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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH THORN, :

: Case No. 4:CV-06-0016

Plaintiff, :

:

v. :

:

JOSEPH SMITH, Warden, TROY : (Judge McClure)

WILLIAMSON, DAVE MOFFAT, :

D. SCOTT DODRILL & :

HARLEY G. LAPPIN :

:

Defendants. :

M E M O R A N D U M

August 17, 2006

BACKGROUND:

On January 4, 2006, plaintiff Joseph Thorn, proceeding pro se, commenced

the instant Bivens action in the United States District Court for the Middle District

of Pennsylvania. As part of his complaint, Thorn asserts that the crowded housing

conditions at the Federal Prison Camp in Lewisburg, and the camp’s planned

expansion to house more inmates, amount to cruel and unusual punishment under

the Eighth Amendment of the United States Constitution. The complaint and

motion for a temporary restraining order (TRO) and preliminary injunction filed on

January 4, 2006, were largely identical to documents he filed in an action he

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 1 of 15
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commenced in 2005, an action which was ultimately dismissed by this court for his

failure to exhaust administrative remedies. Thorn v. Smith, No. 4:05-CV-0166

(M.D. Pa. July 29, 2005) (McClure, J.).

On February 14, 2006, we granted plaintiff leave to file an amended

complaint with new defendants. On March 6, 2006, we timely received plaintiff’s

amended complaint and supporting memorandum of law. The amended complaint

added defendants Troy Williamson, Dave Moffat, D. Scott Dodrill, and Harley G.

Lappin. Thorn’s amended complaint, largely identical to his previously filed

complaints, sought a temporary restraining order and a preliminary injunction.

On March 7, 2006, we denied Thorn’s request for a TRO, dismissed the

portion of his complaint referencing criminal prosecution, and ordered service of

the amended complaint on the new defendants. On May 23, 2006, we denied

plaintiff’s request for a preliminary injunction. On May 12, 2006, the government

filed a motion to dismiss or, in the alternative, for summary judgment. By order

dated June 13, 2006 we provided Thorn an extension of time to file his brief in

opposition to the defendants’ dispositive motion. On August 14, 2006, Thorn filed

his brief in opposition captioned “Plaintiff’s Response to the Defendant’s Brief in

Support of the Motion to Dismiss, or in the Alternative for Summary Judgment.” 

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 2 of 15
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 (Rec. Doc. No. 46.) For the following reasons we will grant the defendants’

motion to dismiss.

DISCUSSION:

I. LEGAL STANDARD

A. Judgment on the Pleadings and Failure to Exhaust

The defendants have filed a motion to dismiss or in the alternative a motion

for summary judgment. For the following reasons we will construe the motion,

which relies on an exhaustion defense, as a motion for judgment on the pleadings. 

In Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), the United States Court of

Appeals for the Third Circuit held that when a prisoner fails to exhaust under the

PLRA the action should be dismissed without prejudice, and a defendant’s motion

to dismiss should be treated as a motion for judgment on the pleadings pursuant to

Federal Rule of Civil Procedure 12(c) because failure to exhaust administrative

remedies is an affirmative defense under 42 U.S.C. § 1997e(a). Id. at 223 n.2.

Federal Rule of Civil Procedure 12(c) governs motions for judgment on the

pleadings. That rule indicates that when “matters outside the pleadings are

presented to and not excluded by the court, the motion shall be treated as one for

summary judgment and disposed of as provided in Rule 56.” Fed. R. Civ. P. 12(c). 

Defendants have attached to their motion a series of exhibits that the court has

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considered. The United States Court of Appeals for the Third Circuit held in

Spruill that a court may consider “indisputably authentic documents . . . without

converting it to a motion for summary judgment.” Spruill, 372 F.3d at 223.

B. Motion to Dismiss Standard in Evaluating Judgment on Pleadings

The standard in evaluating a motion for judgment on the pleadings is not

materially different from the standard for a motion to dismiss. Id. at 223 n.2.

When considering a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), the court must view all allegations stated in the complaint as true and

construe all inferences in the light most favorable to plaintiff. Hishon v. King &

Spalding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir.

1993). In ruling on a motion to dismiss the court primarily considers the

allegations of the pleading, but is not required to consider legal conclusions alleged

in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court

considers whether plaintiff is entitled to offer evidence to support the allegations in

the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A

complaint should be dismissed only if the court, from evaluating the allegations in

the complaint, is certain that under any set of facts relief cannot be granted. 

Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School

Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906

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According to Moffat’s declaration, submitted as an exhibit to the

government’s brief in opposition to Thorn’s request for a preliminary injunction,

the dormitory cubes are open ended with no doors. 

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F.2d 100, 103 (3d Cir. 1994).

The failure-to-state-a-claim standard of Rule 12(b)(6) “streamlines litigation

by dispensing with needless discovery and factfinding.” Neitzke v. Williams, 490

U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where

there is a “dispositive issue of law.” Id. at 326. If it is beyond a doubt that the

non-moving party can prove no set of facts in support of its allegations, then a

claim must be dismissed “without regard to whether it is based on an outlandish

legal theory or on a close but ultimately unavailing one.” Id. at 327.

II. STATEMENT OF RELEVANT FACTS

Thorn has been confined at USP Lewisburg’s satellite camp since December

1, 2004. Thorn’s complaints revolve around alleged overcrowding at the satellite

camp.

On July 12, 2004, before Thorn’s arrival at the camp, defendant Dave

Moffat issued a memorandum to the inmates at the Lewisburg Camp notifying

them that most cubes at the camp would become three man cubes instead of two

man cubes.1

 At that time the inmates were informed that additional telephones

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An additional 207 inmates assigned to a residential drug treatment program,

referred to as RDAP, are housed in a separate facility. These inmates, in addition

to the 480 inmates noted above, account for total inmate statistics on the BOP

website.

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would be added, administration building hours would be extended, and television

viewing times would be expanded. The inmates were informed that because of the

increase in prison population visiting procedures might be changed, but that

inmates would be given notice to alert their families. These changes have since

been implemented.

At the time of the of the American Correctional Association’s (ACA’s) reaccreditation audit, the population of the Lewisburg Camp was 346 inmates, all

housed in two housing units. Today, 480 inmates are housed in those two housing

units.2

 Although the population has increased, there has not been a significant

increase in disciplinary infractions or sanitation problems. According to defendant

Moffat’s affidavit, although there have been disagreements and physical

altercations between inmates, there has not been a riot while Thorn has been

housed at Lewisburg.

In December 2004 a small number of inmates that were transferred to the

Lewisburg Camp from another facility were found to have scabies infections. All

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 6 of 15
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the infected inmates, fewer than 12, were treated both by the USP Lewisburg

Health Services staff and a contract dermatologist. Their clothing issue and

mattresses were exchanged, and the situation was quickly resolved. According to

Moffat, there have not been any cases of inmates contracting “scabies” since that

time.

Safety department staff conduct a weekly tour to inspect all camp facilities

to ensure compliance with safety (including fire safety) rules and regulations. Fire

drills are conducted on a quarterly basis.

The ACA representatives were permitted unlimited access to the Lewisburg

facilities during the June 29, 2004 - July 1, 2004 re-accreditation audit. Both staff

and inmates were notified in writing of the opportunity to meet and discuss any

concerns with the ACA representatives. Defendant Smith did not receive any

monetary bonus for passing the ACA audit, nor did he receive any cash award

when the inmate population at the Lewisburg Camp was increased.

The BOP has an administrative remedy procedure with respect to inmate

complaints. See 28 C.F.R. § 542.10, et seq. On May 12, 2006, K. Michael

Sullivan, BOP attorney, conducted a search of the records to determine whether

Thorn had exhausted available administrative remedies regarding the issues he

raises in his complaint. This review revealed that Thorn has filed forty-four (44)

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administrative grievances regarding issues at FPC-Lewisburg since he arrived there

on December 1, 2004. The defendants have characterized thirty-one (31) of the

administrative grievances as not pertaining to any of the issues raised in the

complaint. The defendants then note that the thirteen (13) remaining grievances

plaintiff failed to exhaust available administrative remedies concerning these

claims prior to commencing his action on January 4, 2006.

Specifically, on June 9, 2005, Thorn filed an administrative remedy number

379031-R1 to the Northeast Regional Office, instead of filing at the institutional

level. In this administrative remedy Thorn alleged that the camp was overcrowded

and the issue was “sensitive.” On June 10, 2005, the remedy was rejected because

the issue was not deemed sensitive and Thorn needed to file his remedy at the

institutional level, and because Thorn failed to attach a copy of his informal

resolution attempt. Thorn was directed to file at the institutional level. Instead

Thorn filed an appeal on June 27, 2005, which was rejected and he was again

instructed to file at the institutional level.

On October 20, 2005, Thorn filed administrative remedy number 392292-F1

at the institutional level. In this filing he complained about the noise in the

telephone area of his housing unit. On November 7, 2005, he re-filed his remedy

with the specific request of a thirty-percent reduction in noise around the inmate

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The government has similarly demonstrated that administrative remedy

number 392297-F1 in which he alleged there was an unsafe environment at the

camp was also untimely appealed by him. The Central Office’s final rejection of

that remedy did not occur until February 8, 2006, well after he instituted this civil

action.

The government has also demonstrated that Thorn’s administrative remedy

number 392303-F1 which involved the size/capacity of rooms at the prison camp,

and health and fire concerns was untimely appealed. The Central Office’s final

rejection of that remedy, in which they found his appeal untimely, did not occur

until February 24, 2006, again after the date he instituted this civil action.

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telephones. This remedy request was denied at the institutional level on November

14, 2005 and at the Regional Office level on December 23, 2005. Thorn did not

appeal this remedy to the Central Office until January 30, 2006, well after he

instituted this action on January 4, 2006. His appeal was denied by the Central

Office on February 21, 2006.3

III. THORN FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES

PRIOR TO FILING HIS COMPLAINT

“[F]ederal prisoners suing under Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388 (1971), must first exhaust inmate grievance procedures”

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The program provides that, with certain exceptions, “an inmate shall first

present an issue of concern informally to staff, and staff shall attempt to informally

resolve the issue before an inmate submits a Request for Administrative Remedy.”

28 C.F.R. § 542.13(a). Next, if informal resolution fails, the inmate must submit to

the warden “a formal written Administrative Remedy Request, on the appropriate

form (BP-9),” within 20 “calendar days following the date on which the basis for

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before filing a claim in federal court. Porter v. Nussle, 534 U.S. 516, 524 (2002). 

The Prisoner Litigation Reform Act of 1995 (“PLRA”) provides that “[n]o action

shall be brought with respect to prison conditions under [42 U.S.C. § 1983], 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) (2000). “[T]he PLRA’s 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, 534 U.S. at 532.

The Bureau of Prisons has established a multi-tier Administrative Remedy

Program whereby a federal prisoner may seek review of any aspect of his

imprisonment. See 28 C.F.R. §§ 542.10-542.19. The program outlines the steps

an inmate must take before fully exhausting his administrative remedies.4

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 10 of 15
the Request occurred.” Id. at § 542.14(a). The Warden has 20 calendar days from

the date the Request or Appeal is filed in which to respond. Id. at § 542.18.

If dissatisfied with the Warden’s response, an inmate may appeal on the

appropriate form (BP-10) to the Regional Director within 20 calendar days of the

date the Warden signed the response. Id. at § 542.15(a). If the inmate is not

satisfied with the Regional Director’s response, that decision may be appealed on

the appropriate form (BP-11) to the General Counsel within thirty calendar days

from the date the Regional Director signed the response. Id. “Appeal to the

General Counsel is the final administrative appeal.” Id.

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In Spruill, 372 F.3d at 228-230, the United States Court of Appeals for the

Third Circuit held that the exhaustion component of § 1997e includes a procedural

default component. The court indicated that “prison grievance procedures supply

the yardstick for measuring procedural default.” Id. at 231.

The exhaustion requirement is not satisfied if an inmate files an action in

district court prior to completing the administrative process. See Oriakhi v. United

States, 165 F. App’x 991, 993 (3d Cir. 2006) (citing Ahmed v. Dragovich, 297

F.3d 201, 209 & n.9 (3d Cir. 2002) & Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir.

2000)); see also Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003).

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In the instant case Thorn failed to exhaust his administrative remedies prior

to filing suit in the district court. Thorn’s brief in opposition asserts that he has

fully exhausted his claims. However, one of his exhibits demonstrates that his

administrative remedy request number 379031 was rejected for being filed at the

wrong level, because it was not a sensitive issue, and because he failed to pursue

an informal resolution or attach evidence of pursuing an informal resolution. 

Thorn’s second administrative remedy request included in his exhibits relates to

administrative remedy request number 376869, which is demanding a change in

the inmate visitation schedule. This is a peripheral argument to the relief sought in

his complaint, which asserts that the prison overcrowding amounts to cruel and

unusual punishment under the Eighth Amendment. Thorn’s other exhibits attached

to his brief in opposition include administrative remedy requests initiated after the

filing of his complaint.

CONCLUSION:

Although Thorn has filed numerous administrative remedy requests Thorn

failed to exhaust his administrative remedies regarding issues raised in this

complaint prior to filing his complaint in the district court. Therefore, in light of

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42 U.S.C. § 1997e, Spruill, and Oriakhi, we will dismiss his complaint without

prejudice. 

s/James F. McClure, Jr.

James F. McClure, Jr.

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 13 of 15
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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOSEPH THORN, :

: Case No. 4:CV-06-0016

Plaintiff, :

:

v. :

:

JOSEPH SMITH, Warden, TROY : (Judge McClure)

WILLIAMSON, DAVE MOFFAT, :

D. SCOTT DODRILL & :

HARLEY G. LAPPIN :

:

Defendants. :

O R D E R

August 17, 2006

For the reasons set forth in the accompanying memorandum:

NOW, THEREFORE, IT IS HEREBY ORDERED THAT,

1. Defendants’ motion to dismiss or, in the alternative, motion for summary

judgment is granted, and construed as a motion for judgment on the pleadings. 

(Rec. Doc. No. 31.)

2. Thorn’s amended complaint (Rec. Doc. No. 15) is dismissed without

prejudice for failure to exhaust his administrative remedies prior to initiating suit in

the district court pursuant to 42 U.S.C. § 1997e.

3. The clerk is directed to close the case file.

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 14 of 15
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4. Any appeal taken from this order would not be in good faith.

 s/James F. McClure, Jr.

James F. McClure, Jr.

United States District Judge

Case 4:06-cv-00016-JFM Document 47 Filed 08/17/06 Page 15 of 15