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Harper v. Noel

United States District Court, W.D. Pennsylvania

August 5, 2019

ANTHONY HARPER, Plaintiff,
v.
DR. PAUL NOEL, DR. ANDREW J. DANCHA, R. N. BECKNOR, SECRETARY JOHN WETZEL, JOSEPH SILVA, JAY COWAN, JAMEY LUTHER, KOWALEWSKI, and JAW AD SALAMEH, Defendants.

          Kim R. Gibson, District Judge.

          ORDER

          MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE.

         Defendants 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 No. 63.

         The 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 against him.

         Plaintiffs 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.

         Rule 56 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 motion.
(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.
(c) Procedures.
(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 ...

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