Opinion
No. 369 C.D. 2013
10-04-2013
Edward R. Salter, Appellant v. Marirosa Lamas, Captain Eaton, Lt. Vance, SGT. Luzier
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE MARY HANNAH LEAVITT, Judge HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY JUDGE COHN JUBELIRER
Edward R. Salter (Salter), representing himself, appeals from the Order of the Court of Common Pleas of Centre County (trial court) that dismissed Salter's Second Amended Complaint pursuant to Section 6602(e) of the Prison Litigation Reform Act (PLRA), because Salter failed to exhaust his administrative remedies. On appeal, Salter argues that the trial court erred in dismissing his Second Amended Complaint because: (1) the Department of Corrections' (Department) regulations do not require that all three steps of the grievance process be completed; (2) Marirosa Lamas, Superintendent of S.C.I.-Rockview, did not respond to two of his grievances within the timeframe set out in the Department's policies, thereby preventing Salter from exhausting these grievances; and (3) retaliation and intimidation by Superintendent Lamas, Captain Eaton, Lieutenant Vance, and Sergeant Luzier (collectively Defendants) hindered or prevented Salter from fully pursuing the grievance process.
Salter is an inmate of S.C.I.-Rockview.
42 Pa. C.S. § 6602(e). Section 6602(e)(2) provides that a trial court shall dismiss prison conditions litigation if it determines that "the defendant is entitled to assert a valid affirmative defense . . . which, if asserted, would preclude the relief." Id.
The following allegations are drawn from Salter's Second Amended Complaint. On March 19, 2012, Salter requested a grievance form from Sergeant Luzier. (Second Amended Complaint ¶ 23.) Salter wished to file a grievance because he was not permitted to use the telephone at the time for which he signed up to speak to his attorney. (Second Amended Complaint ¶ 23.) Sergeant Luzier mocked and swore at Salter for requesting a grievance form, but finally gave the form to Salter after Salter repeatedly asked. (Second Amended Complaint ¶¶ 23-25.) Sergeant Luzier told Salter, "[i]f you file this grievance against me or any correctional officers and prison officials here at S.C.I. Rockview, something bad will happen to you." (Second Amended Complaint ¶ 26.) Salter reported this threat to Captain Eaton and Lieutenant Vance the next day. (Second Amended Complaint ¶ 27.) They told him nothing bad would happen to him if he stopped filing grievances. (Second Amended Complaint ¶ 28.)
In his grievance regarding this issue, Salter indicates he signed up to use the telephone to speak with his family on the west coast. (Grievance No. 406119 at 1, Hr'g Ex. C.)
On April 3, 2012, Salter was approached by two corrections officers who were not wearing name badges. (Second Amended Complaint ¶ 29.) The two officers verbally abused Salter with racial epithets and told him that if he did not stop filing grievances against Sergeant Luzier and other S.C.I.-Rockville corrections officers:
you [Salter] will have alot [sic] of problems, it doesn't matter what block you go to, you will eventually go to the hole! [T]here won't be a safe place for you, you'll never make parole, you'll receive bogus misconduct reports, evidence will be planted in your cell, like drugs, shanks, etc.(Second Amended Complaint ¶ 32.) On April 4, 2012, Salter filed grievances regarding threats, racial intimidation, and retaliation. (Second Amended Complaint ¶ 33.) In addition, he reported the incident to Superintendent Lamas, who told him that Sergeant Luzier and S.C.I.-Rockview's other corrections officers do not retaliate against inmates, so Salter must have done something wrong. (Second Amended Complaint ¶ 34.)
Salter attempted to file another abuse grievance and, on May 9, 2012, was approached again by the same two unidentified corrections officers who again verbally abused Salter and stated:
[we] told you no matter how much complaining you do, just keep writing those grievances against Sgt. Luzier, correctional officers, [and] prison officials here at SCI Rockview, keep on, what will happen next, you won't like it. . . . None of the prison officials . . . will believe a word you said in your grievances, so you're [sic] stupid [expletive] will eventually go to the hole, you can count on that! . . . Best advice I can give your black [expletive], is go back on the plantation where it belongs, and pick cotton like the good [racial epithet] you are, and try us, we'll still be here, your big black
[expletive] will either be in the hole, or maybe in one of those fields where the prison buries prisoners who die here in this prison.(Second Amended Complaint ¶ 36-38.) After this incident, Salter sent numerous request slips to Captain Eaton and Lieutenant Vance requesting to file an abuse grievance, but received no response. (Second Amended Complaint ¶ 39.) Salter also reported the threats to Superintendent Lamas, who responded "Salter, heed the advice of those two (2) male Caucasian correctional officers, stop filing grievances, and maybe the retaliation, threats, intimidation, and harassment will stop." (Second Amended Complaint ¶ 40.) In addition, Salter alleges that all four Defendants have told him that he must stop filing grievances against them before retaliation in the form of misdirected mail, a lack of raises at his prison job, and refusal to staff Salter in a higher-paying job will stop. (Second Amended Complaint ¶ 47.)
On the basis of these allegations, Salter filed a Complaint with the trial court on August 3, 2012, alleging claims of retaliation and violation of Salter's First Amendment right of access to the courts. The Defendants filed Preliminary Objections in the nature of demurrer and on the grounds that Salter failed to properly format his Complaint. On September 6, 2012, Salter amended his Complaint. The Defendants filed a Motion to Dismiss Salter's Amended Complaint (Motion to Dismiss) pursuant to Section 6602(e)(2) on the grounds that the Defendants were entitled to assert the affirmative defense of sovereign immunity and that the Amended Complaint failed to state a viable claim for negligence, retaliation, or denial of access to the courts. On November 20, 2012, the trial court dismissed the Amended Complaint for failure to state a cognizable claim, but granted Salter leave to file a Second Amended Complaint. Salter filed his Second Amended Complaint on December 6, 2012. In his Second Amended Complaint Salter articulated claims, pursuant to 42 U.S.C. § 1983, of retaliation against each of the Defendants, alleging that they caused Salter's mail to be misdirected to other inmates, prevented Salter from getting a higher-paying prison job, prevented Salter from getting a raise in his current prison job, and intimidated Salter for filing grievances.
Section 1983 provides that:
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 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.
Along with the Second Amended Complaint, Salter also filed a Supplemental Pleading of More Than One Cause of Action on December 20, 2102 (Supplemental Pleading), in which he alleged that the Defendants were still conspiring to retaliate against him by misdirecting or not delivering his mail, confiscating legal documents, and threatening him. The Defendants filed a Motion to Strike Supplemental Pleading on January 29, 2013, arguing that Salter's Supplemental Pleading was improper because he had not received the Defendants' consent or leave of the trial court. The trial court struck the Supplemental Pleading by Order dated March 1, 2013. Salter has not appealed this aspect of the trial court's Order and the Supplemental Pleading is not, therefore, at issue in this appeal.
On December 20, 2012, the Defendants filed Preliminary Objections arguing that Salter's Second Amended Complaint failed to state a cognizable claim. In addition, on January 29, 2013, the Defendants filed a Motion to Dismiss the Second Amended Complaint pursuant to Section 6602(e)(2) on the grounds that Salter had failed to exhaust his administrative remedies with respect to his claims. The trial court held an evidentiary hearing two days later, on February 1, 2013. At the hearing, the Defendants adduced the testimony of S.C.I.-Rockview's grievance coordinator. The grievance coordinator testified that of the 12 grievances Salter filed in 2012, he only exhausted the grievance process with respect to one grievance, which had to do with his cellmate's smoking. (Hr'g Tr. at 13-14.) The Defendants introduced Salter's 12 grievances, and the responses thereto, into evidence. Salter was present at the hearing, cross-examined the grievance coordinator, and argued on his own behalf.
Five of the twelve grievances introduced by the Department addressed the subject matter of Salter's Second Amended Complaint. In Grievance No. 406119, dated March 22, 2012, Salter complained about his initial interaction with Sergeant Luzier, wherein Salter was not allowed to use the telephone and Sergeant Luzier allegedly told Salter that, if Salter filed a grievance over the matter, Salter would suffer retaliation. (Grievance No. 406119 at 2, Hr'g Ex. C.) This grievance was rejected by a grievance officer and Superintendent Lamas, but was not appealed to final review by the Department.
In Grievance No. 407743, dated April 4, 2012, Salter described his first encounter with the two unidentified corrections officers that allegedly occurred on April 3, 2012, wherein the two officers allegedly verbally abused Salter and threatened him with retaliation if he continued to file grievances against corrections officers at S.C.I.-Rockview. (Grievance No. 407743 at 1, Hr'g Ex. D.) This grievance was rejected by a grievance officer and Superintendent Lamas, but was not appealed to final review by the Department.
In Grievance No. 412361, dated May 9, 2012, Salter complained of a cell block move that he believed was attributable to retaliation from Sergeant Luzier. (Grievance No. 412361 at 1-2, Hr'g Ex. F.) A grievance officer rejected this grievance and Salter did not appeal.
In Grievance No. 412077, dated May 11, 2012, Salter described his belief that Sergeant Luzier was retaliating against him by causing his mail to be delivered to the wrong cell block. (Grievance No. 412077 at 1-2, Hr'g Ex. E.) This grievance was rejected by a grievance officer, but was not appealed to Superintendent Lamas.
In Grievance No. 414464, dated May 25, 2012, Salter complains that he was being treated differently than other inmates in that he was refused a pay raise at his prison job, which he attributed to retaliation. (Grievance No. 414464 at 1-2, Hr'g Ex. G.) A grievance officer rejected this grievance and Salter did not appeal.
On March 1, 2013, the trial court issued an Order dismissing the Second Amended Complaint for failure to exhaust administrative remedies, pursuant to Section 6602(e)(2), and dismissed the Defendants' Preliminary Objections as moot. Salter appealed to this Court. In his Statement of Matters Complained of on Appeal, Salter argues that the trial court erred in holding that his claims should be dismissed for failure to exhaust administrative remedies. In its Pa. R.A.P. 1925(a) Opinion, the trial court held that Salter failed to follow through with the Department's three-step grievance procedure with 11 of his grievances and did not allege any retaliation claim in the one grievance he did appeal to a final determination. Therefore, the trial court held that Salter failed to exhaust his administrative remedies.
On appeal to this Court, Salter argues that the trial court erred in dismissing his Second Amended Complaint pursuant to Section 6602(e)(2) because: (1) the Department's regulations do not require that all three steps of the grievance process be completed; (2) two of his grievances were not responded to within the timeframe set out in the Department's policies, thereby preventing Salter from exhausting these grievances; and (3) the Defendants' retaliation and intimidation hindered or prevented Salter from fully pursuing the grievance process.
This Court's "review of a trial court's grant of a motion to dismiss is limited to determining whether the trial court abused its discretion or committed an error of law." DeFilippo v. Cranberry Township Board of Supervisors, 49 A.3d 939, 941 n.1 (Pa. Cmwlth. 2012).
As a preface to addressing Salter's arguments, we note that Section 6602(e) of the PLRA provides:
Dismissal of litigation. --Notwithstanding any filing fee which has been paid, the court shall dismiss prison conditions litigation at any time, including prior to service on the defendant, if the court determines any of the following:
(1) The allegation of indigency is untrue.
(2) The prison conditions litigation is frivolous or malicious or fails to state a claim upon which relief may be granted or the defendant is entitled to assert a valid affirmative defense, including immunity, which, if asserted, would preclude the relief.
42 Pa. C.S. § 6602(e). Section 6603(a) of the PLRA provides that prison conditions litigation "alleging in whole or in part a violation of Federal law shall be subject to any limitations on remedies established by Federal Law or Federal courts with respect to Federal claims." 42 Pa. C.S. § 6603(a). As a Section 1983 action, Salter's claims sound in Federal law. Section 1997e(a) of Title 42 of the United States Code provides that no prison condition litigation may be initiated "until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). Thus, in order to raise claims before the trial court, Salter must have exhausted his administrative remedies with respect to the subject matter of those claims.
The court may reinstate the prison conditions litigation where the dismissal is based upon an untrue allegation of indigency and the prisoner establishes to the satisfaction of the court that the untrue information was not known to the prisoner.
We first address Salter's argument that the Department's regulations do not require all three steps of the Department's grievance process to be completed. In Jones v. Bock, 549 U.S. 199, 218 (2007), the United States Supreme Court held that the steps required for an inmate to exhaust his administrative remedies are defined by the relevant grievance process. The Department's grievance process is broadly described at Section 93.9 of the Department's regulations, 37 Pa. Code § 93.9, which provides:
(a) The Department will maintain an inmate grievance system which will permit any inmate to seek review of problems which the inmate experiences during the course of confinement. The system will provide for review and resolution of inmate grievances at the most decentralized level possible. It will also provide for review of the initial decision making and for possible appeal to the Central Office of the Department. An inmate will not be disciplined for the good faith use of the grievance systems. However, an inmate who submits a grievance for review which is false, frivolous or malicious may be subject to appropriate disciplinary procedures. A frivolous grievance is one in which the allegations or the relief sought lack any arguable basis in fact as set forth in DC-ADM 804 -- Inmate Grievance System, which is disseminated to inmates.37 Pa. Code § 93.9. Salter argues that because this regulation provides for the resolution of grievances "at the most decentralized level possible," and because the regulation states that "[i]nmates may also pursue available remedies in State and Federal court," it is sufficient that he filed grievances regarding the actions that form the basis for his Second Amended Complaint. This argument, however, is not supported by this Court's case law.
(b) Inmates may also pursue available remedies in State and Federal court.
Pursuant to 37 Pa. Code § 93.9, the Department's grievance process is also governed by its policy DC-ADM 804. DC-ADM 804 provides that, after an initial determination on an inmate grievance, an inmate may appeal first to the facility manager (i.e., the superintendent) and then to a final review with the Department. (DC-ADM 804 §§ 2-A, 2-B.) This Court has held that when an inmate fails to appeal the denial of his grievance to final review with the Department, he has failed to exhaust his administrative remedies under Section 93.9 and DC-ADM 804. See Humphrey v. Department of Corrections, 939 A.2d 987, 993 (Pa. Cmwlth. 2007) (holding that an inmate failed to exhaust his remedies under DC-ADM 804 where he showed that his initial grievance was denied but did not allege that he had appealed the denial to the facility manager or the Department). Therefore, Salter's argument that DC-ADM 804 did not require him to appeal the denials of his grievances to the Department in order to exhaust his remedies under the policy is without merit.
DC-ADM 804 may be found at http://www.portal.state.pa.us/portal/server.pt/document/919465/804_inmate_grievances_pdf.
Next, we address Salter's argument that he was unable to exhaust his administrative remedies because Superintendent Lamas did not respond to two of his grievance appeals, Grievance No. 406119 and Grievance No. 407743, within the timeframe set forth by DC-ADM 804. DC-ADM 804 provides that when an inmate appeals a grievance determination to a facility manager, the facility manager or her designee shall respond to the appeal within 15 working days of receipt of the appeal. (DC-ADM 804 § 2-A(2)(d).) The facility manager's response must be received before an inmate may take a final appeal to the Department. (See DC-ADM 804 § 2-B(1)(g) (requiring that an appeal to final review must include the facility manager's response).) Salter argues that he did not receive Superintendent Lamas' response to his grievances until the morning of the February 1, 2013 evidentiary hearing on the Defendants' Motion to Strike.
The documents submitted by the Defendants at the February 1, 2013 hearing include Salter's Grievance No. 406119 and Grievance No. 407743. As noted above, Grievance No. 406119 described Salter's original Complaint that Sergeant Luzier would not let him use the telephone when a late meal time prevented Salter from using the phone at the time he had signed up for and that Sergeant Luzier threatened Salter with retaliation if Salter filed a grievance over the matter. (Grievance No. 406119 at 1-2, Hr'g Ex. C.) Grievance No. 406119 indicates that it was received by the Superintendent's office as an appeal on April 4, 2012. (Grievance No. 406119 at 5, Hr'g Ex. C.) It indicates that Superintendent Lamas responded on May 17, 2012. Grievance No. 407743 described Salter's first encounter with the two unidentified corrections officers that allegedly occurred on April 3, 2012, wherein the two officers verbally abused Salter and threatened him with retaliation if he continued to file grievances against corrections officers at S.C.I.-Rockview. (Grievance No. 407743 at 1, Hr'g Ex. D.) Grievance No. 407743 indicates that it was received by Superintendent Lamas' office as an appeal on April 26, 2012. (Grievance No. 407743 at 4-5, Hr'g Ex. D.) Like Grievance No. 406119, Grievance No. 407743 indicates that Superintendent Lamas responded on May 17, 2012, which is within 15 working days of April 26, 2012. While the response to Grievance No. 406119 took more than 15 working days, Superintendent Lamas responded before Salter filed his original Complaint on August 3, 2012. Thus, the May 17, 2012 response afforded Salter sufficient time to appeal Superintendent Lamas' response to final review with the Department prior to filing his original Complaint.
While Salter argues that he did not receive the Superintendent's responses to Grievance Nos. 406119 and 407743 until February 1, 2013, Salter did not offer support for this allegation at the evidentiary hearing on the issue of exhaustion. Moreover, the fact that Superintendent Lamas failed to timely respond to two of Salter's grievances would not excuse him from pursuing the remaining grievances regarding the conduct that formed the basis for Salter's Second Amended Complaint.
Although Salter cross-examined the Defendants' witness and offered argument on his own behalf, he did not request to testify and the Defendants did not call him as a witness.
Finally, we address Salter's argument that he exhausted the grievance process as far as was reasonable given that the Defendants were intimidating him and retaliating against him for using the grievance process. Salter argues that the retaliation and intimidation that the Defendants conspired to cause him prevented or deterred him from pursuing his grievances. The requirement that an inmate exhaust his administrative remedies prior to bringing a federal cause of action, such as Salter's Section 1983 claims in this case, is mandatory. Jones, 549 U.S. at 211; Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007). The exhaustion requirement may not be avoided on the grounds that filing a grievance would be futile or the relief that could be granted by the grievance process would be inadequate. Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000). The Third Circuit has not issued a precedential opinion on whether retaliation or fear of retaliation constitutes an exception to the exhaustion requirement. In its unpublished opinions, it has held that fear of retaliation does not excuse a failure to exhaust administrative remedies. Pena-Ruiz v. Solorzano, 281 Fed. Appx. 110, 113 (3d Cir. 2008) (non-precedential). However, the Third Circuit has also held that "retaliation or threats of retaliation against an inmate for pursuing a grievance" may excuse exhaustion if such would deter a "'similarly situated individual of ordinary firmness.'" Verbanik v. Harlow, 441 Fed. Appx. 931, 933 (3d Cir. 2011) (non-precedential).
Per Rule 32.1 of the Federal Rules of Appellate Procedure, Federal courts may not prohibit the citation of non-precedential opinions issued on or after January 1, 2007.
In this case, Salter alleges that he has actually suffered threats and retaliation in the form of denied pay raises, denial of a better-paying job, and misdirected mail. Any such retaliation, however, has not deterred Salter from continuing to file grievances, including grievances against correctional officers. Salter alleges that Sergeant Luzier originally threatened him with retaliation on March 19, 2012, that he was approached by the two unidentified corrections officers on April 3, 2012 and May 9, 2012, and that retaliation such as misdirected mail and denied pay raises continued up through the filing of his original Complaint.
However, at the evidentiary hearing, the Defendants introduced additional grievances that Salter filed that were unrelated to the subject matter of the current case, but occurred after the alleged threats and retaliation. For instance, in Grievance No. 423197, dated August 7, 2012, Salter complains that a certain corrections officer pushed Salter's cellmate into him, causing Salter to fall and hit his head. (Grievance No. 423197 at 1, Hr'g Ex. H.) In Grievance No. 423905, dated August 13, 2012, Salter alleges that the same corrections officer questioned why Salter reported him and asked him to change his story. (Grievance No. 423905 at 1, Hr'g Ex. I.) In Grievance No. 426330, dated August 29, 2012, Salter alleges that, after a cell block move, some of his property, including legal papers, was missing but that certain named corrections officers told him there was nothing that could be done. (Grievance No. 426330 at 1-2, Hr'g Ex. J.) In Grievance No. 427347, dated September 4, 2012, Salter complained that water pitchers had been removed from the tables at meals. (Grievance No. 427347 at 1, Hr'g Ex. K.) In Grievance No. 430568, dated October 1, 2012, Salter complained that corrections officers were not preventing his cellmate from smoking. (Grievance No. 430568 at 1, Hr'g Ex. L.) This is the only grievance Salter filed in 2012 that he pursued to a final appeal with the Department. In Grievance Nos. 435451 and 437647 filed on November 5, 2012 and November 20, 2012, respectively, Salter alleged that the mail room was not giving him proper receipts for his sent mail. (Grievance No. 435451 at 1, Hr'g Ex. M; Grievance No. 437647 at 1, Hr'g Ex. N.)
From these grievances, it is evident that any alleged intimidation or retaliation did not deter Salter from continuing to file grievances, including grievances against named corrections officers. Salter's argument that the Defendants' intimidation or retaliation prevented him from appealing the grievances he filed to final review by the Department is, therefore, without merit.
For these reasons, we affirm the Order of the trial court.
We note that this case is distinguishable from this Court's recent decision in Bussinger v. Dyne, ___ A.3d ___ (Pa. Cmwlth., No. 2330 C.D. 2012, filed September 26, 2013). In Bussinger the petitioner was subject to an official grievance restriction pursuant to DC-ADM 804 § C-1 that prevented him from filing more than one grievance every 15 business days. Id. at ___ & n.4, slip op. at 3 & n.4. In this case, Salter failed to show that intimidation by the Defendants deterred him from pursuing the grievances he filed. --------
/s/ _________
RENÉE COHN JUBELIRER, Judge ORDER
NOW, October 4, 2013, the Order of the Court of Common Pleas of Centre County in the above-captioned matter is hereby AFFIRMED.
/s/ _________
RENÉE COHN JUBELIRER, Judge