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Rinaldi v. United States

United States Court of Appeals, Third Circuit

September 12, 2018

UNITED STATES OF AMERICA; HARRELL WATTS, Central Office; J.L. Norwood, Reginal Director, B.A. BLEDSOE, Warden, J. E. THOMAS, Warden; J. GRONDOLSKY, Acting Warden; MR. YOUNG, Associate Warden; MRS. REAR, Associate Warden; JOHN DOE, Captain; MR. TAGGART; DR. MINK, Psychology; MR. KISSELL, Case Manager; D. BAYSORE, Counselor; GEE, Officer; MR. BINGAMAN, Officer; MR. PACKARD, Officer; MRS. SHIVERY, Officer; B. TAUNER, Officer

          Argued: January 25, 2018

          On Appeal from the United States District Court for the Middle District of Pennsylvania (M.D. Pa. Civil Action No. 1:13-cv-00450) Honorable Sylvia H. Rambo, U.S. District Judge

          Tarah E. Ackerman, Esq. [Argued] Allegheny Technologies, Inc. Matthew R. Divelbiss, Esq. Jones Day Attorney for Plaintiff-Appellant Michael Rinaldi

          Timothy S. Judge, Esq. [Argued] Office of United States Attorney Attorney for Defendants-Appellees

          Before: KRAUSE, SCIRICA, and FUENTES, Circuit Judges


          KRAUSE, Circuit Judge.

         Appellant Michael Rinaldi, who at all relevant times was an inmate in custody at United States Penitentiary, Lewisburg ("Lewisburg" or the "Institution"), appeals the District Court's dismissal of his complaint[1] alleging that the conduct of various personnel violated his constitutional and statutory rights. His appeal requires us to resolve three matters of first impression for our Court: (1) what showing an inmate must make to establish that administrative remedies were not "available" within the meaning of the Prison Litigation Reform Act ("PLRA"); (2) whether the PLRA's exhaustion requirement is satisfied where a prison administrator elects to resolve a procedurally improper administrative request on the merits; and (3) whether a prison's housing and cellmate assignments meet the discretionary function exception to the Federal Tort Claims Act's limited waiver of sovereign immunity. For the reasons that follow, we will affirm the District Court's dismissal of Rinaldi's complaint in part and will vacate and remand in part.

         I. Factual Background

         Between November 2011 and 2012, while housed at Lewisburg, Rinaldi filed a number of administrative requests, including one related to an alleged assault and one related to alleged retaliation. He initiated his assault claim with an "informal resolution, "[2] dated January 29, 2012, alleging that he had been assaulted by a previous cellmate (Cellmate #1), and "requesting the institution discontinue its practice of forcing inmates to cell together [] regardless of their compatibility." JA 160. On February 1, after that informal request was denied, Rinaldi filed a formal request (the "Assault Request"), which the Institution eventually denied on the ground that there was "no basis for [Rinaldi's] accusations." JA 165.

         The following day, February 2, Rinaldi was transferred to another unit. According to Rinaldi's complaint, Appellee Counselor Baysore had previously warned Rinaldi that unless he stopped filing requests, "she would have him moved to a different unit and placed in a cell with an inmate who was known for assaulting his cellmates," and Appellee Officer Gee, who conducted the transfer, told Rinaldi that the reason he was being moved was because he "didn't listen" to those warnings. JA 61. Despite his protests, Rinaldi was transferred and placed in a cell with a new cellmate (Cellmate #2), who, Rinaldi alleges, threatened him by informing Lewisburg personnel, including Officer Gee and Counselor Baysore, "that if Rinaldi were placed in the cell he would kill [him]." JA 61. Over the course of the next three weeks, Rinaldi asserts he "suffered cuts and bruises and emotional distress" from several physical altercations with Cellmate #2. JA 61.

         Rinaldi sought administrative relief for the alleged retaliatory transfer on February 2, but because he allegedly was concerned about the risk of further retaliation, he opted not to file an informal resolution or initial retaliatory transfer request directly with the Institution. Instead, he followed the procedure for "Sensitive" requests, filing this claim (the "Retaliation Request") directly with the Regional Director. According to BOP records, the Retaliation Request was rejected as procedurally improper with directions to first file it at the Institution, which Rinaldi declined to do.[3]

         Separately, Rinaldi also sought to obtain administrative relief for the assault by Cellmate #2. Although Rinaldi was required to file an informal resolution and formal request with the Institution, [4] he did not do so. Rather, as he was then poised to appeal the denial of his original Assault Request (concerning Cellmate #1) to the Regional Director, he simply incorporated allegations as to both Cellmate #1 and Cellmate #2 into his appeal. As a result, the Regional Director could have rejected that appeal, at least as to Cellmate #2, on procedural grounds for failure to exhaust because his claim as to Cellmate #2 was never presented to the Institution in the first instance. Instead, however, he issued a decision that acknowledged that the appeal raised claims concerning the assaults by Cellmates #1 and #2 and rejected both claims on the merits. As the Regional Director put it:

You appeal the response from the Warden at USP Lewisburg and claim you were forced into a cell with another inmate who you allege threatened to kill you prior to being placed in the same cell. You also state you were once assaulted by a previous cellmate and received injuries. . . [T]here is no record of you being assaulted by your previous or current cellmate. . . Accordingly, your appeal is denied.

JA 168.[5]

         II. Procedural History

         Unable to obtain redress through the BOP grievance process, Rinaldi, initially proceeding pro se, filed a complaint in the Middle District of Pennsylvania raising three claims relevant to this appeal: (1) a First Amendment claim based on the retaliatory conduct alleged in the Retaliation Request; (2) an Eighth Amendment claim based on the cell placement and resulting attack by Cellmate #2 alleged in his appeal of the Assault Request; and (3) a claim pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 1346, against the United States for negligently placing Rinaldi with a cellmate that prison personnel knew or should have known would assault him.[6]

         The District Court granted the Government's "Motion to Dismiss or, in the alternative, Motion for Summary Judgment," concluding (1) the First Amendment claim was barred by the PLRA, 42 U.S.C. § 1997e(a), because Rinaldi had declined to file his Retaliation Request with the Institution and thus had not exhausted the Retaliation Request; (2) the Eighth Amendment claim covering the assault by Cellmate #2 was likewise unexhausted because Rinaldi failed to file an initial request and raised it only in the appeal of his Assault Request; and (3) the Court did not have jurisdiction over the FTCA claim because cellmate assignments fall within the discretionary function exception to the FTCA's waiver of sovereign immunity.[7] Rinaldi v. United States, No. 13-cv-450, 2015 WL 2131208, at *5-8 (M.D. Pa. May 7, 2015); 28 U.S.C. § 2680(a).

         After appointing pro bono counsel on appeal, we directed the parties to address, among other things, whether Rinaldi failed to exhaust his administrative remedies regarding his First and Eighth Amendment claims and the applicability of the discretionary function exception to Rinaldi's FTCA claim.

         III. Jurisdiction and Standard of Review

         The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over both the exhaustion determination, Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004), and the applicability of the discretionary function exception to the wavier of sovereign immunity, Mitchell v. United States, 225 F.3d 361, 362 (3d Cir. 2000).

         IV. Discussion

         Below we consider whether Rinaldi exhausted his First Amendment and Eighth Amendment claims before turning to Rinaldi's FTCA claim.

         A. Exhaustion under the PLRA

         Congress enacted the PLRA to reduce the "disruptive tide of frivolous prisoner litigation." Woodford v. Ngo, 548 U.S. 81, 97 (2006). In contrast to its precursor, the Civil Rights of Institutionalized Persons Act, § 7, 94 Stat. 352 (1980), which had a "weak exhaustion provision," the PLRA "invigorated" the administrative remedy of exhaustion, Woodford, 548 U.S. at 84, by providing:

[n]o action shall be brought with respect to prison conditions under Section 1983 of this title, or any other Federal law, by a prisoner confined in any jail . . . until such administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a) (emphasis added). Exhaustion is thus a non-jurisdictional prerequisite to an inmate bringing suit and, for that reason, as we held in Small v. Camden County, it constitutes a "'threshold issue that courts must address to determine whether litigation is being conducted in the right forum at the right time.'" 728 F.3d 265, 270 (3d Cir. 2013) (quoting Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010)). We make that determination by "evaluating compliance with the prison's specific grievance procedures," Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010), and analyzing whether the procedures were "available" to the inmate. Small, 728 F.3d at 269, 271; 42 U.S.C. § 1997e(a).

         While Small made clear that factual disputes relevant to exhaustion may be resolved by a district judge without the participation of a jury, id. at 271, we recently clarified that, before engaging in such fact-finding, the judge must provide the parties with "some form of notice . . . and an opportunity to respond," although we left the exact form of this notice to "the discretion of the district court [] on a case-by-case basis." Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018). At a minimum, however, the court must "notify the parties that it will consider exhaustion in its role as a fact finder under Small," and, although live testimony is not necessarily required, it also "must at least provide the parties with an opportunity to submit materials relevant to exhaustion that are not already before it." Id; see Small, 728 F.3d at 269.

         1. Rinaldi's First Amendment Retaliation Claim

         Rinaldi argues that his First Amendment claim should not have been dismissed on exhaustion grounds because the safety risks of filing directly with the Institution rendered that administrative remedy unavailable. Because we must measure whether Rinaldi exhausted his administrative remedies against the yardstick of the grievance procedures set forth in the relevant BOP regulations, see 28 C.F.R. §§ 542.13-.18; Drippe, 604 F.3d at 781, we will first summarize (a) the relevant administrative remedies under BOP regulations and (b) the case law relevant to the availability of those remedies under the PLRA before addressing (c) the showing an inmate must make to prove unavailability, and (d) whether remand is necessary to determine if Rinaldi can make that showing here.

         (a) Exhaustion of BOP Administrative Remedies

         As a general matter, inmates must (1) attempt an informal resolution with staff at the institution, id. § 542.13(a); 2)file a formal complaint with the institution, id. § 542.14(c); (3)file an appeal to the appropriate Regional Director if the inmate is not satisfied with the institution's response to the formal complaint, id. § 542.15(a); and (4) file another appeal to the General Counsel if the inmate is not satisfied with the Regional Director's response to the appeal, id. However, where an inmate "reasonably believes the issue [that is the subject of his grievance] is sensitive and the inmate's safety or well-being would be placed in danger if the Request became known at the institution," the inmate may proceed directly to Step (3) by "submit[ing] the Request directly to the appropriate

          Regional Director." Id. § 542.14(d). The inmate must "clearly mark 'Sensitive' upon the Request and explain, in writing, the reason for not submitting the Request at the institution." Id. If the appropriate reviewer does not agree that the request is "Sensitive," the regulations provide that "the inmate shall be advised in writing" that the "Request will not be accepted," and the inmate then "may pursue the matter by submitting a [] . . . Request locally" with the institution. Id.

         Here, Rinaldi considered his Retaliation Request a "Sensitive" request and therefore filed it with the Regional Director in the first instance. As discussed above, however, the Regional Director rejected it on the procedural ground that Rinaldi should have filed first with Lewisburg.[8] That tees up the first exhaustion issue we confront today: whether Rinaldi was required to submit his Retaliation Request to the Institution to satisfy the PLRA's exhaustion requirement before filing his First Amendment claim in federal court or whether he was relieved of that requirement because the opportunity to file with the Institution was not "available." 42 U.S.C. § 1997e(a).

         (b) Unavailability of Administrative Remedies

         The PLRA requires only "proper exhaustion," meaning exhaustion of those administrative remedies that are "available." Woodford, 548 U.S. at 93. In its recent decision in Ross v. Blake, the Supreme Court identified "three kinds of circumstances in which an administrative remedy, although officially on the books," is not "available" because it is "not capable of use to obtain relief": (1) when "it operates as a simple dead end-with officers unable or consistently unwilling to provide any relief to aggrieved inmates"; (2) when it is "so opaque that it becomes, practically speaking, incapable of use," such as when no ordinary prisoner can discern or navigate it; or (3) when "prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation." 136 S.Ct. 1850, 1859-60 (2016).

         We too have encountered circumstances in which a grievance process, though "officially on the books," Ross, 136 S.Ct. at 1859, is in reality incapable of use such that the PLRA's exhaustion requirement must be deemed satisfied. In Brown v. Croak, 312 F.3d 109 (3d Cir. 2002), for example, we rejected the prison's affirmative defense of failure to exhaust where the plaintiff alleged he was given misleading filing instructions, resulting in a procedural default, and argued "essentially that officials in the security department of the prison thwarted his efforts to exhaust his administrative remedies." Id. at 113. And more recently, in Robinson v. Superintendent Rockview SCI, we held that the prison "rendered its administrative remedies unavailable to [the plaintiff] when it failed to timely (by its own procedural rules) respond to his grievance and then repeatedly ignored his follow-up requests for a decision on his claim." 831 F.3d 148, 154 (3d Cir. 2016). In such circumstances, "filing suit [was the plaintiff's] only method to advance his claim." Id.

         Rinaldi now asks us to recognize another circumstance in which the grievance process is unavailable, i.e., where an inmate is deterred from pursuing an administrative grievance by a prison official's serious threats of substantial retaliation- a circumstance that Rinaldi contends falls squarely within Ross's third category because a prisoner's ability to take advantage of the grievance process has then been "thwarted" by prison administrators "through . . . intimidation." Ross, 136 S.Ct. at 1860.

         We agree that serious threats of substantial retaliation can trigger this third category of unavailability, and thus join our Sister Circuits who have held, even before Ross, that administrative remedies are not "available" under the PLRA where a prison official inhibits an inmate from resorting to them through serious threats of retaliation and bodily harm.[9]See McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015); Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011); Turner v. Burnside, 541 F.3d 1077, 1084-86 (11th Cir. 2008); Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Hemphill v. New York, 3 ...

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