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Steven M. Hunter v. Warden Brian Bledsoe

September 28, 2011

STEVEN M. HUNTER, PLAINTIFF
v.
WARDEN BRIAN BLEDSOE, ET AL., DEFENDANTS



The opinion of the court was delivered by: Judge Caldwell

MEMORANDUM

I. Introduction

Plaintiff Steven Hunter, an inmate formerly housed in the Special Management Unit (SMU) at the United States Penitentiary in Lewisburg, Pennsylvania, (USP-Lewisburg),*fn1 filed this Bivens action against several Bureau of Prisons (BOP) and USP-Lewisburg officials.*fn2 This matter proceeds on the second amended complaint filed on October 26, 2010. Doc. 37. Named as defendants are: Attorney General Eric Holder; H. Lappin, Director of the BOP; J. Norwood, Regional Director; Warden Bledsoe; D. Young, Associate Warden; N. Nevil, Administrative Remedy Clerk; Unit Manager Brewer; L. Karpen, Chief Psychologist; V. Cahill, Education Supervisor; SIS Fosnot; SIS Perrin; Deputy Captain Snider; Lt. Galletia; Lt. T. Johnson; Correctional Officer (CO) Anderson; CO Hummer; CO Kulago; Counselor Lizardo; Counselor Shuck; J. Dunkalberger, Case Manager; C. Zegarski, Case Manager; and S. Brown, Medical Administrator.

Hunter claims the defendants: improperly used excessive force against him when improperly placing him in ambulatory restraints and when extracting him from his cell; failed to protect him on three different occasions when they failed to properly screen his cellmates who assaulted him; issued him false and retaliatory misconducts; denied him medical care on several occasions; failed to correct inaccuracies in his pre-sentence report (PSR); failed to separate him from radical Muslim inmates; and failed to transfer SMU graduates to medium security facilities. He also asserts a general conditions-of-confinement claim related to his stay in the SMU.

Defendants have filed a motion to dismiss, or in the alternative, for summary judgment. Doc. 48. Defendants have filed a supporting brief, exhibits, and statement of material facts. Docs. 49 and 50. Plaintiff has failed to oppose defendants' motion or request an enlargement of time to do so.*fn3 Accordingly, under M.D. Local Rule 56.1, all facts set forth in the defendants' statement of material facts are deemed admitted, and the court will adopt those facts when considering defendants' motion.

For the reasons set forth below, the Defendants' motion for summary judgment will be granted.

II. Standards of Review

A. Failure to Exhaust Administrative Remedies as to all claims except for Defendants' alleged Failure to Remove Inaccurate Information from Hunter's PSR.

Because documents outside the pleadings have been presented by Defendants and will be considered by the court, the motion will be addressed as one for summary judgment. Under Fed. R. Civ. P. 56, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In pertinent part, parties moving for, or opposing, summary judgment must support their position by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials."

Fed.R.Civ.P. 56(c)(1)(A). In deciding a motion for summary judgment, "[t]he court need consider only the cited materials, but it may consider other materials in the record."

Fed.R.Civ.P. 56(c)(3). " 'The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor.' " Colwell v. Rite--Aid Corp., 602 F.3d 495, 501 (3d Cir. 2010) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986)).

III. Discussion

Under the Prison Litigation Reform Act (PLRA), before a prisoner may bring a civil rights action pursuant to 42 U.S.C. § 1983, or any other federal law, he must exhaust all available administrative remedies. See 42 U.S.C. § 1997e; Porter v. Nussle, 534 U.S. 516, 524, 122 S.C. 983, 988, 152 L.Ed.2d 12 (2002). A prisoner must "exhaust all available administrative remedies" regardless of whether the administrative process may provide the prisoner with the relief that he is seeking. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). "[I]t is beyond the power of [any] court ... to excuse compliance with the exhaustion requirement, whether on the ground of futility, inadequacy or any other basis." Id. at 73. "If exhaustion is not complete at the time of filing, dismissal is mandatory." Toney v. Bledsoe, 2011 WL 1828380, at *2 (3d Cir. 2011)(citing Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003)).

The exhaustion requirement of the PLRA is one of "proper exhaustion." Woodford v. Ngo, 548 U.S. 81, 84, 126 S.Ct. 2378, 2383, 165 L.Ed.2d 368 (2006). Failure to substantially comply with procedural requirements of the applicable prison's grievance system will result in a procedural default of the claim. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004). The exhaustion requirement is mandatory and cannot be excused for "'sensitive' subject matter or ...


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