UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOE M. TONEY, JR, :

:

Plaintiff : No. 4:CV-09-1412

:

vs. : (Complaint Filed 7/21/09) 

:

: (Judge Muir)

B.A. BLEDSOE, et al., :

:

Defendants :

MEMORANDUM AND ORDER

January 29, 2010

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

Plaintiff, Joe M. Toney, Jr., an inmate currently confined

in the United States Penitentiary, Lewisburg (“USP-Lewisburg”),

Pennsylvania, filed the above captioned Bivens-styled1 civil

rights action pursuant to 28 U.S.C. § 1331. Plaintiff alleges

that he was assaulted by his cellmate while handcuffed, and 

was unable to defend himself. (Doc. 1, complaint). As a

result he sustained stab wounds to the chest, neck, head, back,

and mouth and a broken tooth. Id, The named defendants are

B.A. Bledsoe, Warden at USP Lewisburg; Krista Rear,

1. Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388 (1971).

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Associate Warden at USP Lewisburg; Senior Officer Jason

Carpenter; and Senior Officer George Kulago. Id. 

Presently pending before the Court is defendants’ motion

to dismiss or, in the alternative, for summary judgment. (Doc. 

21). Defendants assert entitlement to summary judgment in

their favor because Toney failed to exhaust available

administrative remedies. The parties have fully briefed the

issues and the motion is now ripe for disposition. For the

reasons that follow, the Court will grant the defendants’

motion for summary judgment.

Standard of Review

Federal Rule of Civil Procedure 56(c) requires the court

to render summary judgment " . . . forthwith if the pleadings,

depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that there is

no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law." 

Fed.R.Civ.P. 56(c). "[T]his standard provides that 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

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issue of material fact." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 247-48 (1986) (emphasis in original). 

A disputed fact is "material" if proof of its existence or

nonexistence would affect the outcome of the case under

applicable substantive law. Anderson, 477 U.S. at 248; Gray v.

York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An

issue of material fact is "genuine" if the evidence is such

that a reasonable jury could return a verdict for the nonmoving

party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Brotherhood of Carpenters and Joiners of America, 927 F.2d

1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of

material fact, the court must view the facts and all reasonable

inferences in favor of the nonmoving party. Moore v. Tartler,

986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated Rail

Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v.

Westinghouse Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). 

In order to avoid summary judgment, however, the nonmoving

party may not rest on the unsubstantiated allegations of his or

her pleadings. When the party seeking summary judgment

satisfies its burden under Rule 56(c) of identifying evidence

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which demonstrates the absence of a genuine issue of material

fact, the nonmoving party is required by Rule 56(e) to go

beyond the pleadings with affidavits, depositions, answers to

interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Celotex

Corporation v. Catrett, 477 U.S. 317, 324 (1986). The party

opposing the motion "must do more than simply show that there

is some metaphysical doubt as to the material facts." 

Matsushita Electric Industrial Co. v. Zenith Radio, 475 U.S.

574, 586 (1986). When Rule 56(e) shifts the burden of

production to the nonmoving party, that party must produce

evidence to show the existence of every element essential to

its case which it bears the burden of proving at trial, for "a

complete failure of proof concerning an essential element of

the nonmoving party's case necessarily renders all other facts

immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F.

Corp., 967 F.2d 846, 851 (3d Cir. 1992). 

Statement of Facts

From the pleadings, declarations and exhibits submitted

therewith, the following facts can be ascertained as

undisputed. 

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On June 25, 2009, at approximately 9:45 a.m., defendant

Kulago and another staff member escorted inmate Clark to the

third floor of G-Block for the purpose of placing him in cell

324, which was already occupied by Toney. (Doc. 28, Ex. 5,

Declaration of George Kulago, USP-Lewisburg Senior Officer, at

¶ 5). Defendant Kulago was responsible for carrying inmate

Clark’s property to his new cell assignment. Id. 

As defendant Kulago and the other staff member were

escorting inmate Clark to the cell, defendant Carpenter

informed Toney he should submit to hand restraints as he was

receiving inmate Clark as a cellmate. (Doc. 28, Ex. 4,

Declaration of Jason Carpenter, USP-Senior Officer, Id. at ¶

6). Toney stated he did not know inmate Clark, however,

defendant Carpenter advised Toney that there was no reason for

Clark not to be placed in the cell, as they were not

seperatees, and as such he should accept inmate Clark as his

cellmate. Id. Toney agreed to take a cellmate and, as is

general practice, his hands were placed behind his back and

placed in restraints in anticipation of accepting inmate Clark

as his cellmate. Id. 

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Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 5 of 17
When Clark arrived at the door of cell 324, still in the

company of defendant Kulago and another staff member, defendant

Carpenter opened the door and inmate Clark entered the cell.

(Id. at ¶ 7). Defendant Kulago and the other staff member then

began to walk down the range away from the cell after the door

was closed and secured. Id. 

After defendant Kulago and the other staff members left

cell 324 in G-Block, defendant Carpenter ordered inmate Clark

to come to the cell door and to place him hand in the “wicket”2

so his restraints could be removed. Id. As each cell is

equipped with only one wicket, defendant Carpenter was only

able to remove the hand restraints from one inmate at a time.

Id. at ¶ 8.

Defendant Carpenter first removed inmate Clark’s hand

restraints, and then directed Toney to place his hands in the

“wicket” in order to have his hand restraints removed. Id. at

¶ 9. As Toney attempted to place his hands in the door’s

wicket, inmate Clark went to the back of the cell where he

2. A “wicket” is similar to a mail slot that is covered by a

flat plate with hinges and a key lock that is used to: (a)

pass items into the cell; (b) receive items from the cell;

and (c) apply and remove hand restraints from inmates

without the need to open the cell door. Id. at ¶ 8.

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Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 6 of 17
produced a weapon and proceeded to assault Toney, whose hands

were still restrained, by stabbing him and punching him in the

back of the head. Id.

Defendant Carpenter immediately called for assistance and

ordered Clark to stop assaulting Toney and return to the door

to submit to hand restraints. Id. As defendant Kulago began to

walk down the range, away from cell 324, he heard defendant

Carpenter state that Toney and Clark were fighting and there

was a weapon involved. (Doc. 28, Ex. 5, Declaration of George

Kulago, USP-Lewisburg Senior Officer, at ¶ 6). In response to

Defendant Carpenter’s request for assistance at cell 324,

defendant Kulago immediately responded to the scene and placed

a call for assistance over the radio. Id. Ignoring Defendant

Carpenter’s orders to cease assaulting Toney and submit to

restraints, inmate Clark continued to assault Toney. Id. Once

again, defendant Carpenter ordered inmate Clark to stop and

submit to hand restraints. Id.; Carpenter declaration at ¶ 9). 

Clark responded by walking to the toilet and flushing the

weapon down the toilet. Id. Clark then came to the door and

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Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 7 of 17
submitted to hand restraints. Id. Once additional staff and a

lieutenant arrived at the scene, both Clark and Toney were

removed from the cell. Id. 

Toney was immediately taken to health services, for

treatment of multiple lacerations, puncture wounds, and an

avulsed right upper tooth. Id. at ¶10; Att. B, Injury

Assessment. All superficial wounds were promptly cleaned and

it was noted the bleeding had ceased. Id. One wound on the left

side of his neck required sutures. Id. 

Plaintiff has filed twenty-one administrative remedy

requests since the June 25, 2009 incident. (Doc. 28, Att. B,

Administrative Remedy Generalized Retrieval at 17-35). Of

the twenty-one remedies, three of the remedies filed, were

filed prior to the filing of the instant action. Id. 

However, none of the three have been exhausted to final

review by the BOP’s Central Office. Id. 

On July 6, On July 6, 2009, Toney filed administrative

remedy 545967-R1 with the Bureau of Prison’s (“BOP”)

Northeast Regional Office, alleging that a correctional

officer placed an inmate in his cell while Toney was in

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Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 8 of 17
restraints. (Doc. 28, Att. B, Administrative Remedy

Generalized Retrieval at 26).

On July 7, 2009, administrative remedy 545967-R1 was

rejected because the issue was not sensitive and it was not

filed at the institutional level. Id.

On July 8, 2009, Toney filed administrative remedy

request 546304-F1, alleging that he was assaulted on June 25,

2009, requesting “protective custody single cell status by

the administration for the protection of [his] safety [as] a

gay man”, and claiming the assault “did something to [him]

mentally.” (Doc. 18, Att. E, Request for Administrative

Remedy). 

On July 14, 2009, Toney filed administrative remedy

548700-A1 with the BOP’s Office of General Counsel in

Washington, D.C., alleging he was assaulted by another inmate

after staff placed him in restraints.3 (Doc. 28, Att. B,

Administrative Remedy Generalized Retrieval at 27).

3. On August On August 17, 2009, administrative remedy

548700-A1 was rejected due to a non-sensitive issue and

failure to file at the institutional level. (Doc. 28, Att.

B, Administrative Remedy Generalized Retrieval at 27).

9

Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 9 of 17
On July 16, 2009, administrative remedy 546304-F1 was

denied by the Warden for the reasons: 

In your request for Administrative Remedy, you claim

on June 25, 2009, you were stabbed multiple times in

the chest, head, back, and mouth, and a tooth was

broken. You claim this assault occurred while you

were restrained behind your back and a staff member

refused to open the door to let you out. You are

requesting protective custody and single cell status

for your safety. You claim you are a gay man and

this incident did something to you mentally. 

An inquiry was conducted and you were assaulted on

June 25, 2009, by your cell mate with some type of

weapon. However, this was an isolated incident and

your request for protective custody and single cell

status is not warranted at this time. With respect

to your mental status, Psychology staff are

available and frequently make rounds in the housing

units. You may also write an inmate request to a

staff member requesting to see a Psychologist. 

Based on the above, your request for administrative

remedy is denied. If you are dissatisfied with this

response, you may appeal to the Regional Director,

United States Federal Bureau of Prisons, Northeast

Regional Office, United States Customs House,

Seventh Floor, Second and Chestnut Streets,

Philadelphia, PA 19106, within twenty (20) calendar

days from the date of ths response. 

(Doc. 28, Att. G, Administrative Remedy Response). 

On July 21, 2009, Toney filed the instant action, seeking

compensatory and punitive damages, as well as injunctive

relief for the June 25, 2009 assault. (Doc. 1, complaint). 

10

Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 10 of 17
On July 23, 2009, Toney filed regional administrative

remedy appeal 546304-R1 with staff at the BOP’s Northeast

Regional Office regarding the June 25, 2009 assault, alleging

that he was assaulted by another inmate and staff failed to

properly investigate the incident. (Doc. 28, Att. H, Regional

Administrative Remedy Appeal). 

 On August 21, 2009, administrative remedy 546304-R1 was

denied, and the response noted that: (a) a review of the

incident revealed that single cell status was not warranted

at that time; (b) Toney failed to inform staff of any

specific concerns or conflicts he had with his cellmate; and

(c) should Toney require psychological care, he should submit

a request to the psychology department. (Doc. 28, Att. R,

Response to Administrative Remedy 546304-R1). Although Toney

was advised of his right to appeal the Regional Director’s

decision to the General Counsel, no further appeal was filed. 

Discussion

Defendants contend that the instant action should be

dismissed for Plaintiff's failure to exhaust all available

administrative remedies with respect to all claims raised. 

In pertinent part, the Prison Litigation Reform Act provides:

11

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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.

42 U.S.C. § 1997e(a).

Under the Prison Litigation Reform Act (“PLRA”),

exhaustion of administrative remedies is required for all

actions concerning prison conditions brought under federal

law. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 126 S.Ct.

2378 (2006). The “exhaustion requirement applies to all

inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter v. Nussle, 534

U.S. 516, 532 (2002). The PLRA “completely precludes a

futility exception to its mandatory exhaustion requirement.” 

Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). The PLRA

also mandates that inmates “properly” exhaust administrative

remedies before filing suit in federal court. Woodford, 126

S.Ct. at 2387. “Proper exhaustion demands compliance with an

agency’s deadlines and other critical procedural rules

because no adjudicative system can function effectively

12

Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 12 of 17
without imposing some orderly structure on the course of its

proceedings.” Id. at 2386. Failure to substantially comply

with procedural requirements of the applicable prison’s

grievance system will result in a procedural default of the

claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir.

2004).

A prisoner does not have to allege in his complaint that

he has exhausted administrative remedies. Ray v. Kertes, 285

F.3d 287 (3d Cir.2002). Failure to exhaust available

administrative remedies is an affirmative defense. Id. As

such, it must be pleaded and proven by the Defendants. Brown

v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Defendants have

properly raised the matter of exhaustion of administrative

remedies made available to inmates confined within the Bureau

of Prisons (“BOP”). 

“The Bureau of Prisons has established an Administrative

Remedy Procedure through which an inmate may seek formal

review of a complaint which relates to any aspect of his

imprisonment if less formal procedures have not resolved the

matter. This procedure applies to all inmates confined in

Bureau of Prisons institutions. . . .” 28 C.F.R. § 542.10. 

13

Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 13 of 17
Inmates are to informally present their complaints to the

staff and the staff is to attempt to resolve the matter. 28

C.F.R. § 542.13(a). If informal resolution is unsuccessful,

the inmate is then to execute the appropriate form to bring

the matter to the attention of the warden. 28 C.F.R. §

542.14(b). The warden is then to respond to the inmate's

complaint within twenty (20) days. Id. at § 542.18. If an

inmate is dissatisfied with the warden's response, he may

then appeal to the Regional Director. Id. at § 542.15. If

the response of the Regional Director is not satisfactory,

the inmate may then appeal to the Central Office of the

Federal Bureau of Prisons, which office is the final

administrative appeal in the Bureau of Prisons. Id.

It is patently clear from the chronological background of

this action that Toney has failed to exhaust his

administrative remedies before filing the above captioned

action. Toney filed three administrative remedies prior to

the filing of the instant action, on July 21, 2009. Two were

rejected as improperly filed, and the third was not appealed

to final review. Thus, because Toney did not wait to file

his complaint until after he had received determinations from

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Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 14 of 17
administrative filings and completed the appeal process as to

those determinations, he has not met the exhaustion

requirements of the PLRA. 

Moreover, to the extent that Toney exhausted his

administrative remedies after filing this complaint, these

attempts do not constitute proper exhaustion under the PLRA.

Courts have consistently held that exhaustion requires

completion of the entire administrative remedy process prior

to filing suit. Walker v. Health Services, Lewisburg

Penitentiary, 2007 WL 1395361 at * 3 (M.D.Pa 2007) (McClure,

J.)(finding “‘exhaustion must occur prior to filing suit, not

while the suit is pending.’”) (quoting Tribe v. Harvey, 248

F.3d 1152 (6th Cir. 2000)); Ibarra v. U.S.P. Allenwood, 2007

WL 465537 at *4-5 (M.D.Pa) (Conner, J.); Gibson v. Beard,

2006 WL 1946836 at *4 (M.D.Pa 2006) (Muir, J.); Hammock v.

Bebow, 2005 WL 2100693 at *2 (M.D.Pa 2005) (McClure, J.);

Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002)(holding

that exhaustion requires completion of the entire

administrative-remedy process prior to filing suit)(emphasis

added). See also Johnson v. Jones, 340 F.3d 624, 627-28 (8th

Cir.2003) (collecting cases and holding that “the district

15

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court must look to the time of filing, not the time the

district court is rendering its decision, to determine if

exhaustion has occurred. If exhaustion was not completed at

the time of filing, dismissal is mandatory”); Perez v. Wis.

Dep’t of Corr., 182 F.3d 532, 534-35 (7th Cir. 1999) (noting

“Congress could have written a statute making exhaustion a

precondition to judgment, but it did not. The actual statute

makes exhaustion a precondition to suit”); Neal v. Goord, 267

F.3d 116, 122 (2d Cir. 2001) (holding that a prisoner may not

fulfill the PLRA’s exhaustion requirement by exhausting

administrative remedies after filing her complaint in federal

court); Underwood v. Wilson, 151 F.3d 292, 296 (5th Cir.

1998) (noting “the exhaustion process must be completed

before the federal lawsuit is filed; even complete exhaustion

following the filing of the lawsuit is not sufficient.” 

Thus, defendants are entitled to dismissal of the plaintiff’s

complaint. See Ahmed v. Dragovich, 297 F.3d 201, 209, 210

(3d Cir. 2002). 

An appropriate Order accompanies this Memorandum Opinion.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 16 of 17
UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

JOE M. TONEY, JR, :

:

Plaintiff : No. 4:CV-09-1412

:

vs. : (Complaint Filed 7/21/09) 

:

: (Judge Muir)

B.A. BLEDSOE, et al., :

:

Defendants :

ORDER

January 29, 2010

For the reasons set forth in the accompanying Memorandum,

IT IS HEREBY ORDERED THAT:

1. Defendants' motion for summary judgment

(Doc. 21) is GRANTED. Judgment is hereby

entered in favor of defendants and against

the plaintiff.

2. Plaintiff’s motion for discovery (Doc. 15)

is DISMISSED as moot. 

3. Plaintiff’s preliminary injunction and

temporary restraining order (Doc. 32) is

DENIED. 

4. The Clerk of Court is directed to CLOSE this

case. 

5. Any appeal taken from this order will be

deemed frivolous, without probable cause,

and not taken in good faith.

s/Malcolm Muir 

MUIR

United States District Judge

Case 4:09-cv-01412-MM-DB Document 50 Filed 01/29/10 Page 17 of 17