United States District Court, W.D. Pennsylvania, Pittsburgh.
MEMORANDUM OPINION 
Cynthia Reed Eddy Chief United States Magistrate Judge
pro se civil rights action initiated by Plaintiff,
Shawn Whitenight. At the time of the events giving rise to
this lawsuit, Whitenight was a pretrial detainee incarcerated
at Jefferson County Jail. The defendants are Warden Thomas
Elbel and Deputy Sheriff Jacob Nunley. Both are sued in their
individual and official capacities.
is Defendants' motion for summary judgment, with brief in
support (ECF Nos. 158 and 161) and Plaintiff's cross
motion for partial motion for summary judgment, with brief in
support. (ECF Nos. 163 and 165). The issues have been fully
briefed and the factual record has been thoroughly developed.
(ECF Nos. 159, 160, 164, 172, 173, 174, 175, 176, 177, 179,
180, 181, 182, and 183).
careful consideration of the motions, the memoranda of the
parties in support and opposition thereto, the material in
support and opposition thereto, the relevant case law, and
the record as a whole, the Court will grant Defendants'
motion for summary judgment in its entirety and deny
Whitenight's partial motion for summary judgment.
relevant background is well known to the parties and was
fully discussed in the Court's Report and Recommendation
filed April 10, 2017 (ECF No. 50), adopted as the opinion of
the Court on May 19, 2017. (ECF No. 64). Whitenight was a
pre-trial detainee being held on a number of state charges
which were filed in the Court of Common Pleas of Jefferson
County at Criminal No. CP-33-CR-0000001-2014. Whitenight
alleges that while at Jefferson County Jail awaiting his
criminal trial, his constitutional rights were violated in
several respects. Initially, Whitenight alleged a plethora of
claims against both Defendants based on alleged violations of
his civil rights under the First, Fourth, Fifth, Sixth, and
Fourteenth Amendments to the United States Constitution. He
also asserted claims against Warden Elbel under federal and
state criminal statutes, the Pennsylvania constitution, and
state common law for civil conspiracy. After the Court's
ruling on Defendants' motion to dismiss, which
substantially limited Whitenight's claims, “[t]he
only remaining claims in this lawsuit are as follows:
Plaintiff's Fourth Amendment claims, the Federal Wiretap
Act claims, and the Pennsylvania Wiretapping and Electronic
Surveillance Act claims.” Memorandum Order, 5/19/2017
(ECF No. 64 at 4). The Second Amended Complaint remains
Whitenight's operative pleading. (ECF No. 34).
standard for assessing a Motion for Summary Judgment under
Rule 56 of the Federal Rules of Civil Procedure is
well-settled. A court should grant summary judgment if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a
matter of law. “Only disputes over facts that might
affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). Furthermore, “summary judgment will not lie if
the dispute about a material fact is ‘genuine,'
that is, if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
motion for summary judgment, the facts and the inferences to
be drawn therefrom should be viewed in the light most
favorable to the non-moving party. See Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986) (quoting United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)). The moving party has the initial
burden of identifying evidence which demonstrates the absence
of a genuine issue of material fact. The party opposing the
motion, however, cannot rely merely upon bare assertions,
conclusory allegations, or suspicions to support its claim.
The nonmoving party “must do more than simply show that
there is some metaphysical doubt as to the material facts,
” Matsushita, 475 U.S. at 586, and must
produce more than a “mere scintilla” of evidence
to demonstrate a genuine issue of material fact. See Big
Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).
these summary judgment rules do not apply any differently
where there are cross-motions pending. Lawrence v. City
of Phila., 527 F.3d 299, 310 (3d Cir. 2008). As stated
by the Court of Appeals for the Third Circuit,"'
[c]ross-motions are no more than a claim by each side that it
alone is entitled to summary judgment, and the making of such
inherently contradictory claims does not constitute an
agreement that if one is rejected the other is necessarily
justified or that the losing party waives judicial
consideration and determination whether genuine issues of
material fact exist.'" Id. (quoting
Rains v. Cascade Indus., Inc., 402 F.2d 241, 245 (3d
Cir. 1968)). If review of cross-motions reveals no genuine
issue of material fact, then judgment may be granted in favor
of the party entitled to judgment in view of the law and
undisputed facts. Iberia Foods Corp. v. Romeo, 150
F.3d 298, 302 (3d Cir. 1998) (citation omitted).
standard is somewhat relaxed with respect to pro se
litigants. Where a party is representing himself pro
se, the filings are to be construed liberally. Thus, if
the Court can reasonably read plaintiff's pleadings
together with his summary judgment submissions to show an
entitlement to relief, the Court should do so despite any
failure to cite proper legal authority, confusion of legal
theories, poor syntax and sentence construction, or the
litigant's unfamiliarity with pleading requirements.
Boag v. MacDougall, 454 U.S. 364 (1982); United
States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555
(3d Cir. 1969) (although a filing prepared by a prisoner may
be inartfully drawn, it should be read “with a measure
of tolerance”). Nonetheless, at the summary judgment
stage of the proceedings, the Court is not required to credit
any “bald assertions” or “legal
conclusions” that are unaccompanied by evidentiary
support. Jones v. UPS, 214 F.3d 402, 407 (3d Cir.
2000); see also Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990) (“[U]nsupported
allegations . . . and pleadings are insufficient to repel
alleges that while at Jefferson County Jail his telephone
calls with his attorneys were improperly recorded,
“eavesdropping” occurred on another call; and his
legal material was improperly searched and read during his
transport on May 12, 2014, from the Jefferson County Jail to
the Jefferson County courthouse. Discovery has closed and the
parties have filed cross-motions for summary judgment.
Defendants seek summary judgment on all claims arguing that
Whitenight has failed to exhaust his administrative remedies
or, in the alternative, that he has failed to establish a
violation of his constitutional rights. Whitenight seeks
summary judgment only as to the claims against Deputy Nunley.
The motions are fully briefed and ripe for disposition by the
Exhaustion under the Prison Litigation Reform Act
argue they are entitled to summary judgment because
Whitenight's claims are barred procedurally by the Prison
Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a) (the
“PLRA”), as he failed to exhaust his
administrative remedies before filing his action in federal
court. Therefore, before turning to the merits of any claim,
the Court must decide whether Whitenight exhausted his
United States Court of Appeals for the Third Circuit stated:
The PLRA states that ‘[n]o action shall be brought with
respect to prison conditions under [§ 1983], or any
other Federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are exhausted.'
42 U.S.C. § 1997e(a). Exhaustion is considered
separately for each claim brought by an inmate, and if a
complaint includes both exhausted and unexhausted claims,
courts will dismiss the latter but not the former. See
Jones v. Bock, 549 U.S. 199, 219-20 (2007). The Supreme
Court has held that the PLRA requires what is known as
‘proper exhaustion,' meaning that inmates must
comply with the rules and procedures of prison administrative
systems. See Woodford v. Ngo, 548 U.S. 81, 90-91
(2006) (“Proper exhaustion demands compliance with an
agency's deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.”). We have held that these procedural
requirements are drawn from the policies of the prison in
question rather than from any free-standing federal law.
Spruill [v. Gillis], 372 F.3d [218, 231 (3d Cir.
Shifflett v. Korszniak, -- F.3d --, 2019 WL 3772104,
at *6 (3d Cir. Aug. 12, 2019). Because “prison
grievance procedures supply the yardstick for measuring
procedural default, ” Spruill v. Gillis, 372
F.3d 218, 231 (3d Cir. 2004), inmates who fail to fully
complete the prison grievance process are barred from
subsequently litigating those claims in federal court.
See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir.
2000), aff'd, 532 U.S. 731 (2001). With these
standards in mind, the Court will proceed to address the
exhaustion issue, and if necessary, will then address
Whitenight's claims on their merits.
recent unpublished opinion, our court of appeals reiterated
the analytical structure for a failure-to-exhaust affirmative
As formulated in this Circuit, the failure-to-exhaust
affirmative defense has two distinct stages. The first
inquiry is whether the prison-employee defendants can
demonstrate that the inmate failed to exhaust the
on-the-books remedies. See Williams v. Beard, 482
F.3d 637, 639 (3d Cir. 2007) (explaining that the
prison's grievance policy supplies “ ‘the
yardstick' for determining what steps are required for
exhaustion” (quoting Spruill v. Gillis, 372
F.3d 218, 231 (3d Cir. 2004))); see also Ross v.
Blake, 136 S.Ct. 1850, 1859 (2016); Rinaldi v.
United States, 904 F.3d 257, 268 (3d Cir. 2018). If the
defendants can make that showing, then at the second stage,
the inmate plaintiff bears the onus of producing evidence
that the on-the-books remedies were in fact unavailable to
him or her.1 See Rinaldi, 904 F.3d at
1This order of evaluation is not absolute, and it
is permissible to consider the second stage first, see, e.g.,
Small, 728 F.3d at 271-72, but this ordering is consistent
with the prison-employee defendants bearing the burden of
production at the first stage, before the inmate plaintiff
inherits the burden at the second.
The state of facts dictates the appropriate legal standard
for evaluating the exhaustion defense. If there is no genuine
dispute of material fact, then the exhaustion defense may be
evaluated as a matter of law at summary judgment. If there is
a genuine dispute of material fact related to exhaustion,
then summary judgment is inappropriate . . . .
West v. Emig, No. 18-3806, -- Fed.Appx. --, 2019 WL
5061417, *2 (3d Cir., Oct. 9, 2019) (non-precedential). Here,
because Defendants have moved for summary judgment, the
analysis turns on whether any genuine issue of material fact
exists and whether Defendants are entitled to judgment as a
matter of law.
analysis of exhaustion may be made absent an understanding of
the administrative process available to those incarcerated at
Jefferson County Jail. Jones v. Bock, 549 U.S. 199,
218 (2007). The Jefferson County Jail Inmate Handbook
outlines the multi-tier process for the grievance procedure
including the appeal process:
Step #1 - Address the problem with correctional staff to see
if they can resolve the problem. Many times an officer can
resolve the situation without a grievance being filed.
Step #2 - Submit a request for a grievance form giving
details about the problem. At times the deputy warden can
resolve the problem before there is actually a need for a
grievance. If this is not possible, you will be given a
Step #3 - Complete the grievance form and forward it to the
deputy warden. He/she will respond to the grievance within
ten (10) business days, unless detailed research is needed.
If the grievance cannot be answered within the ten (10) day