United States District Court, M.D. Pennsylvania
May 23, 2005.
MARK SIMS, Plaintiff
CORRECTIONAL OFFICER McPEAK, ET AL., Defendants.
The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge
MEMORANDUM AND ORDER
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
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 Regional Director; and a final written appeal may be presented to
the Secretary's Office of Inmate Grievances and Appeals.
Pursuant to DC-ADM 804-4, a prisoner, in seeking review through
the grievance system, may include requests for "a reasonable
request for compensation or other legal relief normally available
from a court." (DC-ADM 804-4, issued April 29, 1998.).
Furthermore, [g]rievances must be submitted by the inmate for
Initial Review to the Facility Grievance Coordinator within 15
working days after the event upon which the claim is based," but
allowances of extensions of time for good cause may be granted
under certain circumstances. Id.
In support of their non-exhaustion argument, Defendants have
submitted a declaration under penalty of perjury by Chief
Grievance Coordinator Sharon Burks of the Secretary's Office of
Inmate Grievances and Appeals. See Record document no. 67,
Exhibit F. Burks states that based on her review of the records
of the Secretary's Office of Inmate Grievances and Appeals, Sims
did not initiate any final appeals to her office "between January
1, 2001 and December 7, 2004." Id. at ¶ 4.
A supporting affidavit by Assistant Chief Grievance Coordinator
Kristen Reisinger acknowledges that Sims filed a grievance on
January 23, 2001 "which was assigned grievance number
FRA-0108-2001." Id. at Exhibit G, ¶ 7. The declarant adds that
an initial review response by Defendant Brown, dated February 16,
2001, denied the grievance. Thereafter, an appeal to Superintendent
Chesney was denied by memorandum dated March 2, 2001. Reisinger
next avers that based on a her review of two separate DOC
tracking systems, Plaintiff "did not submit any appeals to final
review, nor did he send any letters or any other documents' to
the secretary's Office of Inmate Grievances and Appeals." Id.
at ¶ 11. She further notes that even "mere letters, long as they
contain the required information, are accepted for purposes of
appeal to this office." Id. at ¶ 12.
Plaintiff's opposing brief to the Defendants' motion to dismiss
asserted that he should be excused from the exhaustion
requirement because he is an illiterate confined in the
Restricted Housing Unit (RHU) and his grievance and request slips
were prepared by other inmates were subsequently transferred to
other correctional facilities. See Record document no. 21, p.
7. Sims goes on to detail the filing of his initial grievance and
appeal to Superintendent Chesney. However, his submission
provided no indication whatsoever that he prepared a final
administrative appeal. See id. at p. 8. Furthermore, copies
of both his initial grievance and Superintendent's appeal were
attached to his opposing brief.
In a response to the request for summary judgment, Sims alleges
for the first time that he did file a timely final appeal which
he handed to an officer in the SCI-Frackville RHU for purposes of
mailing. See Record document no. 65. In a second response, Plaintiff states that he does not doubt that his final
appeal never reached the Secretary's Office and indicates that
SCI-Frackville staff prevented his final appeal from reaching its
intended destination. See Record document no. 68, ¶ 19. The
correctional officer is not identified in either of the
Plaintiff's opposing submissions nor do those filings provide the
date of this alleged attempted mailing.
In Banks v. Livingood, No. 99-3049, slip op. at p. 3 (3d Cir.
March 16, 2000), the United States Court of Appeals for the Third
Circuit addressed an inmate's argument that he could not satisfy
the administrative exhaustion requirement because a prison
grievance coordinator refused to process his complaint. The Third
Circuit stated that because the prisoner had made a contradictory
assertion that the grievance coordinator had provided him with
responses, Banks "has not made a sufficient showing that it was
impossible to exhaust his administrative remedies." Id.
As noted above, the instant Plaintiff has likewise made
contradictory submissions with respect to the issue of whether he
initiated a final administrative appeal. Sims, in opposing the
Defendants' motion to dismiss, initially indicated that he could
not pursue a final appeal because he was illiterate, housed in
the RHU and the prisoners who had previously assisted him were
transferred to other correctional institutions. Thereafter, in
briefs opposing the pending summary judgment motion, Plaintiff
generally states that while in the RHU he did in fact prepare a
final administrative appeal which he timely submitted to an
unidentified correctional officer on an unnamed date for
Under Federal Rule of Civil Procedure 56(e), "an adverse party
may not rest upon the mere allegations or denials of the adverse
party's response, but the adverse party's response, by affidavits
or as otherwise provided in this rule must set forth specific
facts showing that there is a genuine issue for trial." A
non-moving party cannot rely upon allegations in memoranda and
briefs to establish a genuine issue of material fact. Rather, he
must supply evidentiary material contradicting the record the
moving party has submitted.
It is noted that the Plaintiff's vague contentions that he did
prepare and submit a final administrative appeal have not been
set forth in an affidavit or declaration submitted under penalty
of perjury as required by Rule 56(e). Furthermore, although
Plaintiff filed copies of his initial grievance and
Superintendent's appeal, he has not provided this Court with a
copy of the relevant administrative appeal or any other
documentary evidence that could establish that a final
administrative appeal was timely filed. As noted above, Sims' vague, contradictory assertion of
submitting a final appeal was set forth in two opposing briefs to
the pending summary judgment motion. Since his averments were not
set forth in an affidavit or submitted under penalty of perjury,
they are not an adequate basis upon which to deny the request
Based on Burks' declaration under penalty of perjury, and
Reisinger's affidavit under penalty of perjury, it is apparent to
this Court that Sims failed to complete the DOC's administrative
remedy process and that said failure rests solely upon his
shoulders. Pursuant to the rationale developed by the Third
Circuit in Banks, since Sims has not provided any adequate
reasons as to why he should be excused from compliance with the
exhaustion requirement, his above enumerated claims of
constitutional misconduct are subject to dismissal under the
requirements set forth in § 1997e(a). Consequently,
IT IS HEREBY ORDERED THAT:
1. Defendants' motion requesting entry of summary
judgment (Record document no. 63) is granted. 2. The Plaintiff's claims are dismissed for failure
to exhaust administrative remedies as required under
42 U.S.C. § 1997e(a).
3. The Clerk of Court is directed to close the case.