Moore v. Mann

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN C. MOORE, : Civil No. 3:13-CV-02771

:

Plaintiff, :

:

v. :

: (Magistrate Judge Carlson)

ANGELA D. MANN, et al., :

:

Defendants. :

MEMORANDUM OPINION

I. Statement of Facts and of The Case

This case presents us with what we have described in the past as “an

unsatisfactory Hobson’s choice.” Peet v. Beard, No. 3:10-CV-482, 2015 WL

7568300, at *10 (M.D. Pa. Nov. 25, 2015). This Hobson’s choice is a function of an

inexplicable1 failure by the defense in this prisoner civil rights action to timely and

fully pursue a “strict and largely unyielding” id., legal defense, the alleged failure of

1 While we note this protracted and unaccountable delay in timely raising and

presenting this exhaustion defense, we hasten to add that current defense counsel

was not assigned to this case when this delay occurred. Thus, current counsel is in

no way responsible for the Hobson’s choice we describe. Instead, that newly

assigned counsel has identified this issue and pursued this defense promptly upon

his appointment to this case.

the plaintiff to fully and properly exhaust his administrative remedies prior to filing

this lawsuit some eight years ago in 2013.

In this case, at the time that the inmate-plaintiff, Brian Moore, filed this

complaint in November of 2013, there may have been questions concerning whether

he had exhausted prison grievances with respect to all defendants and all claims

named in the complaint. In June of 2015, the defendants’ answer to the complaint

asserted the affirmative defense of failure to exhaust, albeit in a cursory fashion

listing this as one of thirteen affirmative defenses. (Doc. 54).

This affirmative defense then lay fallow, unpursued by the defendants through

any dispositive motion for more than five years. Thus, when we set a November

2017 dispositive motions deadline in this case, (Doc. 93), the defendants filed a

summary judgment motion which did not advance this affirmative defense. (Doc.

98). Quite the contrary, the statement of facts submitted by the defendants in support

of this summary judgment motion seemed to explicitly concede that grievance

exhaustion had taken place. The statement of facts described the issue of grievance

exhaustion in the following terms:

6. Grievance No. 401780 was filed by Plaintiff Brian Moore (AJ0701)

while he was housed at SCI-Coal Township regarding his allegations

that Defendants failed to protect him against verbal harassment and

threats of physical harm from other inmates, and indeed, caused same

because they discussed his criminal case. See Grievance No. 401780,

attached in the Appendix as Exhibit “A-1.” See also Exhibit “A,” ¶ 8.

7. The grievance was denied at all levels of review.

(Doc. 100). Given this unequivocal recital by the defendants that Moore’s grievance

addressed a claim that “Defendants failed to protect him against verbal harassment

and threats of physical harm from other inmates,” and the defendants’ averment that

Moore’s “grievance was denied at all levels of review” we concluded that “the

parties agree that Moore exhausted his claims.” (Doc. 115 at 4 n. 2).

This understanding remained unchallenged by the defense for years and until

recently we had no reason to question this understanding. Instead, the defense of this

case rested on other grounds and the plaintiff was compelled to run the gauntlet of

an appeal to the Third Circuit in order to restore his claims which were initially

dismissed by the district court.

It is against this backdrop that the instant case comes before us again after

persisting nearly nine years of motions and appeals. Now we are asked, for the first

time, to consider whether the defendants are entitled to a partial summary judgment

in this civil rights case, originally filed in 2013 by the pro se plaintiff, Brian C.

Moore, based upon Moore’s alleged failure to fully and properly exhaust all of his

claims through the prison grievance process. As we have noted, Mr. Moore’s claim

has a long history, surviving a motion to dismiss and returning to us after the original

grant of summary judgment was reversed by the Third Circuit. What remains after

this gauntlet of procedural hurdles, is the plaintiff’s Eighth Amendment failure-to-

protect claim which he asserts against defendants Angela Mann, a former counselor

at SCI-Coal Township where Moore was previously incarcerated, as well as several

other corrections officers who were employed at SCI-Coal Township at the time of

the alleged incident. The facts which support the original cause of action have

remained unchanged despite just under a decade of litigation, and thus the factual

allegations of the underlying claim, as well as the procedural history up to the point

of the Third Circuit appeal, have been well documented. The Third Circuit

summarized the case as follows:

Moore’s complaint alleges that, in 2011, he witnessed his former

counselor at SCI-Coal Township, defendant Angela Mann, engaging in

inappropriate sexual contact with other inmates. Shortly thereafter,

Mann and other corrections defendants allegedly began making

inflammatory statements about Moore, calling him a pedophile, gay,

and a snitch. Moore claimed that the defendants violated his Eight

Amendment rights by making these statements to other inmates,

thereby placing him in a class of vulnerable inmates that are frequently

subject to assault. Moore also raised other claim stemming from his

allegations that the defendants filed a false misconduct against him,

resulting in a sanction of 270 days in the Restricted Housing Unit, and

lost prison wages for that time period.

The defendants filed a motion to dismiss, which the District Court

granted in part. The District Court dismissed all claims against

defendants Varano, Wetzel, and Long for failure to plead their personal

involvement; all claims against all defendants in their official capacities

for monetary damages, because the claims were barred by the Eleventh

Amendment; all state law tort claims because they were barred by

sovereign immunity under state law; all due process claims, because

Moore’s sanction of 270 days’ disciplinary confinement and loss of

prison wages were insufficient legal interests to trigger due process

protection; and all claims based on the violation of criminal statutes and

Department of Corrections regulations, as the alleged violation of those

statutes and regulations did not state a claim under 42 U.S.C. § 1983.

The District Court denied the motion to dismiss with respect to Moore’s

Eighth Amendment failure-to-protect claim against the defendants who

allegedly disparaged Moore and discussed his criminal history,

including defendants Mann, Foulds, Hering, Briner, and Zamboni.

After discovery, the remaining defendants moved for summary

judgment. All of the remaining defendants categorically denied that

they discussed Moore’s criminal history with other inmates. Defendant

Long added that he interviewed all staff members connected with

Moore’s grievance, and that none were aware of Moore’s allegations.

Additionally, an investigation by the Office of Special Investigations

and Intelligence, independent of the grievance process, did not

substantiate most of Moore’s claims, although Moore did state in that

investigation that Mann was labeling him a snitch and openly

discussing his criminal history.

Moore opposed the summary judgment motion with his affidavits, an

affidavit from a fellow inmate named Terry Shay, the defendants’

responses to his interrogatories, and his administrative grievance

records. Moore’s affidavits state that he overheard the defendants

calling him a snitch, gay, and a pedophile in front of other inmates, and

that, as a result, other inmates at SCI-Coal Township threatened him

with bodily harm in 2011 and 2012. After he transferred to SCI-

Smithfield, he encountered the same threats in 2013 and 2014 because

a number of inmates were transferred from SCI-Coal Township to SCI-

Smithfield. In his brief in opposition to the summary judgment motion,

Moore added that those threats have materialized. He stated he was

assaulted by inmates at SCI-Coal Township and SCI-Smithfield,

though he did not describe those assaults or state that he suffered any

physical injuries. Shay’s affidavit similarly states that the defendants

openly discussed Moore’s criminal history, and that inmates at SCI-

Smithfield have threatened Moore as a result.

At least one interrogatory response, from defendant Angela Mann,

states that disparaging an inmate regarding his criminal history is

prohibited under Department of Corrections policy. The grievance

records indicate that Moore informed at least defendant Foulds that

other defendants, including Mann, were placing him in danger by

discussing his criminal history with other inmates. And one of Moore’s

affidavits states that he informed Foulds of this information around

September 2011.

The Magistrate Judge recommended denying the motion for summary

judgment. The District Court rejected the recommendation, and granted

the motion for summary judgment. The District Court determined that

although there was a genuine issue of material fact regarding whether

the defendants actually told other inmates that Moore was gay, a

pedophile, or a snitch, Moore had not submitted any facts from which

a jury could find that the defendants knew of and disregarded the risk

of serious harm that those statements would create.

(Doc. 124-2, at 2-5).

Upon this factual backdrop, the Third Circuit held that the District Court erred

in determining that Moore had not submitted any facts suggesting deliberate

indifference by defendants. It explained that the court had not considered the

“contextual and circumstantial evidence that Moore presented,” in its finding,

including the prison norms stigmatizing sex offenders in the prison context, and the

fact that the affidavits submitted by Moore showed he had communicated the risk of

harm to at least one defendant. (Id. at 7-8). Further, the Third Circuit found that there

still existed a question as to whether Moore is prevented from recovering

compensatory damages for mental and emotional injuries as “whether he was

assaulted and suffered any physical injuries are live questions.” (Id. at 9). The Third

Circuit vacated the judgment of the District Court as to the order granting summary

judgment2 and remanded the case for further proceedings consistent with its opinion.

(Id.)

And so, Moore’s case has returned to the district court. The parties consented

to Magistrate Judge jurisdiction on April 15, 2021. (Doc. 131). After an extension

of time to file dispositive motions, the defendants filed the instant motion for

summary judgment on July 30, 2021. (Doc. 139). Despite the slew of issues and

causes of action raised and dismissed in the course of this lengthy procedural history,

the motion for partial summary judgment before us for the first time presents a

relatively simple argument: that the plaintiff failed to fully and properly exhaust his

administrative remedies with respect to all defendants and all claims. The motion is

fully briefed and ripe for disposition. (Docs. 140, 141, 158 159, 160). For the reasons

set forth below, the defendants’ motion for summary judgment on this exhaustion

issue is denied.

We find, as other courts have found, that this unaccountable delay in properly

framing this issue for summary judgment consideration bars the entry of a partial

summary in favor of some defendants on some claims. However, we are also

2 As the Third Circuit noted at Doc. 124-2, at 3 n.2, Moore did not challenge the

order granting the motion to dismiss, and thus the court did not address the dismissal

of those claims. Accordingly, the only claim which remains on remand is the

plaintiff’s Eighth Amendment failure to protect claim which survived the original

motion to dismiss.

constrained to note the other aspect of the unsatisfactory Hobson’s choice created

by the delay in submitting this issue for our consideration. It is well-settled that:

[T]he exhaustion of available administrative remedies prior to filing

suit is mandatory. 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.”) (quoting Beeson v. Fishkill

Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)). 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 v. Camden County, 728 F.3d

265, 270-71 (3d Cir. 2013); see also Drippe v. Tobelinski, 604 F.3d

778, 781 (3d Cir. 2010).

Peet v. Beard, No. 3:10-CV-482, 2015 WL 7568300, at *5 (M.D. Pa. Nov. 25, 2015).

Therefore, while a failure to timely pursue this affirmative defense may bar summary

judgment consideration of this claim, the Third Circuit also teaches that, if the failure

to exhaust defense is raised in the defendants’ answer, the defendants may

nonetheless pursue this affirmative defense notwithstanding their failure to raise it

in a timely fashion at summary judgment, by seeking a bifurcated non-jury trial and

adjudication of this issue. Drippe v. Gototweski, 434 F. App's 79, 81 (3d Cir. 2011).

This is the course compelled by law to navigate the unsatisfactory Hobson’s

choice which this past inaction in asserting the failure to exhaust defense now thrusts

upon us. Therefore, we will follow this path and deny this motion for partial

summary judgment, while directing the defendants to seek a bifurcated non-jury

determination of this issue, which was preserved by the defense in their answer to

Moore’s complaint.

II. Discussion

A. Motion for Summary Judgment – Standard of Review

The defendant has moved for summary judgment pursuant to Rule 56 of the

Federal Rules of Civil Procedure, which provides that the court shall grant summary

judgment if the movant shows that there is no genuine dispute as to any material fact

and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).

Through summary adjudication, a court is empowered to dispose of those claims that

do not present a “genuine dispute as to any material fact,” Fed. R. Civ. P. 56(a), and

for which a trial would be “an empty and unnecessary formality.” Univac Dental Co.

v. Dentsply Int’l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010). The substantive law

identifies which facts are material, and “[o]nly disputes over facts that might affect

the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute about a material fact is genuine only if there is a sufficient evidentiary basis

that would allow a reasonable fact finder to return a verdict for the non-moving party.

Id., at 248-49.

The moving party has the initial burden of identifying evidence that it believes

shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec.

& Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown

that there is an absence of evidence to support the non-moving party’s claims, “the

non-moving party must rebut the motion with facts in the record and cannot rest

solely on assertions made in the pleadings, legal memoranda, or oral argument.”

Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord

Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 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. Summary judgment is also

appropriate if the non-moving party provides merely colorable, conclusory, or

speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla

of evidence supporting the non-moving party and more than some metaphysical

doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the

Court must “consider all evidence in the light most favorable to the party opposing

the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).

Moreover, a party who seeks to resist a summary judgment motion by citing

to disputed material issues of fact must show by competent evidence that such factual

disputes exist. Further, “only evidence which is admissible at trial may be considered

in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers

Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne

cannot create an issue of fact merely by . . . denying averments . . . without producing

any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 F. App’x

896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary

judgment is made and supported . . ., an adverse party may not rest upon mere

allegations or denial.” Fireman’s Ins. Co. of Newark New Jersey v. DuFresne, 676

F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697

F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue

of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is

also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969).

Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon

bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338,

341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).

Finally, it is emphatically not the province of the court to weigh evidence or

assess credibility when passing upon a motion for summary judgment. Rather, in

adjudicating the motion, the court must view the evidence presented in the light most

favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable

inferences in the light most favorable to the non-moving party. Big Apple BMW,

Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where

the non-moving party’s evidence contradicts the movant’s, then the non-movant’s

must be taken as true. Id. Additionally, the court is not to decide whether the

evidence unquestionably favors one side or the other, or to make credibility

determinations, but instead must decide whether a fair-minded jury could return a

verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see

also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third

Circuit has instructed that:

To raise a genuine issue of material fact . . . the opponent need not

match, item for item, each piece of evidence proffered by the movant.

In practical terms, if the opponent has exceeded the “mere scintilla”

threshold and has offered a genuine issue of material fact, then the court

cannot credit the movant’s version of events against the opponent, even

if the quantity of the movant’s evidence far outweighs that of its

opponent. It thus remains the province of the fact finder to ascertain the

believability and weight of the evidence.

Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of

fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita

Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal

quotation marks omitted); NAACP v. North Hudson Reg’l Fire & Rescue, 665 F.3d

464, 476 (3d Cir. 2011).

B. The Defendant’s Motion Should Be Denied Without Prejudice to

Consideration of this Exhaustion Defense Through a Non-Jury Trial

The defendants’ brief in support of their motion for partial summary judgment

raises three discrete issues relating to whether the plaintiff properly exhausted his

administrative remedies prior to filing this 2013 complaint in federal court. At the

outset, we note that the defendants never previously argued that the plaintiff failed

to exhaust his administrative remedies, despite filing a detailed motion to dismiss

raising at least six grounds for dismissal, (Doc. 28), as well as a previous motion for

summary judgment which resulted in this remand from the Third Circuit. (Doc. 71).

Nevertheless, the defendants have now embarked upon a new line of reasoning as to

why they are entitled to summary judgment upon this same, heavily litigated, set of

facts, arguing now that the grievance filed by the plaintiff in February 2012,

Grievance 401780, (Doc. 10, at 21), was deficient, resulting in the plaintiff failing

to adequately exhaust his remedies.

The defendants first argue that summary judgment should be granted as to the

claims against Defendant Long, because he was not named in the original grievance.

Next, they argue that the grievance did not allege facts that Defendants Foulds,

Hering, Briner, Zamboni, and Long discussed his criminal case or publicly labeled

him a snitch or pedophile, and thus summary judgment should be granted as to those

defendants. Finally, the defendants argue that, because the plaintiff failed to request

compensatory damages in his grievance, he is not entitled to such damages as a

matter of law. Notably, the defendants appear to concede that this failure to exhaust

claim is not a total defense to this lawsuit. Specifically, the defendants acknowledge

that Moore’s grievance fully exhausted his claims against Defendant Angela Mann

at least insofar as those claims entail damages in the form of lost prison wages, as

well as equitable relief.

The defendants cite sections of the Pennsylvania Department of Corrections

Inmate Grievance System Policy in support of these arguments, detailing the three-

step process for resolution of inmate grievances which would trigger exhaustion.

Rather than analyzing this grievance and whether it complies with the DOC policy,

we turn instead to what we think is the main issue in this motion: whether the

defendants have properly raised this exhaustion argument in this second motion for

summary judgment, having never before argued this issue. In our view, this

argument is not properly raised at this stage of litigation as defendants have already

conceded administrative exhaustion or, at the very least, forfeited their right to assert

this defense.

The defendants aver that the affirmative defense of failure to exhaust

administrative remedies was preserved in their answer and never conceded in

subsequent briefs. Although it is true that the defendants stated in their 2015 answer,

“Plaintiff has failed to exhaust all of his administrative remedies pursuant to the

Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a),” (Doc. 54, at 8), their

subsequent briefs seemingly conceded that the filed grievance had adequately

exhausted the plaintiff’s claim. We addressed this issue in our 2017 Report and

Recommendation on the defendants’ first motion for summary judgment, stating in

a footnote, “The defendants’ statement of undisputed facts (Doc. 100) makes [the

straightforward nature of the factual allegations] clear, since much of the factual

recitation concerns irrelevant information such as the DOC’s grievance process,

which is not an issue in this case because the parties agree that Moore exhausted his

claims.” (Doc. 115, at 4 n.2). The defendants argue that “the comment in the R & R

was incorrect and since it was not a ruling, had no law of the case doctrine effect.”

(Doc. 160, at 2).

Whether or not the footnote in the R&R constituted a ruling, the basis for the

court’s interpretation of the defendants’ stance on this issue remains apparent upon

another view of the record. The arguments made by the defendants in their motion

for summary judgment, and material facts conceded in those arguments, certainly,

at the very least, imply that the defendants made a conscious decision not to argue

failure to exhaust remedies. For example, as noted in our Report and

Recommendation, the Statement of Material Facts submitted with the first motion

for summary judgment details, at length, the inmate grievance process required by

the Department of Corrections’ Administrative Directive DC-ADM 804 and states

that Grievance No. 401780 filed by Plaintiff Brian Moore alleged “that Defendants

failed to protect him . . . and indeed caused same because they discussed his criminal

case.” (Doc. 73, ¶ 6) (emphasis added). The Statement of Material Facts then simply

notes that “the grievance was denied at all levels of review,” (Id., ¶ 7), and goes on

to discuss that “Defendant Long . . . interviewed all staff members connected with

the grievance.” (Id., ¶ 8). Though the defendants did not expressly articulate that

they were conceding the exhaustion defense previously raised in their answer, it was

the Court’s interpretation that the stipulated facts demonstrated the defendants

conceded that the complaint had been exhausted.

Moreover, despite the defendants’ assertion that it preserved the failure to

exhaust defense in its answer from 2015 and was not required to argue it in any

subsequent motion before the court, we find it would be an abuse of this Court’s

discretion to allow the defendants to pursue this claim through a summary judgment

motion at this late stage in the litigation. The defendants appear to argue that their

failure to raise the exhaustion issue in their previous motions does not render it

waived, referencing the Third Circuit decision in Drippe v. Tobelinski, 604 F.3d 778

(3d Cir. 2010),3 Drippe v. Gototweski, 434 Fed. Appx. 79 (3d Cir. 2011), and this

Court’s decision in Peet v. Beard, No. 3:10-CV-482, 2015 WL 7568300 (M.D. Pa.

Nov. 25, 2015) in support of their argument. As discussed below, while we conclude

3 The defendants actually cite Drippe v. Gototweski, 434 Fed. Appx. 79 (3d Cir.

2011) in their brief, a subsequent opinion in the same case. The defendants do not

reference a particular section of the opinion, but rather, we assume, rely on the

holding that the defendant’s failure to make a timely motion for summary judgment

based upon an affirmative defense did not constitute a waiver to pursue the defense

at trial. Our analysis focuses on the Third Circuit’s holding in its previous opinion

on the motion for summary judgment as it better describes the policy which

supported the original remand, and which frames our analysis in this case.

that this trilogy of cases permit consideration of this defense through a non-jury trial

notwithstanding the failure to timely advance this defense at summary judgment, we

find the circumstances of the instant case to be distinguishable from Peet and find

the holding in Drippe to support our denial of summary judgment as to this claim.

In Drippe, the Third Circuit expressed reservation about a defendant's belated

assertion of a failure to exhaust defense where the defense was not raised within the

time limits prescribed by the court for filing a motion for summary judgment. There,

a defendant declined to move for summary judgment on the grounds that the plaintiff

failed to exhaust administrative remedies prior to filing suit, but instead raised the

issue in an oral motion that was lodged on the eve of trial, after jury selection,

immediately prior to trial commencing, and seven months after the deadline the court

prescribed for filing dispositive motions. 604 F.3d at 782. Nevertheless, the district

court considered the motion, despite it having been filed out of time, and found that

the plaintiff's failure to exhaust compelled entry of summary judgment in the

defendant's favor in advance of trial. The plaintiff appealed and the Third Circuit

reversed, holding that, although it does not “read a strict timing requirement into the

PLRA for prosecution of the affirmative defense of failure to exhaust,” Id. at 781,

and district courts enjoy “great deference with regard to matters of case

management,” Id. at 783, “there are times when a district court exceeds the

permissible bounds of its broad discretion.” Id. Guided by the Supreme Court's

holding in Lujan v. National Wildlife Federation, 497 U.S. 871 (2011), the Third

Circuit noted that, following Lujan, federal courts have found that Rule 6(b) of the

Federal Rules of Civil Procedure imposes a “strict requirement that litigants file

formal motions for Rule 6(b) time-extensions when attempting to file in

contravention of a scheduling order.” Id. at 784. Accordingly, the Third Circuit

found the district court in Drippe had exceeded its discretion in that its

“entertainment of [the oral motion to dismiss], some seven months after the

scheduling deadline for dispositive motions, does not comply with Rule 6(b) as

construed by Lujan.” Id. at 785.

In reaching this conclusion, the Third Circuit does not appear to have been

simply invoking the strictures of the Rule but was also clearly influenced by the fact

that the way in which the motion was raised – orally, without notice, after a jury had

been selected, and immediately before trial was to commence – placed the plaintiff

in an unfair position that was the very reason Rule 6(b) prescribes certain procedural

requirements for the filing of late motions. In particular, the Rule requires that late

filings must “contain a high degree of formality and precision” in order to “put [ ]

the opposing party on notice that a motion is at issue and that he therefore ought to

respond.” Id. (quoting Lujan, 497 U.S. at 896 n.5). The court of appeals further

observed something particularly relevant to this case: “The resolution of this issue –

failure to exhaust administrative remedies – was highly fact-intensive and required

a judgment by the District Court whether the specific grievances complied with the

specific prison's grievance procedure.” Id. The court found that the plaintiff should

have had an opportunity to research and brief the issue, and that compliance with

Rule 6(b) would have provided that opportunity. Id. Accordingly, the court of

appeals reversed the entry of summary judgment and remanded to allow the

defendant to file a motion for an extension of time in compliance with Rule

6(b)(1)(B). Id. at 785-86.

We considered the Third Circuit’s decision in Drippe when deciding whether

to grant the defendant’s efforts to assert a failure to exhaust defense in Peet. In Peet,

an inmate sued several prison officials when he was severely injured after falling on

a radiator while having a seizure. Peet v. Beard, No. 3:10-CV-482, 2015 WL

7568300, at *2 (M.D. Pa. Nov. 25, 2015). The plaintiff’s original complaint was

dismissed on motion by defendants, based on his failure to exhaust administrative

remedies, because he had never attempted to lodge any grievance with the prison

relating to the injuries he had suffered. (Id. at *4). When the plaintiff filed a second

complaint on the same facts, the defendants included the affirmative defense of

failure to exhaust in their answer, but inexplicably never argued the issue again in

their dispositive motions, (id.), including declining to raise the issue in their timely

motion for summary judgment that was granted in part. (Id. at *3). Five years into

the litigation, and after trial had been scheduled on the remaining issues, the

defendants filed a “motion for bifurcation” which essentially sought a determination

by the court in favor of the defendants as a matter of law on the ground of failure to

exhaust. (Id.) At an evidentiary hearing on the issue, the plaintiff conceded that he

had declined to file a grievance despite the parties agreeing that the prison officials

did not take steps to prevent him from doing so. (Id. at *4).

Although we were “troubled by the way in which the defendants . . . belatedly

raised [the exhaustion] issue after failing to address it for nearly the entirety of [the]

case – a case that was filed after its predecessor was dismissed because of the

plaintiff’s acknowledged failure to exhaust his administrative remedies,” (WL

7568300 at *5) we were nonetheless “constrained to find that Peet’s claims [were]

barred because he . . . failed to file any grievance at any time, or even to seek leave

to file a grievance out of time,” (Id. at *4), because the parties stipulated to these

undisputed facts, making it clear that Peet did not exhaust his available remedies,

(Id. at *5), and because technically the defense was raised in a timely way and

preserved in a way that was permissible under Drippe. (Id. at *8).

Our view at the time was that the outcome in Peet was “an unsatisfactory

Hobson’s choice.” (Id. at *10). Unsatisfactory because, though there was never any

dispute that Peet failed to exhaust his claims, the defense, by failing to raise the issue,

allowed “the parties and the court [to spend] years litigating and administering this

lawsuit – time and resources that could have been put to other matters had the

defendants pursued relief on their affirmative defense early on.” (Id.) Thus, though

the defendants ask us to rely on this previous holding to support their motion for

summary judgment, we are inclined to distinguish the instant case from the holding

in Peet.

Moreover, the practice employed in Peet most assuredly is not an illustration

of the path parties should follow in litigating this failure to exhaust defense. Quite

the contrary, in Peet we were compelled to address what we regarded as a somewhat

unsatisfactory outcome through a motion to conduct a non-jury trial of this

exhaustion defense based on the narrow and inflexible factual background presented

in that case. We were also guided by Third Circuit precedent which seemed to permit

the assertion of a long neglected failure to exhaust defense through a motion seeking

a bifurcated non-jury determination of this defense while at the same time denying

summary judgment treatment of this belated defense. As we observed the decision

in Drippe v. Tobelinski, which found that allowing a defendant to belatedly move

for summary judgment on a failure to exhaust claim constituted an abuse of

discretion ultimately was “little more than a procedural and pyrrhic” victory, Peet,

2015 WL 7568300 at *8, since the court of appeals subsequently upheld the

resolution of this defense through a non-jury trial, reasoning that the defendant:

“raised the affirmative defense in his responsive pleading, and he was, therefore,

entitled to pursue this defense at trial, even if he waived the right to summary relief

on that claim.” Id. citing Drippe v. Gototweski, 434 F. App'x at 81.

So it is here. Moreover, the distinction between a summary judgment motion

and a non-jury trial resolution of the exhaustion defense that was recognized by the

court of appeals in its Drippe decisions is not some mere formalism. It can have real

world significance. For example, in Peet, there ultimately was no question of fact as

to the exhaustion of the plaintiff’s claim, it had been conceded by the plaintiff that

he never raised his claims in a grievance. Therefore, the defense request for a non-

jury was akin to a summary judgment resolution. However, that factual backdrop

stands in stark contrast to the instant case. Here, Moore did, indeed, file a grievance

which went through the appeals process proscribed by the DOC Administrative

Directives and, as defendants concede, was “denied at all levels of review.” The

defendants argue that his grievance was deficient as to certain parties and remedies,

not that he never raised his claims at the administrative level. Yet, we note that it is

not entirely clear that these defenses would be amenable to a summary judgment

resolution since Moore’s grievance names a number of the defendants that the

defense seeks to have dismissed for failure to exhaust and the grievance demands

“[f]inancial compensation” albeit in the form of lost prison wages. (Doc. 142-2).

Having distinguished the instant case from our holding in Peet, we further find

that the policy from Drippe, supports our conclusion that a belated summary

judgment motion is not the appropriate way in which to address this defense. At the

outset, the fact that the defendants technically filed the instant motion within the

permitted filing time of dispositive motions at this stage of the litigation disregards

the gauntlet of motions and appeals that preceded this remand. The instant motion

was not filed on the eve of trial, true, but much past that – beyond a previously

argued and decided motion to dismiss and motion for summary judgment based upon

this same nearly decade-old grievance. In our view, the circumstances here are more

egregious than those in Drippe, since in this case the delay in actively pursuing the

defense constituted a matter of years not mere weeks. Even if the defendant argues

that this motion is technically timely under Rule 6(b) as required by Drippe, their

raising of this issue at this late stage in the litigation runs afoul of the policy behind

Rule 6(b)’s requirement as articulated in that case, that “the way in which the motion

was raised . . . placed the plaintiff in an unfair position that was the very reason

Rule 6(b) prescribes certain procedural requirements for the filing of late motions,”

particularly in relation to “[t]he resolution of this issue – failure to exhaust

administrative remedies – [which is] highly fact-intensive and require[s] a judgment

by the District Court whether the specific grievances complied with the specific

prison’s grievance procedure.” 604 F.3d at 785. We think this policy has particular

weight in this case, where it is conceded that a grievance was filed and adequately

administratively appealed, but the defendants are asking us to determine on summary

judgment whether the grievance adequately included parties and remedies as

required by a decade-old prison grievance procedure. On this score, it is expected

that the prison’s grievance procedures will change significantly over the course of a

decade. Indeed, Pennsylvania Department of Corrections’ Grievance Policy DC-

ADM 804 has been updated twice since the 2010 policy cited in defendants’ brief.4

Thus, we can think of no situation which more adequately demonstrates the inequity

of raising a failure to exhaust administrative remedies argument than attempting to

raise this argument at this stage. Accordingly, we decline to allow the defendant to

prevail on this argument based on the policy from Drippe, where they found the

district court has abused its discretion in allowing the defendant to raise an

exhaustion claim just a few days after the pleading deadline.

In the interest of equity, the material facts as to Moore’s Eighth Amendment

complaint, having survived years of litigation and scrutiny, as well as the belated

issue of whether some portion of these claims is barred due to Moore’s failure to

fully grieve those claims, must be decided on the merits at trial. Thus, we decline to

rule in the defendants’ favor at the summary judgment stage. Instead we will direct

4 https://www.law.umich.edu/special/policyclearinghouse/Documents/PA%20-

%20Inmate%20Grievances.pdf;

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmat

e%20Grievances.pdf

the defendants to seek a bifurcated trial of the exhaustion issue in this case, and allow

Moore to fully develop a factual record on this exhaustion issue.

III. Conclusion

Accordingly, for the foregoing reasons, the defendant’s motion for summary

judgment (Doc. 139) will be DENIED.

An appropriate order follows.

S/ Martin C. Carlson

Martin C. Carlson

United States Magistrate Judge

DATED: January 13, 2022