BROWN v. WETZEL

THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JERMEL T. BROWN, )

)

Plaintiff ) Case No. 1:18-cv-00347 (Erie)

) ,

vs. )

) RICHARD A. LANZILLO

JOHN E. WETZEL, MICHAEL D. ) UNITED STATES MAGISTRATE JUDGE

OVERMYER, DEREK F. )

OBERLANDER, JOHN W. SAWTELLE, _ )

ERIN W. IRELAND, KEVIN C. COWEN, ) MEMORANDUM OPINION AND

HASPER, THOMAS MURIN, JASON ) ORDER ON DEFENDANT HASPER’S

G. COCHRAN, JADLOCKI, ) MOTION TO DISMISS [ECF NO. 16]

CONSTANZO, R. WONDERLING, )

MILLER, DOUGLAS M. BEATY, )

)

Defendants )

I. Introduction

Plaintiff Jermel T. Brown (Brown) commenced this pro se civil rights action on November 7, _

2018. His Complaint asserts claims against numerous individuals employed by the Pennsylvania

Department of Corrections (DOC Defendants) and Dr. Hasper, a psychiatrist who provided mental

health services at the State Correctional Institution at Forest (SCI-Forrest), where Brown has been

incarcerated. ECF No. 3. The DOC Defendants filed an Answer to Brown’s Complaint. ECF No.

11. Dr. Hasper filed the instant Motion to Dismiss the claims against him. ECF No. 16. Because

Dr. Hasper’s motion relied upon matters outside of Brown’s Complaint, pursuant to Fed. R. Civ. P.

12(d), the Court has converted the motion to a motion for summary judgment. For the reasons

discussed below, the Court will grant the motion.’

1 All parties have consented to the jurisdiction of a United States Magistrate Judge in this case, including the entry of

final judgment. See 28 U.S.C. § 636.

Il. The Complaint and the Procedural History |

Brown’s complaint identified Dr. Hasper as “a psychiatrist of the Pennsylvania Department

of Corrections who, at all times mentioned in this Complaint, held the rank of psychiatrist and was

assigned to SCI Forest.” ECE No. 3, § 10. The Complaint alleged that after being transferred to

SCI Forest from SCI Houtzdale, Brown was placed the Restricted Housing Unit (RHU) where he

was subjected to a “toxic environment.” Id. at | 19. The Complaint further alleged that Brown’s

mental state “decreased rapidly” on account of this environment, that his continued assignment to

that housing unit “was driving him crazy,” and that it caused him “mental anguish.” Id. at 58, 61.

The Complaint also alleged that, after an incident involving pepper spray, he spoke with □

Dr. Hasper. Id. at | 86. Later, Brown attempted suicide and was placed in a mental health unit at

the prison. Id. at J] 110, 122, 126. He faults Dr. Hasper for not instructing prison personnel to

permit him to shower. Id. at 9126. Brown further alleged that Dr. Hasper incorrectly diagnosed his

condition, failed to report what Brown had told him, and attempted to keep Brown in the RHU.

See, ¢.g., td, at J 181. Brown’s theory of liability is that Dr. Hasper’s alleged conducted violated his

tights under the Eighth Amendment to the United States Constitution.

Dr. Hasper filed his Motion to Dismiss on June 3, 2019. ECF No. 16. Dr. Haspet’s brief

attached several exhibits in support of his argument that Brown’s claims against him should be

dismissed based upon his failure to exhaust administrative remedies. See ECF No. 17-1, ECF No.

17-2, ECF No. 17-3. Because these documents are outside the pleadings, the Court has pore

Haspet’s motion into a motion for summary judgment. Consistent with Renchenski ». Williams, 622

F.3d 315 (3d Cir, 2010), the Court notified Brown by order dated June 4, 2019 that the pending

motion to dismiss may be treated, either in whole or in part, as a motion for summary judgment

under Rule 56 of the Federal Rules of Civil Procedure. See ECF No. 18.

Brown has not filed a response to Dr. Haspet’s motion, and the docket belies any argument

that he was unaware of the motion. On June 20, 2019, Brown filed a motion for extension of time

to file a response, in which he specifically referenced Dr. Hasper’s “motion to dismiss and motion

for summary judgement.” ECF No. 19. The Court granted Brown’s motion on June 26, 2019 and

extended the deadline for Brown to file a response to the motion to July 13, 2019. ECF No. 20. On

July 9, 2019, Brown filed another motion for an extension of time to file his response. ECF No. 21.

He asserted that he had not received a copy of Dr. Haspet’s motion. Id. At the same time, Brown

filed a motion asking the Court to order Dr. Hasper to re-serve his motion to dismiss. ECF No. 22.

He also asked the Clerk of Court to send him a copy of the motion. ECF. No. 23. Although the

Court denied these motions, it granted Brown additional time to respond and, out of an abundance

of caution, mailed him a copy of Hasper’s motion, supporting brief, and accompanying exhibits.

ECF No. 25 (and accompanying internal docket entry). On August 13, 2019, Brown filed yet

another motion for extension of time, which the Court granted. See ECF No. 26; ECF No. 27. This

extension made Brown’s response due by August 3, 2019. ECF No. 27. No responsive filing was

received by that date.

On November 19, 2019, the Court entered an order directing Brown to show cause

regarding his failure to respond to Dr. Hasper’s motion. See ECF No. 28, Brown then filed a

response asserting that although he had received Dr. Hasper’s motion, he had been unable to

respond to its arguments because of his solitary confinement. See ECF No. 29, p. 1. Out of an

abundance of caution, the Court again forwarded a copy of Dr. Hasper’s motion and supporting

filings to Brown and granted him an additional two-weeks to file a response. ECF No. 30.

Although that order was entered on February 11, 2020, and to date, the Court has not received a

response from Brown.

IJ. Summary Judgment Standard

Federal Rule of Civil Procedure 56(a) requires the court to enter 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). Under this standard “the mere existence of

some alleged factual dispute between the parties will not defeat an otherwise properly supported

motion for summary judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 US. 242, 247-48 (1986). A disputed fact is “material” if proof of

its existence or nonexistence would affect the outcome of the case under applicable substantive law.

Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue

of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for

the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and

Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

_ When determining whether a genuine issue of material fact remains for trial, the court must

view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving

party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d

Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary

judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or

her pleadings. Instead, once the movant satisfies its burden of identifying evidence that

demonstrates the absence of a genuine issue of material fact, the nonmoving party must to go

beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence

to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, 477

USS. 317, 324 (1986).

Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence

of a genuine fact issue on one or more essential claim elements. The Rule mandates summary

judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When

Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof

concerning an essential element of the nonmoving party’s case necessarily renders all other facts

immaterial.” Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

The summary judgment standard, as recounted above, “is somewhat relaxed with respect to

pto se litigants. Where a party is representing himself pro se, the complaint is to be construed

liberally. A pro se plaintiff may not however, rely solely on his complaint to defeat a summary

judgment motion.” Miller v. McClure, et al., 2020 WL 1049750, *6 (W.D. Pa. Mar. 4, 2020) (citing

Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides that a party opposing a properly supported

motion for summary judgment may not rest upon mere allegation or denials of his pleading, but

must set forth specific facts showing that there is a genuine issue for trial.”)). Allegations made

without any evidentiary support may be disregarded. Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000);

see also Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported allegations

and pleadings are insufficient to repel summary judgment.”). Here, Brown has filed nothing in

opposition to Dr. Hasper’s motion.

Finally, the Court acknowledges that it “may not grant an uncontested summary judgment

motion without an independent determination that the movant is entitled to judgment under Fed. R.

Civ. P. 56.” Hitchens v. County of Montgomery, 98 Fed. Appx. 106, 110 (3d Cir. 2004). But, “[b]y failing

to respond ... ‘the nonmoving party waives the right to respond to or to controvert the facts asserted

in the summary judgment motion.” Reynolds v. Rick's Mushroom Serv., 246 F. Supp. 2d 449, 453 (E.D.

Pa. 2003). Accordingly, in evaluating whether Dr. Hasper is entitled to judgment as a matter of law,

the Court will accept his factual assertions to the extent they are properly supported by the record.

For the reasons discussed below, the Court finds that no genuine issue of material fact

remains for trial regarding Dr. Hasper’s exhaustion defense and that Dr. Hasper is entitled to

judgment as a matter of law based upon that defense.”

IV. Discussion

A. Exhaustion of Administrative Remedies under the PLRA

Dr. Hasper argues that, prior to filing this action, Brown failed to exhaust his administrative

remedies as to all claims against him as required by the Prison Litigation Reform Act, 42 U.S.C.

§ 1997e(@) (“PLRA”). ECF No. 17, p. 3. “Failure to exhaust is an affirmative defense the defendant

must plead and prove...” Small v. Camden Cty., 728 F.3d 265, 268-69 (3d Cir. 2013) (citing Jones v.

Bock, 549 U.S. 199, 212, 216-17 (2007)). Based upon the record, the Court agrees that as to Dr.

Hasper, Brown failed to comply with the exhaustion requirements of the PLRA.

The PLRA provides: “no action shall be brought with respect to prison conditions under

section 1983 of this title ... by a prisoner confined in any jail, prisons, or other correctional facility

until such administrative remedies as are available are exhausted.” Id. The requirement that an

inmate exhaust administrative remedies applies to all inmate suits regarding prison life, including

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

(2002); Concepcion v. Morton, 306 F.3d 1347 d Cir. 2002) (for history of exhaustion requirement).

Administrative exhaustion must be completed prior to the filing of an action. McCarthy ». Madigan,

. 503 U.S. 140, 144 (1992). Federal courts are barred from hearing a claim if a plaintiff has failed to

exhaust all the available remedies. Grimsley v. Rodriquez, 1997 WL 235613 (10th Cir. May 8, 1997).

The exhaustion requirement is not a technicality, rather it is federal law which federal district courts

are required to follow. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (by using language “no action

2 Because the Court has concluded that Dr. Hasper is entitled to summary judgment based upon Brown’s failure to

exhaust his administrative remedies, it need not reach Dr. Hasper’s alternative arguments for summary judgment.

shall be brought,” Congress has “clearly required exhaustion”). Indeed, the United States Supreme

Coutt has repeatedly confirmed that “[t]here is no question that exhaustion is mandatory under the

PLRA.” Ross v. Blake, — U.S. ——, 136 S. Ct. 1850, 1856 (2016) (quoting Woodford v. Ngo, 548

USS. 81, 85 (2006)). Accord Jones v. Bock, 549 U.S. 199, 211 (2007). “And mandatory language

means a court may not excuse a failure to exhaust, even to take [] [special] circumstances into

account.” Ross, 136 S. Ct. at 1856. Further, exhaustion is required regardless of the availability of the

requested relief or the nature of the underlying claim, including claims alleging violations of the

Constitution. Id. at 1857 (citing Booth v. Churner, 532 U.S. 731, 741 (2001)); Porter, 534 U.S. at 520;

Woodford, 548 U.S. at 91.

To satisfy the PLRA, the plaintiff's exhaustion must be “proper,” which “demands

compliance with an agency’s deadlines and other critical procedural rules.” Woodford, 548 U.S. at 90.

This serves to protect “administrative agency authority” over the matter, giving an agency “an

opportunity to correct its own mistakes ... before it is haled into federal court,” and “discourages

‘disregard of [the agency’s] procedures.” Id. at 89 (quoting McCarthy, 503 U.S. at 145). Thus, where

the grievance process expressly requires the identification of named defendants, or the use of

specified appeal forms, or even the signature of an inmate, an inmate’s failure to comply as

instructed constitutes a procedural default and a failure to properly exhaust the grievance process.

See, ¢.8., Rosa-Diaz v. Dow, 683 Fed. Appx. 103, 105-06 (3d Cir. 2017) (nmate’s failure to name

particular defendant in grievance related to assault did not exhaust grievance process where

grievance policy required identification of defendants); Swa// v. Lanigan, 656 Fed. Appx 586, 589-90

(3d Cir. 2016) (prisoner’s use of correspondence to appeal grievance denials was not authorized

process and constituted procedural default, despite the fact that some of his letters were answered);

Walker v. Glunt 654 Fed. Appx 531, 534 3d Cir. 2016) (prisoner failed to sign his grievance, and

signature held to constitute an important procedural requirement set by the institution); Mack ».

Klopotoski, 540 Fed. Appx 108, 113 3d Cir. 2013) (finding procedural default where inmate failed to

provide photocopies of grievances and responses received to date to pursue internal appeal).

1. The Administrative Process Available to State Inmates

So then, analysis of exhaustion requirements in this case must begin by identifying the

administrative process available to state inmates. “Compliance with prison grievance procedutes ...

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 requirements, and not the PLRA, that define the boundaries of proper exhaustion.”

Jones, 549 US. at 218.

The DC-ADM 804 grievance system available to state prisoners consists of three separate

stages, First, the prisoner must timely submit a written grievance for review to the facility manager

or the regional grievance coordinator within fifteen days of the incident, and the facility manager or

grievance coordinator will respond in writing within ten business days. Second, if the grievance is

initially denied, the inmate must timely submit a written appeal to intermediate review within ten

working days, and again the inmate will receive a written response within ten working days. Finally,

if the intermediate appeal is denied, the inmate must submit a timely appeal to the Central Office

Review Committee within fifteen working days, and the inmate will receive a final determination in

writing within thirty days. See Booth v. Churner, 206 F.3d 289, 292 (3d Cir. 2000), aff'd, 532 US. 731,

(2001).

2. Analysis □

In support of his argument that Brown failed to exhaust administrative remedies as to all

claims against him, Dr. Hasper has submitted copies of all records produced by the DOC Secretary's

Office of Inmate Grievances and Appeals (SOIGA) in response to his subpoena. ECF No. 17-3.

These records consist of eighty-one pages of documents related to thirteen grievances that Brown

filed during the relevant period.’ Dr. Hasper is mentioned only three times in the entire grievance

record. First, in Grievance 646960, Brown stated that he “fear[ed] for his life ... I’ve told PSYCH’s

and Dr. Hasper.” Id. at p. 22. In Grievance 761240, Brown again mentioned Dr. Hasper in

connection to an incident that occurred while Brown was housed in “Unit K, B Pod:” “I informed

Cowen, Sheeshey, Hasper ... and no action was taken.” Id. at p. 65. The final reference to Dr.

Hasper is found in Grievance 760858. There, Brown complained about the condition of his.cell, □

stating he “was kept in these conditions under Dr. Hasper.” Id. at 77.

a. Grievance Number 646960

Brown filed Grievance 646960 on October 25, 2016. ECF No. 17-3, p. 26. That Grievance |

pertained to the alleged use of excessive force against him on October 3, 2016. Id The Grievance

was denied on November 15, 2016 by Lt. D. Miller. Id Brown then filed an appeal to the facility

manager on November 23, 2016. Id. at 27. Although the facility manager’s response does not

appear to be part of the record, Brown’s appeal was apparently denied. When Brown attempted to

appeal the facility manager’s decision, the SOIGA rejected his appeal because he did not provide a

copy of the superintendent’s response. Id. at 23. Brown challenged this determination on

February 20, 2017, stating that he “did not receive a super intent (sic) response so I went to the next

stage well over the 15 days for that response.” Id. at 20.

Assistant Chief Grievance Officer Keri Moore responded:

Upon review of the last documents you sent to this office, you did

indicate in your appeal that you did not receive a response from the

superintendent to your appeal. That was missed the first time and I

apologize for that. I contacted Ms. Resher at SCI Forest and asked if

you had wrote to her at all about not receiving the superintendent’s

response and she said she has no record of receiving any type of

communication from you indicating such. Records reflect that the

superintendent responded to your appeal on 12/14/16. You were

granted an extension of time by this office on 1/10/17 which gave

3 The record itself is, at times, difficult to review. For example, some of the grievances are not numbered. See ECF No.

17-3, p. 21 (no grievance number indicated). Other filings are almost illegible. See, ¢.g., ECF No. 17-3, p. 37.

you until 1/31/17 to provide this office with all of the required

documents. At this time, if you did not receive the superintendent’s

response, you should have contacted Ms. Resher in regards to the

superintendent’s response. Therefore, while there was a procedural

error, you still have not provided this office with the superintendent’s

response and a new appeal to final review, you just wrote indicating

that you never received the superintendent’s response. Therefore,

the dismissal stands.

ECF No. 17-3, p. 19. Brown’s failure to secure the superintendent’s response and forward it to final

review did not comply with the applicable grievance appeals procedures and, as a result, Grievance

646960 was not exhausted and cannot support any claim against Dr. Hasper in this action.

In addition, Grievance 646960 also failed to exhaust administrative remedies as to any claim

against Dr. Hasper because it did not seek any relief from him or charge him with the underlying

claim, z.¢., excessive force. Grievance 646960 asserted an excessive force claim based upon SCI

Forest personnel’s use of pepper spray and their failure to provide him any means of de-toxification.

See, @.2., ECF No. 17-3, p. 20 (“I was tortured by SCI Forest Staff ... they sprayed me and did not

give me anything to wipe my private area, a shower or anything — see grievance copy.”). Brown

made no claim that Dr. Hasper participated in this action. The DC-804 Official Inmate Grievance

form expressly instructs inmates to “state all relief that you are seeking.” See, e.g, ECF No. 17-3, p.

21; Jones v. Lindler, 2012 WL 1020279, *1 (M.D. Pa. Mar. 26, 2012) (grievance form contained no

statement for relief despite instructions to “state all relief that you are seeking”). And this Court has

held that the relief requested in an inmate’s grievance must be stated “with specificity.” Wright □□

Sauers, 2017 WL 3731957, *7 (Aug. 30, 2017) (quoting Spruill v. Gillis, 372. F.3d 218, 233-234 (3d Cir.

2004)). As relief, Grievance 646960 asked that “Lt. Murin, CO2 Cochran, CO1 Lutz, and CO1

Jadlocki” be removed from J Unit. See ECF No. 17-3, p. 26. But it did not ask for any relief from

Dr. Hasper. Accordingly, it did not exhaust any claim against him. See Preacher v. Overmyer, 2020 WL

43420, *8 (W.D. Pa. Jan. 3, 2020) (“[A]n inmate who “desires compensation or other legal relief

10

normally available from a court” must “request the relief with specificity in his/her initial

grievance.”) (citation omitted).

b. Grievance 761240 and Grievance 760858

The grievance record demonstrates that the other two grievances in which Brown mentions

Dr. Hasper were likewise dismissed due to his failure to comply with multiple procedural

requirements. For example, Brown’s Grievance 761240 was dismissed because Brown did not

submit it within 15 working days of the events upon which the claims were based and because the

grievance improperly included multiple complaints that were required to be grieved separately. ECF

No. 17-3, p. 64. This Grievance was dated September 21, 2018, and challenged certain events that

took place between January 20-30, 2017. Id. at 65. In the section of the grievance form that asks

inmates to “list actions taken and staff you have consulted before submitting this grievance,” Brown

included Dr. Hasper among the staff he informed. Brown states that he was “sent to POC” on

February 1, 2017, “not to return to normal routine until 9/4/18.” Id Still, Brown did not file this

Grievance for seventeen days (September 4, 2018, to September 21, 2018). Thus, it was filed too

late and Brown is procedurally barred from suing Dr. Hasper based upon this grievance. In

addition, the relief Brown requested in the grievance was that he “be released to the RTU at Camp

Hill, Rockview, or Phoenix.” Id. He did not ask for monetary damages or any other relief against

Dr. Hasper that he now claims in this action.

Grievance 760858 was also properly rejected as untimely. Brown filed this grievance on

September 13, 2018. It related to the use of pepper spray and the conditions in which he had been

housed. Id. at pp. 76-77. These events at issue took place on February 3, 2017. Id. L. Reeher, the

facility grievance coordinator, rejected this Grievance on September 21, 2018. Id. at 78. Brown then

appealed to the facility manager, Michael Overmyer, who denied his appeal on October 23, 2018. Id.

11.

at 80. Brown then filed an appeal to SOIGA. Id. at 81. He claimed not to have been able to file a

grievance until September 10, 2018. Id The SOIGA rejected Brown’s final appeal, noting:

[T]his review concurs that the grievance was very untimely. Inmates

can file a grievance while housed at a different DOC facility.

Additionally, your appeal to the Superintendent was received on

10/2/18 and provided response on 10/23/18. The response was

timely. Future correspondence regarding this grievance may be filed

without action or response.

Id. at p. 76. Brown points to no evidence to counter SOIGA’s conclusions. As noted above,

untimely “or otherwise procedurally defective administrative grievance[s] or appeal[s]” do not satisfy

the PLRA’s mandatory exhaustion requirement. See Woodford, 548 U.S. at 83; see also Spruill, 372 F.3d

at 230. The PLRA requires not only technical exhaustion of the administrative remedies, but also

substantial compliance with procedural requirements. See Saleem v. Brungart, 2020 WL 1130347, *4

(M.D. Pa. Mar. 6, 2020) (citing Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004) (other citation

omitted)). Such a procedural default by the prisoner, either through late or improper filings,

prevents the prisoner from bringing a claim in federal court unless equitable considerations warrant

review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).

Therefore, although Brown pursued this grievance to the final administrative stage, he is nonetheless

procedurally barred from suing Dr. Hasper based upon this grievance.

In sum, procedural defects prevented each of Brown’s grievances from properly exhausting

his administrative remedies as to his claims against Dr. Hasper. See Woodford, 548 U.S. at 89; Sprudll,

372 F.3d at 222, 231. Brown does not point to any evidence to excuse these failures. Having

properly raised and supported these failures in his motion, Dr. Hasper is entitled to the entry of

summary judgment in his favor.’

4 Notably, if Brown had demonstrated that prison authorities prevented him from timely filing, he may have been able to

proceed here. See, eg., Brown v. Croak, 312 F.3d 109 (3d Cir. 2002) (holding that an administrative remedy is not

“available” under the PLRA where prison authorities thwart a prisoner’s efforts to exhaust administrative remedies).

Brown has not done so.

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V. Conclusion

Defendant Hasper’s motion to dismiss (ECF No. 16), which the Court has treated as a

motion for summary judgment, is granted. The Clerk of Court shall terminate this action as to Dr.

Hasper. An appropriate order will follow.

Entered this 16" day of March, 2020.

RICHARD A. LANZILLO

United States Magistrate Judge

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