United States District Court, W.D. Pennsylvania
Gibson, District Judge.
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.
Andrew J. Dancha, Jay Cowan, Jawad Salameh, and Correct Care
Solutions, LLC (collectively, the "CCS Defendants")
have filed a Motion to Dismiss, or in the Alternative, Motion
for Summary Judgment and brief in support (collectively, the
"Motion to Dismiss"), ECF Nos. 57 and 58, raising
inter alia Plaintiff Anthony Harper's
("Plaintiff) failure to exhaust available administrative
remedies pursuant to 42 U.S.C. § l997e(a) as a complete
defense to Plaintiffs claims against the CCS Defendants. In
their Motion to Dismiss, the CCS Defendants rely upon
Plaintiffs grievance file, ECF No. 58-1, and the Department
of Corrections' Inmate Grievance System Policy, ECF No.
58-2. Plaintiff submitted a brief in opposition to
Defendants' Motion to Dismiss on July 18, 2019. ECF No.
62. The CCS Defendants filed a Reply on August 2, 2019. ECF
parties are hereby notified that this pending motion will be
treated as a motion for summary judgment under Federal Rule
of Civil Procedure 56. See Renchenski v. Williams,
622 F.3d 315, 339-41 (3d Cir. 2010); see also Paladino v.
Newsome, 885 F.3d 203, 208 (3d Cir. 2018) (affirming
order on defendant's motion for summary judgment for
failure-to-exhaust based on prison records and an affidavit
without discussing when such a motion may be construed as a
motion to dismiss). Plaintiff, as the nonmovant, is advised
that in treating the Motion to Dismiss as a motion for
summary judgment, the motion will be evaluated under the
standard set forth in Rule 56 of the Federal Rules of Civil
Procedure. Plaintiff is on notice that failure to respond to
the pending motion may result in the entry of judgment
response to the motion for summary judgment may include
opposing or counter-affidavits (executed by Plaintiff or
other persons) which have either been sworn to under oath
(notarized) or which include immediately before the signature
of the individual making the affidavit or declaration the
following statement, in accordance with 28 U.S.C. §
1746: "I declare under penalty of perjury that the
foregoing is true and correct. Executed this ___ day of ___,
20 ___." The affidavits must be based upon the personal
knowledge of the person executing the affidavit and no
affidavit, complaint, pretrial narrative or other document
containing Plaintiffs allegations will be considered when
determining the motion for summary judgment unless it has
been notarized before a notary public or unless it contains a
declaration under penalty of perjury as set forth above. If
facts are unavailable to the nonmovant, an affidavit
following the requirements of subsection (d) may be filed.
See Rule below.
of the Federal Rules of Civil Procedure is reproduced in its
entirety, for your convenience, as follows:
Rule 56. Summary Judgment.
(a) Motion for Summary Judgment or Partial Summary
Judgment. A party may move for summary judgment,
identifying each claim or defense-or the part of each claim
or defense-on which summary judgment is sought. The court
shall grant summary judgment 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. The court should
state on the record the reasons for granting or denying the
(b) Time to File a Motion. Unless a
different time is set by local rule or the court orders
otherwise, a party may file a motion for summary judgment at
any time until 30 days after the close of all discovery.
(1) Supporting Factual Positions.
A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),
admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce ...