50 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)).
51 Fed. R. Civ. P. 8(a)(2).
52 Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007).
plausibility standard is not akin to a probability requirement, but it asks for more
than a sheer possibility that a defendant has acted unlawfully.”53
In deciding a motion to dismiss, “courts generally consider only the

allegations contained in the complaint, exhibits attached to the complaint and matters
of public record.”54 “However, an exception to the general rule is that a ‘document
integral to or explicitly relied upon in the complaint’ may be considered ‘without
converting the motion to dismiss into one for summary judgment.’”55 The Court

may also consider an “undisputedly authentic document” proffered by the
defendants if the plaintiff’s claims are based on it.56
The Court finds that it is appropriate to consider the BOP records

demonstrating that Plaintiff has failed to exhaust his administrative remedies as they
are undisputedly authentic government records and are integral to Plaintiff’s claims
in the complaint; without exhaustion, Plaintiff is precluded from bringing his claims.

Plaintiff has not refuted these documents or otherwise opposed the motion for
summary judgment. It is patently clear that Plaintiff has failed to exhaust any of his
administrative remedies filed with the BOP, and he has failed to provide any

53 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations omitted).
54 Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.
1993); see also Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010).
55 In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting Shaw
v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996), superseded on other grounds by
PSLRA, 15 U.S.C. § 78u–4(b)(2)).
56 In re Donald J. Trump Sec. Litig.-Taj Mahal Litig., 7 F.3d 357, 368 n.9 (3d Cir. 2000) (“[A]
court may consider an undisputedly authentic document that a defendant attaches as an
exhibit to a motion to dismiss if the plaintiff's claims are based on the document.”) (quoting
Pension Benefit, 998 F.2d at 1196).
explanation to excuse those failures. As such, Plaintiff is precluded from stating an
Eighth Amendment excessive force claim against unserved Defendants Pozza and
the “Use of Force Team,” and such a claim must be dismissed against these

defendants.
Generally, “plaintiffs who file complaints subject to dismissal . . . should
receive leave to amend unless amendment would be inequitable or futile.”57 The

Court will deny amendment as futile, because no amount of repleading or
amendment could overcome Plaintiff’s failure to exhaust his administrative
remedies as to his claims against the unserved Defendants.
IV. CONCLUSION

Based on the foregoing, the Court will grant the motion for summary
judgment as to Defendant Miller and dismiss with prejudice the claims against
Defendants Pozza and the “Use of Force Team.” An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

57 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409624. Public record. Not legal advice.