Wyatt v. Malisko

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TARIQ WYATT, : Civil No. 3:16-CV-1438

:

Plaintiff :

:

v. : (Magistrate Judge Carlson)

:

C.O. MALISKO, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

I. Factual Background

This case is currently scheduled for a non-jury trial before the undersigned

relating to the plaintiff’s sole surviving claim, a First Amendment retaliation claim

based on the alleged denial of access to legal papers and placement in an unsanitary

psychiatric observation cell. The remaining Defendant, Lt. Butts of the Department

of Corrections (“Department” or “DOC”), has filed a motion in limine, which seeks

a pre-trial determination by the Court that the plaintiff failed to properly exhaust his

retaliation claim, or in the alternative, seeks to bar Wyatt from seeking damages

other than nominal damages. (Doc. 118). Both of these arguments by the defense are

premised upon what they regard as flawed and incomplete efforts by Wyatt to

exhaust his administrative grievances, or seek damages in the grievances that he

submitted to prison officials. As the defendants view it, Wyatt’s pathway to grieve

these matters was through the three-tier system prescribed by DC-ADM 804, and his

failure to fully and properly exhaust grievances through this process is now fatal and

bars this retaliation claim.

The plaintiff has responded to this motion, (Doc. 123), with a twofold

rejoinder arguing: first, that Wyatt properly exhausted his grievances by reporting

allegations of inmate abuse pursuant to a separate prison policy DC-ADM 001; and,

second, by contending that the plaintiff’s efforts to exhaust his grievances were

obstructed by staff. Citing these legal and factual disputes, Wyatt contends that these

issues of exhaustion and damages should be deferred until trial when the court may

make fully informed decisions based upon a complete factual record.

In our view, the need for a pre-trial ruling on a motion in limine is reduced

here, where we will be conducting a non-jury trial. This fact reduces the urgency and

necessity of pre-trial evidentiary rulings like those sought here since:

[A]ny concern about juror confusion is obviated, and the Court is well-

positioned to make judgments regarding the admissibility of evidence

within the context of the trial itself. Indeed, although courts will rule

on motions in limine in advance of bench trials in appropriate cases,

Velez v. Reading Health System, 2016 WL 9776079 (E.D. Pa. Feb. 24,

2016), they often will find it unnecessary to do so because the concerns

over prejudice or confusion to a jury are absent. See 9 Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure Civil 3d §

2411 (3d ed. 2008); see also United States v. Brown, 2017 WL 219521

(N.D. Ill. Jan. 19, 2017) (noting that concerns over the potential for

prejudice from improper evidence “are minimal in bench trials ...

rulings on motions in limine are less important.”); Alan L. Frank Law

Assocs., P.C. v. OOO RM Invest, 2016 WL 9348064 (S.D. Fla. Nov.

30, 2016).

Buhler Versatile Inc. v. GVM, Inc., No. 1:17-CV-00217, 2018 WL 6062307, at *5

(M.D. Pa. Nov. 20, 2018). Therefore, we will decline the invitation to make pre-trial

rulings on these disputed exhaustion issues and will instead defer rulings upon these

administrative exhaustion issues pending the full factual development of the record

at trial.

II. Discussion

The Court is vested with broad inherent authority to manage its cases, which

carries with it the discretion and authority to rule on motions in limine prior to trial.

See Luce v. United States, 469 U.S. 38, 41 n.4 (1984); In re Japanese Elec. Prods.

Antitrust Litig., 723 F.2d 238, 260 (3d Cir. 1983), rev’d on other grounds sub nom.,

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (the court

exercises its discretion to rule in limine on evidentiary issues “in appropriate cases”).

Courts may exercise this discretion in order to exclude unfairly prejudicial,

confusing, cumulative, or irrelevant evidence. United States v. Romano, 849 F.2d

812, 815 (3d Cir. 1988). Courts may also do so in order to “narrow the evidentiary

issues for trial and to eliminate unnecessary trial interruptions.” Bradley v.

Pittsburgh Bd. of Educ., 913 F.2d 1064, 1069 (3d Cir. 1990) (citation omitted).

However, courts should be careful before doing so.

In this case, it is alleged that the plaintiff has failed to exhaust his

administrative remedies within the prison system prior to filing this complaint. The

failure to timely and fully pursue these administrative remedies has substantive

significance for inmate-litigants like Wyatt since the Prison Litigation Reform Act

(“PLRA”) provides that “[n]o action shall be brought with respect to prison

conditions under . . . [42 U.S.C. § 1983], or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Section 1997e’s

exhaustion requirement applies to a wide-range of inmate complaints, including

damages complaints like those made here. See Spruill v. Gillis, 372 F.3d 218 (3d

Cir. 2004); Booth v. Churner, 206 F.3d 289 (3d Cir. 2000). While this exhaustion

requirement is not a jurisdictional bar to litigation, this requirement is strictly

enforced by the courts. This rigorous enforcement is mandated by a fundamental

recognition that section 1997e’s exhaustion requirement promotes important public

policies. Nyhuis v. Reno, 204 F.3d 65, 75-76 (3d Cir. 2000) (citations omitted).

Because of the substantial policies fostered by this exhaustion requirement, it

has been held that there is no futility exception to section 1997e’s exhaustion

requirement. Id. Instead, courts have typically required across-the-board

administrative exhaustion by inmate plaintiffs who seek to pursue claims in federal

court. When assessing an exhaustion claim, it is important to note that the exhaustion

requirement of the PLRA is one of “proper exhaustion.” Woodford v. Ngo, 548 U.S.

81, 84 (2006). Failure to comply with the procedural requirements of the available

grievance system will result in a claim being deemed procedurally defaulted. Nyhuis

v. Reno, 204 F.3d 65, 90 (3d Cir. 2000); Spruill v. Gillis, 372 F.3d 218, 227-32 (3d

Cir. 2004).

This broad rule favoring full exhaustion admits of a number of exceptions,

however. For example, if the actions of prison officials directly caused the inmate’s

procedural default on a grievance, the inmate will not be held to strict compliance

with this exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir.

2000). Likewise, an inmate may only exhaust those remedies that are available to

him. As we have observed:

[A]n inmate’s failure to exhaust will only be excused “under certain

limited circumstances.” Harris v. Armstrong, 149 F. App'x 58, 59 (3d

Cir. 2005). In Ross [v. Blake], the Supreme Court of the United States

articulated three circumstances where a prison’s administrative

procedures are “unavailable” to inmates. Specifically, the Supreme

Court noted that administrative remedies are not available where: 1) the

administrative procedure operates “as a simple dead end—with officers

unable or consistently unwilling to provide any relief to aggrieved

inmates”; 2) the administrative scheme is “so opaque that it becomes,

practically speaking, incapable of use”; and 3) “prison administrators

thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Ross, 136 S. Ct. at

1859-60 (citing Booth v. Churner, 532 U.S. 731, 738, 741 n.6 (2001)).

As to the second circumstance, the Supreme Court instructed that

“[w]hen rules are so confusing that no reasonable prisoner can use

them, then they are no longer available.” Ross, 136 S. Ct. at 1860

(quotation omitted). The Supreme Court further noted that “Congress

has determined that the inmate should err on the side of exhaustion”

where “an administrative process is susceptible of multiple reasonable

interpretations,” however, where a remedy becomes “essentially

‘unknowable’—so that no ordinary prisoner can make sense of what it

demands — then it is also unavailable.” Id.; see also Brown v. Croak,

312 F.3d 109, 110 (3d Cir. 2002) (holding that prisoner with failure to

protect claim was entitled to rely on instruction by prison officials to

wait for outcome of internal security investigation before

filing grievance); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)

(holding that exhaustion requirement was met where Office of

Professional Responsibility fully examined merits of excessive force

claim and correctional officers impeded filing of grievance).

Landau v. Lamas, No. 3:15-CV-1327, 2018 WL 8950127, at *6 (M.D. Pa. Oct. 11,

2018), report and recommendation adopted, No. 3:15-CV-1327, 2019 WL 3502627

(M.D. Pa. Aug. 1, 2019).

“Failure to exhaust is an affirmative defense the defendant must plead and

prove; it is not a pleading requirement for the prisoner-plaintiff.” Small v. Camden

Cnty., 728 F.3d 265, 268-69 (3d Cir. 2013). In accordance with the PLRA, in order

to prevail on this affirmative defense, a defendant must show that the prisoner failed

to comply with exhaustion requirements with respect to any claim that arises in the

prison setting, regardless of the type of claim asserted, or the relief sought. See

Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he 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”); Booth, 532 U.S. at 741 n.6 (“[A]n inmate must exhaust

irrespective of the forms of relief sought and offered through administrative

avenues”).

Whether an inmate has exhausted administrative remedies is a question of law

that is to be determined by the court even if that determination requires the resolution

of disputed facts. See Small, 728 F.3d at 271 (judges may resolve factual disputes

relevant to the exhaustion issue without the participation of a jury); see also Drippe

v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010). Where this process entails fact-

finding and resolution of factual disputes, the court may resolve the issue of

exhaustion at trial through an evidentiary hearing. As the Court of Appeals has

observed:

[J]ust as subject-matter jurisdiction, personal jurisdiction, and venue,

exhaustion is a Athreshold issue that courts must address to determine

whether litigation is being conducted in the right forum at the right

time.@ Dillon, 596 F.3d at 272 (emphasis added); see Pavey, 544 F.3d

at 741 (AJuries decide cases, not issues of judicial traffic control. Until

the issue of exhaustion is resolved, the court cannot know whether it is

to decide the case or the prison authorities are to.@); cf. McCarthy v.

Madigan, 503 U.S. 140, 144, 112 S. Ct. 1081, 117 L.Ed.2d 291 (1992)

(likening the doctrine of exhaustion of administrative remedies to

Aabstention, finality, and ripeness-that govern the timing of federal-

court decisionmaking@); Myers v. Bethlehem Shipbuilding Corp., 303

U.S. 41, 50B51 n. 9, 58 S. Ct. 459, 82 L. Ed. 638 (1938) (describing

exhaustion as a Arule of judicial administration@). . . . . [I]t is of no

consequence that here, as is often the case, there are disputed facts that

must be resolved in order to determine whether the claims were

exhausted. See Bryant, 530 F.3d at 1373B74 (holding the district court

properly acted as fact finder in resolving conflicting evidence that

raised a genuine issue of material fact about whether administrative

remedies were available to the prisoner plaintiffs); accord Messa, 652

F.3d at 309; Dillon, 596 F.3d at 271. Matters of judicial administration

often require judges to decide factual disputes and the Seventh

Amendment is not implicated as long as the facts are not bound up with

the merits of the underlying dispute.

Small, 728 F.3d at 269-70.

In the instant case, the parties’ pleadings reflect both factual disagreements

regarding whether the grievance process was actually available to Wyatt, as well as

legal disputes concerning whether Wyatt’s submission of an abuse complaint under

Corrections policy DC-ADM 001 satisfied this exhaustion requirement. With

respect to this legal issue regarding the interplay of the general prison grievance

policy, DC-ADM 804, and the inmate abuse reporting policy, DC-ADM 001:

[T]he legal significance of these parallel grievance paths has been

thoroughly discussed and, “while the court of appeals ‘has not

considered whether a Pennsylvania prisoner can exhaust his

administrative remedies through DC–ADM 001, nor what steps would

be necessary under that procedure,’ Victor v. Lawler, 565 Fed.Appx.

126, 129 (3d Cir. 2014), a number of district courts ‘have found that

allegations of abuse do not have to be filed through all three levels of

the DOC’s grievance system pursuant to DC-ADM 804, if the inmate

reports the abuse pursuant to DC-ADM 001.’ Boyer v. Malet, No.

3:CV-16-0149, 2016 WL 4679013, at *3 (M.D. Pa. Sept. 7,

2016).” Robinson v. Tennis, No. 3:11-CV-1724, 2017 WL 4479349, at

*6 (M.D. Pa. Sept. 8, 2017), report and recommendation adopted, No.

3:11-CV-1724, 2017 WL 4478009 (M.D. Pa. Oct. 6, 2017).

Landau v. Lamas, No. 3:15-CV-1327, 2018 WL 8950127, at *7 (M.D. Pa. Oct. 11,

2018), report and recommendation adopted, No. 3:15-CV-1327, 2019 WL 3502627

(M.D. Pa. Aug. 1, 2019). Yet, while come courts have addressed this legal issue, at

least in part, we need not make a conclusive determination on these exhaustion

questions at this time. Given these legal and factual disputes, and recognizing the

non-jury nature of these proceedings, while we acknowledge that the issues of PLRA

exhaustion must be resolved by the court, we will defer ruling upon these questions

until after trial when we may consider these exhaustion issues on a fully developed

factual record.

An appropriate order follows.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: June 15, 2021

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TARIQ WYATT, : Civil No. 3:16-CV-1438

:

Plaintiff :

:

v. : (Magistrate Judge Carlson)

:

C.O. MALISKO, et al., :

:

Defendants. :

O R D E R

AND NOW, this 15th day of June 2021, in accordance with the accompanying

Memorandum, upon consideration of the defendant’s motion in limine (Doc. 118),

which seeks which seeks a determination by the Court that the plaintiff failed to

properly exhaust his retaliation claim, or in the alternative, seeks to bar Wyatt from

seeking damages other than nominal damages, IT IS ORDERED that the motion for

a pre-trial ruling on these issues is DENIED. While we acknowledge that the issues

of PLRA exhaustion must be resolved by the court, we will defer ruling upon this

question until after trial when we may consider these exhaustion issues on a fully

developed factual record.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge