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Weldon v. Cywinski

August 7, 2006

ROBERT C. WELDON, PLAINTIFF
v.
LT. JEFF CYWINSKI, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

Robert C. Weldon, an inmate at SCI-Dallas filed this civil rights action on March 11, 2004, pursuant to 42 U.S.C. § 1983, alleging that defendants retaliated against him after he filed several complaints against two non-defendant corrections officers. Weldon claims defendants failed to protect him from harm assault by his cellmate and then helped his assailant avoid criminal prosecution for the attack.

Presently before the Court is the defendants' motion for summary judgment.*fn1 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).

The Court will grant the moving defendants' summary judgment motion based on Weldon's failure to exhaust his administrative remedies with respect to the DOC defendants. As for Plaintiff's claims against Trooper Buzink, they are dismissed for failure to state a claim.

II. Background*fn2

In September 2002, Weldon received a misconduct from two non-defendant corrections officers. On September 3, 2002, Hearing Examiner Jones found Weldon "not guilty" of the charges. On September 23, 2002, Weldon filed a grievance against the officers alleging harassment. (Doc. 47, Plaintiff's Exhibit No. 30; see also Doc. 62-11, Plaintiff's Exhibits, No. 10.) Weldon claims Grievance Coordinator Burnett failed to respond to this grievance.

In November 2002 Weldon received a second false misconduct from the same non-defendant corrections officers. (Doc. 47, Plaintiff's Exhibit No. 3). Hearing Examiner Jones found Weldon guilty of all charges. In December 2002, Weldon filed a "grievance" to Superintendent Lavan for Burnett's failure to respond to his earlier grievance, No. 39500. (See Doc. 77-2, Exhibit 1, Grievance No. 3955). On January 9, 2003, Chief Grievance Coordinator Thomas James dismissed Weldon's "rejected grievance" as he "failed to comply with the provision(s) of DC-ADM 804, Inmate Grievance System." (Doc. 87-2, Plaintiff's Exhibits, January 9, 2003 letter). Weldon's grievance was rejected at the institutional level because it related to his receipt of a misconduct and therefore must be exhausted via DC-ADM 801, regarding Inmate Discipline, and not DC-ADM 804, the Inmate Grievance System. (Id.)

On January 3, 2002, Weldon sent a letter to the DOC's Office of Professional Responsibility requesting an investigation on the two non-defendant corrections officer's behavior. (Doc. 47, Plaintiff's Exhibit No. 30). On May 7, 2003, Weldon sent a letter to the Pennsylvania State Police (PSP) expressing his interest in pursuing charges against the same non-defendant officers. On May 18, 2003, he received a letter from the PSP advising him to utilize the DOC's complaint system. During a May 18, 2003, phone conversation with his father Weldon asked that he contact the PSP on his behalf. On May 19, 2003, Plaintiff was given a pass to go to the Security Office to see Lt. Cywinski who questioned him why his father called the PSP. (Id.)

On May 22, 2003, Rich Holmes, Weldon's Unit Manager assigned Plaintiff to a cell with James Alward. (Docs. 1 and 47). On May 29, 2003, Plaintiff advised Unit Manager Holmes that he is "not getting along" with Alward. (Doc. 47, Plaintiff's Exhibit No. 30).

On June 25, 2003, at approximately 4:00 a.m., Alward assaulted Weldon who reported the attack to a block officer at 6:45 a.m. (Id.) Weldon was given a pass to the Security Office where he was interviewed by Lt. Cywinski and escorted to the infirmary. (Id.) Photographs were taken of Weldon's bruised right arm and right buttocks. (Id.) Weldon and Lt. Cywinski returned to the Security Office and Lt. Cywinski called the PSP to report the assault. (Id.) At approximately 8:30 a.m. Trooper Buzink arrived at the institution, questioned Plaintiff and took additional photographs of his injuries. (Id.) Tpr. Buzink issued Alward a non-traffic citation for harassment. (Doc. 47, p. 5).

On July 30, 2003, Alward appeared before District Magistrate Tupper. Weldon, Lt. Cywinski, Tpr. Buzink and several escorting officers were present for the hearing. (Doc. 77-2, p. 3). At the conclusion of the hearing, all charges against Alward were dismissed. (Doc. 77-2, doc. 47). Upon Plaintiff's return to SCI-Dallas, he was placed in administrative custody until staff interviewed Alward who stated he had no "hard" feelings against Weldon and would have no problems being housed next to him. (Doc. 59, Defendants' Statement of Undisputed Material Facts). Weldon was released from administrative custody on September 4, 2003. (Doc. 47, Plaintiff's Exhibit No. 30).

III. Discussion

A. Weldon's Exhaustion of ...


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