United States District Court, M.D. Pennsylvania
October 17, 2005.
JERRY COLE, Plaintiff,
RHU OFFICERS JOHN DOE, et al., Defendants.
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
Plaintiff Jerry Cole, an inmate formerly confined at the Camp
Hill State Correctional Institution ("SCI-Camp Hill"), Camp Hill,
Pennsylvania,*fn1 filed this pro se action pursuant to
42 U.S.C. § 1983, claiming numerous SCI-Camp Hill John Doe
defendants violated his Eighth Amendment and Due Process rights
when they assaulted him, and then injected him with an unknown
substance which rendered him incompetent to participate in his
misconduct hearing. Cole also claims that while housed in the
institution's Restricted Housing Unit ("RHU") he was forced to
endure unsanitary conditions and, on occasion, denied meals as a
form of punishment. Defendant Moore, the sole named defendant, has filed for
summary judgment based, in part, on Cole's failure to exhaust his
administrative remedies. (Doc. 25). We will evaluate the motion
under the well established standard. See Glanzman v.
Metropolitan Management Corp., 391 F.3d 506, 508 n. 1 (3d Cir.
We will dismiss Cole's claims against defendant Moore due to
his failure to exhaust administrative remedies, and dismiss the
remaining claims against the John Doe as the discovery period in
this action has closed without Cole's amending his complaint to
identify these unknown individuals.
Cole alleges that on April 24, 2003, while housed at his former
facility, SCI-Camp Hill, eight unidentified correctional officers
("CO") used excessive force against him after he was handcuffed
behind his back. The unnamed officers "rammed" Plaintiff's face
into a wall as they transported him to the institution's
Restricted Housing Unit ("RHU"). The officers also allegedly
tightened Cole's handcuffs to the point of causing permanent
damage to his left wrist. Cole claims the identity of his
attackers "may be seen on videotape taken later that day." (Doc.
1). Cole, who describes himself as a "special offender with mental
health deficienc[ies]," was then taken to the infirmary where he
was injected, by unidentified individuals, with an unknown drug.
The medication caused Cole to sleep for four days. On April 28,
2003, while still in the infirmary, Cole was given a misconduct
hearing (Misconduct # A356309) before John Doe Hearing Examiner.
Plaintiff states he was unable to actively participate in this
proceeding, and helpless to summons a specific witness on his
behalf, due to the sedating effect of medication which rendered
him incompetent. (Id.)
Next, Cole alleges that while housed in the RHU between April
28, 2003, and May 10, 2003, CO Moore and "RHU officers often
denied me food." (Id.) "These officers" verbally baited Cole
prompting him "to yell bad things to them in response." (Id.)
As punishment, officers would skip feeding him, alleging Cole
refused to comply with RHU feeding procedures. After Cole
complained to his psychiatrist, this problem stopped. (Id.)
Cole also claims that his RHU cell, which he shared with another
inmate, did not have a working toilet.
Defendant Moore contends that Cole never filed an institutional
grievance against him for refusing to serve him meals and thus
has failed to exhaust his administrative remedies, precluding him
from filing the present action. Defendant Moore submits portions of Cole's deposition in which Plaintiff states
he never filed a grievance concerning CO Moore's allegedly
withholding meals from him. (Doc. 26, Appendix to Defendant
Moore's Motion for Summary Judgment, Exhibit 1, p. 78). Moore
submits his own declaration in which he affirms that he has never
worked in SCI-Camp Hill's RHU and denies ever withholding meals
from Cole in the RHU or elsewhere. (Doc. 26, Appendix to
Defendant Moore's Motion for Summary Judgment, Exhibit 2).
Additionally, Moore argues that even if the Court were to assume
that he denied Cole two meals (as alleged by Cole in his
deposition) (Doc. 26, Exhibit 1, p. 73), such a finding would not
constitute an Eighth Amendment violation. Finally, Moore notes
that the unnamed John Doe defendants are entitled to dismissal as
they have not been served with the complaint within the time
frame dictated by Fed.R.Civ.P. 4(m).
Cole opposes defendant Moore's motion on the following grounds:
(1) Defendant Moore did not submit a complete copy of Cole's
December 13, 2004, deposition to the Court; and (2) grievance
forms were not available on his cellblock but he nonetheless
tried to exhaust his administrative remedies by writing directly
to various Department of Corrections officials (see Docs.
31-32). III. Relevant Procedural History.
Cole initiated this action on June 4, 2004. Defendant Moore
answered the Complaint on September 2, 2004, and sought allowance
to take Cole's deposition. (Docs. 16-17). After permission was
granted, no further activity was docketed in the case until a May
2, 2005, Order setting a discovery deadline of 60 days after the
Order and a dispositive-motions deadline of 30 days after the
close of discovery. (Doc. 24). Pursuant to Middle District Local
Rule 26.4, discovery proceedings in this case closed on or around
March 2, 2005.*fn2 See M.D. Local Rule 26.4 Discovery
Proceedings, Closing of. Defendant Moore filed his motion for
summary judgment on July 19, 2005. (Doc. 25). IV. Discussion.
A. Exhaustion of Administrative Remedies with Respect to
Under the Prison Litigation Reform Act ("PLRA"), exhaustion of
administrative remedies is required for all actions concerning
prison conditions brought under federal law. See
42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004).
This "exhaustion requirement 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,
122 S.Ct. 983, 992, 152 L.Ed.2d 12, 26 (2002). A prisoner must
exhaust all available administrative remedies before initiating a
federal lawsuit. Booth v. Churner, 532 U.S. 731, 738,
121 S.Ct. 1819, 1824, 149 L.Ed.2d 958 (2001). The PLRA "completely
precludes a futility exception to its mandatory exhaustion
requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).
Additionally, the PLRA "require[s] `proper' exhaustion, meaning
that the inmate must follow the procedural requirements of the
prison grievance system." Lock v. Nash, 2005 WL 2465249, at *1
(3d. Cir. Oct. 6, 2005) (citing Spruill, 372 F.3d. at 228,
231). A prisoner's failure to follow the procedural requirements
of the administrative remedy process bars the prisoner from
bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill,
372 F.3d at 227-32. "[I]t is beyond the power of [any] court . . .
to excuse compliance with the exhaustion requirement." Nyhuis
v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v.
Fishkill Corr. Facility, 28 F.Supp.2d 884, 894-95 (S.D.N.Y.
The failure to exhaust available administrative remedies is an
affirmative defense. Ray v. Kertes, 285 F.3d 287 (3d Cir.
2002). As such, it must be pleaded and proven by the Defendants.
Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
The Pennsylvania Department of Corrections ("DOC") has an
Inmate Grievance System which permits any inmate to seek review
of problems that may arise during the course of confinement.
37 Pa. Code § 93.9(a) (West 2003); see also www.cor.state.pa.us,
DC-ADM 804, Inmate Grievance System Policy. After an attempt to
resolve any problems informally, an inmate may submit a written
grievance to the prison Grievance Coordinator for initial review.
An inmate may appeal the decision of the Grievance Coordinator to
the Superintendent of the institution, and can finally appeal to
the Secretary of the Department of Corrections Office of Inmate
Grievances and Appeals. See Booth, 206 F.3d at 292 n. 2
(discussing Pennsylvania's Inmate Grievance System).
Defendant Moore has submitted a portion of Cole's deposition
testimony in which he admits that he did not file any administrative remedies with regard to CO Moore's alleged
withholding of two meals on separate dates. No where in his
opposition materials does Cole dispute his own assertion that he
failed to file the requisite administrative grievance with
respect to CO Moore.*fn3 See Docs. 31 and 32. Likewise,
Cole does not allege any interference with his abilities to
pursue his available administrative remedies with respect to CO
Moore's alleged withholding of two meals from him prior to April
23, 2003. Therefore, there is nothing in the record to create a
genuine issue of material fact with regard to whether the
Plaintiff has exhausted his available administrative remedies
with respect to CO Moore. CO Moore has met his burden in showing
that Plaintiff failed to exhaust his available administrative
remedies before filing his complaint against him. Consequently,
Defendant Moore is entitled to summary judgment on this
claim.*fn4 See Spruill, supra. B. Dismissal of Claims Against the John Doe Defendants.
Cole alleges various Eighth Amendment claims against John Doe
RHU Officers, and a John Doe Hearing Examiner, stemming from the
events of April 23, 2003.*fn5 While Defendant Moore argues
that Cole has failed to identify and serve these defendants
within 120 days of filing his complaint in accordance with
Fed.R.Civ.P. 4(m), which is true, the Court is more impressed by
the fact that the Cole's opportunity to learn the identity of
these John Doe defendants and amend his complaint to name them
has come and gone without his doing so.
Generally, courts will allow claims based upon John Doe
defendants to go forward at the initial stages of an action,
often surviving initial screening by the Court pursuant to
28 U.S.C. § 1915 or a motion to dismiss, because they may be found
and named later through the discovery process. See K.J. ex rel.
Lowry v. Division of Youth and Family Services,
363 F.Supp.2d 728, 740 (D.N.J. 2005) (citing Alston v. Parker, 363 F.3d 229,
233 n. 6 (3d Cir. 2004), and also, Hindes v. FDIC, 137 F.3d 148, 155 (3d
Cir. 1998)). However, in the present matter we are far past the
preliminary stages of the action as it was filed more than a year
ago concerning events that occurred in April 2003. The discovery
period in this matter closed six months after Defendant Moore
filed his Answer to the Complaint, i.e. on March 2, 2005. Nowhere
does Cole argue in his opposition materials that he was in any
way prevented from conducting discovery that may have revealed
the identity of his alleged attackers. As suggested in his
Complaint, Cole is aware that a videotape taken that day may shed
some light on the identity of his assailants. See Doc. 1. Cole
was also aware that due to the seriousness of his allegations
concerning the activities of the John Doe Defendants the incident
was to be investigated by the DOC's Office of Professional
Responsibility and SCI-Camp Hill's Security Office. See Doc.
32, Plaintiff's Opposition to Defendant's Motion For Summary
Judgment, pp. 5 and 8. In fact, on October 27, 2003, Cole was
advised of the outcome of that investigation. See Doc. 32, p.
10. As to the identity of the John Doe Hearing Examiner, it
appears that Cole was aware of the misconduct he received in
April 2003 which led to his placement in the RHU and thus should
have been able to identify the Hearing Examiner who presided over
that matter by reviewing related documents. See Doc. 32, p. 4. Cole was aware of several sources of information which may have
revealed the identity of the various John Doe defendants. Cole
was given a reasonable period of discovery in which he could have
learned the possible identity of the John Doe defendants. Cole
did not seek an enlargement of the discovery period. Cole does
not cite any interference or obstinance on the part of defendant
in participating in discovery matters. Thus, as discovery has
closed without objection, and Cole has failed to identify the
John Doe defendants, they will be dismissed from the action. See
Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D. Pa.
1990), aff'd, 946 F.2d 202 (3d Cir. 1991) ("Fictitious parties
must eventually be dismissed, if discovery yields no
identities."); see also Manning v. Temple Univ., 2004 WL
3019230, at *13 (E.D. Pa. Dec. 30, 2004) (citing Rodriguez v.
City of Phila., 1996 WL 180015, at *2 (E.D. Pa. April 15, 1996)
(finding that where discovery was completed and a summary
judgment motion was pending, unidentified John Doe defendants had
to be dismissed)).
We will issue an appropriate order. ORDER
AND NOW, this 17th day of October, 2005, for the reasons set
forth in the accompanying Memorandum, IT IS ORDERED THAT:
1. Defendant Moore's Motion for Summary Judgment
(doc. 25) is GRANTED.
2. The Clerk of Court is directed to enter judgment
in favor of Defendant Moore and against Plaintiff
3. Plaintiff's claims against all John Doe defendants
4. The Clerk of Court shall close this case.
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