904 F.3d 257 (3rd Cir. 2018), 16-1080, Rinaldi v. United States

Docket Nº:16-1080
Citation:904 F.3d 257, 101 Fed.R.Serv.3d 1289
Opinion Judge:KRAUSE, Circuit Judge.
Party Name:Michael RINALDI, Appellant v. 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, ...
Attorney: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.
Judge Panel:Before: KRAUSE, SCIRICA, and FUENTES, Circuit Judges SCIRICA, Circuit Judge, concurring in part and dissenting in part
Case Date:September 12, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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904 F.3d 257 (3rd Cir. 2018)

101 Fed.R.Serv.3d 1289

Michael RINALDI, Appellant

v.

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

No. 16-1080

United States Court of Appeals, Third Circuit

September 12, 2018

Argued: January 25, 2018

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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

OPINION

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 complaint1 alleging that the conduct of various

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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

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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

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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 waiver 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.

  1. 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, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). In contrast to its precursor, the Civil Rights of Institutionalized Persons

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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, 126 S.Ct. 2378, by providing...

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