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May 23, 2005.

MARK SIMS, Plaintiff

The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge



This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by Mark Sims regarding his prior confinement at the State Correctional Institution, Frackville, Pennsylvania (SCI-Frackville).*fn1 Service of the complaint was previously ordered. Named as Defendants were the following SCI-Frackville officials: Correctional Officer Richard McPeak; Sergeant Jerome Paulukonis; Unit Manager Joanne Miranda; and Lieutenant David Brown. Inmate Detrick Reed was assigned as Plaintiff's cellmate during their confinement at SCI-Frackville. This pairing occurred on December 14, 2000. Approximately four (4) days later, Sims complained to Correctional Officer McPeak that Reed was exhibiting "hostile, threatening and bizarre behavior." Record document no. 1, ¶ 10. McPeak purportedly instructed Plaintiff that he should present his concerns to Sergeant Paulukonis. Upon doing so, Sims' assertions were then referred to Unit Manager Miranda. Pursuant to a request from Miranda, the Plaintiff submitted an inmate request form on December 19, 2000 which detailed his problems with Inmate Reed and indicated his reasons for requesting a cell change.

  Prior to acting on Sims' submission, Defendant Miranda "went on her Christmas vacation." Id. at ¶ 15. On December 20, 2000, Plaintiff again reported his cellmate's threatening behavior to Defendants McPeak and Paulukonis. Sergeant Paulukonis allegedly replied "that the matter was being handled by Defendant Miranda." Id. at ¶ 18. Sims contends that he made similar complaints on December 22, and 24, 2000, to no avail. During the morning of January 1, 2001, Plaintiff again spoke with Sergeant Paulukonis and Lieutenant Brown regarding Inmate Reed's ongoing behavior. Brown asked Plaintiff if he could wait until the next day to be moved to another cell. Sims' complaint clearly acknowledges that he "hesitantly agreed." Id. at ¶ 27. An argument ensued between Sims and Reed after lunch on January 1, 2001. The argument escalated into a physical confrontation during which Reed allegedly struck Sims on the side of the head with a television set and stabbed him in the arm with a pencil with such force that the pencil became embedded in his arm. Plaintiff's injuries required him to undergo treatment at a local hospital. The gist of Sims' complaint is that by ignoring his complaints of Reed's threatening behavior, the Defendants were deliberately indifferent to his safety needs. His complaint seeks compensatory and punitive damages as well as declaratory relief.

  By Order dated January 7, 2004, this Court denied the Defendants' motion to dismiss. Specifically, it was determined that "the failure of Plaintiff to allege that he exhausted administrative remedies is not fatal to his complaint." Record document no. 49, p. 7. The Order also concluded that the complaint alleged facts that could support that a failure to protect claim under the Eighth Amendment and that a decision regarding the Defendants' claim of entitlement to qualified immunity could not be reached due to the existence of numerous outstanding factual issues.

  Presently pending before this Court is Defendants' motion seeking entry of summary judgment. See Record document no. 63. Defendants again argue that: (1) Sims failed to comply with the exhaustion of administrative remedies requirement; (2) the allegations in the complaint do not support a claim of deliberate indifference because Sims agreed that his requested cell change could wait until the next day; and (3) the Defendants are entitled to qualified immunity. The summary judgment motion has been briefed and is ripe for consideration.


  Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).

[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be "no genuine issue as to any material fact," since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial. The moving party is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof. "[T]he standard [for granting summary judgment] mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, (1986).

  The moving party bears the initial responsibility of stating the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The moving party can discharge that burden by "`showing' . . . that there is an absence of evidence to support the nonmoving party's case." Celotex, supra, 106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden, the nonmoving party must present "affirmative evidence" to defeat the motion, consisting of verified or documented materials. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986). Issues of fact are "genuine only if a reasonable jury, considering the evidence presented could find for the nonmoving party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir. 1988). Only disputes over facts that might affect the outcome of the suit will preclude the entry of summary judgment. Id. In evaluating a motion for summary judgment, the entire record must be examined in the light most favorable to the nonmoving party.

  Defendants' initial summary judgment argument contends that Sims complaint should be dismissed because he failed to fully exhaust his available administrative remedies. It is noted that in accordance with Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the Defendants' answer to the complaint, filed on November 10, 2004, raised Sims' failure to comply with the administrative exhaustion requirement as an affirmative defense. See Record document no. 59, Fifteenth Affirmative Defense.

  With respect to the applicability of administrative remedies, 42 U.S.C. § 1997e(a) provides as follows: No action shall be brought with respect to prison conditions under Section 1979 of the Revised Statutes of the United States (42 U.S.C. 1983), 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.

 Section 1997e(a) requires administrative exhaustion "irrespective of the forms of relief sought and offered through administrative avenues." Porter v. Nussle, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001). Claims for monetary relief are not excused from the exhaustion requirement. Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an inmate's claim is appropriate when a prisoner has failed to exhaust his available administrative remedies before bringing a civil rights action. Ahmed v. Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000). "[E]xhaustion must occur prior to filing suit, not while the suit is pending." Tribe v. Harvey, 248 F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000) (citing Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999)).

  The Pennsylvania Department of Corrections (DOC) has a Consolidated Inmate Grievance Review System. DC-ADM 804 (effective January 1, 2001). With certain exceptions not applicable here, DC-ADM 804, Section VI ("Procedures") provides that, after attempted informal resolution of the problem, a written grievance may be submitted to the Grievance Coordinator; an appeal from the Coordinator's decision may be made in writing to the Facility Manager or Community Corrections ...

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