IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

MARK WHALING, )

)

Plaintiff, )

v. ) C.A. No. 08-210 Erie

)

ERIE COUNTY PRISON, et al., )

 )

Defendants. )

MEMORANDUM ORDER

On February 4, 2010, this Court entered an Amended Memorandum Judgment

Order [34] in the above-captioned case which, among other things, partially denied the

motion [25] filed by the Erie County Prison (“ECP”) Defendants to dismiss Plaintiff’s 1

Amended Complaint. Specifically, this Court denied the motion insofar as it sought a

summary judgment relative to Plaintiff’s claim under 42 U.S.C. § 1983 that his Eighth 2

Amendment rights were violated in connection with the ECP Defendants’ utilization of a

restraint chair. The Court ruled that, as to that particular claim, material issues of fact

remained in dispute, rendering summary judgment inappropriate.

Thereafter, the ECP Defendants filed a motion for reconsideration of my

February 4, 2010 ruling relative to the Eighth Amendment claim. Defendants argue that

an independent basis for summary judgment exists as to that claim – namely, Plaintiff’s

 The following named Defendants are referred to collectively as the “Erie County 1

Prison Defendants”: to wit, Erie County Prison, James Veshecco, Shawn Wilson, Mark

Olowin, Joey Aganello, Eugene Ricci, Brian Ames, Craig Owens, Adam Johnson,

Edward Yeaney, Robert Kremenick, Thomas Loftus, Andrew Parks, Leslie Danowski,

and Willie Damper.

 The Magistrate Judge had previously converted the Defendants’ Rule 12(b)(6) 2

motion to a Rule 56 motion for summary judgment, as the Defendants’ arguments had

relied on documents outside of the pleadings. See Fed. R. Civ. P. 12(d) (“If, on a

motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not

excluded by the court, the motion must be treated as one for summary judgment under

Rule 56.”).

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failure to exhaust his administrative remedies in accordance with the Prison Litigation

Reform Act (“PLRA”), 42 U.S.C.A. § 1997e(a).

The PLRA governs the procedures inmates must follow in order to prosecute

§ 1983 claims regarding their prison conditions. Pertinently, the statute provides that:

No action shall be brought with respect to prison conditions under

section 1983 of this title ... 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.A. § 1997e(a). As the statute makes clear, a § 1983 plaintiff is required to

exhaust only those administrative remedies that are “available.” Brown v. Cloak, 312

F.3d 109, 110 (3d Cir. 2002) (“The PRLA does not require exhaustion of all remedies.

Rather, it requires exhaustion of such administrative remedies “as are available.”).

Failure to exhaust administrative remedies is an affirmative defense. Jones v.

Bock, 549 U.S. 199, 216 (2007). Accordingly, it is the defendant’s burden to plead and

prove that the plaintiff failed to exhaust all available administrative remedies in

accordance with the PLRA. Brown, 312 F.3d at 111; Ray v. Kertes, 285 F.3d 287, 295

(3d Cir. 2002); Planker v. Ricci, Civil No. 07-2679 (AET), 2009 WL 2928951 at *1

(D.N.J. Sept. 9, 2009). Where the party moving for Rule 56 relief bears the burden of

proof on an issue, as where he/she is asserting an affirmative defense, “that party must

show affirmatively the absence of a genuine issue of material fact; [he/she] ... must

show that, on all the essential elements of [his/her] case on which [he/she] bears the

burden of proof at trial, no reasonable jury could find for the non-moving party.” United

States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11 Cir. 1991) (cited with th

approval in In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003)).

Moreover, as part of their burden, the ECP Defendants must demonstrate that

administrative remedies were “available” to the Plaintiff. See Kaemmerling v. Lappin,

553 F.3d 669, 675 (D.C. Cir.2008) (“The [defendant] has failed to carry its burden

[under 28 U.S.C. § 1997e(a) ] of showing an administrative remedy available for [the

plaintiff] to exhaust.”) (citation omitted); Westefer v. Snyder, 422 F.3d 570, 580 (7th

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Cir.2005) (holding that defendants failed to satisfy their burden to prove the existence of

an available administrative remedy); Brown v. Valoff, 422 F.3d 926, 936-37 (9th

Cir.2005) (“As we have concluded that there can be no ‘absence of exhaustion’ unless

some relief remains ‘available,’ a defendant must demonstrate that pertinent relief

remained available, whether at unexhausted levels of the grievance process or through

awaiting the results of the relief already granted as a result of that process”) (emphasis

in the original )(citation omitted); Breedlove v. Costner, No. CIV-08-1065-D, 2010 WL

455122 at *17 (W.D. Okla. Feb. 2, 2010) (“As exhaustion is an affirmative defense, [ ]

the Defendants bear the burden to demonstrate the availability of an administrative

remedy for [the plaintiff] to challenge the disciplinary conviction.[ ]”) (footnotes omitted)

Perotti v. Medlin, No. 4:05CV2739, 2009 WL 2424547 at *9 (N.D. Ohio Aug. 3, 2009)

(recommending a finding, based on facts before the court, that defendants had not met

their initial summary judgment burden of establishing the availability of a procedure for

exhausting the plaintiff’s claim administratively or of providing a remedy for that claim).

Here, the ECP Defendants have presented evidence indicating that Plaintiff

never grieved his Eighth Amendment claim pursuant to the grievance procedures

available at SCI-Houtzdale. However, the incident in question occurred at the Erie

County Prison, not SCI-Houtzdale, and there is nothing of record to suggest that the

grievance procedure utilized at SCI-Houtzdale is an “available administrative remedy”

for purposes of the specific Eighth Amendment violation being alleged in this case. See

Kaemmerling, 553 F.3d at 246 (“The statutory requirement of an available remedy

presupposes authority to take some action in response to a complaint. ... Thus, if ‘the

relevant administrative procedure lacks authority to provide any relief or to take any

action whatsoever in response to a complaint,’ then a prisoner is left with nothing to

exhaust and the PLRA does not prevent the prisoner from bringing his or her claim

directly to the district court.”) (citing Booth v. Churner, 532 U.S. 731, 736 (2001)). See

also Larkin v. Galloway, 266 F.3d 718, 723 (7 Cir. 2001) (a prisoner must exhaust any

th

prison administrative process that is “empowered to consider his complaint and ... could

take some action in response to it.”). Because the ECP Defendants have failed to

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demonstrate the absence of a genuine issue of material fact concerning the Plaintiff’s

alleged failure to exhaust his administrative remedies, they are not entitled to entry of a

summary judgment on the Plaintiff’s remaining § 1983 claim. Accordingly, the following

order is entered:

AND NOW, to wit, this 22 day of June, 2010, upon consideration of the ECP nd

Defendants’ Motion for Reconsideration of this Court’s Amended Memorandum

Judgment Order [34] dated February 4, 2010,

IT IS HEREBY ORDERED that said motion is GRANTED inasmuch as this Court

has considered the Defendants’ motion [25] for a summary judgment relative to the

Plaintiff’s remaining § 1983 claim based on the Defendants’ assertion that Plaintiff has

failed to exhaust his administrative remedies pursuant to the PLRA. IT IS FURTHER

ORDERED, however, that the ECP Defendants’ request for substantive relief is

DENIED, as the Court finds that the Defendants have failed to demonstrate the

absence of a genuine issue of material fact concerning this affirmative defense.

s/ Sean J. McLaughlin 

SEAN J. McLAUGHLIN

United States District Judge

cm: all parties of record.

U.S. Magistrate Judge Susan Paradise Baxter

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