# BETHA v. PIERCE

> District Court, W.D. Pennsylvania · August 5, 2019

URL: https://www.frixlaw.com/law-library/cases/10414866

## Case

- **Court:** District Court, W.D. Pennsylvania
- **Decided:** August 5, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE 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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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10414866. Public record. Not legal advice.