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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


I. Introduction

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. 2004).

  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.

  II. Background.

  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 Defendant Moore.

  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. 1998)).

  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, 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 Cole.
3. Plaintiff's claims against all John Doe defendants are DISMISSED.
4. The Clerk of Court shall close this case.

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