RICE v. KARASTON

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TIMOTHY RICE, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 24-CV-1501

:

C/O KERNIZAN, :

Defendant. :

MEMORANDUM

HODGE, J. JANUARY 17, 2025

Plaintiff Timothy Rice, a pro se convicted and sentenced prisoner currently incarcerated at

SCI Phoenix, filed this civil rights action pursuant to 42 U.S.C. § 1983, alleging that correctional

officers at SCI Phoenix used excessive force on him while he was in full restraints. (ECF No. 2.)

Currently before the Court is Defendant’s Motion to Dismiss the Complaint, filed pursuant to

Federal Rule of Civil Procedure 12(b)(6) by Defendant Correctional Officer Kernizan, the only

Defendant who remains in this case following statutory screening.1 (ECF No. 20; see also ECF

Nos. 6, 7.) For the following reasons, the Court will grant the Defendant’s Motion, and Rice’s

Complaint will be dismissed.

I. FACTUAL ALLEGATIONS AND PROCEDURAL HISTORY

Rice filed his Complaint naming four Defendants, all of whom are employed by the

Pennsylvania Department of Corrections (“DOC”) at SCI Phoenix. (ECF No. 2 at 3-5.)2 Rice

alleges that correctional officers assaulted him on March 28, 2023, while he was in full restraints

1 In Defendant’s Motion to Dismiss, counsel for Defendant indicated that Rice misspelled

Defendant Kernizan as “Karaston” in his Complaint. The Court will direct the Clerk of Court to

amend the docket to reflect the correct spelling. For purposes of this Memorandum, the Court will

adopt the proper spelling and refer to the sole Defendant as Kernizan.

2 The Court adopts the pagination supplied by the CM/ECF docketing system.

in the “L-Block yard” at SCI Phoenix. (Id.) Specifically, Rice asserts that while he was being

escorted by Correctional Officer Kernizan and another officer whom he does not identify,

Kernizan threatened Rice, telling him that “when I get you in [the] yard we [are] going to beat

your ass.” (Id. at 5.) Rice alleges that while he was on the ground in full restraints, he was kicked

in the ribs by Kernizan, his head was banged on the ground several times, and another officer

punched him in the face. (Id. at 4-5.) Rice asserts that he suffered a severe head injury resulting in

a permanent headache, short term memory loss, and emotional distress. (Id. at 5.) Rice seeks $1.2

million in monetary damages. (Id.)

In a June 5, 2024 Memorandum and Order, the Court granted Rice leave to proceed in

forma pauperis and dismissed his Complaint in part with prejudice and in part without prejudice

on statutory screening pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), while permitting his excessive

force claim to proceed against Kernizan in his individual capacity. Rice v. Karaston, No. 24-1501,

2024 WL 2848296 (E.D. Pa. June 5, 2024); (see also ECF No. 6.). Rice’s official capacity claims

were dismissed with prejudice based on Eleventh Amendment immunity, and his claims against

Officer Mantuce, Officer Antwon, and Unit Manager Grady were dismissed without prejudice due

to lack of personal involvement. Rice v. Karaston, No. 24-1501, 2024 WL 2848296, at *2-*3.

Although Rice was provided the opportunity to file an amended complaint as to any claims

dismissed without prejudice, he did not do so, instead notifying the Court that he wished to proceed

only on his excessive force claim against Defendant Kernizan in his individual capacity. (See ECF

Nos. 8, 10.) Officer Mantuce, Officer Antwon, and Unit Manager Grady were subsequently

terminated as Defendants, and service was made on Defendant Kernizan. (See ECF Nos. 11, 17.)

After being served, Defendant Kernizan filed a motion to dismiss the claims against him.

Specifically, Kernizan moves to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) on

the basis that Rice failed to exhaust his administrative remedies prior to filing this lawsuit, as

required by the Prison Litigation Reform Act (“PLRA”), in accordance with DC-ADM 804,3 the

grievance policy of the Pennsylvania Department of Corrections (“DOC”). (ECF No. 20.) Rice

responded to the motion, arguing that he exhausted required remedies and that the “DOC at SCI

Phoenix fail[ed] to give [him] a timely response” to his written appeal. (See ECF No. 23 at 2.) The

Court addresses the parties’ arguments below.

II. STANDARD OF REVIEW

“A 12(b)(6) motion tests the sufficiency of the allegations contained in the complaint.”

Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss under Rule

12(b)(6), the Court must determine whether the complaint contains “sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has

facial plausibility when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly,

550 U.S. at 556). “Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555.) “Although the

plausibility standard does not impose a probability requirement, it does require a pleading to show

more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Const.

Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal quotation marks and citations omitted). It is the

defendant’s burden to show that a complaint fails to state a claim. See Hedges v. United States,

3 DC-ADM 804 is available online. DC-ADM 804, Inmate Grievance System, available at

https://www.pa.gov/content/dam/copapwp-pagov/en/cor/documents/about-us/doc-

policies/804%20Inmate%20Grievances.pdf (effective May 1, 2015; last viewed January 15,

2025).

404 F.3d 744, 750 (3d Cir. 2005) (explaining that on a Rule 12(b)(6) motion to dismiss, the

“defendant bears the burden of showing that no claim has been presented”).

In resolving a Rule 12(b)(6) motion, “a court must consider only the complaint, exhibits

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

if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605 F.3d 223,

230 (3d Cir. 2010). To determine whether a complaint filed by a pro se litigant states a claim, a

court must accept the facts alleged as true, draw all reasonable inferences in favor of the plaintiff,

and “ask only whether that complaint, liberally construed contains facts sufficient to state a

plausible . . . claim.” Shorter v. United States, 12 F.4th 366, 374 (3d Cir. 2021) (cleaned up),

abrogated on other grounds recognized by Fisher v. Hollingsworth, 115 F.4th 197 (3d Cir. 2024);

see also Vogt v. Wetzel, 8 F.4th 182, 185 (3d Cir. 2021) (pro se filings are construed liberally).

III. APPLICABLE LAW

The PLRA “mandates that prisoners exhaust internal prison grievance procedures before

filing suit.” Small v. Camden Cnty., 728 F.3d 265, 268 (3d Cir. 2013); see 42 U.S.C. § 1997e(a)

(“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.”). “Exhaustion is . . . a non-

jurisdictional prerequisite to an inmate bringing suit and, for that reason, . . . it constitutes a

threshold issue that courts must address to determine whether litigation is being conducted in the

right forum at the right time.” Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018) (internal

quotations omitted). Accordingly, in cases governed by the PLRA, courts must address whether

the prisoner-plaintiff has substantially complied with the prison’s specific grievance procedures

and determine whether those procedures were available to the inmate. Id. “Proper exhaustion

demands compliance with an agency’s deadlines and other critical procedural rules.” Woodford v.

Ngo, 548 U.S. 81, 90 (2006); Prater v. Dep’t of Corr., 76 F.4th 184, 203 (3d Cir. 2023) (courts

“determine whether a prisoner has properly exhausted a claim by evaluating the prisoner’s

compliance with the prison’s administrative regulations governing inmate grievances” (internal

quotations omitted)). The Court is bound by the PLRA to apply the prison’s available

administrative exhaustion rules, however stringent. See 42 U.S.C. 1997e(a); Jones v. Bock, 549

U.S. 199, 218 (2007). Claims that are not properly exhausted under the PLRA are procedurally

defaulted. See Woodford, 548 U.S. at 92-93; Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004).

“[W]here a defendant moves to dismiss based on a failure-to-exhaust defense and the

exhaustion issue turns on indisputably authentic documents related to the inmate’s grievances, [a

court] may consider those documents without converting a motion to dismiss to a motion for

summary judgment.” Rinaldi, 904 F.3d at 261 n.1 (internal quotations and alterations omitted);

Spruill, 372 F.3d at 223 (“Given that the exhaustion issue turns on the indisputably authentic

documents related to Spruill’s grievances, we hold that we may also consider these without

converting it to a motion for summary judgment.”); Brown v. Croak, 312 F.3d 109, 111 (3d Cir.

2002) (“In appropriate cases, failure to exhaust may be raised as the basis for a motion to

dismiss.”); see, e.g., Walker v. Little, No. 22-3451, 2023 WL 2570562, at *1 (3d Cir. Mar. 20,

2023) (affirming grant of motion to dismiss based on failure to exhaust administrative remedies).

The DOC’s grievance policy, DC-ADM 804, sets forth a three-step process for review of

inmate grievances. An inmate must initially submit a written grievance to the Facility Grievance

Coordinator or his designee within fifteen working days after the event upon which the grievance

is based. DC-ADM 804, § 1.A(5), (8). The grievance must state the date, approximate time and

location of the events giving rise to the grievance, must identify individuals directly involved in

the events, and shall state any claims the inmate wishes to make based on those events. Id. §

1.A(11). If the Facility Grievance Coordinator determines that the grievance is properly submitted,

a different staff member will be designated to serve as the Grievance Officer for that grievance.

Id. § 1.C(3). The Grievance Officer will review the grievance, issue a decision on the Initial

Review Response Form, and provide the decision to the Facility Grievance Coordinator who, in

turn, will provide the decision to the inmate. Id. § 1.C(5).

If the grievance is rejected, the inmate has fifteen working days to appeal in writing to the

Facility Manager. Id. § 2.A(1)(a). The rejection must be received by the inmate from the Facility

Grievance Coordinator before any appeal to the Facility Manager may be sought. Id. § 2.A(1)(b).

Any appeal must be clearly labeled as an appeal, include the grievance number, be legible, and

contain the reasons for appealing the initial review response/rejection. Id. § 2.A(1)(d). Failure to

comply with the foregoing may result in the appeal being dismissed. Id. § 2.A(1)(e).

If the Facility Manager rejects the appeal, the inmate may appeal for Final Review with the

Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”) within fifteen working days of

the denial of the Facility Manager’s appeal. Id. § 2.B. The appeal to Final Review must be clearly

labeled as an appeal at the top of the document; include the grievance number; be legible and

understandable; not exceed two pages; contain a reason or reasons for appealing the Facility

Manager’s decision; and be handwritten or typed on writing paper or submitted on the Inmate

Appeal to Final Review form. Id. § 2.B(1)(e). Failure to comply with the foregoing may result in

the appeal to Final Review being dismissed. Id. § 2.B(1)(f). Also, an inmate appealing a grievance

to Final Review must provide the SOIGA with the following documents: (1) a legible copy of the

Initial Grievance; (2) a copy of the initial review response/rejection; (3) a legible copy of the

Inmate Appeal to the Facility Manager; (4) a copy of the Facility Manager’s decision; and (5) a

written appeal to the SOIGA. Id. § 2.B(1)(j)(1)-(5). If the inmate fails to provide any of the

foregoing documentation, his or her Final Appeal may be dismissed. Id. § 2.B(1)(j)(6). The SOIGA

will respond to the Final Appeal within thirty working days of receipt unless otherwise extended

and/or referred. Id. § 2.B(2).

IV. ANALYSIS

Defendant Kernizan argues in his Motion that Rice failed to fully exhaust administrative

remedies prior to filing this lawsuit, as required by the PLRA and in accordance with DC-ADM

804. (See ECF No. 20 at 7-10.) Specifically, Kernizan contends that DC-ADM 804 establishes a

three-tier administrative review, and while Rice filed Grievance No. 1026926 on March 28, 2023,

and timely appealed to the Facility Manager, thereby satisfying the first two tiers, Rice failed to

include a written appeal to Final Review and failed to timely correct this error, rendering his Final

Appeal untimely. (Id. at 9-10.) Rice contends in his Complaint and in his Response to Defendant’s

Motion,4 that he fully exhausted and the “DOC at SCI Phoenix fail[ed] to give [him] a timely

response” to his written appeal. (See ECF No. 2 at 7-8, ECF No. 23 at 2.) Accordingly, at issue

here is whether Rice has properly exhausted administrative remedies per the prison’s procedures

mandated by DC-ADM 804.

The Court has reviewed the grievance records in this case and concludes that Rice failed

to comply with the procedural requirements at the final level of appeal. 5 (See Grievance Records

4 Although Rice continues to argue that Defendant Kernizan’s Motion was filed untimely,

his contention is incorrect. As noted by this Court’s October 1, 2024 Order denying Rice’s Motion

for Default Judgment (see ECF No. 26), Kernizan returned his waiver on July 18, 2024 and his

response to the Complaint was due on August 19, 2024. (See ECF No. 17.) Kernizan responded to

the Complaint by filing his Motion on August 19, 2024. (See ECF No. 20.)

5 This Court may consider the grievance records that are attached to the Defendant’s Motion

without converting the motion to one for summary judgment. (See ECF No. 20-1 at 3-13.) Rice

has not claimed that the grievance records contained herein are inauthentic or incomplete. (See

ECF No. 23.) He has also referred to the March 28, 2023 grievance in his Complaint and has

alleged that he exhausted his administrative remedies. See, e.g., Freedland v. Fanelli, No. 18-2250,

attached at ECF No. 20-1 at 2-13.) Specifically, while the grievance records submitted by Kernizan

demonstrate that Rice complied with the first two levels of review with respect to Grievance No.

1026926, Rice failed to provide a timely written appeal to the SOIGA in accordance with DC-

ADM 804, § 2.B(1)(j)(5), which requires an inmate to include “a written appeal to the SOIGA”

for his appeal to final review to be considered. (See ECF No. 20-1 at 4.) Rice was notified of his

failure to include a written appeal on February 8, 2024. (Id.) It appears Rice subsequently

submitted a written appeal “for final review,” (id. at 3), following which SOIGA considered his

appeal and, according to the Final Appeal Decision Dismissal, dismissed Rice’s appeal at the final

appeal level because it was not submitted timely. (Id. at 2.) Specifically, the decision advised Rice

that his “appeal to final review needed to be postmarked by 2/06/24; however, it was not

postmarked until 2/20/24.”6 (Id.) In short, Grievance No. 1026926 was dismissed at the final level

of appeal because Rice did not provide all the necessary documentation for consideration of his

final review appeal in the time frame required by the relevant policy. (Id.) Because Rice’s

grievance was dismissed at the final level of review for being procedurally defective, Rice failed

to properly exhaust his administrative remedies.7 See Woodford, 548 U.S. at 90 (explaining that

2019 WL 2448810, at *2 (E.D. Pa. June 10, 2019) (citing Spruill, 372 F.3d at 223). The Court did

not consider any other exhibits attached to the Defendant’s Motion.

6 As noted above, the grievance records show that Rice was notified of his failure to include

a written appeal on February 8, 2024. (ECF No. 20-1 at 4.) It appears that after receiving notice of

the procedural defect, Rice predated and submitted his written appeal in an attempt to correct his

error. (Id. at 3.) The written appeal is dated “1-16-24-23,” but also notes that postage was deducted

on February 1, 2024. (Id.) However, the written appeal also contains a time stamp of February 27,

2024, with a written notation of “2/20” which corresponds with the postmark date referred to in

the Final Appeal Decision Dismissal. (Id. at 2.) Rice does not speak to this issue in his response to

the Defendants’ Motion.

7 Defendant Kernizan also argues that Rice failed to comply with the DOC’s grievance

policy because his grievance did not precisely state the claim he presented in his Complaint. (See

ECF No. 20 at 7-8.) Kernizan argues that the initial grievance stated that Kernizan “threaten[ed]

to use excessive force” as opposed to the current allegation that Kernizan actually used excessive

proper administrative exhaustion “means using all steps that the agency holds out, and doing so

properly (so that the agency addresses the issues on the merits)” (citation omitted)); see also

Williamson v. Wexford Health Sources, Inc., 131 F. App’x 888, 890 (3d Cir. 2005) (per curiam)

(stating that inmate “was required to present his claim at all levels of the administrative appeals

process before filing suit” and finding that his claim was procedurally defaulted “[b]ecause any

attempt to appeal the denial of the initial grievance would now be time-barred”); Presbury v.

Wenerowicz, No. 16-4949, 2021 WL 4803824, at *3 (E.D. Pa. Oct. 13, 2021) (prisoner did not

fully and properly exhaust his grievance because of various procedural deficiencies including his

failure to include required documentation); Washington v. Wenerowicz, No. 14-6916, 2017 WL

4404405, at *8 (E.D. Pa. Oct. 3, 2017) (prisoner did not properly exhaust when grievance

submitted to the SOIGA at the final level of appeal exceeded the two-page limit and was not

resubmitted on a timely basis).

Rice does not argue that administrative remedies were unavailable to him, nor does he

direct the Court to any circumstance present in this case that would support a conclusion that

administrative remedies were unavailable for his claim of excessive force against Defendant

Kernizan.8 See Rinaldi, 904 F.3d at 268. Rice did not present his claim at all levels of the

administrative appeals process before filing suit and there is no basis to conclude that

administrative remedies were not available to him when he filed his grievance. Because any

force against him. (Id.) According to the grievance records, however, it appears from the Facility

Manager’s Appeal Response that the DOC investigated the use of excessive force by Kernizan, as

opposed to a mere threat of force. (See ECF No. 20-1 at 8.)

8 It is unclear how Rice’s allegation that he did not receive the final review decision would

impact whether he had actually exhausted the process as opposed to whether he knew he had

exhausted the process. Indeed, based on the allegations in the Complaint, it appears Rice believed

he had exhausted based on the documents he submitted during the grievance process, including at

the final review stage.

attempt to appeal the denial of the initial grievance would now be time-barred, Rice’s excessive

force claim against Defendant Kernizan is procedurally defaulted.

V. CONCLUSION

For the foregoing reasons, Defendant Kerizan’s Motion to Dismiss will be granted and the

remainder of Rice’s Complaint will be dismissed without prejudice. See Talley v. Constanzo, No.

19-2650, 2022 WL 17352167, at *3 (3d Cir. Dec. 1, 2022) (“Although we agree with the District

Court’s dismissal of Talley’s federal claims for lack of exhaustion, that dismissal should have been

without prejudice, not with prejudice.”); Monroe v. Nunn, No. 21-2218, 2022 WL 885095, at *1

(3d Cir. Mar. 25, 2022) (“When a prisoner does not exhaust his administrative remedies, his

complaint should be dismissed without prejudice to enable him to cure the procedural defect.”).

The Court concludes, however, that amendment is futile as Rice cannot cure his procedural default.

Accordingly, leave to amend will not be granted. An appropriate order follows, which shall be

docketed separately. See Fed. R. Civ. P. 58.

BY THE COURT:

/s/ Hon. Kelley B. Hodge

__________________________________________

HODGE, KELLEY B., J.