The opinion of the court was delivered by: Chief Magistrate Judge Lisa Pupo Lenihan
Plaintiff, Abdul Brown, is an inmate in the custody of the Pennsylvania Department of Corrections currently incarcerated at the State Correctional Institution at Camp Hill. He initiated this matter on May 14, 2007, by filing a Complaint pursuant to 42 U.S.C. § 1983 complaining about the conditions of his confinement while in the Special Management Unit ("SMU") at SCI-Fayette. After a lengthy case history, this Court issued a Memorandum Order on March 21, 2011, (ECF No. 135), granting Defendants' motion for summary judgment except as to Plaintiff's claim that Defendant Lee Johnson used the EBID after Plaintiff was fully restrained in the restraint chair and thus incapable of being a threat. The Court then ordered the parties to brief the issue of whether the remaining claim had been properly exhausted pursuant to § 1997e(a) of the Prison Litigation Reform Act ("PLRA"). Accordingly, on December 16, 2011, Defendant filed a Concise Statement of Material Facts Not in Dispute (ECF No. 148), a Motion for Summary Judgment (ECF No. 147) and a Brief in Support of Summary Judgment (ECF No. 149) addressing the exhaustion issue. Plaintiff filed a Brief in Opposition to Summary Judgment (ECF No. 154) and a Responsive Concise Statement of Material Facts (ECF No. 156). Defendant filed a Reply (ECF No. 158) to Plaintiff's response in opposition to summary judgment. Defendant's motion is now ripe for review by this Court.
A.Summary Judgment Standard
Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, the record indicates 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). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element 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 (1986). The moving party bears the initial burden of identifying evidence or the lack thereof that demonstrates the absence of a genuine issue of material fact. National State Bank v. Federal Reserve Bank of New York, 979 F.2d 1579, 1582 (3d Cir. 1992). Once that burden has been met, the non-moving 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. Ind. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 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 (1986). The inquiry, then, involves determining "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Brown v. Grabowski, 922 F.2d 1097, 1111 (3d Cir. 1990) (quoting Anderson, 477 U.S. at 251-52). If a court, having reviewed the evidence with this standard in mind, concludes that "the evidence is merely colorable . . . or is not significantly probative," then summary judgment may be granted.
Anderson, 477 U.S. at 249-50. Finally, 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(c); Celotex, 477 U.S. at 324; J.F. Feeser, Inc., v. Serv-A-Portion, Inc., 909 F.2d 1524, 1542 (3d Cir. 1990).
On December 12, 2005, while housed in the long term segregation unit at SCI-Fayette, Plaintiff smashed his cell door windows and ripped a metal plate off the wall inside his cell. Plaintiff was also observed threatening to assault staff with a mixture of urine and feces which he intended to throw out of his cell. In response to this situation, Lieutenant George Reposky assembled a cell extraction team and reported to Plaintiff's cell. In addition to the notes of the ensuing exchange, which Lieutenant Reposky prepared immediately thereafter, the cell extraction was videotaped by a corrections officer commencing with the assembly of the extraction team.*fn1 In briefing the cell extraction team, Lieutenant Reposky stated that Plaintiff had been medically cleared for the use of Oleoresin Capsicum (O.C.) (essentially mace or pepper spray), as well as the Electronic Barring Immobilization Device ("EBID"). The extraction team was accompanied by a nurse for the purposes of ensuring Plaintiff's continued well-being during the extraction. Lieutenant Reposky and the extraction team approached Plaintiff's cell, whereupon they discovered that Plaintiff had covered the window in the door with a towel. After Plaintiff refused several direct orders to remove the towel and submit himself to be handcuffed, Lieutenant Reposky administered a two-second burst of O.C. through the food aperture in Plaintiff's cell door. Plaintiff threw the aforementioned mixture of urine and feces at Lieutenant Reposky as he opened the food aperture. This initial dose of O.C. appears to have had no effect on Plaintiff, who can be heard speaking clearly -- even shouting -- at the officers even after its application. After being convinced to dispose of a second cup of urine and feces mixture, Plaintiff voluntarily submitted himself to be handcuffed and was removed from the cell without further incident.
Plaintiff was thereafter placed in a holding cell area so that the requisite strip search could be performed. At this time, Plaintiff was laughing and taunting the Corrections Officers and threatening "y'all gonna pay for this." After he refused several direct orders regarding the search, O.C. was used for a second time by Lieutenant Reposky. Once the strip search was completed, Plaintiff's eyes were washed by the nurse. Plaintiff was then removed from the holding cell area and taken to another cell where he was placed in a restraint chair and secured. While Plaintiff was being secured in the chair, Officer Jay Haines used the hand-held EBID on Plaintiff when he began resisting the application of the arm restraints. Once Plaintiff was secure therein, his eyes were once again washed and the restraints were checked. Upon his complaints of shortness of breath, the nurse administered Plaintiff's inhaler.
After Plaintiff was secured and bound to the restraint chair, the video camera was turned off. Plaintiff alleges that, at some point after the video camera had been turned off, Defendant Johnson shocked him two or three times with the EBID even though he was incapable of being a threat to anyone and also incapable of any defense. He claims that this use of the EBID caused him to vomit and defecate on himself.
Plaintiff was placed in the restraint chair at approximately 10:30 a.m. and was removed at approximately 6:30 p.m.
Defendant argues that Plaintiff may not pursue his claim concerning the alleged improper use of the EBID device on him after he was fully restrained in the restraint chair on the basis of his failure to have exhausted his available administrative remedies as required by the PLRA. Through the PLRA, Congress amended 42 U.S.C. § 1997e(a) to prohibit prisoners from bringing an action with respect to prison conditions pursuant to 42 U.S.C. § 1983 or any other federal law, until such administrative remedies as are available are exhausted. Specifically, the act provides, in pertinent part, as follows:
No action shall be brought with respect to prison conditions under section 1979 of the Revised Statutes of the United States (42 U.S.C. § 1983), or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility ...