LEE v. MOLL et al, No. 1:2012cv00234 - Document 40 (W.D. Pa. 2013)
Court Description: MEMORANDUM AND OPINION re 25 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by SHERBIKE, 30 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by KIM SMITH, BLOOM, RUMCIK, and 33 MOTION to Dismiss filed by MOLL. Signed by Judge Arthur J. Schwab on 08/30/2013. (lmt)
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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA MICHAEL K. LEE, Plaintiff v. MR. MOLL, et al., Defendants. ) ) ) ) ) ) ) C.A. 12-234 Erie District Judge Schwab MEMORANDUM & OPINION I. INTRODUCTION A. Relevant Procedural and Factual History On October 1, 2012, Plaintiff Michael K. Lee, a prisoner incarcerated at the State Correctional Institution at Forest in Marienville, Pennsylvania (ASCI-Forest@), filed this pro se civil rights action pursuant to 42 U.S.C. ' 1983. Named as Defendants in the original complaint are various members of SCI-Forest medical department identified as Mr. Moll, Mrs. Sherbike, Mr. Smith, Mrs. Rhonda, Kim Smith, and Mr. Rumcik. Mr. Smith and Mrs. Rhonda were subsequently terminated as Defendants because they are already separately identified as Defendants Kim Smith and Mrs. Sherbike, respectively. Plaintiff subsequently filed an amendment to his complaint adding Mrs. Bloom as a Defendant. Plaintiff alleges that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the United States Constitution because they denied him medication that he required for a psychological problem. (ECF No. 7, Complaint, at Section IV.C.). As relief for his claim, Plaintiff seeks monetary damages. On March 5, 2013, Defendant Sherbike filed a Motion to Dismiss [ECF No. 25], asserting, inter alia, that Plaintiff has failed to exhaust his administrative remedies. On March 15, 2013, Defendants Smith, Rumcik, and Bloom, filed their own Motion to Dismiss [ECF No. 30], also asserting, inter alia, that Plaintiff failed to exhaust his administrative remedies. On March 29, 2013, Defendant Moll followed up with his own Motion to Dismiss [ECF No. 33] on the same basis. Despite having been given ample time to do so, Plaintiff has failed to file a response to any of Defendants pending motions. This matter is now ripe for consideration. B. Standard of Review 1. Motion to Dismiss A Motion to Dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the Complaint must be accepted as true. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). A Complaint must be dismissed pursuant to Rule 12 (b)(6) if it does not allege enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)(rejecting the traditional 12 (b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41 (1957)). See also Ashcroft v. Iqbal, 556 U.S. 662 (2009) (specifically applying Twombly analysis beyond the context of the Sherman Act). The Court need not accept inferences drawn by plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) citing Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997). Nor must the court accept legal conclusions set forth as factual allegations. 2 Twombly, 550 U.S. at 555, citing Papasan v. Allain, 478 U.S. 265, 286 (1986). Factual allegations must be enough to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555. Although the United States Supreme Court does not require heightened fact pleading of specifics, [the Court does require] enough facts to state a claim to relief that is plausible on its face. Id. at 570. In other words, at the motion to dismiss stage, a plaintiff is required to make a >showing= rather than a blanket assertion of an entitlement to relief. Smith v. Sullivan, 2008 WL 482469, at *1 (D.Del. February 19, 2008) quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008). This does not impose a probability requirement at the pleading stage, but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of the necessary element. Phillips, 515 F.3d at 234, quoting Twombly, 550 U.S. at 556. Recently, the United States Court of Appeals for the Third Circuit prescribed the following three-step approach to determine the sufficiency of a complaint under Twombly and Iqbal: First, the court must tak[e] note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011), citing Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Iqbal, 129 S.Ct. at 1947, 1950); see also Great Western Mining & Min. Co. v. Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010). 3 2. Pro Se Pleadings Pro se pleadings, however inartfully pleaded, must be held to Aless stringent standards than formal pleadings drafted by lawyers@ Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant s unfamiliarity with pleading requirements. See Boag v. MacDougall, 454 U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)( petition prepared by a prisoner... may be inartfully drawn and should be read with a measure of tolerance ); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir.1997)(overruled on other grounds). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir. 1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make inferences where it is appropriate. II. DISCUSSION A. Exhaustion Under the Prison Litigation Reform Act The Prison Litigation Reform Act ( PLRA ), 42 U.S.C. ' 1997e(a), 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. (Emphasis added). 4 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). See also Concepcion v. Morton, 306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion must be completed prior to the filing of an action. McCarthy v. 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, 113 F.3d 1246 (Table), 1997 WL 2356136 (Unpublished Opinion) (10th Cir. May 8, 1997).1 The exhaustion requirement is not a technicality, rather it is federal law which federal district courts are required to follow. Nyhuis, 204 F.3d at 73 (by using language no action shall be brought, Congress has clearly required exhaustion ). There is no futility exception to the administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) citing Nyhuis, 204 F.3d at 78. According to the United States Supreme Court, the PLRA requires proper exhaustion, meaning that a prisoner must complete the administrative review process in accordance with the applicable procedural rules, including deadlines. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2387-2388 (June 22, 2006) ( Proper exhaustion demands compliance with an agency=s deadlines and other critical procedural rules . . . ). Importantly, the exhaustion requirement may not be satisfied by filing an untimely or otherwise procedurally defective . . . appeal. Id. 1 Importantly, a plaintiff=s failure to exhaust his administrative remedies does not deprive the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000) ( . . . [W]e agree with the clear majority of courts that ' 1997e(a) is not a jurisdictional requirement, such that failure to comply with the section would deprive federal courts of subject matter jurisdiction. ). 5 A plaintiff need not affirmatively plead exhaustion, but exhaustion is an affirmative defense which is waived if not properly presented by a defendant. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002) (holding that no provision of the PLRA requires pleading exhaustion with particularity, while construing the PLRA requirements in light of the Supreme Court decision in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)). It is the burden of a defendant asserting the defense to plead and prove it. Id. B. Procedural Default Component The United States Court of Appeals for the Third Circuit has explicitly held that the exhaustion requirement of the PLRA includes a procedural default component, by analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the habeas context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir. 2004).2 The Circuit explained: We believe that Congress s policy objectives will be served by interpreting § 1997e(a) s exhaustion requirement to include a procedural default component. Based on our earlier discussion of the PLRA s legislative history, [. . .] Congress seems to have had three interrelated objectives relevant to our inquiry here: (1) to return control of the inmate grievance process to prison administrators; (2) to encourage development of an administrative record, and perhaps settlements, within the inmate grievance process; and (3) to reduce the burden on the federal courts by erecting barriers to frivolous prisoner lawsuits. Each of these goals is better served by interpreting § 1997e(a) s exhaustion language to include a procedural default component than by interpreting it merely to require termination of all administrative grievance proceedings. 2 There is a split of authority among the Circuits on this issue. Compare Berry v. Kerik, 366 F.3d 85 (2d Cir. 2004), Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), and Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002), with Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003). 6 Id. Having concluded that the PLRA includes a procedural default component, the Court then indicated that prison grievance procedures supply the yardstick for measuring procedural default. Id. at 231. To exhaust the administrative remedies within the DOC s grievance system, a grievance must be appealed through all administrative levels of appeal at the inmate s institution and the DOC inmate-initiated grievances must follow the procedures set forth in Administrative Directive 804 ( DC-ADM 804 ), which is included as part of the inmate handbook distributed to each inmate. The first step in the grievance process is for the inmate to file a claim with the institution s grievance officer. The grievance officer will investigate a grievance and provide the inmate with an Initial Review Response, which includes a brief rationale, summarizing the conclusions and any action taken or recommended to resolve the issues raised in the grievance. DC-ADM 804 VI(B)(4). If the inmate is not satisfied with the Initial Review Response, there are two levels of appeal he must pursue to exhaust his claim: (1) an appeal within five days of his receipt of the Initial Review Response to the prison superintendent and, if the appeal is denied, (2) an appeal to the DOC Secretary s Office of Inmate Grievances and Appeals ( DOC Secretary ). DC-ADM 804 VI(C)(1). C. Exhaustion and Procedural Default Applied Defendants contend that Plaintiff has failed to exhaust his administrative remedies with regard to his claims. In support of this contention, Defendant Moll has submitted a letter from Keri Moore, a Grievance Review Officer with the DOC, which was written on March 25, 2013, in response to a subpoena requesting a full and complete copy of Plaintiff s grievance records. 7 [ECF No. 34-1]. In this letter, Ms. Moore declares, in pertinent part, as follows: I have reviewed our records and found that [Plaintiff] has not filed any appeals to this office under inmate number KJ9392. [Plaintiff] had two prior inmate numbers, BH6972 and DQ8498, which I also checked. I again, found no record of him submitting any appeals to our office. Plaintiff has failed to provide any Response to Defendant Moll s Motion or any way refute, explain, or attempt to excuse his failure to file any appeal from the denial of his grievances. Thus, the Court finds on the basis of the record evidence that Plaintiff has failed to exhaust his administrative remedies with regard to the claim asserted in this case, and he is now procedurally defaulted from doing so. Based on the foregoing, therefore, Defendants motions to dismiss will be granted and this case will be dismissed. An appropriate Order follows. s/ Arthur J. Schwab Arthur J. Schwab United States District Judge cc: All Registered ECF Counsel and Parties and Michael K. Lee KJ-9392 SCI FOREST BOX 945 MARIENVILLE, PA 16239-0307 pro se 8
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