The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
Jose Vega, an inmate formerly housed at Lewisburg United States
Penitentiary ("USP-Lewisburg"), Lewisburg, Pennsylvania,*fn1
filed this pro se civil rights action. Vega avers that on March
14, 2003, while housed at USP-Lewisburg, he assaulted Associate
Warden Sniezek with a razor blade during the noon meal. (Doc. 1,
Complaint; Doc. 21, Amended Complaint). In retaliation for this
attack, Defendants assaulted him and then denied him medical care
for his injuries. Vega seeks monetary relief from the following
defendants: Warden D. Scott Dodrill, Lt. Knox, Corrections
Officer ("CO") Fisher, CO Heaganbach, CO Hummer, CO Edinger, Physician Assistant Navarro, Dr. Noone, and
Presently before the Court is Defendants' Motion for Summary
Judgment premised upon Vega's alleged failure to properly exhaust
his available administrative remedies. Having carefully
considered the matter, we find that Vega's claims are
procedurally defaulted as he failed, without excuse, to timely
file an Administrative Remedy Request pursuant to the procedure
set forth in the Bureau of Prisons' ("BOP") Administrative Remedy
Program challenging his alleged mistreatment. Accordingly,
Defendants' motion for summary judgment will be granted.
Vega filed this action on November 1, 2004, (doc. 1), and then
filed a supplemental pleading on November 29, 2004. (Doc. 16).
After receiving an extension of time to answer or otherwise
respond to the Complaint, Defendants filed their Motion for
Summary Judgment, supporting brief and exhibits. (Docs. 35 and
36). Vega then filed an extension of time to respond to
Defendants' motion. (Doc. 41).
On May 31, 2005, Vega filed a Motion for Summary Judgment.
(Doc. 43). At the same time, Vega filed "Plaintiff's Brief in
Response to Defendants' Motion for Summary Judgment" (doc. 44), and "Plaintiff's Opposition and Counter Defense to
Defendants' Motion, Brief, Affidavit and Exhibits" (doc. 45).
Vega has not filed a brief in support of his Motion for Summary
Judgment.*fn2 Defendants filed a response to Vega's motion,
noting that his submissions in connection with that motion were
briefs in opposition to their motion for summary judgment. (Doc.
46). More than a month later, after Vega was transferred back to
the Florence facility, Vega submitted his "Exhibits in Support of
his Brief Regarding Exhaustion of Remedies." (Doc. 50).
Defendants then filed a Response to his submission. (Doc. 51). On
August 23, 2005, Vega filed his "Response to Defendants' Response
to File Opposition to his Exhibits Regarding Exhaustion of
Administrative Prison Remedies." (Doc. 52). Aware of Vega's
claims that he had difficulty obtaining his legal materials and
legal research items while at the Springfield medical facility,
we will consider all of Vega's opposition materials (docs. 44,
45, 50 and 52) and defendants' responses when resolving this
motion. III. Background.
A. Events of March 14, 2003.
On March 13, 2003, at approximately 11:24 a.m., Vega assaulted
USP-Lewisburg's Associate Warden Sniezek with a razor blade
during the noon mainline meal. (Doc. 1, Complaint, and 21-2,
Plaintiff's Exhibits in Support of his Amended Complaint). After
temporarily holding staff at bay, Plaintiff was subdued and
placed in ambulatory restraints and taken to the Lieutenant's
office. Defendants Fisher, Hagenbuch, Edinger, Hummer, and Knox
held Vega down while Dr. Bussanich injected him with an unknown
substance rendering him physically and mentally incapacitated.
(Id.) Vega was stripped naked and "assaulted by prison staff
for a duration of at least an hour." (Doc. 1 at ¶ 5). Plaintiff
sustained a broken rib, body and head contusions, loss of hearing
in his left ear and several abrasions as a result of the attack.
(Id. at ¶ 6).
After the assault, at approximately 11:45 a.m., Vega was
escorted to the prison's Health Services Department and examined
by Dr. Bussanich. (Doc. 21-3, Inmate Injury Assessment and
Followup Report). Although Dr. Bussanich saw the extent of
Plaintiff's injuries, he failed to treat or properly document
them. (Docs. 1 and 21). Vega was then taken to the Special
Housing Unit. (Doc. 21-2, p. 9). PA Navarro examined Vega at approximately 12:00 p.m. (Id. at p. 10). Navarro also ignored,
overlooked and failed to document Vega's injuries denying him
proper medical treatment.
Later that day Vega was transported from USP-Lewisburg to
neighboring USP-Allenwood. Upon reception staff photographed and
documented Vega's injuries. At approximately 2:45 p.m. Plaintiff
was medically evaluated and several abrasions were noted on
various parts of his body. One contusion and hematoma were also
noted on the right side of his forehead. (Id. at pp. 8-14).
Minor first aid was administered. (Id. at p. 12).
B. Vega's Efforts to Exhaust his Administrative Remedies.
Immediately upon his transfer to USP-Allenwood Vega was placed
on "suicide status." (Doc. 44, Plaintiff's Brief in Response to
Defendants' Motion for Summary Judgment). He remained on suicide
status until March 25, 2003, when he was transferred to the
United States Medical Center for Prisoners, Springfield,
Missouri, for mental-health evaluation and treatment. While
there, he wrote a letter to the BOP Legal Department complaining
of his recent assault but received no response. Plaintiff also
"made informal efforts to execute his complaints by discussing
them with `Springfield's' Correctional Counselor, Mr. Cunningham,
who advised Vega that because he was seeking compensation he (meaning Vega) would have to file a
Federal Tort Claim." (Doc. 44, Plaintiff's Rebuttal to
Defendant's Motion for Summary Judgment, at ¶ 13; and Doc. 45-1,
Plaintiff's Opposition and Counter Defense to Defendants' Motion,
Brief, Affidavit and Exhibits, p. 8). Plaintiff returned to
USP-Allenwood on June 25, 2003. (Doc. 44).
On or about July 3, 2003, Vega received a "fabricated"
misconduct for assaulting USP-Lewisburg's Associate Warden. (Doc.
44). On July 5, 2003, Vega was charged in the Middle District of
Pennsylvania with assaulting a corrections employee. These
proceeding terminated in February 2005 after Vega plead guilty to
From July 18, 2003, through October 23, 2003, while housed at
USP-Allenwood, Vega filed various grievances challenging a
variety of issues. (Id. at ¶ 17). In March 2004, Vega filed an
administrative tort claim with the BOP regarding the March 14,
2003, assault and his ...