Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Nunez v. Borstnar

United States District Court, W.D. Pennsylvania

September 12, 2019

FERNANDO NUNEZ, JR., Plaintiff,
v.
MARK BORSTNAR, RYAN WHITACRE, KEVIN TURNER, Defendants.

          Kim R. Gibson District Judge.

          REPORT AND RECOMMENDATION, ECF NOS. 20, 47, 51 & 53

          LISA PUPO LENIHAN UNITED STATES MAGISTRATE JUDGE.

         I. RECOMMENDATION

         It is respectfully recommended that the Motion to Dismiss/Motion for Summary Judgment on the issue of exhaustion of administrative remedies filed by Defendants Mark Borstnar, Ryan Whitacre, and Kevin Turner (ECF No. 20) be denied. It is further recommended that the Motion to Join Defendants and Additional Claims (ECF No. 47), Motion to Compel Limited Discovery (ECF No. 51), and Motion for Leave to Amend (ECF No. 53) filed by Plaintiff Fernando Nunez, Jr. be granted.

         II. REPORT

         A. FACTS AND PROCEDURAL BACKGROUND

         As required by Paladino v. Newsome, 885 F.3d 203, 210-11 (3d Cir. 2018), this Court notified the parties that Defendants' Motion to Dismiss would be treated as a motion for summary judgment with respect to the issue of Plaintiff's exhaustion of administrative remedies. (ECF No. 22). The Court held an evidentiary hearing with live testimony on August 6, 2019, at which the pro se Plaintiff testified via video and conducted cross examination of a defense witness. See Transcript of August 6, 2019 evidentiary hearing (ECF No. 56) (hereinafter “Transcript at__”). The Court concluded the hearing by permitting Plaintiff to file a Response to the Motion for Summary Judgment as to Exhaustion. Likewise, Defendants were given an opportunity to file a reply. (Transcript at 42-43 & Minute Entry, ECF No. 54.) Plaintiff's Response was dated August 19, 2019 but was docketed on August 29, 2019. On September 11, 2019, Defendants notified the Court that they would not file a reply.

         In his 263-paragraph Amended Complaint (ECF No. 14), Plaintiff attempts to make out the following 15 Counts for alleged violation of his federal constitutional rights and supplemental state law claims: 1) July 2, 2018 Negligent Handling of Property (destruction of property); 2) July 2, 2018 Failure to Act to Prevent Negligent Handling of Property (destruction of property); 3) July 2, 2018 Negligent Infliction of Emotional Distress (destruction of property); 4) June 26, 2018 Eighth Amendment Failure to Protect (soliciting inmate to harm Plaintiff); 5) June 26, 2018 § 1983 Conspiracy to Violate Civil Rights (failure to report threat); 6) July 2, 2018 Retaliation (destruction of property); 7) July 2, 2018 Retaliation (destruction of property); 8) July 2, 2018 First Amendment Failure to Intervene (destruction of property); 9) July 2, 2018 § 1983 Conspiracy to Violate Civil Rights (destruction of property); 10) July 3, 2018 Eighth Amendment Failure to Protect (labeling Plaintiff as a “rat”); 11) July 3, 2018 First Amendment Retaliation (destruction of property); 12) July 4, 2018 First Amendment Retaliation (phone use); 13) July 4, 2018 First Amendment Failure to Intervene (phone use); 14) July 4, 2018 § 1983 conspiracy to violate Civil Rights (phone use); and 15) July 14, 2018 First Amendment Retaliation (phone use). Woven throughout all of these counts are Plaintiff's allegations that certain named Defendant corrections officers and others were attempting to solicit inmates to assault Plaintiff.

         In support of their Motion for Summary Judgment, Defendants argue that Plaintiff has failed to exhaust his administrative remedies as to all counts of the Amended Complaint because Plaintiff admits that he did not utilize the prison grievance system at DC-ADM 804 for any of the alleged occurrences.

         Plaintiff responds that he did not use the prison grievance system because his administrative remedies were unavailable to him pursuant to Rinaldi v. United States, 904 F.3d 257, 269 (3d Cir. 2018). Plaintiff also argues that because the corrections officers' solicitation of inmates to harm Plaintiff constitutes inmate abuse, he was excused from grieving this issue pursuant to DC-ADM 001, citing Renfro-Narduzzi v. Miller, Civil No. 1:17-CV-2394, 2019 U.S. Dist. LEXIS 21819 (M.D. Pa. Feb. 8, 2019).

         B. LEGAL STANDARD

         Summary judgment is appropriate if, drawing all inferences in favor of the nonmoving party, the pleadings, documents, electronically stored information, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show “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) & (c). Summary judgment may be granted against a party who fails to adduce facts sufficient to establish the existence of any element essential 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, 322 (1986). The moving party bears the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact; that is, the movant must show that the evidence of record is insufficient to carry the non-movant's burden of proof. Id. 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. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis added by Matsushita Court). 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, 248 (1986). In Anderson, the United States Supreme Court noted the following:

[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial. . . . [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.