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Merritt v. Gullo

United States District Court, E.D. Pennsylvania

March 27, 2017

ROBERT MERRITT, Plaintiff,
v.
STEVEN GULLO, Defendant.

         Defendant's Amended Motion for Summary Judgment, ECF No. 30 - Denied Plaintiff's Motion to Appoint Counsel, ECF No. 44 - Granted in part

          MEMORANDUM AND ORDER

          Joseph F. Leeson, Jr. United States District Judge

         Defendant Steven Gullo has filed an Amended Motion for Summary Judgment concerning Plaintiff Robert Merritt's excessive force claims. Because Gullo has failed to show that Merritt failed to exhaust his administrative remedies and because a genuine issue of material fact exists concerning Merritt's excessive force claim, Gullo's Motion is denied.

         I. Background

         Merritt has filed a civil rights complaint pursuant to 42 U.S.C. § 1983, alleging that he was assaulted by Northampton County Correctional Officer Steven Gullo during his transport from the Northampton County Prison to the Warren County Correctional Facility on October 17, 2012. Complaint, ECF Nos. 1, 8 (filed on September 24, 2014, and refiled December 8, 2014). Specifically, Merritt claims that Gullo “hit” or “assaulted” him in the back of the head “for no known reason at all” and that Gullo applied handcuffs to Merritt “so tight[ly]” that Merritt could “not feel [his] hands” or wrists. See Id. at 1-3. Merritt alleges that Gullo's conduct caused him to suffer numbness in his wrists and blurred vision, dizziness, and loss of sleep. Id. at 3.

         On his complaint form, Merritt identified Northampton County Prison as the facility where was confined at the time of the events giving rise to his claims, and he checked “yes” in response to a question on the form asking whether that facility has a grievance procedure. Compl. 4. In response to a question asking whether the grievance procedure “cover[s] some or all of your claim(s), ” Merritt wrote that “Chris Naugle took care of it all.”[1] Id. In response to a question asking whether Merritt filed a grievance at the facility where his claims arose, Merritt checked “yes.” Id. He also checked “yes” in response to a question asking if he filed a grievance in any other facility. Id. In response to a question on the form asking “where did you file the grievance, ” Merritt wrote that “grievance officer Chris Naugle took care of all issues.” Id. In response to a question concerning the result of the grievance, Merritt wrote that he received “no respon[se].” Id. Finally, in response to a question asking “[w]hat steps, if any, did you take to appeal that decision, ” Merritt wrote that he filed a § 1983 claim in federal court. Id.

         Gullo initially filed a Motion for Summary Judgment on October 15, 2015, contending that (1) Merritt failed to exhaust his administrative remedies; and (2) Merritt's de minimis injuries reflect that Gullo did not use excessive force. See ECF Nos. 24-25. In a Memorandum and Order entered February 12, 2016, the Court addressed Gullo's failure-to-exhaust argument and determined that Gullo's statement that he was “not aware” of Merritt having filed a grievance against him was insufficient to meet Gullo's burden of showing that Merritt had failed to exhaust administrative remedies, and that in the absence of affidavits from the Northampton County and Warren County facilities confirming that Merritt did not follow proper procedures, Gullo could not carry his burden. ECF No. 27. The Court denied Gullo's Motion without prejudice.[2] Gullo subsequently filed the present Amended Motion for Summary Judgment, again on the grounds that Merritt failed to exhaust his administrative remedies and that his de minimis injuries show that Gullo did not apply excessive force.

         II. Legal Standard - Summary Judgment

         Summary judgment is appropriate if the moving party “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). A fact is material if it “might affect the outcome of the suit under the governing law, ” and a dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the evidence favoring the nonmoving party is “merely colorable” or “not significantly probative, summary judgment may be granted.” Id. at 249-50 (citations omitted). The parties must support their respective contentions-that a fact cannot be or is genuinely disputed-by “citing to particular parts of materials in the record” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute.” Fed.R.Civ.P. 56(c)(1). “The court need consider only the cited materials, but it may consider other materials in the record.” Fed.R.Civ.P. 56(c)(3).

         III. Analysis

         A. Gullo has not shown that Merritt failed to exhaust his administrative remedies.

         Gullo contends that Merritt's lawsuit is barred by the Prison Litigation Reform Act (“PLRA”) because Merritt failed to exhaust his administrative remedies.

         In pertinent part, the PLRA provides:

No 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 ...

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