burden of production when moving party bears the burden of proof
How later courts described this case
- burden of production when moving party bears the burden of proof
- noting that with two exceptions not relevant here pro se litigants “must abide by the same rules that apply to all other litigants”
- “[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper exhaustion.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TISIEM WILLIAMS, :
Plaintiff :
v. : Case No. 3:21-cv-75-KAP
OFFICER FLEEGLE, :
Defendant :
Memorandum Order
The motion for summary judgment at ECF no. 42 is granted. The motion to stay
the motion for summary judgment, ECF no. 55, is denied. Summary judgment is granted
to the remaining defendant for the reasons explained below.
On April 23, 2021, Williams filed a complaint (dated April 16, 2021) that -
depending on whether one looked at the caption or the list of defendants in the complaint
itself - named either four or five defendants: “SCI - Somerset” (a collection of buildings
mentioned in the caption but not subsequently named in the complaint, and hereafter
disregarded), Officer Mr. Fleegle,” “Officer Mr. Hay,” “Officer Lt. Whitacre,” and “Officer
Mr. Mishler.” It alleged the use of excessive force against Williams on January 31, 2020.
Williams alleged that he was verbally abused by corrections officer Hay and subsequently
laughed at by corrections officer Fleegle. When Williams later covered the window in his
cell (allegedly to use the toilet but under circumstances that as Williams relates them
would give cause to suspect Williams might be intending self-harm), Fleegle, Hay, a “LT”
and “a psych” told him to uncover. One or more of the persons allegedly then sprayed
Williams with what Williams called “mace” and then extracted him from the cell, cuffing
him in the process. Allegedly Fleegle then “twisted” Williams’ right hand. Williams alleged
that being sprayed by mace caused him to “sometimes looses vision out my left eye,” and
that he suffered unspecified “injury” to his hand, and (without detail or connection to the
named defendants) that he “didn’t receive proper care.”
After screening the complaint pursuant to the Prison Litigation Reform Act, I
advised Williams that he could amend his complaint but as it stood it stated a claim only
against Fleegle. Williams did not reply at all (not even to notify the Clerk of a change of
address) for months past the deadline, which I deemed an election not to amend his
complaint. The complaint was docketed at ECF no. 9 and served on Fleegle. I issued a
discovery schedule in June 2022, and after extension of time defendant Fleegle filed a
motion for summary judgment at ECF no. 42, supported by a video recording of the
incident. The motion for summary judgment, in addition to stating that what had been
sprayed was oleoresin capsicum (not mace) primarily argued that the video recording was
conclusive that Fleegle himself neither sprayed Williams (according to Fleegle, Hay did)
1
nor touched Williams’ right hand (according to Fleegle, Williams’ hand injury result from
Williams punching a wall with his right hand). In any case, Fleegle argued, the use of force
to extract an inmate presenting a risk of self-injury was justified, or at least entitled
Fleegle to qualified immunity.
Williams had already filed a pretrial statement at ECF no. 38 (naming only himself
as a witness and offering no evidence other than his ipse dixit in support of a claim of
injury to the vision in his left eye or to his right hand), but he responded to the motion for
summary judgment with a Motion to Stay at ECF no. 48, alleging he had not been able to
obtain affidavits from two other inmates who would be witnesses, and that there was
additional video not submitted by the defendant. The motion to stay was accompanied by
documents at ECF no. 49 and ECF no. 50 that contained Williams’ opposition the motion
for summary judgment. Part of that opposition was Williams’ interpretation of the video
exhibit submitted by Fleegle.
I granted the motion to stay in part, directing Williams to explain by November
30, 2023, why he could not have sought the witness affidavits during the discovery period,
and directing counsel for Fleegle to produce any other video records or to certify that none
existed. Counsel for Fleegle complied. Williams did not.
I also noted that Rule 56(f)(2)-(3) and Celotex Corp. v. Catrett, 477 U.S. 317, 326
(1986) allow summary judgment sua sponte so long as the parties are notified that they
must come forward with all relevant evidence and that the exhibits to the complaint
indicated there was a substantial question whether Williams exhausted his administrative
remedies before filing the complaint. I ordered the parties to brief whether summary
judgment is appropriate on that issue on or before November 30, 2023. Fleegle, through
counsel, complied. Williams did not.
What Williams sent at ECF no. 55 (docketed as another Motion to Stay) was page
4, slightly edited, of what he had already submitted at ECF no. 49, plus the last order in
the grievance process, in which Chief Grievance Officer Varner dismissed Williams’
grievance for procedural default on April 9, 2021. Williams has submitted nothing
responsive to the failure to exhaust defense. I can and do dispose of the matter without
need to interpret or even to view the video record.
It is settled law, and there is no special exception for pro se litigants, see Mala v.
Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that with two exceptions
not relevant here pro se litigants “must abide by the same rules that apply to all other
litigants”), that an issue is waived unless a party raises it in its opening brief. Further, a
passing reference to an issue does not suffice to bring that issue before the court. See e.g.
Laborers' Int'l Union of N. Am., AFL-CIO v. Foster Wheeler Energy Corp., 26 F.3d 375,
398 (3d Cir. 1994); Brown v. Wayne County, No. 22-1506, 2023 WL 3376547, at *1 (3d
2
Cir. May 11, 2023), cert. dismissed sub nom. Brown v Pennsylvania, No. 23-5092, 2023
WL 6379041 (U.S. Oct. 2, 2023). Williams’ failure to oppose in any meaningful way the
motion for summary judgment justifies the entry of judgment against him.
Even if Williams’ lack of response did not constitute default, Williams has failed to
provide anything either in ECF no. 55 or previously in the record that would preclude
summary judgment for the defendant on the grounds of Williams’ lack of exhaustion of
administrative remedies. Fleegle has not only discharged the initial burden of pointing
the district court to the basis in the record for its argument that there is no genuine issue
of material fact, see Celotex Corporation v. Catrett, 477 U.S. 317, 323 (1986), Fleegle has
gone on to support the motion for summary judgment with evidence that would entitle
him to a verdict if he had the burden of proof at trial. See In re Bressman, 327 F.3d 229,
237 (3d Cir. 2003) (burden of production when moving party bears the burden of proof).
Under Fed.R.Civ.P. 56, Williams is obliged to show a genuine factual dispute about his
exhaustion of administrative remedies nevertheless exists. Williams has not.
The Pennsylvania Department of Corrections’ administrative remedy process is set
forth in DC-ADM 804; 37 Pa.Code§ 93.9. It creates a three-step grievance and appeal
process that begins with an Inmate Grievance filed at the prison on the appropriate DOC
form. The grievance is received by the prison’s Grievance Coordinator and assigned a
number. The institutional grievance coordinator, who may investigate the matter by
referring it to an appropriate subordinate, provides an Initial Review Response. A
dissatisfied inmate can appeal to the superintendent or other Facility Manager. The third
and final level or appeal by a dissatisfied inmate is to the Secretary’s Office of Inmate
Grievances and Appeals (“SOIGA”). The Chief Grievance Officer, after review of the
inmate’s appeal can affirm, reverse, or remand the Facility Manager’s decision, and can
also dismiss an appeal as untimely or for other procedural default.
The Prison Litigation Reform Act amended the Civil Rights of Institutionalized
Persons Act to provide: “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 as are
available are exhausted.” 42 U.S.C. § 1997e(a). Exhaustion is a mandatory precondition
to suit. Porter v. Nussle, 534 U.S. 516, 524 (2002). The exhaustion requirement implies
“proper” exhaustion, Woodford v. Ngo, 548 U.S. 81, 91 (2006), together with the corollary
proposition that lack of proper exhaustion constitutes procedural default. Spruill v. Gillis,
372 F.3d 218 (3d Cir. 2004); see also Jones v. Bock, 549 U.S. 199, 218 (2007) (“[I]t is the
prison's requirements, and not the PLRA, that define the boundaries of proper
exhaustion.”)
The filing of a procedurally defective administrative grievance or appeal, where it
causes the dismissal of the grievance or appeal, does not satisfy the PLRA’s exhaustion
3
requirement. See Wright v. Sauers, 729 Fed.Appx. 225, 227 (3d Cir.2018). Substantial
compliance with or good faith use of the grievance process is not enough. See Mack v.
Klopotoski, 540 Fed. Appx. 108, 112 (3d Cir.2013) (use of handwritten copies instead of
photocopies); Harris v. Armstrong, 149 Fed.Appx. 58, 59 (3d Cir.2005) (issue raised in
third party correspondence but not grievance).
There are circumstances that make an administrative remedy “unavailable,” see
Ross v. Blake, 578 U.S. 632, 643-44 (2016), but as the Supreme Court established in Ross
y. Blake and the Court of Appeals had previously established in this circuit, they are
limited to those cases where the inmate is prevented by obstruction or intimidation from
filing a grievance (what can be called extrinsic unavailability) or cases where the
administrative remedy program is either opaque or a meaningless dead end (what can be
called intrinsic unavailability). Williams clearly had access to and navigated DC-ADM
804, though improperly, and Williams never alleged that his use of DC-ADM 804 was
obstructed.
Judgment shall be entered for defendant Fleegle (the failure to exhaust would bar
suit against the defendants other than Fleegle, if Williams had ever stated a claim against
them) and the Clerk shall mark this matter closed.
104
DATE:_ December 4, 2023
Keith A. Pesto,
United States Magistrate Judge
Notice by ECF to counsel of record and by U.S. Mail to:
Tiseim Williams MS-7078
S.C.I. Mahanoy
301 Morea Road
Frackville, PA 17932