IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

WALTER SCOTT, : Civil No. 3:19-cv-1387 Plaintiff (Judge Munley)

CO SMOKE, CO MORGAN, Defendants

MEMORANDUM Plaintiff Walter Scott (“Scott”), a state inmate who, at all times relevant, was

incarcerated at the State Correctional Institution at Frackville, Frackville, Pennsylvania, commenced this civil rights action pursuant to

, on August 12, 2019.

(Doc. 1). In response to the complaint, Defendants CO Smoke (“Smoke”) and CO Morgan (“Morgan”) filed a motion (Doc. 15) pursuant to Federal Rule of Civil Procedure

12(b)(6), accompanied by a supporting brief (Doc. 16), seeking dismissal for failure to

exhaust his administrative remedies prior to commencement of the action, inter alia. On

November 7, 2019, in accordance with Paladino v. Newsome,

(3d Cir.

2018), the Court placed the parties on notice that it will consider exhaustion in its role as

fact finder and afforded them the opportunity to be heard under Small v. Camden Cty.,

(3d Cir. 2013). (Doc. 17). Defendants supplemented the motion on

November 15, 2019. At that time the Court also informed Plaintiff of his obligation to

oppose Defendants’ motion and informed him that if he did not file a timely brief in

opposition, Defendants’ motion would be deemed unopposed. Plaintiff has failed to

oppose the motion. For the reasons that follow, the motion will be deemed unopposed and granted. 1. Scott’s Complaint Scott alleges that when he exited the prison dining hall on June 30, 2019, Defendant Smoke stopped him and conducted a pat down search of him, during which

Smoke squeezed his buttocks. (Doc. 1, pp. 1-3). He alleges that this action constituted

sexual assault. He indicates that he wrote a grievance, but no action was taken. (Id. at 3). He also

alleges that he had a “written Prea” but that he had not yet had a response to the

complaint. (Id.). He seeks compensatory damages. II. Standards of Review In rendering a decision on a motion to dismiss, a court should not inquire “whether

a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to

support the claims.” Scheuer v. Rhodes,

(1974); Nami v. Fauver,

(3d Cir. 1996). The court must accept as true the factual allegations in the

complaint and draw all reasonable inferences from them in the light most favorable to the

plaintiff. Innis v. Wilson,

(3d Cir. 2009) (citing Phillips v. Cnty of Allegheny,

(3d Cir. 2008)). A district court ruling on a motion to

dismiss may consider the facts alleged on the face of the complaint, as well as

“documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd.,

(2007). However, “the tenet that a court must accept as true all of the allegations contained

in a complaint is inapplicable to legal conclusions.” Ashcroft v. Iqbal,

(2009) (“‘Threadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.”). Under the pleading regime established by [Bell Atl. Corp. v.] Twombly,

(2007) and Iqbal, a court reviewing the sufficiency of a complaint must take three steps. First, it must “tak[e] note of the elements [the] plaintiff must plead to state a claim.” Iqbal,

,

. Second, it should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth.”

,

. See also Burtch v. Milberg Factors, Inc.,

(3d Cir. 2011) (“Mere restatements of the elements of a claim are not entitled to the assumption of truth.” (citation and editorial marks omitted)). Finally, “Tw]hen there are well-pleaded factual allegations, {the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal,

,

. Connelly v. Lane Const. Corp.,

(3d Cir. 2016) (internal citations, quotations and footnote omitted). Elements are sufficiently alleged when the facts in the

complaint “show” that the plaintiff is entitled to relief. Iqbal,

(quoting FED. R. CIV. P. 8(a)(2)). At the second step, the Court identities those allegations that, being merely conclusory, are not entitled to the presumption of truth. Twombly and Iqbal distinguish between legal conclusions, which are discounted in the analysis, and

allegations of historical fact, which are assumed to be true even if “unrealistic or

nonsensical,” “chimerical,” or “extravagantly fanciful.” Iqbal,

. Deciding

whether a claim is plausible is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”

Discussion Defendants seek dismissal of Scott’s complaint based on his failure exhaust his

administrative remedies as required by the Prison Litigation Reform Act of 1996 (the

“PLRA”). The PLRA “mandates that an inmate exhaust ‘such administrative remedies as

are available’ before bringing suit to challenge prison conditions.” Ross v. Blake, —U.S.

—;

(2016); see Nyhuis v. Reno,

(3d Cir. 2000)

(“[I]t is beyond the power of this court—or any other—to excuse compliance with the

exhaustion requirement, whether on the ground of futility, inadequacy or any other

basis.”). The text “suggests no limits on an inmate’s obligation to exhaust— irrespective of

‘special circumstances.””

“And that mandatory language means a court may not

excuse a failure to exhaust, even to take such circumstances into account. See Miller v.

French,

,

,

(2000) (explaining that

“(t]he mandatory ‘shall’ ... normally creates an obligation impervious to judicial discretion”).” Id. at 1856-57. “Of course, exhaustion applies only when administrative

remedies are ‘available.’ Under certain circumstances, a nominally extant prison

grievance policy is not truly an ‘available’ remedy. Ross v. Blake, —- U.S. —,

, 195 L-Ed.2d 117 (2016). This applies when the procedure ‘operates as a simple

dead end—with officers unable or consistently unwilling to provide any relief to

aggrieved inmates,” where it is “so opaque that it becomes, practically speaking, incapable of use,’ or ‘when prison administrators thwart inmates from taking advantage

of a grievance process through machination, misrepresentation, or intimidation.’

.” Shifflett v. Korszniak,

(3d Cir. 2019) The PLRA mandates that an inmate “properly” exhaust administrative remedies

before filing suit in federal court, which demands compliance with an agency’s deadlines

and other procedural rules. Woodford v. Ngo,

(2006); Spruill v. Gillis,

(3d Cir. 2004) (concluding that the PLRA includes a procedural

default component); Rivera v. Pa. Dep’t of Corr., 388 F.App’x 107, 108 (3d Cir. 2010)

(stating “[a]n inmate must exhaust his administrative remedies pricr to filing a civil

action in federal court.”). Inmates who fail to fully, or timely, complete the prison

grievance process, or who fail to identify the named defendants, are barred from

subsequently litigating claims in federal court. See Spruill,

. Notably,

prison administration must also comply with the demands of the system. “[A]s soon as a

prison fails to respond to a properly submitted grievance or appeal within the time limits

prescribed by its own policies, it has made its administrative remedies unavailable and

the prisoner has fully discharged the PLRA’s exhaustion requirement.” Shifflett,

. Whether an inmate has properly exhausted administrative remedies is a question

of law that is to be determined by the court, even if that determination requires the

resolution of disputed facts. See Small v. Camden County,

(3d Cir.

2013); see also Drippe v. Tobelinski,

(3d Cir. 2010). Defendants seek dismissal because the investigation into Scott’s PREA complaint mandated by “DC-ADM 008, Prison Rape Elimination Act (PREA) Procedures Manual”,

remains open. (Doc. 16; Doc. 18-2). Attached to Scott’s complaint (Doc. 1, p. 4), is a “Rejection Form” informing him that the subject matter of his grievance, “allegations ofa sexual nature against a staff member...” required the filing of a complaint in accordance with DC-ADM 008 Prison Rape Elimination Act (PREA). (Id.). The rejection form further advised him that the grievance was forwarded to the Security Office and the

PREA Compliance Manager for initiation of an investigation and that his grievance would be addressed in the context of the open PREA investigation. (Id.). According to

an investigative report (Doc. 18-3, p. 2) submitted by Defendants, Scott’s PREA complaint remains under investigation. (Doc. 18-3, p. 2). It is clear that Scott pursued relief in federal court prior to the exhaustion of administrative remedies. Woodford,

; Spruill,

. Itis therefore appropriate to dismiss the action for failure to complete the administrative remedy process prior to the initiation of the action. IV. Conclusion Based on the foregoing, Defendant’s motion (Doc. 15) to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure will be deemed unopposed and granted. An appropriate Order will issue.

BY THE COURT: s/James M. Munley JUDGE JAMES M. MUNLEY United States District Court Dated: December 20, 2019