The opinion of the court was delivered by: Anita B. Brody, District Judge.
Plaintiff Ali Ahmed ("Plaintiff"), an inmate at the State
Correctional Institution at Mahanoy ("Mahanoy") filed this action
under 42 U.S.C. § 1983 alleging that Corrections Officer Joseph
Sromovski and Sergeant John Eichenberg ("Defendants") violated
his Eighth Amendment right to be free from cruel and unusual
punishment on April 3, 1998 while plaintiff was housed in the
Restrictive Housing Unit ("RHU") at Mahanoy.*fn1 Defendants have
filed a motion for summary judgment and a supplemental motion for
Plaintiff filed a motion to proceed in forma pauperis on May
15, 1998. On May 20, 1998, this case was closed for failure to
comply with filing fee requirements and reinstated on July 29,
1998. Plaintiff filed a pro se complaint on July 29, 1998. On
September 14, 1998, defendants filed a motion to dismiss
plaintiff's complaint. Defendants asserted that because
plaintiff's complaint failed to allege that he had exhausted his
available administrative remedies, his complaint must be
dismissed without prejudice pursuant to Prison Litigation Reform
Act ("PLRA"), 42 U.S.C. § 1997e(a). In that motion, defendants
contended that exhaustion of administrative remedies requires
completion of the three-step formal grievance procedure set forth
in the Pennsylvania Department of Corrections Consolidated Inmate
Grievance Review System, DC-ADM 804. On September 18, 1998,
plaintiff filed an opposition to defendants' motion. Plaintiff
stated that he had filed a grievance on April 8, 1998 "to which
nothing was accomplished." On January 7, 1999, plaintiff filed "a
motion to amend his motion in opposition to defendants' motion."
In that motion, plaintiff asserted that on September 17, 1998, he
appealed the denial of his grievance to Superintendent Dragovich
and on October 6, 1998, he appealed Dragovich's response to final
review.*fn2 On February 1, 1999, I granted plaintiff's motion
for appointment of counsel*fn3 and denied defendants' motion to
dismiss. Defendants filed an answer and affirmative defenses on
February 8, 1999. Defendants asserted, as an affirmative defense,
that plaintiff had failed to allege any facts that warrant relief
pursuant to the PLRA.
On November 8, 1999, defendants filed a motion for summary
judgment. Plaintiff filed a reply on December 7, 1999. Following
the United States Court of Appeals for the Third Circuit's
February 15, 2000 decision in Nyhuis v. Reno, 204 F.3d 65 (3d
Cir. 2000), in which the court addressed the PLRA's exhaustion
requirement, defendants filed a supplemental motion for summary
judgment, arguing that plaintiff had failed to exhaust his
available administrative remedies.*fn4 Plaintiff responded to
defendants' supplemental motion on April 17, 2000. On April 28,
2000, defendants filed a reply to plaintiff's response.
The incident at issue in this case occurred on April 3, 1998
when plaintiff was housed in A Pod, Cell 7 in the RHU at
Mahanoy.*fn5 On that date, defendant Eichenberg was one of six
officers assigned to the RHU exercise crew.*fn6 Defendant
Sromovski was assigned to work on A Pod on the 6:00 a.m. to 2:00
p.m. shift. In the early morning of April 3, 1998, before the
incident took place, plaintiff and defendant Sromovski argued
briefly. Defendant Sromovski gestured to plaintiff with his
middle finger, in response, plaintiff yelled profanities at
defendant Sromovski and made sexual comments about defendant
Sromovski's wife. Pl. Dep. 147, 152-53. After the dispute ended,
plaintiff cleaned his cell and took a nap. Pl. Dep. 155-56.
Although plaintiff had signed up for yard exercise, plaintiff did
not go because he wanted to clean his cell. Id. Later that
morning, defendant Eichenberg, as part of the exercise crew,
began escorting inmates from the yard to their cells on A Pod.
Defendant Sromovski assisted with this process.
According to plaintiff, he was awakened by the sound of his
cell door opening. Pl. Dep at 164. From his bed, plaintiff saw
defendant Eichenberg and defendant Sromovski talking; defendant
Sromovski was standing in the doorway. Pl. Dep. at 167-70. Then
defendant Sromovski said to plaintiff "What's up, come on out,
pussy." Pl. Dep at 171. Plaintiff responded, "I said get out of
my cell, leave me the fuck alone." Pl. Dep. at 171. Plaintiff
then got out of bed and pulled his jumpsuit up to his waist,
tying the sleeves around his waist. Defendant Sromovski repeated,
"What's up, come on out, pussy" and called plaintiff "a fake
fucking Muslim." Pl. Dep. at 175. As Sromovski came into
plaintiff's cell, plaintiff moved forward slightly because he
believed that Sromovski was going to hit him. Pl. Dep. at 186-87.
According to plaintiff, defendant Sromovski then punched him in
the face and pushed him, with two hands, into a metal desk. Pl.
Dep. at 191-94. Plaintiff fell to the floor. Defendant Sromovski
left plaintiff's cell and defendant Eichenberg closed the cell
As a result of the alleged attack, plaintiff asserts that he
suffered injuries including a lower back injury and a pulled
muscle in his neck. After plaintiff fell, he could not get up
because his lower back hurt when he moved. Pl. Dep. at 193,
199-200, 205-09. Plaintiff requested to see a member of the
medical staff and receive medical treatment for his back and neck
pain. Pl. Dep. at 196-97; 211. Shortly after plaintiff made this
request, a nurse arrived at plaintiff's cell to examine him. Pl.
Dep. at 212. Plaintiff told the nurse that he could not move
because of neck and back pain. Pl. Dep. at 226. A stretcher was
brought to plaintiff's cell and he was carried to the infirmary
on the stretcher. Pl. Dep. at 216, 228. After arriving at the
infirmary, plaintiff was examined by Dr. Hipps, the prison
physician, and admitted for observation. Dr. Hipps ordered that
plaintiff be given non-prescription Tylenol and that X-rays be
taken of plaintiff's lower back. Dr. Hipps diagnosed plaintiff
with a neck strain and also noted a mild contusion on plaintiff's
back. After plaintiff was released from the infirmary, plaintiff
returned to his cell and ordered to "lay in" or stay still in his
cell for four days. Plaintiff maintains that he suffered constant
back pain during the week following the incident. As a result of
his pain, plaintiff made numerous requests that he be examined by
a back specialist. Currently, plaintiff alleges that he
experiences a few seconds of pain approximately six times a day.
Pl. Dep. at 247-48; 260. According to plaintiff, he suffers back
pain as a result of the use of excessive force by Sromovski
and did not suffer from back pain prior to April 3, 1998. Pl.
Dep. at 246-47.
Following the April 3, 1998 incident, a misconduct was filed
against plaintiff by defendant Sromovski for assaulting an
officer; specifically for charging Sromovski in an aggressive
manner. Defs. Mot. Summ. J. Ex. C. Attach. P-15. After a
misconduct hearing, plaintiff was found guilty and sanctioned to
disciplinary custody time.*fn7
On April 8, 1998, plaintiff filed a grievance (MAH-134-98)
regarding the April 3, 1998 incident.*fn8 Defs. Suppl. Mot.
Summ. J. at Ex. H-2. On April 23, 1998, a grievance coordinator
responded to plaintiff's grievance and stated that following an
investigation of the incident, the grievance coordinator
determined that plaintiff's claims lacked merit.*fn9 See id.
at Ex. H-3. Plaintiff did not appeal this response to
Superintendent Dragovich ("Dragovich") until September 16, 1998.
See id. at Ex. H-4; Bitner Decl. at ¶ 10. One day later,
Dragovich responded that he was returning plaintiff's appeal as
untimely. Defs. Suppl. Mot. Summ. J at Ex. H-5; Bitner Decl. at ¶
11. Dragovich explained that plaintiff's "original grievance was
filed on 4/8/98 and responded to on 4/23/98. You have five days
in which to file your appeal with this office and it is now five
months later."*fn10 Defs. Suppl. Mot. Summ. J. at Ex. H-5. In
that response, Dragovich also stated that "[f]or the record" an
internal investigation concluded that plaintiff's claim was
without merit. Id. On September 18, 1998, plaintiff appealed to
the Central Office Review Committee ("CORC"). See id. at Ex.
H-6. Chief Hearing Examiner for the Pennsylvania Department of
Corrections, Robert Bitner ("Bitner") responded to plaintiff's
appeal on October 6, 1998, stating that plaintiff had failed to
file a timely appeal of the response to his grievance. Bitner at
¶¶ 10, 11. Therefore, plaintiff had "failed to complete appeal to
the Superintendent as required pursuant to DC-ADM 801(sic).*fn11
Accordingly, [plaintiff's] appeal to final review cannot be
accepted and must be dismissed." See id. at Ex. H-7; Bitner
Decl. ¶ 13. Plaintiff testified that he was familiar with the
grievance system and "use[d] it a lot." Pl. Dep. at 95.
Defendants argue that plaintiff's failure to exhaust
administrative remedies as required by the Prison Litigation
Reform Act ("PLRA"), 42 U.S.C. § 1997e(a) mandates dismissal of
this action.*fn13 I will now evaluate defendants' argument that
plaintiff failed to exhaust his available administrative remedies
because the PLRA exhaustion requirement "can function properly
only if the judge resolves disputes about its application before
turning to any other issue in the suit." Perez v. Wisconsin
Department of Corrections, 182 F.3d 532, 536 (7th ...