Cedric Walker v. R. Fisher ( 2018 )

BLD-160 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-2922
___________
CEDRIC TYRONE WALKER,
Appellant
v.
R. FISHER; J. ROMIG; N. BEAVER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 16-cv-01326)
District Judge: Honorable Sylvia H. Rambo
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 29, 2018
Before: RESTREPO, BIBAS, and NYGAARD, Circuit Judges
(Opinion filed April 5, 2018)
_________
OPINION*
_________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Cedric Walker, an inmate at the United States Penitentiary at Lewisburg,
Pennsylvania, filed a complaint in the United States District Court for the Middle District
of Pennsylvania, alleging violations of his Eighth Amendment rights. Walker claimed
that correctional officers chained him to his bunk and failed to provide him with food and
water for several days. He alleged that the handcuffs cut into his wrists and cut off his
circulation, and that when he complained, the Defendants threatened to tighten the cuffs.
Walker sought damages and unspecified injunctive relief.
The Defendants filed a motion for summary judgment, alleging that Walker had
failed to exhaust his administrative remedies. Defendants provided an affidavit from
Attorney Advisor Jennifer Knepper, who had reviewed the electronic database of
administrative remedy submissions. Dkt. #15-1. Knepper indicated that Walker had
filed a total of twenty-nine administrative remedies, fifteen of which were filed during the
time relevant to the complaint. Each of the fifteen filings was rejected, and each of the
three that Knepper identified as relevant to the complaint was rejected because Walker
failed to first file a remedy form at the institutional level. Id.
Walker filed a response in opposition, with an attached “Declaration” under
penalty of perjury. Walker stated in his response that he “filed several ‘Request to Staff’
asking them to provide BP-8, BP-9 (institutional level), BP-10 (Regional leval), and BP-
11 (Central Office level) that were giving/provide late to hinder his procedural
administrative rights.” Dkt. #25 at 2. Walker argued that the prison records, which
showed that his grievances had been rejected, supported his allegations that he “was
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given the incorrect forms to proceed to the correct level of review.” Id. Walker’s
“Declaration” similarly noted that he “filed several Request to Staff, requesting prison
complaints,” and that “[e]ach time they received my request, they said they would bring
me the form to file but never came back, until I filed again to request the same form,
making the complaint late.” He indicated that staff “[s]everal times” gave him incorrect
forms or told him to file at the wrong level. Dkt. #25 at 6.
In reply, Defendants submitted declarations from two correctional officers.
Correctional Counselor R. Bingaman indicated that Walker was assigned to his caseload
from April 14, 2015, to July 14, 2015. Dkt. #26-1 at 23. Bingaman indicated that when
he “receive[d] a request for a BP-8,” he would make an entry in a log book, indicating the
name of the inmate, the form number, and the date. Bingaman declared that he had
reviewed his log book for April 14 to July 14, 2015, and that Walker “did not request any
BP-8s from [him] during that time.” Id. at 24. Correctional Counselor J. Diltz indicated
that Walker was assigned to his caseload from July 14, 2015, to March 22, 2016, and
from March 24, 2016, through May 11, 2016. Dkt. #26-1 at 26. Diltz stated that when he
received a request for a BP-8, he would “give the form with the date on which it was
provided to the inmate and the inmate’s name noted on it,” and that “[o]nce the inmate
returns the completed BP-8,” he would “assign it a number and enter it into [his] log
book with the date on which it was returned.” Id. at 27. Diltz reviewed his log book for
the time in question and declared that “[d]uring that time, [Walker] did not return any
completed BP-8s” to him. Id.
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The District Court found that the Defendants had “satisfied their burden under
Rule 56 . . . in identifying evidence which demonstrates the absence of a genuine issue of
material fact.” Dkt. #31 at 12. The Court found that the record showed that “[d]espite
being informed that his grievances should be filed at the institution level, [Walker]
ignored those directives,” and that he thus had “failed to properly exhaust his
administrative remedies.” Id. The Court granted the Defendants’ motion for summary
judgment and dismissed Walker’s complaint. Walker timely appealed.1
We have jurisdiction to review the District Court’s final order under 28 U.S.C.
§ 1291. We review the District Court’s order granting summary judgment de novo and
review the facts in the light most favorable to the nonmoving party. Burns v. Pa. Dep’t of
Corr., 642 F.3d 163, 170 (3d Cir. 2011). We will affirm if our review reveals that “there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(a).
Because Walker is a prisoner, his complaint is subject to the strictures of the
Prison Litigation Reform Act (“PLRA”), and in particular here, its administrative
exhaustion requirements. Under 42 U.S.C. § 1997e(a), “[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.” (Emphasis added). It follows
1
Walker’s appeal was dismissed for failing to pay the appellate filing fee, but Walker has
since filed a motion to proceed in forma pauperis and a motion to reopen the appeal.
Those motions are both GRANTED.
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that if an administrative remedy is not “available,” it need not (and cannot) be exhausted.
See Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000). That is Walker’s allegation
here—that despite requesting the proper forms, correctional officers gave him the wrong
forms or gave him forms when it was too late to file an institutional grievance.
The availability of remedies is a question of law that often has factual components.
See Small v. Camden County, 728 F.3d 265, 271 (3d Cir. 2013). Here, there is a genuine
issue regarding whether BP-8 forms were available to Walker. While Officer Bingaman
declared that Walker did not request any BP-8s from him during the pertinent time,
notably, Officer Diltz said only that Walker did not give him any “completed” BP-8s
during the pertinent time, leaving open the question of whether Walker requested the
forms from him. And both Correctional Officers indicated that while “[a]dministrative
remedy forms are primarily distributed by Correctional Counselors, [they] may be
obtained from any member of the inmate’s Unit Team.” Dkt. #26-1 at 23, 26. Walker
thus may have unsuccessfully requested other officers to provide him with forms during
the pertinent time. Further, none of the administrative remedy forms or responses are in
the record—Defendants provided nothing more than computer-generated abstracts that
lack detail. Thus, it is unclear whether Walker complained about the unavailability of the
proper forms in those grievances.
We recently clarified that although a judge may “resolve factual disputes
regarding exhaustion,” the judge must give “some form of notice to the parties and an
opportunity to respond.” Paladino v. Newsome, No. 15-2058, 2018 WL 1354265, at *6
(3d Cir. Mar. 16, 2018). The District Court here did not have the benefit of our guidance
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in that opinion. We will thus vacate the District Court’s judgment, and remand to allow
the Court to give the parties notice of its intention to resolve the factual dispute, and give
the parties an opportunity to respond. We leave it to the District Court to determine
whether an evidentiary hearing is necessary, see id., and we express no opinion on the
question of whether administrative remedies were available to Walker.
For the foregoing reasons, we will vacate the District Court’s judgment and
remand the matter for further proceedings.2
2
Walker’s motion for appointment of counsel is DENIED.
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