1

 At the time of the filing of the complaint, Plaintiff was incarcerated at FCI-McKean. 

Since that time, Plaintiff has been transferred to another federal facility outside of this district.

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERNESTO SANTIAGO )

Plaintiff, )

)

v. ) C.A. No. 05-153Erie

) District Judge McLaughlin

JAMES SHERMAN, et al., ) Magistrate Judge Baxter

Defendants. )

MAGISTRATE JUDGE’S

REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss or alternatively for summary

judgment [Document # 33] be granted and this case be dismissed.

II. REPORT

A. Relevant Procedural and Factual History

On May 17, 2005, Plaintiff, a federal inmate formerly incarcerated at FCI-McKean, filed

the instant civil rights action.1 Named as Defendants are: Warden James Sherman and “Bureau

of Prisons Staff”. Plaintiff alleges that the Defendants have violated his civil rights in several

ways: 1) by losing a significant amount of legal papers; 2) opening his legal mail outside of his

presence; 3) delaying and/or preventing a phone call with Plaintiff’s attorney concerning an

appeal; 4) confiscation of and/or not allowing Plaintiff to keep legal materials in his possession. 

As relief, Plaintiff seeks an injunction and requests reimbursement for the costs of this lawsuit

as well as monetary compensation for his missing legal materials. 

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The issues are fully briefed and ripe for disposition by this Court.

B. Standards of Review

1. Pro se Litigants

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972) quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d

Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same). Because Plaintiff is a pro se litigant, this Court will consider facts and make

inferences where it is appropriate.

2. Motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Langford v.

City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). The motion cannot be granted unless

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the court is satisfied “that no relief could be granted under any set of facts that could be proved

consistent with the allegations.” Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984). See also

Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002). 

Rule 8(a) of the Federal Rules of Civil Procedure states that a pleading must set forth a

claim for relief which contains a short and plain statement of the claim showing that the pleader

is entitled to relief. The issue is not whether the plaintiff will prevail at the end but whether he

should be entitled to offer evidence in support of his claim. Neitzke v. Williams, 490 U.S. 319

(1989); Scheuer v. Rhodes, 419 U.S. 232 (1974). However, a court need not credit a

complaint's "bald assertions" or "legal conclusions" when deciding a motion to dismiss. Morse

v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997) citing In re Burlington Coat

Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d Cir.1997). Therefore, in order to

survive a motion to dismiss for failure to state a claim, the complaint must only set forth

sufficient information to suggest that there is some recognized legal theory upon which relief

can be granted. See Swierkiewicz. 

3. Motion for summary judgment

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

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.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

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burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

must resolve any doubts as to the existence of genuine issues of fact against the party moving

for summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

C. Mootness

The general principle of mootness derives from the case or controversy requirement of

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Article III of the U.S. Constitution. “This case-or-controversy requirement subsists through all

stages of federal judicial proceedings, trial and appellate ... the parties must continue to have a

personal stake in the outcome of the lawsuit.” Lewis v. Continental Bank Corp., 494 U.S. 472,

477-78 (1990). In other words, “throughout the litigation, the plaintiff must have suffered, or be

threatened with, an actual injury traceable to the defendant and likely to be redressed by a

favorable judicial decision.” Id. at 477. See also Maleng v. Cook, 490 U.S. 488, 491-492

(1989)(habeas petitioner does not remain "in custody" under conviction after the sentence

imposed has fully expired merely because of possibility that prior conviction will be used to

enhance sentences imposed for any subsequent crimes of which he is convicted). Once a

controversy ceases to exist, the court must dismiss the case for lack of jurisdiction. United

States v. Kissinger, 309 F.3d 179, 180 (3d Cir. 2002) citing Lewis, 494 U.S. at 477-78. 

In the prison context, the transfer of an inmate from the facility complained of moots

claims for injunctive relief involving that facility. See Abdul-Akbar v. Watson, 4 F.3d 195 (3d

Cir. 1993); Sutton v. Rasheed, 323 F.3d 236 (3d Cir. 2003). Since the filing of this lawsuit,

Plaintiff has been transferred to another federal facility and now his claims for injunctive relief

have become moot. Accordingly, Defendants’ motion to dismiss as to this claim should be

granted.

D. Exhaustion

1. The Exhaustion Requirement of the Prison Litigation Reform Act

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides: 

no action shall be brought with respect to prison conditions under section 1983 of

this title ... by a prisoner confined in any jail, prisons, or other correctional

facility until such administrative remedies as are available are exhausted.

Id. (Emphasis added).

The requirement that an inmate exhaust administrative remedies applies to all inmate

suits regarding prison life, including those that involve general circumstances as well as

particular episodes. Porter v. Nussle, 534 U.S. 516 (2002). See also Concepcion v. Morton,

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3 Importantly, a plaintiff’s failure to exhaust his administrative remedies does not

deprive the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d

Cir. 2000) (“...[W]e agree with the clear majority of courts that § 1997e(a) is not a jurisdictional

requirement, such that failure to comply with the section would deprive federal courts of subject

matter jurisdiction.”). 

6

306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative

exhaustion must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S.

140, 144 (1992). Federal courts are barred from hearing a claim if a plaintiff has failed to

exhaust all the available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL

2356136 (Unpublished Opinion) (10th Cir. May 8, 1997).2 The exhaustion requirement is not a

technicality, rather it is federal law which federal district courts are required to follow. Nyhuis,

204 F.3d at 73 (by using language “no action shall be brought,” Congress has “clearly required

exhaustion”). There is no “futility” exception to the administrative exhaustion requirement.

Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002) citing Nyhuis, 204 F.3d at 78.

According to a recent decision by the U.S. Supreme Court, the PLRA requires “proper 

exhaustion,” meaning that a prisoner must complete the administrative review process in

accordance with the applicable procedural rules, including deadlines. Woodford v. Ngo, ___

U.S. ___, ___, 126 S.Ct. 2378, 2386 (June 22, 2006) (“Proper exhaustion demands compliance

with an agency’s deadlines and other critical procedural rules ...”). Importantly, the exhaustion

requirement may not be satisfied “by filing an untimely or otherwise procedurally defective ...

appeal.” Id at 2382.

A plaintiff need not affirmatively plead exhaustion, but exhaustion is an affirmative

defense which is waived if not properly presented by a defendant. Ray v. Kertes, 285 F.3d 287

(3d Cir. 2002) (holding that “no provision of the PLRA requires pleading exhaustion with

particularity,” while construing the PLRA requirements in light of the Supreme Court decision

in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002)). It is the burden of a defendant asserting

the defense to plead and prove it. Id.

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2 There is a split of authority among the Circuits on this issue. Compare Berry v. Kerik,

366 F.3d 85 (2d Cir. 2004), Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), and

Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002), with Thomas v. Woolum, 337 F.3d 720 (6th

Cir. 2003).

7

2. The Procedural Default Component of the Exhaustion Requirement

The United States Court of Appeals for the Third Circuit has explicitly held that the

exhaustion requirement of the PLRA includes a procedural default component, by analogizing it

to the exhaustion doctrine (with its corollary procedural default component) in the habeas

context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir. 2004).3 The Circuit explained:

We believe that Congress's policy objectives will be served by interpreting §

1997e(a)'s exhaustion requirement to include a procedural default component.

Based on our earlier discussion of the PLRA's legislative history, [...] Congress

seems to have had three interrelated objectives relevant to our inquiry here: (1) to

return control of the inmate grievance process to prison administrators; (2) to

encourage development of an administrative record, and perhaps settlements,

within the inmate grievance process; and (3) to reduce the burden on the federal

courts by erecting barriers to frivolous prisoner lawsuits. Each of these goals is

better served by interpreting § 1997e(a)'s exhaustion language to include a

procedural default component than by interpreting it merely to require

termination of all administrative grievance proceedings.

Id. Having concluded that the PLRA includes a procedural default component, the Court then

indicated that “prison grievance procedures supply the yardstick for measuring procedural

default.” Id. at 231.

3. The Administrative Process Available to Federal Inmates

 No analysis of exhaustion may be made absent an understanding of the administrative

process available to federal inmates. The Bureau of Prisons has established a multi-tier system

whereby a federal prisoner may seek formal review of any aspect of his imprisonment. 28

C.F.R. §§ 542.10-542.19 (1997). First, "an inmate shall ... 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). Second, if an inmate at

an institution is unable to informally resolve his complaint, he may file "a formal written

Administrative Remedy Request [to the Warden], on the appropriate form (BP-9), [within] 20

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calendar days following the date on which the basis for the Request occurred." 28 C.F.R. §

542.14(a). The warden has twenty (20) days in which to respond. 28 C.F.R. § 542.18. An

inmate who is not satisfied with the warden's response may submit an appeal, on the appropriate

form (BP-10), to the appropriate Regional Director within twenty (20) calendar days from the

date the warden signed the response. 28 C.F.R. § 542.15(a). An inmate who is not satisfied

with the Regional Director's response may submit an appeal, on the appropriate form (BP-11), to

the General Counsel within thirty (30) calendar days from the date the Regional Director signed

the response. Id. The Regional Director has thirty (30) days and the General Counsel has forty

(40) days to respond. 28 C.F.R. § 542.18. 

4. Exhaustion Applied

Defendants argue that Plaintiff has failed to exhaust his administrative remedies as to his

remaining claims and that those claims should be dismissed pursuant to the PLRA. These

remaining claims are:

i. Plaintiff’s allegation regarding the loss of his legal papers during an

institutional lockdown;

ii. Plaintiff’s allegation that legal mail was opened outside his presence; and

iii. Plaintiff’s allegation that he was unable to call his attorney. 

According to Defendants, Plaintiff attempted to exhaust his administrative remedies as

to the loss of legal papers, yet stopped short of filing an appeal to the General Counsel at the

Central Office, the final stage of review. Document # 34, Exhibit 1, Declaration of Diana

Jacobs Lee, Assistant Regional Counsel at the Northeast Regional Office of the Federal Bureau

of Prisons, ¶ 12. As Plaintiff has not completely exhausted his administrative remedies as to

this issue, summary judgment should be granted in favor of Defendants. 

Plaintiff has not filed any grievance as to the other remaining claims in this case. Id.

Therefore, because Plaintiff has not exhausted in accordance with the PLRA, summary

judgment should be granted in favor of Defendants. 

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III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motion to dismiss or

alternatively for summary judgment [Document # 33] be granted and this case should be

dismissed.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date

of service to file written objections to this Report and Recommendation. Any party opposing

the objections shall have seven (7) days from the date of service of objections to respond 

thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: January 4, 2007

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