The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge
The plaintiff, a state prisoner, commenced this 42 U.S.C. § 1983 action by filing a complaint on September 27, 2004. On January 10, 2005, the plaintiff filed an amended complaint, and on May 31, 2005, he filed a second amended complaint.
The defendants named in the second amended complaint are: 1) Kenneth Hollibaugh, a unit manager at the State Correctional Institution at Huntingdon (SCI-Huntingdon); 2)
Thomas Emeigh, a sergeant at SCI-Huntingdon; 3) Mark Wall, a corrections officer at SCI-Huntingdon; and 4) Dustan Rhodes, a corrections officer at SCI-Huntingdon. The plaintiff claims that the defendants violated the Eighth Amendment by failing to protect him from an attack by another prisoner.
The parties consented to proceed before a magistrate judge pursuant to 28 U.S.C. § 636(c). The case is currently scheduled for a pre trial conference on January 19, 2006 and for a jury trial beginning on February 6, 2006.
Currently pending is a motion for summary judgment filed by the defendants.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). "The moving party bears the initial burden of demonstrating the absence of any genuine issue of material fact, though the non-moving party must make a showing sufficient to establish the existence of each element of his case on which he will bear the burden of proof at trial." Huang v. BP Amoco Corp., 271 F.3d 560, 564 (3d Cir. 2001); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).
"A factual dispute is material if it bears on an essential element of the plaintiff's claim, and is genuine if a reasonable jury could find in favor of the nonmoving party." Natale v. Camden County Correctional Facility, 318 F.3d 575, 580 (3d Cir. 2003). In determining whether an issue of material fact exists, the court must consider all evidence in the light most favorable to the non-moving party. White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). "Our function at the summary judgment stage is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Federal Home Loan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 443 (3d Cir. 2003).
The defendants contend that they are entitled to summary judgment because the plaintiff failed to exhaust available administrative remedies before filing suit.
42 U.S.C. § 1997e(a), provides: No 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.
Pursuant to § 1997e(a), the exhaustion of available administrative remedies is mandatory. Booth v. Churner, 532 U.S. 731, 739 (2001). The "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 (2002). A prisoner must "exhaust all available administrative remedies" regardless of whether the administrative process may provide the prisoner with the relief that he is seeking. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). "[C]compliance with the administrative remedy scheme will be satisfactory if it is substantial." Id. at 77. Failure to exhaust available administrative remedies is an affirmative defense. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). As an affirmative defense, the failure to exhaust available administrative remedies must be pleaded and proven by the defendants. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).
The Pennsylvania Department of Corrections has implemented an Official Inmate Grievance System. The grievance system is governed by Administrative Directive 804 (DC-ADM 804). DC-ADM 804 sets forth a three-tier administrative remedy system. Pursuant to DC-ADM 804, an inmate is required to present his grievance to the Facility Grievance Coordinator for initial review within fifteen days after the events upon which the grievance is based. The inmate is required to appeal an adverse determination by the Facility Grievance Coordinator to the Facility Manager. From there the inmate must appeal to the Secretary's Office of Inmate Grievances and Appeals.
On October 29, 2003, the plaintiff's cellmate, Ricardo Nobles, attacked the plaintiff in the dining hall and cut the plaintiff's face with a razor. Defendants' Statement of Material Facts Not in Dispute at ¶25 and the Plaintiff's Statement of Material Facts Not in Dispute at ¶25.
The plaintiff filed a grievance on October 30, 2003, regarding the staff's failure to move him to a different cell. Id. at ¶35. The grievance was assigned grievance number 66369. Id. The plaintiff's grievance stated:
My Grievance is against the 2 to 10 staff of E Blk Rhodes, Wall, Sgt. Roth. Reason I repeatly [sic] asked that Nobles be moved or move me out the same cell we were not getting along. For 3 week[s] they would not move us. C/O Rhodes & Wall joked about the problem. Now on Oct 29 Inmate Nobles pack his belonging[s] put them on his bunk came to the kitchen and assaulted me with a razor cutting me across the face. I intend to take this matter all the way [.] I seek compensation for my injury which will be permanent scarring. If these officers would have acted with due assiduousness this could have been avoided.
Doc. 32, Exhibit 14. In response to the prompt on the grievance form to list actions taken and staff contacted before submitting the grievance, the plaintiff wrote: "Asked Sgt. Amaker of E Blk also C/O Rhodes, C/O Wall, C/O Roth Also put a cell agreement in with inmate Grasty for him to move with me to C/O Wall but would not move us." Id. The plaintiff did not name defendant Hollibaugh in his grievance. Id.
By a response dated November 7, 2003, defendant Hollibaugh, the Unit Manger on E Block, responded to the plaintiff's grievance. Doc. 32, Exhibit 15. According to defendant Hollibaugh, he sent the response to the plaintiff at SCI-Smithfield where the plaintiff had been transferred on November 4, 2003. Defendants' Statement of Material Facts Not in Dispute at ¶38. According to the plaintiff, however, he did not receive defendant Hollibaugh's response to his grievance until January 6, 2004. Doc. 37, Exhibit 8 at ¶26.
On November 26, 2003, the plaintiff submitted a written Inmate Request to Staff to Lisa Hollibaugh in which he stated: "I would like a copy of DC 804 official inmate grievance Initial Review Response to #66369. I was told you could provide me with this." Plaintiff's Statement of Material Facts Not in Dispute - Additional Material Facts Not in Dispute at ¶62 and Defendants' Statement of Material Facts Not in Dispute -Defendants' Response to Plaintiff's Additional Material Facts at ¶62. On December 2, Ms. Hollibaugh responded "Did you not receive a copy?" Id. at ¶63.
On December 2, 2003, the plaintiff filed a grievance (assigned number 69235) to Diana Baney, the Facility Grievance Coordinator at SCI Huntingdon. Id. at ¶64. In that grievance, after complaining of the loss of some of his property after his transfer from SCI Huntingdon, the plaintiff wrote: "Also, I have not received my response to grievance #66369 and it well over the time that I should have a response." Id. at ¶65.
On December 4, 2003, the plaintiff wrote an Inmate Request to Staff to Lisa Hollibaugh responding to her reply to his request of November 26, 2003. Id. at ¶66. In the request, the plaintiff stated that no he did not receive a copy of the response to his grievance and he again asked that he be sent a copy. Id. at ¶67. On December 8, 2003, Ms. Hollibaugh replied: "Mr. Williams, write the records department and they can get you one out of your DC-15. I do not have a copy in my office. Since it happened at SCI Huntingdon, make sure you mention that the grievance is from Huntingdon." Doc. 42, Exhibit 26.
On December 15, 2003, Diana Baney rejected the plaintiff's grievance numbered 69235 as untimely. Plaintiff's Statement of Material Facts Not in Dispute - Additional Material Facts Not in Dispute at ¶69 and Defendants' Statement of Material Facts Not in Dispute - Defendants' Response to Plaintiff's Additional Material Facts at ¶69.
On December 16, 2003, the plaintiff asked his counselor at SCI-Smithfield to e-mail his former counselor at SCIHuntingdon to request a copy of the response to ...