IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
September 28, 2010
DANIEL HARPER, PLAINTIFF
JEFFERY BEARD, ET AL., DEFENDANTS
The opinion of the court was delivered by: Judge Conner
AND NOW, this 28th day of September, 2010, upon consideration of the report of the magistrate judge (Doc. 72) recommending that defendants' motion (Doc. 58) for summary judgment pursuant to FED. R. CIV. P. 56(c) be granted, and upon further consideration of the objections (Doc. 73) to the report filed by plaintiff Daniel Harper ("Harper"),*fn1 and defendants' opposition (Doc. 75) to Harper's objections, and Harper's response (Doc. 77) to defendants' opposition, and, following an independent review of the record, it appearing that Harper alleges an Eighth Amendment conditions of confinement claim and an Eighth Amendment excessive force claim*fn2 (Doc. 19), and it further appearing that Harper failed to exhaust his administrative remedies as required under the Prisoner Litigation Reform Act, 42 U.S.C. § 1997 ("PLRA") (providing that "[n]o 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");*fn3 see also Porter v. Nussle, 534 U.S. 516, 532 (2002) (PLRA applies to all inmate suits about prison life); Booth v. Churner, 532 U.S. 731, 739 (2001) (exhaustion of available administrative remedies is mandatory), and the court finding that it is not permitted to "excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis," Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000) (quoting Beeson v. Fishkill Corr. Facility, 28 F. Supp. 2d 884, 894-95 (S.D.N.Y. 1998)), and the court noting that Harper's objections raise allegations that his attempts to file grievances were obstructed,*fn4 and that he was not permitted to inspect his medical records,*fn5 and the court further noting that these allegations are unsupported by any evidence in the record, and the court concluding that at the summary judgment stage Harper's unsubstantiated allegations are insufficient to survive summary judgment, see FED. R. CIV. P. 56(e)(2) (stating that "[w]hen a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleadings"); see also Daniels v. Kelchner, No. 1:05-CV-1601, 2009 WL 743577 at *3 (M.D. Pa. Mar. 18, 2009) (allegations lacking evidentiary support may be disregarded) (citing Jones v. UPS, 214 F.3d 402, 407 (3d Cir. 2000)), it is hereby ORDERED that:
1. The report and recommendation (Doc. 72) of the magistrate judge is ADOPTED.
2. The defendants' motion (Doc. 58) for summary judgment pursuant to FED. R. CIV. P. 56(c) is GRANTED.
3. The Clerk of Court is directed to enter JUDGMENT for the defendants.
4. The Clerk of Court is directed to CLOSE this case
CHRISTOPHER C. CONNER United States District Judge