Johnson v. Pennsylvania Department of Corrections et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
AQUIL JOHNSON,
Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
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Civil No. 1:21-CV-00516
Judge Jennifer P. Wilson
MEMORANDUM
Before the court is an unsupported motion for a hearing on the issue of
administrative exhaustion filed by Defendants in this action. (Doc. 292.) Here,
Defendants did not raise the affirmative defense of administrative exhaustion in
their responsive pleadings. (See Docs. 12, 48, 72.) Neither did Defendants raise
the affirmative defense in any motion made pursuant to Fed. R. Civ. P. 56. (Docs.
123, 125.) Now, just two weeks prior to the jury trial scheduled to begin on March
30, 2026, Defendants have attempted to raise this affirmative defense by filing a
motion for exhaustion hearing. (Doc. 292.) Because of the lateness in raising this
affirmative defense well after discovery concluded and the prejudice it creates for
the incarcerated and self-represented Plaintiff, the court finds that Defendants
waived this affirmative defense and will deny their motion for a hearing.
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BACKGROUND AND PROCEDURAL H ISTORY
This action was initially filed in the Court of Common Pleas in Centre
County, Pennsylvania and removed to federal court on March 22, 2021. (Docs. 1,
1-2.) On March 9, 2022, Magistrate Judge Martin C. Carlson entered a report and
recommendation recommending that Defendants’ motion to dismiss the complaint
be granted in part and denied in part. (Doc. 39.) After ruling on Plaintiff’s
objections, the court adopted the report and recommendation in part. (Doc. 45.)
The only surviving claims were the Eighth Amendment claim as to Defendants
Ellers, Tejada, and Fisher, the negligence per se claim as to all Defendants and the
negligent infliction of emotional distress claim as to all Defendants. (Doc. 45.)
Defendants then answered the complaint as to the surviving claims. (Docs. 46,
48.) Defendants Ellers and Tejada’s answer to the complaint raised a series of
affirmative defenses, but did not raise the affirmative defense of failure to exhaust
the administrative remedies. (Doc. 48.)
In September of 2022, Plaintiff filed an amended complaint naming an
additional medical defendant, Dominicis, the Chief Executive Officer (“CEO”) of
Correct Care Solutions. (Docs. 62, 65.) On November 7, 2022, Defendants Ellers
and Tejada filed a motion to dismiss the amended complaint that did not raise the
affirmative defense of a failure to exhaust. (Docs. 70, 72.)
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On April 17, 2023, the court entered an order addressing motions to dismiss
filed by Defendants Ellers and Tejada and the motion to dismiss filed by other
medical defendants including Defendant Fisher. (Docs. 101, 102. The medical
defendants raised the affirmative defense of administrative exhaustion, and the
court ruled in their favor in some of these claims. (Doc. 101.) The surviving claim
included an Eighth Amendment claim against Defendants Ellers, Tejeda, and
Fisher. (Doc. 102.)
Following the closure of fact discovery, Defendants Ellers and Tejeda filed a
motion for summary judgment. (Docs. 123, 125.) Again, Defendants Eller and
Tejeda did not raise the affirmative defense of administrative exhaustion. (Doc.
125.) The Eighth Amendment claim associated with the missed August 15, 2019
appointment and the subsequent requests for treatment on August 15, 2019,
September 14, 2019, November 20, 2019, and December 31, 2019 survived the
motion for summary judgment. (Doc. 149.) The claims against Defendant Fisher
were settled. (Doc. 235.)
A jury trial is scheduled to begin on March 30, 2026 to address the
remaining Eighth Amendment claims against Defendants Ellers and Tejeda. (Doc.
220.) This trial has been scheduled since July 24, 2025. (Id.) On March 16, 2026,
Defendants Ellers and Tejeda raised the affirmative defense of administrative
exhaustion for the first time in a motion for a hearing on the issue of administrative
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exhaustion. (Doc. 292.) Defendants did not file a brief in support of this motion as
required by Local Rule 7.5. However, because of the imminent jury trial, the court
will address the motion without the requirement of briefing.
DISCUSSION
The Prison Litigation Reform Act (“PLRA”) requires a plaintiff inmate to
exhaust the administrative remedies available to him before bringing any action
under § 1983. 42 U.S.C. § 1997e(a). However, “exhaustion is an affirmative
defense which can be waived if not properly preserved by a defendant.” Smith v.
Mensinger, 293 F.3d 641, 647 n.3 (3d Cir. 2002) (citing Ray v. Kertes, 285 F.3d
287 (3d Cir. 2002)).
Here, Defendants’ motion for an exhaustion hearing alleges that they
preserved their affirmative defense of administrative exhaustion in their answer.
(Doc. 292 at ¶ 5.) However, a review of the answer demonstrates this is not
accurate. (Doc. 48.) That is a serious misstatement of the record by defense
counsel.
The court notes that this court has allowed defendants to raise the
affirmative defense for the first time as late as a Rule 56 motion so long as the
plaintiff is not prejudiced. See Baker v. Beard, No. 05–cv–281, 2006 WL
1725557, at *3 (M.D.Pa. June 21, 2006) (Jones, J.). However, Defendants failed to
raise the affirmative defense at any point through the adjudication of their Rule 12
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and Rule 56 motions or at any time while discovery was ongoing in this matter.
Instead, Defendants waited until two weeks prior to the scheduled jury trial to raise
the issue for the first time. This is either an attempt at sandbagging or an
indication of ineptitude by defense counsel. Either way, the court will not permit
defendants to belatedly raise a waived affirmative defense at this juncture.
This late motion asserting the affirmative defense of administrative
exhaustion greatly prejudices the incarcerated, self-represented Plaintiff. He has
not had the opportunity to request discovery on the issue of administrative
exhaustion. And because the defense was never asserted, Plaintiff had no reason to
request discovery on exhaustion. Furthermore, he will soon be relocated to a
different facility close the courthouse for the upcoming jury trial. This impending
transport, in combination with the delay in mail created by the Department of
Corrections requirement that Defendants’ mail to Plaintiff be sent through a third
party, Smart Communications, 1 results in Plaintiff having minimal notice and no
opportunity to prepare for an exhaustion hearing. In order to avoid the prejudice to
Plaintiff, the court would need to continue the trial date, re-open discovery, and
then schedule an exhaustion hearing. Plaintiff has been waiting for a trial in this
matter since he filed his complaint in March 2021. The additional delay that would
1 See DC-ADM 803.
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result from granting Defendants’ motion is prejudicial to Plaintiff and not
warranted.
CONCLUSION
For these reasons, the court will deny Defendants’ motion for an exhaustion
hearing. Defendants have waived the affirmative defense by not raising it in their
responsive pleading, their Rule 12 motions, or their Rule 56 motion. An
appropriate order follows.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Judge
Middle District of Pennsylvania
Dated: March 17, 2026
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