Ray v. Kertes

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-10-2005
Ray v. Kertes
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1875
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Ray v. Kertes" (2005). 2005 Decisions. Paper 1229.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1229
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 04-1875
________________
FREDERICK T. RAY, III
Appellant
v.
C.O. KERTES; C.O. STOLZ; C.O. REED; C.O. RODGERS;
LT. NASH; LT. HICKS; LT. A. SMITH; CAPT. ALMANSHIFER;
R. NORRIS; TIM LAUNTZ
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 99-cv-00396)
District Judge: Honorable Malcolm Muir
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
May 4, 2005
Before: NYGAARD, VAN ANTWERPEN AND STAPLETON, CIRCUIT JUDGES
(Filed : May 10, 2005)
_______________________
OPINION
_______________________
1
PER CURIAM
Frederick T. Ray, III, pro se, a former inmate of the Pennsylvania State
Correctional Institution at Huntingdon (“SCI-Huntingdon”), sued correctional officers
and other prison officials pursuant to 42 U.S.C. § 1983 for violations of his First, Fifth,
Eighth, and Fourteenth Amendment rights. Defendants Harold Kertes, John Stoltz,
Michael Rodgers, Robert Reed, the late John Nash, James Hicks, William Altmanshofer,
Richard Norris, Ashley Smith, and Timothy Launtz moved to dismiss the Complaint, or in
the alternative, for summary judgment in their favor. The District Court dismissed the
Complaint against the late John Nash, because Ray had not substituted a representative of
Nash’s estate in compliance with Federal Rule of Civil Procedure 25(a)(1). The District
Court also granted summary judgment on Ray’s excessive force claims, after finding that
Ray did not exhaust his administrative remedies, and on Ray’s retaliation and due process
claims, after finding that no genuine issue of material fact existed for these claims. Ray
appeals.1 The District Court’s order will be affirmed in part and vacated in part.
The claim against the late John Nash was properly dismissed. Pursuant to Federal
Rule of Civil Procedure 25, an action against a deceased party shall be dismissed if a
motion for substitution of the proper party is not made within 90 days after a suggestion
1
This is Ray’s second appeal from orders in his underlying lawsuit. Ray prevailed on
his first appeal; we reversed the District Court’s decision to dismiss his complaint sua
sponte for failure to exhaust administrative remedies. See Ray v. Kertes, 285 F.3d 287 (3d
Cir. 2002).
2
of death is filed on the record. See F ED. R. C IV. P. 25(a)(1) (2004). Defendants filed and
served a suggestion of John Nash’s death on May 2, 2003. Ray did not substitute a
representative of Nash’s estate.
Summary judgment also was properly granted on Ray’s First Amendment
retaliation claims against Defendants Kertes, Stoltz, Reed, Rodgers, Hicks, Smith,
Launtz, and Altmanshofer and on his due process claims against Defendants Norris and
Smith. Evidence that supports Defendants’ contention that they did not retaliate against
Ray includes declarations from Department of Corrections employees and copies of the
threatening notes that Ray wrote. Ray did not counter Defendants’ evidence or otherwise
substantiate his claim of retaliation. Similarly, in the face of evidence from Defendants
that Ray’s due process rights were not violated, Ray submitted nothing to create a genuine
issue of material fact.
However, summary judgment in favor of Defendants Kertes, Soltz, Reed, and
Rodgers on the excessive force claims stemming from incidents on June 16, 1998 and
November 16, 1998 should not have been granted. The Prison Litigation Reform Act
requires a prisoner to exhaust administrative remedies before bringing a complaint about
prison conditions, including a complaint about excessive force by prison guards. See 42
U.S.C. § 1997e(a) (2004); Ray v. Kertes, 285 F.3d 287, 291 (3d Cir. 2002). In the District
Court, Defendants submitted a declaration to show Ray’s failure to exhaust. In that
declaration, an administrative officer and records custodian in the Office of Inmate
3
Grievances and Appeals for the Department of Corrections averred that she had searched
a database and had determined that “[Ray] did not exhaust his grievance rights claiming
that any officers used force on him on June 16, 1998, or November 16, 1998.”
Declaration of Tshanna Kyler at ¶ 5. We disagree with the District Court’s conclusion
that this declaration shows that “[a]ccording to the records of the Department of
Corrections, Ray did not seek final review in accordance with DC-ADM 804 of his
grievances with the Chief Hearing Examiner of the Pennsylvania Department of
Corrections.” District Court Memorandum & Order at 10. Kyler’s conclusory statement,
mirroring the statutory language, does not constitute a factual report describing the steps
Ray did or did not take to exhaust his grievances in compliance with Department of
Corrections Administrative Directive 804 (“DC-ADM 804”). Presenting only this
insufficient declaration, Defendants did not carry their burden to show Ray’s failure to
exhaust his administrative remedies. See F ED. R. C IV. P. 56(e) (2004).
Furthermore, even if the Kyler declaration were sufficient proof of Ray’s failure to
exhaust his administrative remedies through the procedures set forth in DC-ADM 804,
Ray makes an additional argument that he exhausted his administrative remedies through
the misconduct appeals process. He also claims that the DC-ADM 804 procedures were
unavailable because a prison regulation disallowed grievances from inmate disciplinary
proceedings. The misconduct appeals process, set forth separately in Department of
Corrections Administrative Directive 801, may not be relevant to whether Ray exhausted
4
his administrative remedies or whether Ray could not exhaust his administrative remedies
through DC-ADM 804. Cf. Spruill v. Gillis, 372 F.3d 218, (3d Cir. 2004) (holding that the
exhaustion requirement of the PLRA includes a procedural default component, but also
describing DC-ADM 804 as the Pennsylvania grievance procedure, noting that it is fair to
hold inmates to a single unchanging set of grievance rules, and emphasizing that the
warden is responsible for the grievance system). However, when this Court was
presented with the same argument at an earlier juncture in this case, we noted that the
District Court in the first instance should consider whether an inmate may satisfy his or
her exhaustion obligation in the course of the proceedings charging the inmate with
misconduct. See Ray v. Kertes, 285 F.3d 287, 297-98 (3d Cir. 2002). The District Court
did not discuss, as it should on remand, whether Ray satisfied his exhaustion obligation
through the misconduct proceedings.
Moreover, although we express no opinion on the merits of Ray’s related argument
that DC-ADM 804 procedures were unavailable to him, the District Court may wish to
consider it, also. In Brown v. Croak, this Court, citing Ray v. Kertes for the proposition
that the availability of administrative remedies to a prisoner is a question of law, made
clear that the PLRA requires exhaustion of all available remedies, not all remedies. See
312 F.3d 109, 111 (3d Cir. 2002). The Brown defendants were found to not have carried
their burden to show failure to exhaust because a prisoner excused his failure to meet the
formal requirements of DC-ADM 804 by contending that he relied to his detriment on
5
prison officials who misled him into thinking that he had to wait until a security
investigation was complete before filing a grievance. See id. at 111-13. This Court
remanded for a determination of whether Brown’s reliance was justified, and whether the
procedures of DC-ADM 804 were unavailable to him. See id. at 112-13. See also Giano
v. Goord, 380 F.3d 670, 678-79 (2d Cir. 2004) (holding that a prisoner’s civil rights suit
was not barred by his failure to exhaust because it was justified by his reasonable belief
that his appeal of a disciplinary misconduct charge foreclosed his ability to otherwise
exhaust his administrative remedies); Hemphill v. New York, 380 F.3d 680, 690 (2d Cir.
2004) (remanding a case to the district court to determine whether the allegedly confusing
regulations of New York Department of Correctional Services presented special
circumstances that justified the plaintiff’s failure to follow normal grievance procedures);
Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (remanding a case to the district
court to determine whether grievance regulations were “sufficiently confusing so that a
prisoner ... might have reasonably believed that he could raise his claim against [a
correctional officer] as part of his defense in disciplinary proceedings [instead of in a
separate grievance]”).
Although this Court “may affirm a correct decision by a lower court on grounds
different from those used by the lower court in reaching its decision,” see Erie
Telecomms. v. Erie, 853 F.2d 1084, 1089 (3d Cir. 1988), we cannot do so in this case.
Summary judgment on the merits of the excessive force claims is not appropriate because
6
genuine issues of material fact remain.
For the reasons stated, the District Court’s order will be affirmed to the extent that
it dismissed the claim against the late John Nash, and to the extent that it granted
summary judgment with respect to Ray’s First Amendment retaliation claims against
Defendants Kertes, Stoltz, Reed, Rodgers, Hicks, Smith, Launtz, and Altmanshofer and
his due process claims against Defendants Norris and Smith. The District Court’s order
will be vacated to the extent that it granted judgment in favor of Defendants Kertes, Soltz,
Reed, and Rodgers on the excessive force claims stemming from incidents on June 16,
1998 and November 16, 1998. This matter is remanded to the District Court for further
proceedings consistent with this opinion.