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United States District Court, M.D. Pennsylvania

October 13, 2005.


The opinion of the court was delivered by: EDWIN KOSIK, Senior District Judge



This civil rights action pursuant to 28 U.S.C. § 1331 was filed by Nathaniel Parker on March 15, 2004. Parker is currently confined at the Federal Correctional Institution at Schuylkill, Pennsylvania. Named as defendants in the action are the United States of America, former Attorney General John Ashcroft, Kathleen Hawk, Director of the Federal Bureau of Prisons (BOP) and numerous officials and employees at FCI-Schuylkill. In the complaint Parker raises claims of inadequate medical care, retaliation and exposure to second-hand tobacco smoke. He also raises a claim of excessive force against one of the defendants, Andre Matevousian. On February 23, 2005, a Memorandum and Order was issued by the court granting a motion for summary judgment in favor of all defendants with the exception of defendant Matevousian. (Doc. 46.) Because defendants had not addressed the excessive force claim in their motion, they were afforded additional time within which to file a dispositive motion with regard to this allegation. Presently pending before the court is plaintiff's motion for reconsideration with regard to the court's Memorandum and Order of February 23, 2005 granting summary judgment in this case (Doc. 47), as well as defendant Matevousian's motion for summary judgment on the excessive force claim. (Doc. 50.) For the reasons that follow, the motion for reconsideration will be denied and the motion for summary judgment will be granted.


  A. Motion for Reconsideration

  In the court's Memorandum and Order of February 23, 2005, summary judgment was granted in favor of all defendants with the exception of defendant Matevousian on grounds including respondeat superior, improper party, and no disputed issues of material fact regarding Eighth Amendment medical care claims and retaliation. A full discussion of plaintiff's underlying allegations, the parties' submitted evidentiary materials in support of and in opposition to the motion, and the court's legal analysis in granting summary judgment are set forth in the February 23, 2005 Memorandum. Plaintiff seeks reconsideration of this decision and in support thereof attempts to reargue his case in addition to claiming that the court "improperly resolved factual disputes." (Doc. 47 at 3.)

  A motion for reconsideration is a device of limited utility. Its purpose is to correct manifest errors of law or fact or to present newly discovered evidence. Harsco Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985), cert. denied, 476 U.S. 1171 (1986). Accordingly, a party seeking reconsideration must demonstrate at least one of the following grounds prior to the court altering, or amending, a standing judgment: (1) an intervening change in the controlling law; (2) the availability of new evidence that was not available when the court entered judgment; or (3) the need to correct a clear error of law or fact or to prevent manifest injustice. Max's Seafood Café v. Quineros, 176 F.3d 669, 677 (3d Cir. 1999) (citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A motion for reconsideration is appropriate in instances where the court has ". . . misunderstood a party, or has made a decision outside the adversarial issues presented to the Court by the parties, or has made an error not of reasoning, but of apprehension." See Rohrbach v. AT & T Nassau Metals Corp., 902 F. Supp. 523, 527 (M.D. Pa. 1995), vacated in part on other grounds on reconsideration, 915 F. Supp. 712 (M.D. Pa. 1996), quoting Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983). It may not be used as a means to reargue unsuccessful theories, or argue new facts or issues that were not presented to the court in the context of the matter previously decided. Drysdale v. Woerth, 153 F. Supp.2d 678, 682 (E.D. Pa. 2001). "Because federal courts have a strong interest in the finality of judgments, motions for reconsideration should be granted sparingly." Continental Casualty Co. v. Diversified Indus., Inc., 884 F. Supp. 937, 943 (E.D. Pa. 1995). Only where extraordinary circumstances are present should relief under Rule 60(b) be granted. Bohus v. Beloff, 95 F.2d 919, 930 (3d Cir. 1991).

  In the instant motion, Parker does not argue the existence of new law or new evidence. He reargues his case with regard to most claims and also contends that the court decided issues of credibility in rendering its decision. He contends that his complaint and opposing brief specifically contradicts the evidentiary materials submitted by defendants. Plaintiff, however, has failed to submit contradictory evidentiary materials creating any material issue of disputed fact with regard to his claims. Unsupported allegations clearly do not create the required issue of disputed material fact necessary to defeat defendants' motion for summary judgment. While plaintiff argues that no weight and consideration was afforded to the affidavit he submitted of his sister, this is not accurate. The court did consider and discuss this submission by plaintiff, and found that it created no disputed issue of material fact. Further, to the extent plaintiff attempts to point to said affidavit in opposing the pending excessive force claim, he fares no better for the reasons which follow. As such, the motion for reconsideration will be denied.

  B. Matevousian's Motion for Summary Judgment on Excessive Force

  In seeking summary judgment on the remaining excessive force claim in this case, defendant argues that plaintiff has failed to exhaust his administrative remedies as required by 42 U.S.C. § 1997e(a).*fn1 Congress has provided that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, 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." 42 U.S.C. § 1997e(a). In Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000), the Third Circuit held that this provision is mandatory and is equally applicable to Bivens cases. The Supreme Court has held that the term "prison conditions" applies to "all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002).

  The Bureau of Prisons has a well established administrative remedy procedure by which an inmate may seek formal review of a complaint regarding any aspect of his imprisonment. The only prerequisite to initiating an administrative remedy request is that the inmate must first try to raise the matter informally with his/her Unit Team. See 28 C.F.R. § 542.13. The formal process has three layers of review. The first level is an appeal to the Warden of the institution where the inmate is confined. The second is an appeal of the Warden's response to the Regional Director. The final level is an appeal to the BOP's Central Office. A prisoner has not exhausted his administrative remedies until he goes through all three levels. See 28 C.F.R. § 542, et seq.

  In support of his motion for summary judgment on the exhaustion question, defendant Matevousian offers the declaration of John E. Wallace, employed by the BOP as an Attorney-Advisor. (Doc. 52, Ex. A.) Wallace states that a search of the computerized indexes of all formal administrative appeals filed by plaintiff was conducted on March 17, 2005, and reveals that Parker filed twenty-two (22) administrative grievances (which mostly concerned other matters raised in this action) between September 11, 2002 and September 11, 204, but did not file any grievance or claim concerning the use of excessive force during an escort to the Special Housing Unit. (Id. at ¶ 7, Attach. A, SENTRY Administrative Remedy Record.) As such, defendant argues that plaintiff failed to exhaust his administrative remedies with regard to the excessive force claim.

  In opposing defendant's motion, plaintiff submits an "informal brief" (Doc. 54.) He submits no opposing statement of material facts or evidentiary materials. In his brief Parker fails to even address the exhaustion argument raised by defendant. He merely proceeds to argue the merits of his claim. He comes forth with no records evidencing exhaustion of his claim that he was subjected to excessive force. As such, there exists no disputed issue of fact regarding the exhaustion of this claim. Accordingly, summary judgment is warranted in favor of defendant. An appropriate Order is attached. ORDER

  NOW, THIS 13th DAY OF OCTOBER, 2005, in accordance with the accompanying Memorandum, IT IS HEREBY ORDERED AS FOLLOWS:

1. Plaintiff's Motion for Reconsideration (Doc. 47) is denied.
2. Defendant Matevousian's Motion for Summary Judgment (Doc. 50) is granted.
3. The Clerk of Court is directed to enter judgment in favor of all defendants and against plaintiff in this action.
4. The Clerk of Court is directed to mark this matter closed.
5. Any appeal from this Order will be deemed frivolous, without probable cause and not taken in good faith.

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