The opinion of the court was delivered by: Judge Caputo
Presently before the Court is the defendant Matthew Kessler's motion for summary judgment. (Doc. 53.) For the reasons explained below, the motion will be granted.
Plaintiff Karim Mayfield is an inmate in a state correctional facility. He filed his complaint against the defendants on September 28, 2009. Pursuant to the screening provisions of 28 U.S.C. § 1915, the Court dismissed all claims against SCI-Cresson and all claims at Counts I, II, IV, and V of the complaint against Matthew Kessler. The sole remaining claim is a § 1983 claim against Defendant Matthew Kessler. Mayfield alleges that Kessler, a prison employee, assaulted him. Kessler moves for summary judgment on this claim on the sole ground that Mayfield failed to exhaust his administrative remedies in accordance with Policy No. DC-ADM 804.
Summary judgment is appropriate "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c)(2). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of material fact; and (2) the moving party is entitled to judgment as a matter of law. See 2D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 2727 (2d ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing on an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256--57. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990). In deciding a motion for summary judgment, "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." Anderson, 477 U.S. at 249.
B. Exhaustion of Available Administrative Remedies
Under the Prison Litigation Reform Act, a prisoner may not bring a civil action under § 1983 "until such administrative remedies as are available have been exhausted." 42 U.S.C. 1997e(a). Failure to exhaust administrative remedies is an affirmative defense to be pleaded and proved by the defendant. Ray v. Kertes, 285 F.3d 287, 292 (3d Cir. 2002). Inmates must comply with the procedural rules in place at the correctional facility in order to properly exhaust under the PLRA. Woodford v. Ngo, 548 U.S. 81, 95 (2006).
Kessler asserts that Mayfield failed to properly exhaust under Policy No. DC-ADM 804. Mayfield claims that this policy did not apply to him, and thus he was not required to file a grievance in accordance with its procedures. If Mayfield raises a triable issue as to whether he exhausted his available remedies summary judgment must be denied.
In accordance with Local Rule 56.1, Kessler filed a "separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried." Local Rule 56.1 dictates that "[t]he papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts, responding to the numbered paragraphs set forth in the statement required [of the movant], as to which it is contended that there exists a genuine issue to be tried." Mayfield responded with a statement of facts.
At paragraph 10, the defendant's statement asserts that under the relevant version of DC-ADM 804 in effect, a grievance needed to be submitted within fifteen working days of the event. The plaintiff objects to this paragraph. In his responsive paragraph, the plaintiff alleges that Rebecca Reifer, the Superintendent Assistant, told him on May 8th that he could not submit a grievance because a misconduct citation was issued to him on May 4th regarding the incident with Kessler, and thus the grievance system governed by DC-ADM 804 was not applicable. However, Mayfield fails to provide admissible evidence in support of this assertion under Federal Rule of Civil Procedure 56(c)(1). The exhibit the plaintiff cites to is an unverified ...