BETHA v. PIERCE

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSLYVANIA

DARRELL R. BETHA )

)

Plaintiff, ) Civil Action No. 18-328

)

v. ) Magistrate Judge Lenihan

)

SGT. PIERCE CO 11 ) ECF No. 36

)

Defendant. )

MEMORANDUM OPINION

Presently before the Court is the Motion for Summary Judgment filed by Defendant Sgt.

Pierce (ECF No. 36). For the reasons discussed below, the motion will be granted.

I. RELEVANT FACTS

The following facts are undisputed unless otherwise indicated and are taken from the

parties’ submissions at ECF Nos. 36, 37, 41, 42, 43, 44, and 45 and all attachments.

In response to a motion filed by Defendant, this Court held an Evidentiary hearing on

December 17, 2018 on the issue of exhaustion. (Transcript of Evidentiary Hearing, ECF No.

32.) Defendant states that “[t]he undisputed facts are set forth in the transcript . . . .”

(Defendant’s Brief in Support of Summary Judgment, ECF No. 37 at 2.)

Darrell Betha, the pro se Plaintiff, is currently housed at SCI-Phoenix. (ECF No. 37 at 1.)

He was formerly housed at SCI-Fayette but was granted Authorized Temporary Absence

(“ATA”) to SCI-Greene for a pre-trial conference in a civil case. (ECF No. 42 at 1.)

Concurrently, he was in the process of appealing his own criminal conviction. (Id.)

On January 25, 2016, the Superior Court issued a deadline of March 7, 2016 for Plaintiff

to file his brief in his criminal case. (ECF No. 32 at 23.) Instead, Plaintiff filed a petition for

remand on February 17, 2016 in order to file a 1925(b) statement of matters complained of on

appeal. (ECF No. 32 at 23-24.) The Superior Court denied the petition for remand on March 8,

2016. (ECF No. 32 at 24-25.) Plaintiff was given a new deadline, April 7, 2016, to file his brief

relative to his appeal to the Superior Court. (ECF No. 32 at 25.)

Plaintiff was transferred from SCI-Fayette to SCI-Greene on March 31, 2016 by Court

order dated March 1, 2016 so that he could attend a pretrial conference in a civil case on April 7,

2016. (ECF No. 32 at 17.) Plaintiff alleges that on March 31, 2016, Sgt. Pierce prohibited him

from taking with him his core legal documents relating to his criminal case. (Complaint, ECF

No. 7 at 2.) He further alleges that he was allowed to take only legal documents relating to the

civil case. (ECF No. 7 at 2.) The record reflects that Plaintiff knew he would be unable to take

documents relating to his criminal matter at least by March 29, 2016. See Petition for Extension

of Time, ECF No. 16-4.

Plaintiff then filed a petition for an extension of time on April 14, 20161 and was granted

until June 6, 2016 to file his brief to the Superior Court. (ECF No. 32 at 26.) Plaintiff filed

another petition for an extension of time on June 1, 20162 and was granted a new deadline to file

by July 6, 2016. (ECF No. 32 at 27-28.) The June 1, 2016 Order setting the new deadline of July

6, 2016 indicated “no further extensions absent extraordinary circumstances.” (ECF No. 16-5 at

6.)

Plaintiff did not file a brief before the July 6, 2016 deadline, nor before August 17, 2016,

when the Superior Court subsequently dismissed his appeal. (ECF No. 32 at 29.) In the

Complaint relating to this civil action, Plaintiff claims that he was unable to file his brief because

Sgt. Pierce prohibited him from bringing his core legal documents with him when he was

1 Plaintiff petitioned for an extension of time to file his brief on the bases of his temporary transfer, the uncertainty

of his return date, and his inability to access his legal documents during the transfer.

2 Plaintiff petitioned for another extension of time to file his brief for the same reasons.

transferred to SCI-Greene. (ECF No. 7 at 2.) He argues that Sgt. Pierce’s actions constituted a

denial of access to the courts, causing a lost opportunity to pursue attacks on his conviction.

II. LEGAL STANDARD

Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving

party, the pleadings, documents, electronically stored information, depositions, answers to

interrogatories and admissions on file, together with any affidavits or declarations, show “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) & (c). Summary judgment may be granted against a party

who fails to adduce facts sufficient to establish the existence of any element essential to that

party’s case, and for which that party will bear the burden of proof at trial. Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying

evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant

must show that the evidence of record is insufficient to carry the non-movant’s burden of proof.

Id. Once that burden has been met, the non-moving party must set forth “specific facts showing

that there is a genuine issue for trial” or the factual record will be taken as presented by the

moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis added

by Matsushita Court). An issue is genuine only “if the evidence is such that a reasonable jury

could return a verdict for the non-moving party.” Anderson v. Liberty-Lobby, Inc., 477 U.S. 242,

248 (1986). In Anderson, the United States Supreme Court noted the following:

[A]t the summary judgment stage the judge’s function is not

himself to weigh the evidence and determine the truth of the matter

but to determine whether there is a genuine issue for trial. . . .

[T]here is no issue for trial unless there is sufficient evidence

favoring the nonmoving party for a jury to return a verdict for that

party. If the evidence is merely colorable, or is not significantly

probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted).

III. ANALYSIS

Exhaustion

Through the Prison Litigation Reform Act (“PLRA”), Pub. L. No. 104-134, 110 Stat.

1321 (1996), Congress amended 42 U.S.C. § 1997e(a) to prohibit prisoners from bringing an

action with respect to prison conditions pursuant to 42 U.S.C. § 1983 or any other federal law,

until such administrative remedies as are available are exhausted. Specifically, the act provides,

in pertinent part, as follows:

No action shall be brought with respect to prison conditions under

section 1979 of the Revised Statutes of the United States (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). Exhaustion is required under this provision regardless of the type of relief

sought and the type of relief available through administrative procedures. See Booth v. Churner,

532 U.S. 731, 741 (2001). In addition, the exhaustion requirement applies to all claims relating

to prison life which do not implicate the duration of the prisoner’s sentence, including those that

involve general circumstances as well as particular episodes. See Porter v. Nussle, 534 U.S. 516,

532 (2002). Federal courts are barred from hearing a claim if a plaintiff has failed to exhaust all

the available remedies prior to filing the action. See Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir.

2000) (by using language “no action shall be brought,” Congress has “clearly required

exhaustion”).

The PLRA also mandates that inmates “properly” exhaust administrative remedies before

filing suit in federal court. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion

demands compliance with an agency’s deadlines and other critical procedural rules because no

adjunctive system can function effectively without imposing some orderly structure on the

course of its proceedings.” Id. at 90-91 (footnote omitted). Such requirements “eliminate

unwarranted federal-court interference with the administration of prisons, and thus seek[] to

‘affor[d] corrections officials time and opportunity to address complaints internally before

allowing the initiation of a federal case.’” Id. at 93 (quoting Porter, 534 U.S. at 525).

Importantly, the exhaustion requirement may not be satisfied “by filing an untimely or otherwise

procedurally defective . . . appeal.” Id. at 83; see also Spruill v. Gillis, 372 F.3d 218, 228-29 (3d

Cir. 2004) (utilizing a procedural default analysis to reach the same conclusion). Courts have

concluded that inmates who fail to fully, or timely, complete the prison grievance process are

barred from subsequently litigating claims in federal courts. See, e.g., Booth v. Churner, 206

F.3d 289 (3d Cir. 2000); Bolla v. Strickland, 304 F. App’x 22 (3d Cir. 2008); Jetter v. Beard, 183

F. App’x 178 (3d Cir. 2006).

This broad rule favoring full exhaustion admits of one, narrowly defined exception. 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) (Section 1997e(a) only requires that prisoners exhaust

such administrative remedies “as are available”). However, case law recognizes a clear

“reluctance to invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the statute

requires.” Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an 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), and an inmate can defeat a claim of failure to exhaust only by

showing “he was misled or that there was some extraordinary reason he was prevented from

complying with the statutory mandate.” Davis, 49 F. App’x at 368; see also Brown v. Croak,

312 F.3d 109, 110 (3d Cir. 2002) (assuming that prisoner with failure to protect claim is entitled

to rely on instruction by prison officials to wait for outcome of internal security investigation

before filing grievance); Camp, 219 F.3d at 281 (exhaustion requirement met where Office of

Professional Responsibility fully examined merits of excessive force claim and correctional

officers impeded filing of grievance).

In the absence of competent proof that an inmate was misled by corrections officials, or

some other extraordinary circumstances, inmate requests to excuse a failure to exhaust are

frequently rebuffed by the courts. Thus, an inmate cannot excuse a failure to timely comply with

these grievance procedures by simply claiming that his efforts constituted “substantial

compliance” with this statutory exhaustion requirement. Harris, 149 F. App’x at 59. Nor can an

inmate avoid this exhaustion requirement by merely alleging that the Department of Corrections

policies were not clearly explained to him. Davis, 49 F. App’x at 368. Thus, an inmate’s

confusion regarding these grievances procedures does not, standing alone, excuse a failure to

exhaust. Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003). Moreover, an inmate cannot cite to

alleged staff impediments to grieving a matter as grounds for excusing a failure to exhaust, if it

also appears that the prisoner did not pursue a proper grievance once those impediments were

removed. Oliver v. Moore, 145 F. App’x 731 (3d Cir. 2005) (failure to exhaust not excused if,

after staff allegedly ceased efforts to impede grievance, prisoner failed to follow through on

grievance).

No analysis of exhaustion may be made absent an understanding of the administrative

process available to inmates. In this regard, the United States Supreme Court noted the

following:

Compliance with prison grievance procedures, therefore, is

all that is required by the PLRA to “properly exhaust.” The level

of detail necessary in a grievance to comply with the grievance

procedures will vary from system to system and claim to claim, but

it is the prison’s requirement, and not the PLRA, that define the

boundaries of proper exhaustion.

Jones v. Bock, 549 U.S. 199, 218 (2007).

Within DC-ADM 804, the Inmate Grievance System Policy, the Pennsylvania

Department of Corrections established a three-step Inmate Grievance System to provide inmates

with an avenue to seek review of problems that may arise during the course of confinement.

Pursuant to DC-ADM 804, after an attempt to resolve any problems informally, an inmate may

submit a written grievance to the facility’s Grievance Coordinator for initial review and shall

include a statement of facts including the date, time, location, and identity of individuals directly

involved. This must occur within fifteen days after the events upon which the claims are based.

Within fifteen days of an adverse decision by the Grievance Coordinator, an inmate may then

appeal to the Facility Manager of the institution. Within fifteen days of an adverse decision by

the Facility Manager, an inmate may file a final appeal to the Secretary’s Office of Inmate

Grievances and Appeals (“SOIGA”). An appeal to final review cannot be completed unless an

inmate complies with all established procedures. An inmate must exhaust all three levels of

review and comply with all procedural requirements of the grievance review process in order to

fully exhaust an issue. See Booth v. Churner, 206 F.3d 289, 293 n.2 (3d Cir. 2000) (outlining

Pennsylvania’s grievance review process); Ingram v. SCI Camp Hill, No. 08-23, 2010 U.S. Dist.

LEXIS 127124, at *21-25 (M.D. Pa. Dec. 1, 2010) (same).

Here, Defendant argues that Plaintiff failed to exhaust the claim presently before the

Court: that Defendant Pierce at SCI-Fayette prohibited him from taking his legal materials

relevant to his ongoing criminal appeal when he went on ATA to another institution. Instead,

Plaintiff filed Grievance No. 634114 wherein he complains that due to his extended ATA, he

missed a deadline in his criminal case, and that this extended ATA was in retaliation for filing a

civil action that was settled out of court. Nowhere in the administrative process relating to

Grievance No. 634114 does Plaintiff name Sergeant Pierce nor state that he was denied access to

the courts based upon the actions of any corrections officer who prevented him from taking

certain of his legal documents with him on ATA. ECF No. 32, Transcript of exhaustion hearing,

at 8, 9, 13. (hereinafter “Transcript at ___”). Plaintiff testified that he did not know Sergeant

Pierce’s name at the time he filed the grievance. Transcript at 33. He admitted, however, that

upon his return to SCI – Greene, he knew that Sergeant Pierce was the person who allegedly

wronged him and did not add his name to any of the subsequent grievance documents. Transcript

at 35, 38. Defendant additionally argues that Plaintiff did not properly follow the grievance

process at SCI – Greene. ECF No. 32, Transcript at 7. The Third Circuit requires that the inmate

follow the grievance system policy at the institution. Specifically, if that policy requires it (which

it does in this instance), the grievance must identify not only the facts relevant to the claim, it

must also identify the individuals involved. Spruill v. Gillis, 372 F.3d 218, 234 (3d Cir. 2004).

That did not occur in this case. Therefore, Defendant’s Motion for Summary Judgment will be

granted as to failure to exhaust.

Access to the Courts

In the alternative, even if Plaintiff exhausted his administrative remedies, summary

judgment is still appropriate on Plaintiff’s substantive § 1983 claim relating to access to the

courts.

Section 1983 of the Civil Rights Act provides as follows:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage of any State or Territory or the

District of Columbia, subjects, or causes to be subjected, any

citizen of the United States or any other person within the

jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to

the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate

that the conduct in the complaint was committed by a person or entity acting under color of state

law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the

Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36

F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a

remedy for violations of those rights created by the United States Constitution or federal law.

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).

Since 1977, the United States Supreme Court has recognized that inmates have a

constitutional right of access to the courts. Bounds v. Smith, 430 U.S. 817 (1977). As the

Supreme Court initially observed, this right of access to the courts is satisfied when corrections

officials facilitate “meaningful” access for those incarcerated, either through legal materials or

the assistance of those trained in the law. Id. at 827-28 (“[T]he fundamental constitutional right

of access to the courts requires prison authorities to assist inmates in the preparation and filing of

meaningful legal papers by providing prisoners with adequate law libraries or adequate

assistance from persons trained in the law.”). Two decades later, in 1996, the Supreme Court

provided further definition and guidance regarding the scope and nature of this right in Lewis v.

Casey, 518 U.S. 343 (1996). In Lewis, the Court eschewed efforts to define this right in abstract,

or theoretical terms, but rather cautioned courts to focus on concrete outcomes when assessing

such claims. As the court observed:

Because Bounds did not create an abstract, freestanding right to a

law library or legal assistance, an inmate cannot establish relevant

actual injury simply by establishing that his prison’s . . . legal

assistance program is subpar in some theoretical sense . . . .

Insofar as the right vindicated by Bounds is concerned,

“meaningful access to the courts is the touchstone,” id., at 823, 97

S. Ct., at 1495 (internal quotation marks omitted), and the inmate

therefore must go one step further and demonstrate that the alleged

shortcomings in the . . . legal assistance program hindered his

efforts to pursue a legal claim. Although Bounds itself made no

mention of an actual-injury requirement, it can hardly be thought

to have eliminated that constitutional prerequisite. And actual

injury is apparent on the face of almost all the opinions in the 35-

year line of access-to-courts cases on which Bounds relied, see id.,

at 821-825, 97 S. Ct., at 1494-1497. Moreover, the assumption of

an actual-injury requirement seems to us implicit in the opinion’s

statement that “we encourage local experimentation” in various

methods of assuring access to the courts. Id., at 832, 97 S. Ct., at

1500.

Lewis, 518 U.S. at 351-52.

Thus, following Lewis, courts have consistently recognized that access-to-courts claims

by prisoners require some proof of an actual, concrete injury in the form of direct prejudice to the

plaintiff in the pursuit of some legal claim. See, e.g., Oliver v. Fauver, 118 F.3d 175 (3d Cir.

1997); Demeter v Buskirk, No. 03-1005, 2003 WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v.

Chesney, No. 97-4983, 1998 WL 150961 (E.D. Pa. March 31, 1998).

“[P]risoners may only proceed on access-to-courts claims in two types of cases,

challenges (direct or collateral) to their sentences and conditions of confinement.” Monroe v.

Beard, 536 F.3d 198, 205 (3d Cir. 2008). As noted in Monroe:

Where prisoners assert that defendants' actions have inhibited their

opportunity to present a past legal claim, they must show (1) that

they suffered an “actual injury”—that they lost a chance to pursue

a “nonfrivolous” or “arguable” underlying claim; and (2) that they

have no other “remedy that may be awarded as recompense” for

the lost claim other than in the present denial of access suit.

Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Importantly, Plaintiff must come

forward with evidence to show that the underlying arguable claim is “more than hope,” and he

must also describe the “lost remedy.” See Harbury, 536 U.S. at 416-17.

Plaintiff is thus required to show that he was actually injured by Sgt. Pierce’s alleged

interference with his right to access the courts. Plaintiff, in his brief in opposition to Defendant’s

Motion for Summary Judgment, states that the actual injury he suffered was the lost opportunity

to pursue attacks on his criminal conviction—specifically, the lost claim that his right to

effective counsel was violated because his counsel allegedly failed to conduct any pre-trial

investigation, violating Plaintiff’s Right to Counsel pursuant to the Sixth and Fourteenth

Amendments. (Plaintiff’s Brief in Opposition to Summary Judgment, ECF No. 42 at 9.)

Here, Plaintiff is unable to prevail because Defendant Pierce’s actions did not inhibit

Plaintiff’s opportunity to present a past legal claim. That is, Defendant Pierce did not prevent

Plaintiff from pursuing a “nonfrivolous” or “arguable” underlying claim. First, Plaintiff had over

a month to meet the first deadline of March 7, 2016. Yet, he did not comply with the Court’s

Order of January 25, 2016. In addition, Plaintiff had over three weeks to file the brief prior to his

transfer on March 31, 2016 and before the April 7, 2016 deadline set by the Superior Court.

Plaintiff missed this opportunity as well. Thereafter, Plaintiff petitioned the Superior Court for

an extension of time one week after the deadline of April 7, 2016 while on ATA, which was

granted until June 6, 2016. Plaintiff had not been transferred back to SCI-Fayette so sought

another extension. The Superior Court granted that request as well and extended the deadline

until July 6, 2016. Although the order stated, “no further extensions absent extraordinary

circumstances[,]” Plaintiff did not petition for an additional extension even though his previous

petitions were routinely granted. Finally, when he returned to SCI-Fayette where his documents

were located on July 12, 2016, he did not seek an extension and the Superior Court dismissed his

appeal on August 17, 2016 for failure to file a brief.

In addition, Plaintiff comes forward with no evidence as to the actual contents of the box

of documents and whether they would have furthered a nonfrivolous or arguable underlying

claim. In Spencer v. Bush, the United States Court of Appeals for the Third Circuit affirmed the

dismissal of access-to-court claims because the plaintiff failed to demonstrate that the documents

contained in the missing boxes would have furthered one or more claims that were non-frivolous

or arguable. 543 F. App’x 209, 213 (3d Cir. 2013). See also McCain v. Wetzel, Civil Action No.

1:12-CV-00789, 2014 WL 4977352, at *6 (M.D. Pa. Aug. 6, 2014) (Plaintiff does not show how

destroyed documents are tied to his actual innocence claim.). Similarly, Plaintiff here offers no

evidence to show that his underlying claim (right to effective counsel) would have been furthered

by the legal documents he was unable to carry with him on ATA.3 Moreover, Plaintiff’s

proffered claim appears to reflect mere hope. See Harbury, 536 U.S. at 416-17. Therefore,

Plaintiff’s claim cannot survive summary judgment because he fails to come forward with an

issue of material fact that Defendant Pierce’s actions inhibited his opportunity to present a

nonfrivolous or arguable underlying claim. See Monroe, 536 F.3d at 205.

3 In a “Declaration in Opposition to Defendant’s Motion for Summary Judgment,” Plaintiff references as Exhibit A,

a “1925(b) Statement of Matters Complained of on Appeal.” (ECF Nos. 43 & 43-1.) Plaintiff indicates that he typed

up this statement in anticipation that his remand motion would be granted. According to Plaintiff, the 1925(b)

Statement lists the issues that he would have raised on appeal to be reviewed by the Superior Court regarding the

dismissal of his PCRA petition. The Statement references PCRA counsel’s Finley letter. See Commonwealth v.

Finely, 550 A.2d 213 (Pa. Super. Ct. 1988) (en banc) (describing requirements of Finley letter when appointed

counsel seeks to withdraw from a collateral appeal filed under the PCRA, attesting that no issue of arguable merit

exists). Even if the Court assumes that this document was in the legal materials that Plaintiff did not have access to

at SCI-Greene, the document does not suggest a “nonfrivolous” or “arguable” underlying claim.

IV. CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment filed by Defendant Sgt.

Pierce (ECF No. 36) will be granted.

An appropriate order will follow.

Dated: August 5, 2019

BY THE COURT

□□

LISA PUPO LENIHAN

United States Magistrate Judge

ce: DARRELL R. BETHA

GN-5312

SCI Pheonix

Box 244

Collegeville, PA 19426-0244

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