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McKinney v. Zihmer

March 23, 2010

DERRICK MCKINNEY, PLAINTIFF
v.
C.O. ZIHMER, ET AL., DEFENDANTS



The opinion of the court was delivered by: (Judge Rambo)

MEMORANDUM

I. Background

Plaintiff Derrick McKinney ("McKinney"), an inmate formerly confined in the State Correctional Institution in Camp Hill, Pennsylvania ("SCI-Camp Hill"), initiated this action pro se by filing a civil rights complaint pursuant to 42 U.S.C. § 1983, naming as Defendants Unit Manager William Ward, and Corrections Officers Guthrie, Zihmer, Wise, Stender, and Bloor. (Doc. 1.) McKinney alleges that Unit Manager Ward ordered the remaining Defendants to assault McKinney on two separate occasions in December 1999.

On November 29, 2001, the court sua sponte dismissed McKinney's complaint for failure to exhaust his administrative remedies. (Doc. 9.) McKinney appealed the decision to the Third Circuit Court of Appeals and supplemented the record with an April 26, 2000 letter from Robert Bitner, the Chief Hearing Examiner ("Bitner Letter"), acknowledging receipt of McKinney's appeal of Grievance No. CAM-0099-00. In an opinion filed on June 4, 2003, the Third Circuit concluded that the Bitner Letter could establish McKinney's compliance with the administrative exhaustion requirement and vacated the judgment of this court and remanded the case for further proceedings.*fn1 (See Doc. 39.) The Third Circuit further directed this court to serve Defendants with a copy of the complaint and the Bitner letter, and advised that on remand Defendants "may raise the defense of exhaustion of administrative remedies . . . ." (Id. at 5.)

Following remand, Defendants filed a motion to dismiss, or in the alternative for summary judgment, the complaint for failure to exhaust administrative remedies. (Doc. 52.) Defendants asserted that the Bitner Letter concerned the review of Grievance No. CAM-0099-00 which addressed an alleged assault by Officer Guthrie on February 10, 2000. Defendants argued that this grievance did not relate in any way to the allegations against the Defendants that were the basis for McKinney's complaint. As a result, Defendants contended, McKinney had failed to exhaust his administrative remedies.

On April 8, 2004, the court denied Defendants' motion, holding that although Grievance No. CAM-0099-00 referenced the February 10, 2000 assault, McKinney's claim was amended on appeal. (Doc. 74 at 12.) Specifically, in McKinney's administrative appeal to the Superintendent he alleged that he was assaulted on December 21, 1999 by Officers Guthrie and Zihmer. (Id.) This alleged assault was indeed part of the basis for McKinney's instant complaint. As a result, the court denied summary judgment as to all Defendants and directed them to file an answer to McKinney's complaint. (Id. at 15.)

After Defendants filed an answer and the parties engaged in a period of discovery, Defendants filed another motion for summary judgment on March 23, 2006. (Doc. 97.) The court denied the motion on December 8, 2006, finding that a genuine issue of material fact existed since the declarations of the parties were at odds as to whether McKinney was unjustifiably beaten in December 1999. (Doc. 111.) Further, the court granted summary judgment as to Unit Manager Ward because the record was devoid of any evidence supporting McKinney's claim against him. (Id.)

As the case moved toward trial scheduled in March 2007, all parties filed pretrial memoranda. (Docs. 127 & 132.) Defendants included in their pretrial memorandum the assertion that McKinney had failed to exhaust his administrative remedies with respect to Defendants Zihmer, Wise, Stender, and Bloor. (Doc. 127.) Following a pretrial conference on March 20, 2007, the court issued an order reversing the prior denial of summary judgment with respect to those Defendants. (Doc. 139.) The parties continued to trial with regards to Officer Guthrie. On April 3, 2007, a jury returned a verdict in favor of Officer Guthrie and against McKinney. (Doc. 150.)

On April 27, 2007, McKinney filed a notice of appeal regarding the dismissal of Defendants Zihmer, Wise, Stender, and Bloor; the grant of summary judgment as to Defendant Ward; the jury verdict for Officer Guthrie; and the denial of a discovery request. (Doc. 154.) On February 2, 2009, the Third Circuit affirmed the court's order and judgment regarding the dismissal of Defendant Ward, the verdict for Officer Guthrie, and the order regarding discovery, but vacated the court's order entered on March 20, 2007, which granted summary judgment in favor of Defendants Zihmer, Wise, Stender, and Bloor due to McKinney's failure to exhaust administrative remedies. (Doc. 161.) A mandate issued on February 25, 2009. (Doc. 163.)

On March 4, 2009, the court directed the remaining Defendants to file a brief in support of a grant of summary judgment in their favor. (Doc. 164.) Defendants filed their brief in support on March 24, 2009. (Doc. 165.) McKinney has filed a response.

(Doc. 166.) Since Defendants have not filed a reply brief, this matter is now ripe for disposition.

II. Statement of Facts

The following facts are necessary for disposition of the instant motion for summary judgment. On December 21, 1999, McKinney was purportedly assaulted by Officers Guthrie and Zihmer while being escorted to his cell from a Program Review Committee hearing. (Doc. 165-3, Ex. A, Compl., 5.) As a result of the altercation, Officer Guthrie issued McKinney Misconduct A130269, charging him with assault and using abusive language toward an employee. (Doc. 165-3, Ex. B, Misconduct A130269, 8-9.) In that Misconduct report, Officer Guthrie stated that McKinney struck Officer Guthrie with his waist belt and handcuffs, bit him on his left knee, and stated, "I'm going to get you every time I come out of my cell." (Id. at 8.)

On December 23, 1999, as McKinney was being escorted to his hearing on Misconduct A130269 by Officers Wise, Stendor, and Bloor, McKinney was allegedly assaulted again. (Doc. 165-3 at 5.) As a result of this altercation, Officer Wise issued McKinney Misconduct A130271, charging him with assault, refusing to obey ...


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