Opinion
CIVIL ACTION NO. 1:17-cv-01833
02-06-2019
DOUGLAS KEMPER, Plaintiff, v. JOHN STEINHART, Corrections Health Care Administrator, et al., Defendants.
(CONNER, J.)
() SUPPLEMENTAL REPORT AND RECOMMENDATION
This is a pro se prisoner civil rights action, brought under 42 U.S.C. § 1983. The plaintiff, Douglas Kemper, was incarcerated at a state correctional facility, SCI Mahanoy, at the time of filing his complaint. He has since been released from prison.
In his complaint, Kemper alleged that prison conditions violated his Eighth Amendment right to be free from cruel and unusual punishment. In particular, he alleged that prison officials were deliberately indifferent to his serious medical needs, including severe back pain and an unspecified condition that caused the toes on his right foot to turn black and his toenails to fall off. Three defendants were named in the complaint: Courtney Rodgers, DO, Medical Director at SCI Mahanoy; John Steinhart, Corrections Health Care Administrator at SCI Mahanoy; and Kimberly Minarchick, RNS, Nurse Supervisor at SCI Mahanoy. Kemper alleged that Dr. Rodgers refused to provide medical treatment for his toe condition due to medical costs. He alleged that Minarchick failed to appropriately respond to his request for pain management with respect to his back injury, or other unspecified medical treatment for his toe condition, again due to medical costs. He alleged that Steinhart failed to respond to his inmate request forms seeking physical therapy and pain management treatment with respect to his back pain. For relief, the complaint sought an order directing the defendants to provide adequate medical care for his back and toe conditions, plus unliquidated damages.
Shortly after he filed his complaint, Kemper filed a pro se motion for a preliminary injunction, requesting an order directing the defendants to provide adequate medical care for his back pain and toe condition pendente lite. (Doc. 16).
The plaintiff's pro se motion for a preliminary injunction also requests monetary damages and costs of suit as relief. But it is well settled that a preliminary injunction order may not award monetary damages and costs of suit. See In re Arthur Treacher's Franchisee Litig., 689 F.2d 1137, 1145 (3d Cir. 1982). "Indeed, one of the prerequisites of a preliminary injunction is a showing of harm that, by its nature, cannot be redressed by money damages." Peterson v. HVM L.L.C., Civ. No. 14-1137 (KM)(SCM), 2015 WL 3648839, at *5 (D.N.J. June 11, 2015).
Dr. Rodgers filed a motion to dismiss or, in the alternative, for summary judgment. (Doc. 23). As a threshold matter, Dr. Rodgers argued that he was entitled to summary judgment with respect to Kemper's claims concerning the failure to provide medical treatment for his toe condition because Kemper failed to exhaust available administrative remedies. (See id.; Doc. 24). Later, Steinhart and Minarchick jointly filed a motion to dismiss, arguing that Kemper's claims against them should be dismissed for failure to state a claim because the complaint had failed to allege any personal involvement by them in providing (or refusing to provide) medical treatment. (Doc. 28; see also Doc. 29). Kemper filed a brief in opposition to both motions by the defendants. (Doc. 33). Dr. Rodgers filed a reply brief, noting that Kemper had failed to rebut his failure-to-exhaust defense. (Doc. 35).
On June 20, 2018, we issued a report and recommendation addressing all three motions. (Doc. 37). We recommended that the Court deny the plaintiff's motion for a preliminary injunction because he failed to demonstrate a likelihood of success on the merits of his claims. We recommended that the Court grant summary judgment in favor of Dr. Rodgers with respect to Kemper's claim concerning medical treatment of his toe condition, on the ground that Kemper had failed to properly exhaust all available administrative remedies before bringing suit. We recommended that the Court dismiss the remainder of Kemper's claims for failure to state a claim upon which relief can be granted, on the ground that Kemper had failed to allege sufficient facts to plausibly demonstrate personal involvement by any of the defendants in the alleged misconduct. We recommended, however, that Kemper be granted leave to file a curative amendment following partial dismissal of the complaint.
On or about July 19, 2018, Kemper was released from prison. He returned home to York, Pennsylvania. (Doc. 38).
On July 30, 2018, the Court rejected our recommendation in part, concluding that a recent appellate decision, Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018), required us to provide the plaintiff with notice and an opportunity to respond before resolving a factual dispute on the issue of exhaustion of administrative remedies. (Doc. 39). The matter was remanded to us for further proceedings, including the requisite notice and opportunity to respond. (Id.). The Court took no action with respect to the remainder of our report and recommendation, concerning the motions for preliminary injunctive relief and for dismissal of the plaintiff's other claims for failure to state a claim. (Id.).
On July 30, 2018, we provided the parties with the requisite notice that we intended to consider exhaustion in our role as a factfinder under Paladino and Small v. Camden County, 728 F.3d 265 (3d Cir. 2013). (Doc. 40). We directed the parties to submit briefs within twenty-one days on the issue of exhaustion, together with any affidavits, declarations, or other evidentiary materials in support of their positions with respect to exhaustion, and responsive briefs within seven days after service of the briefs to which they replied. (Id.).
On July 31, 2018, Dr. Rodgers timely filed his brief on the exhaustion issue, together with an exhibit in support. (Doc. 41).
In addition to the attached exhibit, Dr. Rodgers relied on the exhibits he had previously submitted in support of his motion for summary judgment. (Doc. 23-1).
On August 17, 2018, Steinhart and Minarchick filed a timely motion for an extension of time to submit their brief on exhaustion. (Doc. 43). On August 20, 2018, we granted the motion and directed them to file their brief on or before September 17, 2018. (Doc. 44).
On September 12, 2018, the Court received and filed an untimely pro se motion by the plaintiff for a sixty-day extension of time to file his responsive briefs on the exhaustion issue. (Doc. 46). Notwithstanding its tardiness, on September 14, 2018, we granted the motion, affording the plaintiff sixty days to respond to the defendants' briefs on the issue of exhaustion. (Doc. 48).
On September 17, 2018, Steinhart and Minarchick timely filed a brief on the exhaustion issue, together with an unsworn declaration and documentary exhibits in support. (Doc. 49).
On November 30, 2018, having received no submission on this issue by the plaintiff—neither a principal brief on the issue of exhaustion of available administrative remedies, nor a responsive brief to either of the defendants' briefs—we entered an order sua sponte granting the plaintiff an extension of time and directing him to file his responsive brief(s) on the exhaustion issue within thirty days. (Doc. 50).
On December 19, 2018, the Court received and filed the plaintiff's third pro se motion for the appointment of pro bono counsel to represent him in this matter. (Doc. 51). On January 8, 2019, we denied that motion. (Doc. 52). In doing so, we again sua sponte granted the plaintiff an extension of time and directed him to file his responsive brief(s) on the exhaustion issue within fourteen days. (Doc. 52).
Now, nearly a month later, we still have received no submission whatsoever by the plaintiff on the issue of the exhaustion of available administrative remedies.
I. MOTION FOR PRELIMINARY INJUNCTION
Kemper has moved for preliminary injunctive relief. In his motion, Kemper seeks an order directing the defendants to provide adequate medical care for his back pain and toe condition pendente lite. In our previous report and recommendation, we recommended that this motion be denied because Kemper had failed to demonstrate a likelihood of success on the merits of his claims. But since then, Kemper has been released from prison. As a result, his claim for prospective injunctive relief is now moot. See Cobb v. Yost, 342 Fed. App'x 858, 859 (3d Cir. 2009) (per curiam); see also Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) ("[A] federal court has neither the power to render advisory opinions nor to decide questions that cannot affect the rights of litigants in the case before them.") (quoting Preiser v. Newkirk, 422 U.S. 395, 401 (1975)); Abdul-Akbar v. Watson, 4 F.3d 195, 206 (3d Cir. 1993).
Accordingly, it is recommended that the plaintiff's motion for a preliminary injunction be denied as moot.
II. TOE-RELATED CLAIM AGAINST DR. RODGERS
Kemper claims that Dr. Rodgers was deliberately indifferent to his serious medical needs—namely, an unspecified medical condition that caused the toes on his right foot to turn black. Dr. Rodgers has interposed an affirmative defense, asserting that Kemper failed to exhaust his administrative remedies before bringing this action. In support, Dr. Rodgers has proffered copies of Kemper's inmate grievance records, which include grievances concerning medical treatment for his back pain, but none concerning medical treatment of his toes. Despite multiple opportunities to do so, Kemper has failed to respond to this affirmative defense at all.
A. Kemper's Grievances
In support of his position, Dr. Rodgers has submitted evidence documenting each of the four inmate grievances filed by Kemper after his transfer to SCI Mahanoy, where each of the three individual defendants works. (Doc. 23-1). In addition, Steinhart and Minarchick have submitted the unsworn declaration of non-party Keri Moore, the statewide assistant chief grievance officer, together with authenticated copies of DC-ADM 804—the Pennsylvania Department of Corrections ("DOC") policy outlining the inmate grievance system and its procedures—and the same four grievances filed by Kemper after his arrival at SCI Mahanoy. (Doc. 49-1).
1. Grievance No. 657541
On or about December 16, 2016, Kemper submitted a grievance form to officials at SCI Smithfield, logged as Grievance No. 657541, concerning the loss of certain property items confiscated from him during a facility transfer from SCI Smithfield to SCI Mahanoy. (Doc. 23-1, at 1; Doc. 49-1, at 54). On December 22, 2016, the grievance was rejected by the SCI Smithfield grievance coordinator as untimely filed—although the grievance did not list a date of occurrence, prison records established that Kemper had been transferred on October 26, 2016, and the grievance was submitted more than fifteen days later. (Doc. 23-1, at 2; Doc. 49-1, at 55). Kemper appealed this grievance rejection to the facility manager. (Doc. 23-1, at 3; Doc. 49-1, at 56). On January 23, 2017, the grievance rejection was upheld by non-party Eric Tice, superintendent of SCI Smithfield. (Doc. 23-1, at 4; Doc. 49-1, at 57). Kemper appealed the superintendent's decision to the statewide chief grievance officer. (Doc. 23-1, at 5; Doc. 49-1, at 58). On March 2, 2017, the grievance rejection was upheld by non-party Dorina Varner, chief grievance officer for the Pennsylvania Department of Corrections ("DOC"). (Doc. 23-1, at 6; Doc. 49-1, at 59). Although Kemper appears to have exhausted administrative remedies with respect to this grievance, the grievance did not address medical treatment issues at all, much less treatment of his toe-related medical condition.
2. Grievance No. 660938
On or about January 16, 2017, Kemper submitted a grievance form to officials at SCI Mahanoy, logged as Grievance No. 660938, concerning medical treatment for a back injury he had suffered at SCI Smithfield just prior to his transfer to SCI Mahanoy. (Doc. 23-1, at 7; Doc. 49-1, at 61). On February 3, 2017, the grievance was denied based on an investigation by the designated grievance officer, defendant Minarchick. (Doc. 23-1, at 8-9; Doc. 49-1, at 62-63). Kemper appealed the denial of his grievance to the facility manager. (Doc. 23-1, at 10; Doc. 49-1, at 64). On March 9, 2017, the grievance response by Minarchick was upheld by the facility superintendent's designee, "B. Mason." (Doc. 23-1, at 11; Doc. 49-1, at 65). On June 30, 2017, Theresa DelBalso, the superintendent of SCI Mahanoy, reaffirmed the prior decision and upheld Minarchick's initial grievance denial. (Doc. 23-1, at 27; Doc. 49-1, at 81). Kemper appealed the superintendent's decision to the statewide chief grievance officer. (Doc. 23-1, at 12-25; Doc. 49-1, at 66-79). Ultimately, following referral to the statewide DOC Bureau of Health Care Service for its review and comment (Doc. 23-1, at 26, 28, 29; Doc. 49-1, at 80, 82, 83), the grievance denial was upheld by non-party Varner, the DOC's chief grievance officer, on August 24, 2017. (Doc. 23-1, at 30; Doc. 49-1, at 84). Although Kemper appears to have exhausted administrative remedies with respect to this grievance, the grievance itself addressed medical treatment only with respect to a back injury; it made no reference whatsoever to any toe-related medical condition.
Kemper's appeal to the statewide chief grievance officer was initially filed without action because it was not accompanied by a copy of Minarchick's initial grievance decision, which Kemper apparently had not received. A copy was issued (or re-issued) to Kemper on or about May 10, 2017, and he re-presented his appeal to the facility manager, prompting this second facility manager denial of the same grievance.
3. Grievance No. 661909
On or about January 16, 2017, Kemper submitted a grievance form to officials at SCI Smithfield, logged as Grievance No. 660938, concerning his pre-transfer medical treatment (or lack thereof) for the same back injury described in Grievance No. 660938. (Doc. 23-1, at 31; Doc. 49-1, at 87). On January 24, 2017, the grievance was rejected by the SCI Smithfield grievance coordinator as untimely filed—although the grievance described medical treatment that had occurred on October 24, 2016, the grievance was submitted more than fifteen days later. (Doc. 23-1, at 32; Doc. 49-1, at 88). Kemper appealed this grievance rejection to the superintendent. (Doc. 23-1, at 33; Doc. 49-1, at 89). On February 16, 2017, the grievance rejection was upheld by non-party Tice, superintendent of SCI Smithfield. (Doc. 23-1, at 34; Doc. 49-1, at 90). Kemper appealed the superintendent's decision to the statewide chief grievance officer. (Doc. 23-1, at 35; Doc. 49-1, at 91). On March 22, 2017, the grievance rejection was upheld by non-party Varner, the DOC's chief grievance officer. (Doc. 23-1, at 36; Doc. 49-1 at 92). Although Kemper appears to have exhausted administrative remedies with respect to this grievance, the grievance itself addressed medical treatment only with respect to a back injury; it made no reference whatsoever to any toe-related medical condition.
4. Grievance No. 673556
On or about April 11, 2017, Kemper submitted a grievance form to officials at SCI Mahanoy, logged as Grievance No. 673556, concerning his ongoing back pain and his dissatisfaction with the response of medical staff as he continued to seek medical treatment. (Doc. 23-1, at 37; Doc. 49-1, at 94). On May 5, 2017, the grievance was denied based on an investigation by the designated grievance officer, defendant Minarchick. (Doc. 23-1, at 38-39; Doc. 49-1, at 95-96). Kemper appealed the denial of his grievance to the facility manager. (Doc. 23-1, at 40; Doc. 49-1, at 97). On May 26, 2017, the grievance response by Minarchick was upheld by non-party DelBalso, superintendent of SCI Mahanoy. (Doc. 23-1, at 41; Doc. 49-1, at 98). Kemper appealed the superintendent's decision to the statewide chief grievance officer. (Doc. 23-1, at 42; Doc. 49-1, at 99). Ultimately, following referral to the statewide DOC Bureau of Health Care Service for its review and comment (Doc. 23-1, at 43, 44, 45; Doc. 49-1, at 100, 101, 102), the grievance denial was upheld by non-party Varner, the DOC's chief grievance officer, on June 30, 2017. (Doc. 23-1, at 46; Doc. 49-1, at 103). Although Kemper appears to have exhausted administrative remedies with respect to this grievance, the grievance itself addressed medical treatment only with respect to ongoing back pain; it made no reference whatsoever to any toe-related medical condition.
B. Applicable Law
Before bringing a § 1983 action concerning prison conditions, a prisoner must first exhaust all available administrative remedies. 42 U.S.C. § 1997e(a) ("No 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, prison, or other correctional facility until such administrative remedies as are available are exhausted."); see also Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) ("[A]n inmate must exhaust irrespective of the forms of relief sought and offered through administrative avenues."). "[I]t is beyond the power of this court . . . to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000).
Moreover, § 1997e(a) requires "proper" exhaustion of administrative remedies, meaning strict compliance with DOC deadlines and other procedural rules. Woodford v. Ngo, 548 U.S. 81, 89-95 (2006). "A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim." McKinney v. Kelchner, No. 1:CV-05-0205, 2007 WL 2852373, at *3 (M.D. Pa. Sept. 27, 2007) (citing Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004)). "[T]o properly exhaust administrative remedies prisoners must 'complete the administrative review process in accordance with the applicable procedural rules'—rules that are defined not by [§ 1997e(a)], but by the prison grievance process itself." Jones v. Bock, 549 U.S. 199, 218 (2007) (quoting Woodford, 548 U.S. at 88) (citation omitted); see also Strong v. David, 297 F.3d 646, 649 (7th Cir. 2002) ("Section 1997e(a) does not delineate the procedures prisoners must follow."). "The level of detail necessary in a grievance to comply with the grievance procedures will vary from system to system and claim to claim, but it is the prison's requirements, and not [§ 1997e(a)], that define the boundaries of proper exhaustion." Jones, 549 U.S. at 218. "The only constraint is that no prison system may establish a requirement inconsistent with the federal policy underlying § 1983 and § 1997e(a)." Strong, 297 F.3d at 649. Thus, it follows that "grievances must contain the sort of information that the administrative system requires." Strong, 297 F.3d at 649. But,
if prison regulations do not prescribe any particular content for inmate grievances, "a grievance suffices if it alerts the prison to the nature of the wrong for which redress is sought. . . . [T]he grievant need not lay out the facts, articulate legal theories, or demand particular relief. All the grievance need do is object intelligibly to some asserted shortcoming."Johnson v. Testman, 380 F.3d 691, 697 (2d Cir. 2004) (quoting Strong, 297 F.3d at 650).
In adopting DC-ADM 804, the DOC has established a multi-stage administrative remedy process through which an inmate may seek formal review of "problems or other issues arising during the course of their confinement." (Doc. 49-1, at 8). As we have previously summarized it, "DC-ADM 804 provides a three-tiered grievance process: (1) an initial review by a grievance officer; (2) an appeal to the facility superintendent; and (3) an appeal to the statewide chief grievance officer." Adams v. Giroux, CIVIL ACTION NO. 1:15-cv-01321, 2016 WL 8229205, at *6 (M.D. Pa. Dec. 15, 2016). (See also Doc. 49-1, at 11-19, 22-32). DC-ADM 804 sets forth various substantive and procedural requirements for inmate grievances, including requirements that the initial grievance "must include a statement of the facts relevant to the claim," that it "identify individuals directly involved in the event(s)," that it "specifically state any claims . . . concerning violations of [DOC] directives, regulations, court orders, or other law," and that it specifically request any "compensation or other legal relief normally available from a court." (Doc. 49-1, at 12).
In our previous report and recommendation, we recommended that Dr. Rodgers be granted summary judgment on the exhaustion issue. The Court, however, has rejected that recommendation and remanded the matter for us consider exhaustion in our role as a factfinder.
Under Third Circuit precedent, "exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts." Small v. Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013) (citing Drippe v. Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010)); see also Drippe, 604 F.3d at 781 ("Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to.") (quoting Pavey v. Conley, 544 F.3d 739, 741 (7th Cir. 2008)); cf. Wilkerson v. United States, Civil Action No. 3:13-1499, 2014 WL 1653249, at *9 (M.D. Pa. Apr. 24, 2014) ("[I]f there is a dispute of material fact, the court should conduct a plenary trial on the contested facts prior to making [an exhaustion of administrative remedies] determination.") (addressing a prisoner's FTCA claim). "Although the availability of administrative remedies to a prisoner is a question of law, it necessarily involves a factual inquiry." Small, 728 F.3d at 271 (citations omitted).
In a recent decision, the Third Circuit revisited Small to address "the baseline procedures . . . required when a district court undertakes to serve as the fact finder on the exhaustion issue." Paladino v. Newsome, 885 F.3d 203, 210 (3d Cir. 2018). In Paladino, the Third Circuit held "that some form of notice to the parties and an opportunity to respond are needed before a district court elects to resolve factual disputes regarding exhaustion under Small." Id. at 211.
With respect to the notice requirement, "a district court must—at a minimum—notify the parties that it will consider exhaustion in its role as a fact finder under Small before doing so." Id. We have done so here. (See Doc. 40).
With respect to the opportunity to respond, "a district court must at least provide the parties with an opportunity to submit materials relevant to exhaustion that are not already before it." Paladino, 885 F.3d at 211. Once again, we have done so here, and the defendants have taken this opportunity to supplement their arguments and submit additional evidence. (See Doc. 40; Doc. 41; Doc. 49).
The plaintiff, however, has failed to submit any additional materials whatsoever for our consideration. Indeed, he has failed to present so much as a naked argument that administrative remedies were unavailable to him, or that he should be excused from the exhaustion requirement imposed by 42 U.S.C. § 1997e(a) for some other reason. Under these circumstances, presented with a well-supported and unrebutted affirmative defense by Dr. Rodgers, we find it appropriate to resolve the exhaustion issue on the record alone. See Paladino, 885 F.3d at 211 (noting that "a full-scale evidentiary hearing (i.e. involving live testimony) is not required each time that a prisoner claims that he exhausted his administrative remedies").
C. Analysis
In this case, Dr. Rodgers has interposed an affirmative defense with respect to Kemper's toe-related medical treatment claims, asserting that Kemper failed to exhaust his available administrative remedies before bringing this action. In support, Dr. Rodgers has submitted copies of Kemper's inmate grievance records, which include grievances concerning medical treatment for his back pain, but none concerning medical treatment of his toes. The other defendants, Steinhart and Minarchick, have submitted additional relevant evidence, including an unsworn declaration by the statewide assistant chief grievance officer authenticating a copy of the applicable inmate grievance procedures and copies of the same inmate grievance records. But for his part, despite multiple opportunities to do so, Kemper has failed to provide any substantive response whatsoever to Dr. Rodgers's argument or evidence that he failed to exhaust available administrative remedies before commencing suit.
Because the facts and evidence related to the exhaustion issue are essentially undisputed and entirely unrebutted, there is no need for the presentation of live testimony at an evidentiary hearing. See Paladino, 885 F.3d at 211. Based on the record before the Court, we find that Dr. Rodgers has met his ultimate burden of proof on the administrative exhaustion issue. The unrebutted evidence submitted by the defendants has demonstrated that administrative remedies were available to Kemper at a time when he could have timely initiated the administrative remedy process concerning his toe-related medical treatment concerns, but he failed to do so.
Accordingly, we recommend that the Court adopt the proposed findings of fact and conclusions of law set forth below, pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, and that it grant judgment in favor of Dr. Rodgers and against the plaintiff with respect to the plaintiff's toe-related deliberate indifference claims on the ground that the plaintiff failed to exhaust all available administrative remedies before bringing this action, as required by 42 U.S.C. § 1997e(a), pursuant to Rule 58 of the Federal Rules of Civil Procedure.
D. Proposed Findings of Fact
1. The plaintiff, Douglas Kemper, is a former state prisoner, previously incarcerated at SCI Mahanoy, located in Schuylkill County, Pennsylvania, from October 26, 2016, through the date of his release from prison on or about July 19, 2018. He was incarcerated there when he filed this civil action.
2. The DOC has established a multi-stage administrative remedy process through which an inmate may seek formal review of an issue related to any aspect of his confinement, set forth in DC-ADM 804.
3. During the relevant time period, Kemper submitted four inmate grievances—Grievance No. 657541, Grievance No. 660938, Grievance No. 661909, and Grievance No. 673556—none of which addressed medical treatment for a toe-related injury of any sort.
E. Proposed Conclusions of Law
4. Under 42 U.S.C. § 1997e(a), a prisoner-plaintiff is required to properly exhaust all available administrative remedies prior to bringing a lawsuit challenging prison conditions. See Woodford, at 548 U.S. at 84; Small, 728 F.3d at 269.
5. Kemper failed to properly exhaust available administrative remedies with respect to his § 1983 claims against defendant Dr. Rodgers alleging deliberate indifference to an unspecified condition that caused the toes on Kemper's right foot to turn black and his toenails to fall off.
6. Accordingly, defendant Dr. Rodgers is entitled to judgment as a matter of law on the ground that the plaintiff failed to exhaust all available administrative remedies prior to bringing this action concerning prison conditions.
III. REMAINING CLAIMS AGAINST ALL PARTIES
In his complaint, Kemper alleges that the defendants were all deliberately indifferent to the ongoing severe back pain he suffered as a result of a weight-room accident at SCI Smithfield, prior to his arrival at SCI Mahanoy. He also appears to allege that Minarchick was deliberately indifferent to his toe condition. The defendants have, separately, moved for dismissal of these claims for failure to state a claim. Namely, each of the three defendants contends that Kemper has failed to adequately allege their personal involvement in the allegedly wrongful conduct.
We note that defendants Steinhart and Minarchick have submitted a brief and exhibits on the issue of exhaustion, articulating for the first time an argument that they too are entitled to judgment as a matter of law because Kemper failed to properly exhaust administrative remedies with respect to his back-related claims. (See Doc. 49). But in the absence of a pleading or motion raising this affirmative defense as to these defendants, and in light of our prior recommendation that all claims against these defendants be dismissed for failure to state a claim, to which none of the parties objected, we find it most efficient to reiterate our prior recommendation that these claims be dismissed for failure to state a claim. See 42 U.S.C. § 1997e(c)(2) ("In the event that a claim is, on its face, frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief, the court may dismiss the underlying claim without first requiring the exhaustion of administrative remedies."). --------
For the reasons articulated in our prior report and recommendation (Doc. 37, at 14-19), we recommend that all of Kemper's claims against Steinhart and Minarchick and his remaining claims against Dr. Rodgers be dismissed for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. It is further recommended that Kemper be granted leave to file an amended complaint within a specified time period following partial dismissal of the original complaint. (See Doc. 37, at 19).
IV. RECOMMENDATION
For the foregoing reasons, we recommend that:
1. The plaintiff's motion for a preliminary injunction (Doc. 16) be DENIED as MOOT;
2. Defendant Rodgers's motion to dismiss or for summary judgment (Doc. 23) be GRANTED in part and DENIED in part;
3. Defendants Steinhart's and Minarchick's motion to dismiss (Doc. 28) be GRANTED;
4. The proposed findings of fact and conclusions of law set forth in Part II.D and E above be ADOPTED pursuant to Rule 52(a) of the Federal Rules of Civil Procedure;
5. The Clerk be directed to enter JUDGMENT in favor of Dr. Rodgers and against the plaintiff with respect to the plaintiff's toe-related deliberate indifference claims, pursuant to Rule 58 of the Federal Rules of Civil Procedure;
6. The remainder of the plaintiff's claims against all defendants be DISMISSED for failure to state a claim, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure;
7. The plaintiff be granted leave to file an amended complaint within a specified time period following dismissal of the claims described above; and
8. The matter be remanded to the undersigned for further proceedings. Dated: February 6, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge NOTICE
NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 6, 2019. Any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Failure to file timely objections to the foregoing Report and Recommendation may constitute a waiver of any appellate rights. Dated: February 6, 2019
s/Joseph F . Saporito , Jr.
JOSEPH F. SAPORITO, JR.
United States Magistrate Judge