1

 On February 3, 2006, Thomas B. Schmidt, III, Justin G. Weber, and Natalie Grill Einsig

entered their appearances as counsel on behalf of the Plaintiff. 

2

 We will refer to the following Defendants as the “Corrections Defendants,” as did the

Magistrate Judge in his report: Jeffrey A. Beard, Donald Kelchner, Robert Marsh, Jr., Blaine

Steigerwalt, Richard Southers, K.D. Kyler, Frederick Wawrose, J. L. Grace, A.S. Williamson,

and R.M. Lawler.

1

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

BRIAN N. BAKER, : No. 4:CV-05-281

:

Plaintiff : (Judge Jones)

:

v. : (Magistrate Judge Smyser)

:

JEFFREY A. BEARD, et al., :

:

Defendants. :

MEMORANDUM AND ORDER

June 20, 2006 

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The plaintiff, Brian N. Baker (“Plaintiff” or “Baker”), a prisoner originally

proceeding pro se, commenced this 42 U.S.C. § 1983 (“§ 1983") action by filing a

complaint in the United States District Court for the Middle District of

Pennsylvania on February 8, 2005.1

 (See Rec. Doc. 1). The case was referred to

Magistrate Judge J. Andrew Smyser for preliminary review. 

On January 26, 2006, the Corrections Defendants2

 filed a Motion for

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2

Summary Judgment pursuant to Fed.R.Civ.P. 56 (“the Motion”), which has been

briefed by the parties. On May 1, 2006, Magistrate Judge Smyser issued a report

recommending that the Corrections Defendants’ Motion be granted because of

Plaintiff’s failure to exhaust administrative remedies. (Rep. & Rec. at 1-2). On

May 15, 2006, Plaintiff filed objections to the Magistrate Judge’s Report and

Recommendation, to which the Corrections Defendants replied on June 1, 2006.

(Rec. Docs. 109, 112). Plaintiff then filed a reply brief on June 15, 2006. (Rec.

Doc. 113). 

STANDARD OF REVIEW:

We initially note that summary judgment is appropriate if "there is no

genuine issue as to any material fact and . . . the moving party is entitled to

judgment as a matter of law." FED .R. CIV. P. 56(c); see also Turner v. ScheringPlough Corp., 901 F.2d 335, 340 (3d Cir. 1990). The party moving for summary

judgment bears the burden of showing "there is no genuine issue for trial." Young

v. Quinlan, 960 F.2d 351, 357 (3d Cir. 1992). Summary judgment should not be

granted when there is a disagreement about the facts or the proper inferences which

a fact finder could draw from them. Peterson v. Lehigh Valley Dist. Council, 676

F.2d 81, 84 (3d Cir. 1982). 

Initially, the moving party has a burden of demonstrating the absence of a

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3

genuine issue of material fact. Celotex Corporation v. Catrett, 477 U.S. 317, 323

(1986). This may be met by the moving party pointing out to the court that there is

an absence of evidence to support an essential element as to which the non-moving

party will bear the burden of proof at trial. Id. at 325.

Federal Rule of Civil Procedure 56 provides that, where such a motion is

made and properly supported, the non-moving party must then show by affidavits,

pleadings, depositions, answers to interrogatories, and admissions on file, that

there is a genuine issue for trial. FED. R. CIV. P. 56(e). The United States Supreme

Court has commented that this requirement is tantamount to the non-moving party

making a sufficient showing as to the essential elements of their case that a

reasonable jury could find in its favor. Celotex Corp., 477 U.S. at 322-23. 

It is important to note that “the non-moving party cannot rely upon

conclusory allegations in its pleadings or in memoranda and briefs to establish a

genuine issue of material fact." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 511

(3d Cir. 1994) (citation omitted). However, all inferences "should be drawn in the

light most favorable to the non-moving party, and where the non-moving party's

evidence contradicts the movant's, then the non-movant's must be taken as true."

Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.

1992), cert. denied, 507 U.S. 912 (1993) (citations omitted).

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4

Still, "the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)(emphasis in original). "As to

materiality, the substantive law will identify which facts are material." Id. at 248.

A dispute is considered to be genuine only if "the evidence is such that a

reasonable jury could return a verdict for the nonmoving party." Id.

When objections are filed to a report of a magistrate judge, we make a de

novo determination of those portions of the report or specified proposed findings or

recommendations made by the magistrate judge to which there are objections. See

United States v. Raddatz, 447 U.S. 667 (1980); see also 28 U.S.C. § 636(b)(1);

Local Rule 72.3l. Furthermore, district judges have wide discretion as to how they 

treat recommendations of a magistrate judge. See id. Indeed, in providing for a de

novo review determination rather than a de novo hearing, Congress intended to

permit whatever reliance a district judge, in the exercise of sound discretion,

chooses to place on a magistrate judge's proposed findings and recommendations. 

See id., see also Mathews v. Weber, 423 U.S. 261, 275 (1976); Goney v. Clark,

749 F.2d 5, 7 (3d Cir. 1984).

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FACTUAL BACKGROUND:

The Magistrate Judge provided a detailed rendition of the factual

background that precipitated Plaintiff’s original complaint. Accordingly, to

summarize, Plaintiff alleges that the Corrections Defendants conspired against him

by placing him in the Special Management Unit (“SMU”) in retaliation for his

filing of grievances against them, and that he has been denied due process because

the conditions in the SMU are more restrictive and less humane than the conditions

in the Restricted Housing Unit (“RHU”) from which he was transferred. (Rep. &

Rec. at 2-4). Plaintiff also alleges that the Corrections Defendants have violated

and continue to violate his Eight Amendment rights by manifesting a deliberate

indifference to his serious mental health needs. Id. at 2-3. This claim emanates

from the fact that Plaintiff allegedly has not received psychological or psychiatric

treatment in the SMU, that prescribed medicines were discontinued upon his

placement in the SMU, and that his requests for treatment and reinstatement of his

medications have been denied. Id. at 2. Finally, Plaintiff alleges that his due

process rights were further violated by being placed in the SMU because there are

no prescriptive programs available to SMU inmates, parole is automatically denied

when prescriptive programs are not completed, prison officials do not recommend

parole for any SMU inmate, and because the Pennsylvania Board of Probation and

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3

 The Pennsylvania Department of Corrections has implemented a three-tiered official

Inmate Grievance System. (Rep & Rec. at 7). This system requires an inmate to present his

grievance to the Facility Grievance Coordinator for initial review. Id. at 8. The inmate then

appeals an unfavorable decision to the Facility Manager. Id. An appeal then can be made to the

Secretary’s Office of Inmate Grievances and Appeals for final review. Id. According to Tracy

Pollock, an administrative officer for the Secretary’s Office of Inmate Grievances and Appeals,

and as explained by Magistrate Judge Smyser in his report, administrative records indicate that

the Plaintiff submitted three grievances that were rejected for final review. (Rec. Doc. 89, Decl.

of Pollock at ¶ 5). Consequently, Pollock concludes that Plaintiff has not exhausted available

administrative remedies. Id. at ¶ 9.

4

 42 U.S.C. § 1997e(a) states the following: “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.” While Corrections Defendants note that there is nothing in either the

plain text of 42 U.S.C. § 1997 nor in its legislative history that indicates that an affirmative

defense of exhaustion can be raised at this juncture of litigation, we deny to infer that these

absences mandate a denial of an exhaustion defense. Rather, we shall look to the precedents of

other courts as guidance in disposing of the instant Motion.

6

Parole does not consider SMU inmates for parole. Id. at 4. 

Corrections Defendants filed a Motion for Summary Judgment regarding

these allegations, which was granted by Magistrate Judge Smyser in his Report and

Recommendation of May 1, 2006.

DISCUSSION:

As their sole basis for summary judgment, Corrections Defendants contend

that the Plaintiff has failed to exhaust available administrative remedies,3

 as

required by statute.4

 Failure to exhaust available administrative remedies is an

affirmative defense, Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002), that must be

pleaded and proven by the Corrections Defendants, Brown v. Croak, 312 F.3d 109,

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5

 Plaintiff cites Allah v. Blaine, 2005 U.S. App. LEXIS 28317 (3d Cir. December 21,

2005), as support for this proposition. While that case similarly involved the failure to plead an

exhaustion defense in an answer to a pro se complaint filed by an inmate, the defendant prison

officers did not assert the exhaustion defense until after the plaintiff’s appeal of an unfavorable

District Court verdict was remanded to the District Court by the Third Circuit Court of Appeals.

The exhaustion defense was denied because “[Corrections Defendants] did not raise the defense

of nonexhaustion until after the District Court expended considerable resources adjudicating the

merits of several of [the plaintiff’s] claims . . . and . . . had expended its resources to adjudicate

[plaintiff’s] first appeal.” Allah v. Blaine, 2005 U.S. App. LEXIS 28317, 5. 

Allah is distinguishable from the present case for several reasons. First, in this case,

Corrections Defendants raised the affirmative defense of exhaustion at the summary judgment

stage, as opposed to after a remand of an appeal as was the case in Allah. Second, the resources

expended in the present case do not come close to the pervasive level of expenditures present in

Allah. 

7

111 (3d Cir. 2002). Plaintiff avers that Corrections Defendants have waived this

affirmative defense by failing to assert it in their answer to the initial complaint. 

However, the case from which Plaintiff derives this proposition is factually

distinguishable from the case sub judice.

5

 

The Third Circuit has traditionally held that the barometer for determining

whether a post-answer exhaustion defense can be raised is whether the “opposing

party has notice of the defense sufficient to avoid prejudice.” Eckhaus v. Conrail,

2003 U.S. Dist. LEXIS 25045, 31 (D.N.J. 2003). While a court may utilize liberal

federal pleading standards to permit a defendant to amend his answer to add a

previously unpled exhaustion defense, courts have held that raising an affirmative

exhaustion defense after proceeding to trial constitutes such prejudice and should

not be permitted. Williams v. Runyon, 130 F.3d 568, 574 (3d Cir. 1997); see also

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6

 Plaintiff contends that the Corrections Defendants cannot properly plead the affirmative

defense of exhaustion because they neglected to raise this defense when they asserted their

Motion to Dismiss; however, courts have not found this logic dispositive. “The Court finds that

Local 143 has not waived the failure to exhaust affirmative defense by failing to plead it in its

initial answer or by failing to argue it in a motion to dismiss. It raised the issue prior to trial and

may still properly put the question in issue.” Local 143, 188 F. Supp. 2d at 1018.

7

 The affirmative defense of failure to exhaust administrative remedies is permitted even

though it was not pleaded in an answer when there is no evidence of bad faith on the part of

defense counsel and when there is no prejudice to plaintiff because plaintiff had knowledge of

facts upon which that defense was based and notice of the possibility that defense would be

asserted. Van Pier v. Long Island Sav. Bank, 20 F. Supp. 2d 535, 540 n.6 (S.D.N.Y. 1998).

First, it is notable that there appears to be no bad faith on the part of defense counsel in the

instant case. Second, “Is the grievance process completed?” was one of the questions present on

the §1983 complaint form completed by the Plaintiff. (Rec. Doc. 1). We are confident that such

a question gave Plaintiff adequate notice that exhaustion of remedies was an important aspect of

his claim. Plaintiff should have thus anticipated that the subject of exhaustion of remedies could

be raised during this litigation. Accordingly, we find that Plaintiff suffers no prejudice in

permitting Corrections Defendants to use his alleged nonexhaustion as a defense at the summary

judgment stage of this litigation.

8

Hall v. Operative Plasterers’ and Cement Masons’ Int’l Ass’n Local Union 143,

188 F. Supp. 2d 1013, 1018 (S.D. Ill. 2001). Corrections Defendants have raised

their exhaustion defense at an appropriate point in time since they do so prior to

adjudication6

 and since the Plaintiff will not suffer any appreciable prejudice if the

Corrections Defendants are permitted to utilize this defense.7

Corrections Defendants base their Motion for Summary Judgment upon the

above-referenced exhaustion defense. As previously noted, the Motion should be

granted if there exist no genuine issues of material fact regarding Plaintiff’s

exhaustion of remedies. Although the Plaintiff did not exhaust available

administrative remedies prior to filing his complaint, he contends that exhaustion

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9

occurred subsequent to the filing of his complaint. (Rep & Rec. at 10). However,

pursuant to 42 U.S.C. §1997e(a), the Plaintiff is required to exhaust available

administrative remedies before filing suit. Johnson v. Jones, 340 F.3d 624, 627 (8th

Cir. 2003); see Oriakhi v. U.S., 165 Fed. Appx. 991, 993 (3d. Cir. 2006); see

Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002); accord Medina-Claudio v.

Rodriquez-Mateo, 292 F.3d 31, 36 (1st Cir. 2002); Neal v. Goord, 267 F.3d 116,

122 (2d. Cir. 2001). Thus, there is no genuine issue of material fact that Plaintiff

failed to abide by the guidelines of 42 U.S.C. §1997e(a) by filing suit prior to the

exhaustion of available administrative remedies. The Corrections Defendants’

Motion for Summary Judgment is therefore granted. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. Magistrate Judge Smyser’s Report and Recommendation (doc. 106) is

adopted in its entirety for the reasons cited herein. 

2. Defendant’s Motion for Summary Judgment (doc. 87) is GRANTED.

3. The Clerk is directed to close the file on this case.

s/ John E. Jones III

 John E. Jones III

United States District Judge

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