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June 26, 2000


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 summary judgment.


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 door.

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 ...

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