Woods v. Harry

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

BARRY GEORGE WOODS, ) CIVIL ACTION NO. 4:21-CV-1052

Plaintiff )

)

v. )

) (ARBUCKLE, M.J.)

SUPERINTENDENT LAUREL )

HARRY, et al., )

Defendants

MEMORANDUM OPINION

Named Defendants’ Motion to Dismiss (Doc. 15)

I. INTRODUCTION

Barry George Woods is suing prison staff and officials, alleging violations of

42 U.S.C. § 1983 and multiple state laws. The Prison Litigation Reform Act requires

Mr. Woods to exhaust his available administrative remedies before filing this suit.

But prison staff and officials carry the burden in showing that Mr. Woods failed to

exhaust his administrative remedies. In this case, the defendants have not met this

burden, so, their Motion to Dismiss will be denied.

II. BACKGROUND AND PROCEDURAL HISTORY

Barry George Woods (Mr. Woods or “Plaintiff”) started this pro se, fee paid

action when he filed a Complaint on June 15, 2021. (Doc. 1). In the Complaint, he

lists thirteen defendants: (1) Superintendent Laurel Harry, (2) Deputy

Superintendent Michael Gourley, (3) Security Captain Mark Becker, (4) Lieutenant

(“Lt.”) Warner, (5) Lt. Troutman, (6) Licensed Practical Nurse (“LPN”) Stacy

Nolan, (7) Corrections Officer (“CO”) John Doe A, (8) CO John Doe B, (9) CO John

Doe C, (10) CO J. Kiner, (11) Prison Rape Elimination Act (“PREA”) CO David

Radziewicz, (12) Bureau of Investigations and Intelligence (“BII”) Director James

Barnacle, and (13) BII Lt. Beth Evans. (Id. at p. 1). Mr. Woods is suing each of these

defendants in their individual and official capacities. (Id.). The underlying facts and

Plaintiff’s legal claims can be best divided into three categories: (1) a December 24,

2019 assault by corrections officers, (2) withheld meals on December 25 to 28, 2019,

and (3) claims arising from reporting his mistreatment. Plaintiff’s alleged assault and

subsequent denial of meals occurred at State Correctional Institution - Camp Hill

(“SCI Camp Hill”). I will discuss each in turn, and I will assume the allegations in

the Complaint are true.1

A. THE DECEMBER 24, 2019 ASSAULT

On December 23, 2019, Plaintiff requested and was placed in protective

custody at SCI Camp Hill. (Id. at 7). The next day, on December 24, 2019, after an

interview with psychologists, Plaintiff was walking back to his cell wearing “Level

Five Restraints,” with CO John Doe A walking behind him, holding the restraint

leash. (Id. at 8). John Doe A then brought Plaintiff “to a small hallway beneath the

bubble,” where he was met by COs John Does B and C. (Id.). Then the assault began;

1 At the motion to dismiss stage, the Court “must accept all factual allegations in the

complaint as true . . . .” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010).

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COs John Does A and B repeatedly punched and kicked Plaintiff. (Id.). Between the

punches and kicks, John Does A and B made Plaintiff tell them why he was

imprisoned (a parole violation) and referred to the crimes he was convicted of (“your

daughters – really?”).2 (Id. at 8). CO John Doe C then told Plaintiff: “You are going

to sign yourself out of this block immediately. If you do not, I will kill you.” (Id. at

8-9). After John Doe C asked this question, John Doe A punched Plaintiff, and

Plaintiff stated he understood the demand. (Id.). John Doe A then brought Plaintiff

back to his cell, while punching and shoving Plaintiff from behind. (Id.). Plaintiff

was not given lunch on this day. (Id.).

Later that day, Lt. Troutman and LPN Stacy Nolan visited Plaintiff in his cell.

(Id. at 9). Plaintiff told Lt. Troutman and LPN Nolan about the assault and Lt.

Troutman took pictures of Plaintiff’s injuries. (Id.). Plaintiff told Lt. Troutman that

the John Does were not wearing their name tags, and that four CCTV cameras

captured his assault. (Id.). Lt. Troutman told Plaintiff that he could not do anything

about the missed lunch but would verify the identities of the John Does. (Id.).

Plaintiff claims this assault violated the Eighth Amendment’s prohibition

against deliberate indifference, poor and inhumane prison living conditions, and

2 Plaintiff “pled guilty in 2003 to committing sexual crimes including rape against

his two daughters.” Commonwealth v. Woods, No. 2450 EDA 2019, 2021 Pa. Super.

Unpub. LEXIS 104, at * 1 (Pa. Super. Ct. Jan. 12, 2021).

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retaliation. (Id. at 7, 15). Because of this, Plaintiff argues he is entitled to money

damages under 42 U.S.C. § 1983.

B. DENIED MEALS FROM DECEMBER 25 TO 28, 2019

On December 25, 2019, CO J. Kiner came to deliver breakfast and lunch trays

to Plaintiff. (Id. at 10). Officer Kiner opened the wicket door for five seconds, but

then closed it before Plaintiff could retrieve the trays. (Id.). On this day, Plaintiff

only ate dinner. (Id.).

The next day on December 26, 2019, Officer Kiner taunted Plaintiff by

showing him his breakfast and lunch trays through the wicket but closed the wicket

before Plaintiff could retrieve the meals. (Id.). Officer Kiner remarked “you have to

be quicker than that.” (Id.). Again, on this day, Plaintiff only ate one meal, dinner.

On December 27 and 28, 2019, Officer Kiner put Plaintiff’s full breakfast and

lunch food trays into the trash in front of Mr. Woods. (Id. at 11). After Officer Kiner

trashed Plaintiff’s food on December 28, he remarked, “[Plaintiff] must be on a

hunger strike.” (Id.).

For a six day period Plaintiff was not given eating utensils, a cup to drink

from, or an ability to shower. (Id. at 11). He also went without toilet paper for some

time. (Id.). On December 30, 2019, Plaintiff was transferred to State Correctional

Institution – Phoenix (“SCI Phoenix”). (Id.).

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Because he was denied meals, Plaintiff argues that he has causes of action

based on his First Amendment’s right to petition the government to redress a

grievance, the Eighth Amendment’s protections against deliberate indifference and

inhumane prison living conditions, and retaliation. (Id. at 16). Because of this,

Plaintiff argues he is entitled to money damages under 42 U.S.C. § 1983.

C. ADMINISTRATIVE GRIEVANCES

Plaintiff made two separate and contemporaneous complaints to prison staff

about the assault and denied meals. On the day of his assault, he reported it to Lt.

Troutman and LPN Stacy Nolan. (Doc. 1, p. 12). Then, when his meals were being

withheld, he complained to other officers and “request[ed] a white shirt.” (Id. at 11-

12). No one responded to his complaints or his request for a “white shirt.” (Id.).

After he was transferred to SCI Phoenix, on January 6, 2020, he mailed a

written incident report to the PREA office in Harrisburg.3 (Id. at 12). The report

covered all the abuse from December 24 to December 28, 2019. (Id.). Plaintiff was

interviewed by Lt. M. McClain Jr., on February 7, 2020, and wrote a second incident

3 The PREA office Plaintiff refers to is an office within the Pennsylvania Department

of Corrections that oversees compliance with the Prison Rape Elimination Act

(PREA). See, Prison Rape Elimination Act (PREA), PA. DEP’T OF CORR.,

https://www.cor.pa.gov/Facilities/Prison_Rape_Elimination_Act/ (last visited Jan.

13, 2022).

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report. (Id.). On March 3, 2020, and April 30, 2020, he wrote the PREA office to

request an update on the investigation. (Id.). He did not receive a response. (Id.).

On May 26, 2020, PREA Coordinator David Radziewicz acknowledged

receipt of Mr. Woods’ letters and told him that his accusations are not PREA related,

signaled to him an investigation was underway, but it was delayed due to the

COVID-19 pandemic.4 (Id. at 13). The two men then exchanged more letters over

the next six months, with Plaintiff asking an update of the investigation, and with

Mr. Radziewicz telling Plaintiff that he has no updates for him. (Id.).

Plaintiff was interviewed by Lt. M. Wade on February 8, 2021 and wrote a

third incident report. (Id. at p. 12). Lt. Wade told Plaintiff that his report would be

forwarded to BII Lt. Beth Evans. (Id.).

Plaintiff also sent two letters on February 11, 2021 and March 24, 2021 to BII

Director James Barnacle asking for an update on an investigation. (Id.at p. 13-14).

He received no response. (Id.).

Plaintiff claims that “the [Department of Corrections] is deliberately &

maliciously dragging their feet, attempting to sweep this investigation under the

rug.” (Id. at 17). He contends these acts violated his First Amendment right to

4 Mr. Woods attaches Mr. Radziewicz’s responses to his Complaint. In his responses,

Mr. Radziewicz tells Plaintiff that the PREA office does not investigate assaults, and

that other offices handle those investigations. Some of the letters say that BII

Director and Security Captain Mark Becker of SCI Camp Hill were cc’ed.

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petition the government to redress grievances and his Eighth Amendment right to be

free from retaliation. (Id.).

D. HIS REMAINING CLAIMS, RELIEF REQUESTED, AND PROCEDURAL

HISTORY

Plaintiff claims that all the actions taken against him is a hate crime, (Id. at

17), and cites to 18 Pa. C.S. § 2710 (making ethic intimidation a crime). (Id. at 18).

He does not specify which defendants committed a hate crime against him, or what

protected class he belongs to. He also alleges an intentional infliction of emotional

distress (“IIED”) claim, but he does not specifically identify whom exactly he is

seeking a IIED claim against. (Id. at 20).

Because of these alleged wrongs, Plaintiff seeks “compensatory damages in

the amount of $100,000.00 against each of the defendants jointly and separately

[and] punitive damages in the amount of $20,000.00 against each of the defendants

jointly and separately.” (Id. at 21). He also seeks the actual costs and expenses

incurred in this suit. (Id.).

On September 28, 2021, Defendants James Barnacle, Mark Becker, Beth

Evans, DSFM Michael Gourley, Superintendent Harry, Officer J. Kiner, Stacy

Nolan, David Radziewicz, Lt. Troutman, Lt. Warner (“Moving Defendants”) filed a

Motion to Dismiss, or in the alternative, a Motion for Summary Judgment. (Doc.

15). On October 12, 2021, Moving Defendants filed their Brief in Support. (Doc.

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16). On October 18, 2021, Plaintiff filed a Brief in Opposition, (Doc. 17), and on

November 1, 2021 filed a Supplemental Brief without leave of Court (Doc. 19).

Moving Defendants filed a Reply Brief on November 17, 2011. (Doc. 20). Without

leave of Court, Plaintiff filed a Brief in Opposition to Moving Defendants’ Reply

Brief. (Doc. 21). The motion is now ripe for resolution.

III. STANDARDS FOR MOTIONS TO DISMISS AND SUMMARY

JUDGMENT

Moving Defendants filed a motion to dismiss but invite the Court to convert

it to a motion for summary judgment if it deems it necessary to grant the motion. So,

I will discuss the standards this Court must apply to decide both types of motions.

A motion to dismiss tests the legal sufficiency of a complaint. It is proper for

the court to dismiss a complaint in accordance with Rule 12(b)(6) of the Federal

Rules of Civil Procedure only if the complaint fails to state a claim upon which relief

can be granted. Fed. R. Civ. P. 12(b)(6). When reviewing a motion to dismiss, the

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

complaint in the light most favorable to the plaintiff, and ultimately determine

whether Plaintiff may be entitled to relief under any reasonable reading of the

complaint.” Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir. 2010). In review of a

motion to dismiss, a court must “consider only the complaint, exhibits attached to

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the complaint, matters of public record, as well as undisputedly authentic documents

if the [plaintiff’s] claims are based upon these documents.” Id. at 230.

“A pleading that offers labels and conclusions or a formulaic recitation of the

elements of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009). Rather, a complaint must recite factual allegations sufficient to raise the

plaintiff’s claimed right to relief beyond the level of mere speculation. Id. To

determine the sufficiency of a complaint under the pleading regime established by

the Supreme Court, the court must engage in a three-step analysis:

First, the court must take note of the elements a plaintiff must plead to

state a claim. Second, the court should identify allegations that, because

they are no more than conclusions, are not entitled to the assumption of

truth. Finally, where they are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they plausibly

give rise to an entitlement for relief.

Santiago v. Warminister Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 556

U.S. at 675, 679). “In other words, a complaint must do more than allege the

plaintiff’s entitlement to relief” and instead must “‘show’ such an entitlement with

its facts.” Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009).

As the Court of Appeals has observed:

The Supreme Court in Twombly set forth the “plausibility” standard for

overcoming a motion to dismiss and refined this approach in Iqbal. The

plausibility standard requires the complaint to allege “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S.

at 570, 127 S.Ct. 1955. A complaint satisfies the plausibility standard

when the factual pleadings “allow the court to draw the reasonable

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inference that the defendant is liable for the misconduct alleged.” Iqbal,

129 S.Ct. at 1949 (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955).

This standard requires showing “more than a sheer possibility that a

defendant has acted unlawfully.” Id. A complaint which pleads facts

“merely consistent with” a defendant’s liability, “stops short of the line

between possibility and plausibility of ‘entitlement of relief.’” Id.

(citing Twombly, 550 U.S. at 557, 127 S.Ct. 1955).

Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011).

A motion for summary judgment is governed by under a well-established

standard. Rule 56(a) of the Federal Rules of Civil Procedure provides as follows:

A party may move for summary judgment, identifying each claim or

defense - or the part of each claim or defense - on which summary

judgment is sought. 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. The court

should state on the record the reasons for granting or denying the

motion.

Fed. R. Civ. P. 56(a). For purposes of Rule 56, a fact is material if proof of its

existence or nonexistence might affect the outcome of the suit under the applicable

substantive law. Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408,

412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)). For an issue to be genuine, “all that is required is that sufficient evidence

supporting the claimed factual dispute be shown to require a jury or judge to resolve

the parties’ differing versions of the truth at trial.” Id. (quoting Anderson, 477 U.S.

at 248-49).

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In adjudicating a summary judgment 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). When the non-moving party’s evidence contradicts that

advanced by the movant, then the non-movant’s must be taken as true. Big Apple

BMW, 974 F.2d at 1363.

Provided the moving party has satisfied its burden, “its opponent must do

more than simply show that there is some metaphysical doubt as to the material

facts.” Scott v. Harris, 550 U.S. 372, 380 (2007). Instead, if the moving party has

carried its burden, the non-moving party must then respond by identifying specific

facts, supported by evidence, that show a genuine issue for trial, and it may not rely

upon the allegations or denials of its pleadings. See Martin v. Godwin, 499 F.3d 290,

295 (3d Cir. 2007); see also Fed. R. Civ. P. 56(c). A non-moving party’s failure to

show a genuine issue of material fact for even one essential element of a claim after

the moving party has met its burden renders all other facts immaterial, and it is

enough to permit summary judgment for the moving party. See Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986).

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IV. ANALYSIS

Here, I will discuss why this motion should be interpreted as a Motion to

Dismiss and not a Motion for Summary Judgment, why I cannot consider Moving

Defendants’ declaration, and why Moving Defendants have not carried their burden

in proving their affirmative defense. However, before that, I will discuss the Prison

Litigation Reform Act’s exhaustion requirements.

A. THE PRISON LITIGATION REFORM ACT’S EXHAUSTION REQUIREMENTS

The Prison Litigation Reform Act (“PLRA”) requires a prisoner to exhaust

available administrative remedies prior to filing an action challenging prison

conditions in court. The PLRA 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

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

administrative remedies are exhausted.

42 U.S.C. § 1997e(a).

In accordance with Section 1997e(a), the exhaustion of available

administrative remedies is mandatory, Booth v. Churner, 532 U.S. 731, 739 (2001),

and the “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.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

A prisoner must “exhaust all available administrative remedies” regardless of

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whether the administrative process may provide the prisoner with the relief that he

is seeking. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). “[C]ompliance with the

administrative remedy scheme will be satisfactory if it is substantial.” Id. at 77.

“The only limit to § 1997e(a)’s [exhaustion] mandate is the one baked into its

text: An inmate need exhaust only such administrative remedies as are ‘available.’”

Ross v. Blake, 578 U.S. 632, 648 (2016) (quoting § 1997e(a)). The Supreme Court

has noted “three kinds of circumstances in which an administrative remedy, although

officially on the books, is not capable of use to obtain relief.” Id. at 643. “First, . . .

an administrative procedure is unavailable when (despite what regulations or

guidance materials may promise) it operates as a simple dead end—with officers

unable or consistently unwilling to provide any relief to aggrieved inmates.” Id.

Second, “an administrative scheme might be so opaque that it becomes,

practically speaking, incapable of use.” Id. at 643-44. “In this situation, some

mechanism exists to provide relief, but no ordinary prisoner can discern or navigate

it.” Id. “When an administrative process is susceptible of multiple reasonable

interpretations, Congress has determined that the inmate should err on the side of

exhaustion.” Id. “But when a remedy is . . . essentially ‘unknowable’- so that no

ordinary prisoner can make sense of what it demands - then it is also unavailable.”

Id. (quoting Goebert v. Lee Cty., 510 F.3d 1312, 1323 (11th Cir. 2007)).

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Third, administrative remedies are unavailable “when prison administrators

thwart inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.” Ross, 578 U.S. at 644 (citing Davis v.

Hernandez, 798 F.3d 290, 295 (5th Cir. 2015) (“Grievance procedures are

unavailable . . . if the correctional facility’s staff misled the inmate as to the existence

or rules of the grievance process so as to cause the inmate to fail to exhaust such

process” (emphasis deleted); Robinson v. Superintendent Rockview SCI, 831 F.3d

148, 154 (3d Cir. 2016) (holding that administrative remedies were unavailable to a

prisoner when the prison failed to timely respond to the prisoner’s “grievance and

then repeatedly ignored his follow-up requests for a decision on his claim”).

Failure to exhaust available administrative remedies is an affirmative defense,

Jones v. Bock, 549 U.S. 199, 216 (2007), so the defendant has the burden of pleading

and proving that the prisoner failed to exhaust administrative remedies. Brown v.

Croak, 312 F.3d 109, 111 (3d Cir. 2002). A plaintiff does not have to plead in the

complaint that they exhausted their administrative remedies. Thomas v. Brinich, 579

F. App’x 60, 62 (3d Cir. 2014). Considering these two requirements, a failure to

exhaust claim will rarely dispose a prisoner’s claim at the motion to dismiss stage.

See, Albino v. Baca, 747 F.3d 1162, 1166 (9th Cir. 2014) (“In the rare event that a

failure to exhaust is clear on the face of the complaint, a defendant may move for

dismissal under Rule 12(b)(6). Otherwise, defendants must produce evidence

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proving failure to exhaust in order to carry their burden.”); see also, Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 n.1 (3d Cir. 1994) (A court can

dismiss a claim based on an affirmative defense pursuant to a Rule 12(b)(6) motion

if “the affirmative defense clearly appears on the face of the pleading”).

B. SHOULD THIS MOTION BE CONVERTED INTO A SUMMARY JUDGMENT

MOTION?

Moving Defendants ask the Court to consider the declaration of Deborah

Alvord, an individual with knowledge and access to SCI Camp Hill’s grievance

process and records. (Doc. 16, pp. 7-8). Ms. Alvord’s declaration states that she

queried the records “from SCI-Camp Hill and [] confirmed that Inmate Woods did

not file any grievances regarding te [sic] issues the alleges in his complaint. . . .”

(Doc. 16-1, p. 3). Sensing that consideration of the declaration falls outside the

scope of a motion to dismiss, Moving Defendants invite the Court to convert the

filing to a motion for summary judgment, if necessary, to consider the declaration.

(Id. at 4-5). I will decline to do so and consider Moving Defendants’ filing as a

motion to dismiss.

Rule 12(d) of the Federal Rules of Civil Procedure reads:

(d) Result of Presenting Matters Outside the Pleadings. If, on a motion

under Rule 12(b)(6) or 12(c), matters outside the pleadings are

presented to and not excluded by the court, the motion must be treated

as one for summary judgment under Rule 56. All parties must be given

a reasonable opportunity to present all the material that is pertinent to

the motion.

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The court has the discretion to apply Rule 12(d) and convert a Rule 12(b)(6)

filing into a motion for summary judgment, or to continue to treat the filing as a

motion to dismiss. Yuratovich v. United States DOJ, No. 13-cv-5651, 2015 U.S.

Dist. LEXIS 164118, at *8 (D.N.J. Dec. 8, 2015).

The last sentence of Rule 12(d) includes a notice requirement, and pursuant

to that requirement, the court must notify the parties of the conversion and give the

parties a chance to present evidence. Notice to the parties must be adequate, and for

pro se prisoners, that means that the court must notify them of Rule 56’s

requirements, their probable need to file a Rule 56[(d)] affidavit, and the

consequences of failing to do so. Renchenski v. Williams, 622 F.3d 315, 339-40 (3d

Cir. 2010) (citing Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992)). Because of

these notice requirements, courts are not particularly enamored with Rule 12(d)

conversation as applied to pro se prisoners. See, e.g., Escalera v. Harry, No. 1:15-

cv-2132, 2016 U.S. Dist. LEXIS 136010, at *26-27 (M.D. Pa. Sept. 28, 2016) (report

and recommendation adopted by 2016 U.S. Dist. LEXIS 153924 (M.D. Pa. Nov. 7,

2016)) (“[t]he requirement of providing notice - and the delay it entails - could be

avoided if the defendants properly frame their motions from the outset.”); Vailette

v. Lindsay, No. 11-cv-3610, 2014 U.S. Dist. LEXIS 114701, at *20-21 (E.D.N.Y.

Aug. 14, 2014) (declining to convert a 12(b)(6) motion to a Rule 56 motion because

of the lack of notice provided to pro se prisoner plaintiff). See also, E.I. du Pont de

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Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011) (stating that

converting a motion to dismiss into a motion for summary judgment “is not

appropriate where the parties have not had an opportunity for reasonable

discovery”).

As applied here, I decline to convert this filing to a motion for summary

judgment. First, if I convert the motion, this case will be needlessly delayed because

the Court will have to explain to Plaintiff (1) the conversion, (2) the summary

judgment standard, (3) his probable need to file a Rule 56 (d) affidavit, and (4) the

consequences of failing to do so. Second, the Parties’ briefs are not framed as

summary judgment motions, and neither party has abided by Local Rule 56.1, which

governs motions for summary judgment. Third, Plaintiff has not had a chance to

conduct discovery on the issues raised by Moving Defendants. This is an especially

important point considering that Plaintiff alleges failures in the administrative

grievance process. (Doc. 1 at p. 17) (“Plaintiff avers that the D.O.C. is deliberately

and maliciously dragging their feet, attempting to sweep this investigation under the

rug . . . [violating the] 1st Amendment – Right to petition government to redress

grievance”); (Doc. 19, p. 5) (“The Plaintiff avers that the grievance process was not

available to him at SCI Camp Hill.”).

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C. AS A MOTION TO DISMISS, WHAT CONSIDERATION CAN I GIVE TO

MOVING DEFENDANTS’ DECLARATION?

In a motion to dismiss, a court must “consider only the complaint, exhibits

attached to the complaint, matters of public record, as well as undisputedly authentic

documents if the [plaintiff’s] claims are based upon these documents.” Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010). However, Ms. Alvord’s declaration

does not fall within any of these types of documents. And, when deciding motions

to dismiss, a court cannot consider “copies of [plaintiff’s] grievances and appeals,

the Department of Corrections’ responses to them, and declarations from grievances

coordinators,” because the motion would have to be converted to a motion for

summary judgement. Berry v. Klem, 283 F. App’x 1, 4 (3d Cir. 2008). Therefore,

because I am treating this filing as a motion to dismiss, I cannot consider Moving

Defendant’s declaration.

D. AS APPLIED HERE, MOVING DEFENDANTS HAVE NOT CARRIED THEIR

PLEADING BURDEN

Failure to exhaust under the PLRA is an affirmative defense, and the burden

falls on the Moving Defendants to show Plaintiff has failed to exhaust his

administrative remedies. Jones v. Bock, 549 U.S. 199, 216 (2007).

Moving Defendants originally sought to dismiss all claims against all named

defendants for Plaintiff’s failure to exhaust. (See generally Doc. 16). However, in

their Reply Brief, Moving Defendants conceded that Mr. Woods “sufficiently

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averred, at this pleading stage that he has exhausted his administrative remedies as

to his Eighth amendment claims against Officer Kiner.” (Doc. 20, p. 3). But, as to

the other named defendants, Moving Defendants claim that “Woods . . . provides no

argument as why he was unable to file a proper grievance, while housed at SCI-

Phoenix, as it relates to the remaining claims and named Defendants.” (Id. at pp. 3-

4).

As a threshold matter, Moving Defendants have not established that Mr.

Woods failed to exhaust his administrative remedies. It is not clear on the face of the

Complaint that Mr. Woods has not exhausted his administrative remedies. Moving

Defendants have not provided any information at this stage that will give the Court

the option to dismiss this case. Regardless, Moving Defendants changed their

position on whether Plaintiff has exhausted his remedies towards some of Plaintiff’s

claims. So even if I converted this filing into a summary judgment motion, Ms.

Alvord’s declaration would be of limited and questionable value.

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IV. CONCLUSION

Proving PLRA exhaustion falls on a defendant. Because a motion to dismiss

constrains the court to only analyzing the pleadings, it will be exceedingly difficult

for a defendant to carry their burden of proving exhaustion. That is no different in

this case; Moving Defendants’ Motion to Dismiss will be denied.

An appropriate Order will follow.

Date: February 17, 2022 BY THE COURT

s/William I. Arbuckle

William I. Arbuckle

U.S. Magistrate Judge

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