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Bailey v. C/O Gagon

August 19, 2009


The opinion of the court was delivered by: Magistrate Judge Lenihan


The above-captioned case is presently before the Court on Defendants' Motion for Summary Judgment (Doc. No. 61). Defendants assert that Plaintiffs have failed to exhaust their administrative remedies with respect to Plaintiffs' claims.


Plaintiffs, Demetrius Bailey ("Bailey") and Scott Drake ("Drake") are pro se prisoners currently in the custody of the Pennsylvania Department of Corrections ("DOC"). Plaintiff Bailey is presently incarcerated at the State Correctional Institution at Fayette; Plaintiff Drake is incarcerated at the State Correctional Institution at Retreat. Plaintiffs have brought the instant action pursuant to 42 U.S.C. § 1983 against 12 individuals who, at all relevant times, were employed by the DOC, regarding events alleged to have occurred in 2005 in the State Correctional Institution at Greene ("SCI-Greene"). Their claims arise from facts and circumstances surrounding their transfers to SCI-Greene from SCI-Graterford to participate in a trial relating to a previous civil rights action filed by Plaintiff Bailey. Both Plaintiffs aver various civil rights violations while at SCI-Greene including, inter alia, retaliation, and assault.

According to the instant Complaint, the Plaintiffs filed three (3) grievances with regard to their claims: grievance number 138112; grievance number 144506; and grievance number 138224. Bailey filed grievance number 138112 on December 9, 2005 at SCI Graterford. On December 13, 2005, the grievance was rejected at Initial Review, and Bailey was told that he had to re-file the grievance by sending it to SCI-Greene*fn1. This directive was consistent with the DOC-ADM 804 grievance procedure, which explicitly states that "[a] grievance must filed with the Facility Grievance Coordinator at the facility where the grievance occurred." Bailey appealed this rejection to the Superintendent, who again told him that he needed to process his grievance through SCI-Greene. Finally, Bailey appealed to Final Review, where his grievance was dismissed without consideration and he was again told that he was required to have "mailed [his] grievance to the Facility Grievance Coordinator at SCI-Greene."

As to grievance number 144506, Drake appears to have appealed the rejection of this grievance to Final Review. Drake, however, failed to follow appropriate procedures. Specifically, in attempting to appeal his grievance to final review, Drake simply wrote a very vague letter stating that he was appealing the dismissal of grievance number 144506, which had been rejected because he did not file it at the institution where the complained-of conduct had occurred. He failed to include any documentation in his letter to Final Review. The Secretary's Office of Inmate Grievances and Appeals responded stating that Drake had failed to comply with DC-ADM 804 in that he did not include copies of his initial grievance, initial review, and lower-level appeals in his submission of the grievance to Final Review. Drake was given 10 working days to in which to resubmit the grievance to Final Review along with the required documents so that his appeal could be considered. Drake failed to re-submit his appeal.

Bailey filed grievance number 138224 at SCI-Graterford on December 9, 2005, in which he complained that he had been assaulted at SCI-Greene by defendants Gagnon, Neil, Cramer, and Anderson. On December 14, 2005, Bailey was notified by the Grievance Coordinator at SCI-Greene that his grievance had been transferred to that facility and that additional time was therefore needed for a response. A response was provided by SCI-Greene Intelligence Captain Kingston on December 22, 2005. Captain Kingston denied Bailey's grievance on the merits, and not because it was filed at SCI-Graterford. Bailey appealed Kingston's denial to the SCIGraterford Superintendent. The appeal was likewise forwarded to SCI-Greene for review to Superintendent Folino. Superintendent Folino upheld Captain Kingston's determination and again denied Bailey's grievance. Bailey never appealed this grievance to Final Review.


Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential to that party's case, and for which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. Once that burden has been met, the nonmoving party must set forth "specific facts showing that there is a genuine issue for trial" or the factual record will be taken as presented by the moving party and judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v.Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis added by Matsushita Court). An issue is genuine only "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty-Lobby, Inc., 477 U.S. 242, 248 (1986). In Anderson, the United States Supreme Court noted the following:

[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. . . . [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.

If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.

Id. at 249-50 (internal citations omitted). While any evidence used to support a motion for summary judgment must be admissible, it is not necessary for it to be in admissible form. See Fed. R. Civ. P. 56 (e); Celotex Corp., 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990). The non-movant cannot rely solely on unsupported assertions or conclusory allegations. Anderson, 477 U.S. at 249.

Here, Defendants contend that they are entitled to summary judgment because Plaintiffs have failed to exhaust their administrative remedies. Plaintiff Bailey responds that grievance number 138112 and 138224 should have been combined because they share a factual basis, and number 138224 is merely a continuation of grievance number 138112; Bailey suggests that grievance number 138112 was properly exhausted and therefore all his claims survive. Bailey also argues that the Declaration of Dorina Varner is biased because she is a Defendant in a pending lawsuit filed by Plaintiff Bailey in the United States District Court for the Middle District of Pennsylvania at Civil Action ...

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