David Womack v. Joseph Smith ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
2-12-2009
David Womack v. Joseph Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2229
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2229
DAVID LEE WOMACK,
Appellant,
v.
JOSEPH V. SMITH, et al.,
Appellees.
Appeal from the Judgment of the District Court for the Middle District of Pennsylvania
(District Court Civil Action No. 06-2348)
Argued February 3, 2009
Before: McKEE, STAPLETON, Circuit Judges, and IRENAS,* Senior District Judge.
Filed : February 12, 2009
John H. Shenefield, Esq.
Maxine M. Woelfling, Esq.
Aaron B. Hewitt, Esq. (Argued)
Morgan Lewis & Brockius LLP
111 Pennsylvania Avenue, NW
Washington, DC 20004
*
The Honorable Joseph E. Irenas, Senior United States District Judge for the District
of New Jersey, sitting by designation.
Deborah M. Golden, Esq.
Washington Lawyers’ Committee for Civil Rights and Urban Affairs
11 Dupont Circle, NW
Suite 400
Washington, DC 20036
Counsel for Appellant
Martin C. Carlson, Esq.
Michael J. Butler, Esq. (Argued)
Office of the United States Attorney, Middle District of Pennsylvania
228 Walnut Street, Suite 220
Harrisburg, Pennsylvania 17108
Counsel for Appellees
OPINION
IRENAS, Senior United States District Judge.
In this Bivens1 action, Appellant David Lee Womack, a federal prisoner, appeals
the district court’s order granting summary judgment to Appellees, various prison
officials. For the reasons stated herein, we will reverse and remand.
I.
From December 8, 2004, through January 3, 2005, Womack was continuously
restrained in ambulatory restraints2 while confined in the Special Housing Unit of the
1
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
2
According to the Bureau of Prisons (“BOP”), ambulatory restraints are “approved soft and
hard restraint equipment which allow the inmate to eat, drink, and take care of basic human
2
United States Penitentiary at Lewisburg, Pennsylvania (“USP Lewisburg”).3 Womack
asserts that restraining him in this manner amounted to cruel and unusual punishment
prohibited by the Eighth Amendment because the restraints did not allow him to lie flat
on his bed, bathe, or properly clean himself after using the toilet.4 Womack also asserts
that the restraints dug into his skin, causing severe pain from raw, deep, flesh wounds.5
After his release from the ambulatory restraints, Womack was placed in solitary
confinement for the following 30 days, after which time he was placed in a cell with a
cellmate, among the general prison population.
On March 13, 2005, Womack initiated the formal grievance procedure for his
Eighth Amendment claim. That claim was found to be untimely and was alternatively
denied on the merits “for informational purposes only,” by USP Lewisburg Warden
needs without staff intervention.” (JA0429) Ambulatory restraints are the first level of restraint
in the BOP’s “progressive restraint” system. (Id.)
Womack’s ambulatory restraints consisted of “steel feet shackles, steel hand shackles, a
steel belly chain, and a black box through which the belly chain and hand shackles were bound.”
(JA0384)
3
Because it is not germane to the disposition of the present appeal, we need not discuss the
events that immediately led up to Womack’s restraint, nor Womack’s extensive and undisputed
history of behavior management problems while incarcerated. See Womack v. Smith, No. 06-
2348, 2008 WL 822114 at *1-2 (M.D. Pa. March 26, 2008).
4
In apparent contradiction to his contention that he could not properly clean himself after
using the toilet, Womack admits that while in the ambulatory restraints, he “urinated on the cell
and spread feces on the walls so that staff would have to clean the cell and bring a video recorder
[which would] document [the] staff’s inappropriate use of restraints.” (JA0385)
5
According to the Appellee prison officials, the restraints caused “minor irritation” to
Womack’s ankles and wrists. (JA0114)
3
Joseph Smith on April 1, 2005. (JA0227.003) Womack timely appealed the denial to the
proper authority, which denied the appeal on the ground that the initial grievance was
untimely. Womack timely appealed that decision to the final administrative body, which
affirmed on July 20, 2005. Womack’s initial grievance and subsequent appeals were all
drafted by Womack’s cellmate because Womack cannot read or write.
Thereafter, Womack filed the complaint in this case, asserting one count of cruel
and unusual punishment against Warden Smith, USP Lewisburg Officer Kenneth
Gabrielson, and BOP officials Harley Lappin, D. Scott Dodrill, and Harrell Watts. All
defendants moved to dismiss, and alternatively moved for summary judgment, asserting
among other arguments, that Womack failed to properly exhaust his administrative
remedies and that no Eighth Amendment violation occurred. The defendants also
sought, and were granted, a protective order which allowed only written discovery and
expressly prohibited the noticing of depositions until after the motion was decided. The
district court determined that the protective order was appropriate because the defendants
had raised the defenses of qualified immunity and Womack’s alleged failure to properly
exhaust his administrative remedies.
The district court granted summary judgment to the defendants, holding that
Womack’s procedural default (by failing to timely file his initial grievance) was not
excused. Womack, 2008 WL 822114 at *8. The district court alternatively held that no
Eighth Amendment violation occurred. Id. at *9 n.10.
4
Because disputed issues of material fact preclude summary judgment on both the
exhaustion issue and the Eighth Amendment claim, we will reverse and remand.6
II.
A.
The Prison Litigation Reform Act (PLRA), requires full and procedurally proper
exhaustion of all available administrative remedies as a prerequisite to prisoner suits
challenging prison conditions under federal law. 42 U.S.C. § 1997e(a); Woodford v.
Ngo, 548 U.S. 81 (2006); Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). “[P]rison
grievance procedures supply the yardstick for measuring procedural default.” Spruill, 372
F.3d at 231. Thus, we must examine USP Lewisburg’s prisoner handbook, which sets out
the applicable grievance procedure.
The handbook provides that the initial grievance form “must be filed within twenty
(20) calendar days from the date on which the basis for the incident or complaint
occurred, unless it was not feasible to file within that period of time.” (JA0488)(emphasis
added). Importantly, the handbook was not part of the summary judgment record before
the district court.7 When the motion was briefed and decided, the parties and the district
6
The district court had subject matter jurisdiction pursuant to 28 U.S.C. § 1331. We have
jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291. We apply a plenary standard of
review. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007).
7
Indeed, the handbook was a late addition to the record before this panel-- added
only days before oral argument was heard.
5
court apparently assumed that USP Lewisburg’s handbook was identical to the BOP’s
grievance procedures set out in the Code of Federal Regulations, which contain no
“feasibility” exception to the 20 day deadline. See 28 C.F.R. § 542.14(a) (“The deadline
for completion of . . . a formal written Administrative Remedy Request . . . is 20 calendar
days following the date on which the basis for the Request occurred.”).8 Using the BOP
regulations, the district court found no dispute that Womack failed to file his grievance
within 20 days of the incident, and therefore held that no reasonable factfinder could
conclude that Womack had complied with the procedural requirements of the PLRA.
Applying the correct standard, however, issues of material fact exist as to whether
Womack could feasibly file his formal grievance within 20 days of the complained-of
incident. After Womack’s release from the ambulatory restraints on January 3, 2005, he
spent the following 30 days in solitary confinement. Moreover, upon returning to the
general prison population, Womack asserts that “the next time a case manager came
through [his] tier” he asked her for “the necessary materials to file a grievance.”
(JA0387) According to Womack, the case manager did not deliver the grievance
materials until the week of February 19, 2005. Thus, a reasonable factfinder might
8
But see also 28 C.F.R. § 542.14(b) (“Where the inmate demonstrates a valid reason
for delay, an extension in filing time may be allowed. In general, valid reason for delay
means a situation which prevented the inmate from submitting the request within the
established time frame. Valid reasons for delay include the following: . . . an extended
period of time during which the inmate was physically incapable of preparing a
Request.”).
6
conclude that it was not feasible for Womack to file his initial grievance within 20 days of
his release from the ambulatory restraints, and therefore might determine that his initial
grievance was timely.9 Accordingly, the district court’s exhaustion decision must be
reversed.
B.
We also conclude that the district court erred in alternatively granting summary
judgment on the merits of the Eighth Amendment claim.
Prison officials violate the Eighth Amendment’s prohibition of cruel and unusual
punishment when they “act[] or fail[] to act with deliberate indifference to a substantial
risk of serious harm to a prisoner;” or, in other words, “recklessly disregard” a substantial
risk of serious harm. Farmer v. Brennan, 511 U.S. 825, 836 (1994). In Farmer, the
Supreme Court declined “to adopt an objective test for deliberate indifference,” holding,
a prison official cannot be found liable . . . unless the official knows of and
disregards an excessive risk to inmate health and safety; the official must both
be aware of facts from which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the inference.
Id. at 837.
9
Womack argues that if he failed to timely file his grievance, his procedural default
should be excused because he was illiterate and therefore did not and could not know of
the grievance deadline, which was written in the prisoner handbook. We express no
opinion on that argument. We also do not decide what significance, if any, the fact of
Womack’s illiteracy has in determining the feasibility of filing his grievance within 20
days.
7
Because the prison officials’ subjective state of mind-- what they knew and the
reasons for their actions-- are critical inquiries in the Eighth Amendment analysis, we
must conclude that the district court erred in granting summary judgment on a record that
was limited to only written discovery. Womack never had the opportunity to depose or
cross-examine the defendants to discover what they knew and why they acted (or failed to
act). Under these circumstances, it would be unfair to fault him for failing to raise an
issue of disputed fact as to the alleged Eighth Amendment violation.
Moreover, even on the limited record, disputed issues of material fact preclude
summary judgment for defendants. For example, Womack states that the ambulatory
restraints caused “big, deep” “raw” wounds on his wrists and ankles that looked like
“pink and white meat” and had a “terrible odor;” yet prison staff only cleaned his wounds
five times over the 26-day restraint period. (JA0385)
Womack also asserts that the restraints were too tight, causing him to lose
circulation in his hands and arms. He claims that a physician’s assistant told Defendant
Gabrielson that the restraints were cutting off circulation but no one adjusted the
restraints.
Lastly, disputed issues of fact exist as to whether Womack could lay down or
maintain basic personal hygiene while restrained.
If believed, Womack’s evidence, taken as a whole, creates a disputed issue of fact
as to whether prison officials were deliberately indifferent to an excessive risk to
8
Womack’s health. The issues raised by Womack are very fact sensitive, and in the
absence of his ability to depose defendants and complete discovery, his ability to develop
facts in opposition to the motion was significantly impaired. See Fed. R. Civ. P. 56(f).
Accordingly, we will reverse the district court’s grant of summary judgment on the merits
of the Eighth Amendment claim.
III.
For the reasons set forth above, the district court’s judgment will be reversed and
the case remanded for further proceedings consistent with this opinion.
9