Allen v. Eckard

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY ALLEN, :

Plaintiff :

: No. 1:17-cv-996

v. :

: (Judge Rambo)

J.A. ECKARD, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Pro se Plaintiff Anthony Allen (“Allen”), who is currently incarcerated at the

State Correctional Institution Pine Grove in Indiana, Pennsylvania (“SCI Pine Grove”),

initiated this civil action by filing a complaint pursuant to 42 U.S.C. § 1983 on June 8,

2017 against Defendants J.A. Eckard (“Eckard”), A. Eberling (“Eberling”), K.M. Sparr

(“Sparr”), R.W. Goughnour (“Goughnour”), A. Himes (“Himes”), C. McConnell

(“McConnell”), and Nurse Jane Doe. (Doc. No. 1.) Allen alleges that while he was

incarcerated at SCI Huntingdon: (1) Defendants Sparr and Goughnour violated his

Eighth Amendment rights by using excessive force against him, (2) Defendants Eckard

and Eberling violated his Eighth Amendment rights by failing to protect him from the

use of force and by failing to train and supervise the Restricted Housing Unit (“RHU”)

officers regarding the use of force; (3) Defendant Himes violated his due process rights

under the Fourteenth Amendment by sanctioning him to ninety (90) days in

disciplinary confinement; (4) Defendant Himes conspired to “cover up” the use of

excessive force by Defendants Sparr and Goughnour; and (6) Defendants McConnell

and Jane Doe violated his Eighth Amendment rights by demonstrating deliberate

indifference to his medical needs. (Id.) By Order entered on July 19, 2017, the Court

granted Allen leave to proceed in forma pauperis and directed service of his complaint

upon the Defendants. (Doc. No. 8.)

On October 16, 2017, Defendants Eckard, Eberling, Goughnour, Himes, and

Sparr filed a motion for judgment on the pleadings. (Doc. Nos. 20, 21.) Allen filed a

brief in opposition (Doc. No. 24), and a motion for leave to file a supplemental

complaint, seeking to substitute C. Swanger for Nurse Jane Doe (Doc. No. 25). By

Order entered on January 5, 2018, the Court granted Allen’s motion and directed the

Clerk of Court to serve his complaint upon Defendant Swanger. (Doc. No. 27.) The

Court also directed Allen to, within ten (10) days, provide a current address for

Defendant McConnell or show good cause as to why his claims against Defendant

McConnell should not be dismissed without prejudice for failure to effect service upon

him. (Id.)

Allen responded with a motion for leave to file a supplemental complaint or, in

the alternative, to show cause why the complaint should not be dismissed without

prejudice as to Defendant McConnell. (Doc. No. 29.) By Order entered on February

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13, 2018, the Court granted Allen’s motion insofar as the Clerk of Court was directed

to serve the complaint upon Defendant McConnell at the address provided by Allen.

(Doc. No. 31.) A summons was issued and mailed, by certified mail, to Defendant

McConnell that same day. (Doc. No. 32.) On February 21, 2018, the Court received

the signed certified mail receipt, indicating that an unknown individual signed for the

summons and copy of the complaint mailed to Defendant McConnell. (Doc. No. 33.)

By Memorandum and Order entered on May 8, 2018, the Court granted in part

and denied in part the motion for judgment on the pleadings filed by Defendants

Eckard, Eberling, Goughnour, Himes, and Sparr. (Doc. Nos. 39, 40.) Specifically, the

Court granted the motion as to Allen’s failure to protect claim against Defendants

Eckard and Eberling and his due process and conspiracy claims against Defendant

Himes and dismissed Defendant Himes from the action. (Id.) The Court denied the

motion as to Allen’s excessive force and failure to train and supervise claims. (Id.)

After discovery concluded, Defendants Eberling, Eckard, Goughnour, and Sparr

filed a motion for summary judgment and supporting materials. (Doc. Nos. 53, 54,

55.) By Order entered on April 8, 2019, the Court, noting that Defendant Swanger had

failed to file a waiver of service, directed that a summons be issued and that the United

States Marshals Service serve her with Allen’s complaint. (Doc. No. 57.) On April

11, 2019, observing that Defendants Eberling, Eckard, Goughnour, and Sparr raised

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the issue of whether Allen exhausted his administrative remedies with respect to some

of his claims in accordance with the Prison Litigation Reform Act (“PLRA”), the Court

issued a Paladino Order informing the parties that it would consider the exhaustion

issue in the context of summary judgment and, by doing so, would consider matters

outside the pleadings in its role as factfinder.1 (Doc. No. 58.) The Court provided

Defendants fourteen (14) days to “amend or supplement their materials to further

address the issue of whether Plaintiff has exhausted his administrative remedies.” (Id.)

The Court further noted that Allen should file a brief in opposition addressing the issue

of administrative exhaustion, as well as a statement of material facts specifically

responding to Defendants’ statement, within twenty-one (21) days from the date that

Defendants filed any amended or supplemental materials. (Id.)

On April 11, 2019, counsel filed a notice of appearance, waiver of service, and

answer on behalf of Defendant Swanger. (Doc. Nos. 59, 60, 61.) The next day, the

Court received Allen’s motion for an extension of time to file a brief in opposition to

the pending motion for summary judgment. (Doc. No. 62.) By Order entered on April

22, 2019, the Court granted Allen’s motion for an extension, noting that Allen could

file his brief in opposition within twenty-one (21) days of either April 25, 2019 or the

1 See Paladino v. Newsome, 885 F.3d 203 (3d Cir. 2018).

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date that Defendants filed their amended and supplemental materials in response to the

Court’s April 11, 2019 Order, whichever occurred first. (Doc. No. 64.)

Defendants Eberling, Eckard, Goughnour, Sparr, and Swanger (collectively,

“Defendants”) filed an amended motion for summary judgment and supporting

materials on April 25, 2019. (Doc. Nos. 65, 66, 67.) Therefore, by Order entered on

May 15, 2019, the Court denied as moot the previously-filed motion for summary

judgment. (Doc. No. 68.) After receiving an extension of time (Doc. Nos. 71, 72),

Allen filed his brief in opposition and supporting materials on July 12, 2019 (Doc. Nos.

74-77). Defendants filed their reply brief on July 26, 2019. (Doc. No. 78.)

Accordingly, the amended motion for summary judgment is ripe for disposition.

In another Order entered on May 15, 2019, the Court noted that the proof of

service attached to the summons issued to Defendant McConnell had never been

returned to the Court. (Doc. No. 69.) The Court further noted that while the docket

reflected that counsel for the other Defendants was counsel for Defendant McConnell,

it appeared that this was an error, “as counsel previously noted that she was unable to

accept service on his behalf because he was not a DOC employee and she never entered

a notice of appearance on his behalf.” (Id.) Because the Court could not discern

whether Defendant McConnell actually received the summons, the Court directed that

a summons be issued and that the United States Marshals Service serve Defendant

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McConnell with the complaint. (Id.) The Court advised Allen that if Defendant

McConnell could not be served, his claims against him may be dismissed without

prejudice pursuant to Rule 4(m) of the Federal Rules of Civil Procedure for failure to

effect service. (Id.) On August 2, 2019, following an inquiry, the Clerk of Court

learned that the United States Marshal had attempted to execute the summons, but that

Defendant McConnell “was not known” at the address provided by Allen.

II. MOTION FOR SUMMARY JUDGMENT

A. Standard of Review

Federal Rule of Civil Procedure 56(a) requires the court to render 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.” Fed. R. Civ. P. 56(a).

“[T]his standard provides that the mere existence of some alleged factual dispute

between the parties will not defeat an otherwise properly supported motion for

summary judgment; the requirement is that there be no genuine issue of material

fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence would

affect the outcome of the case under applicable substantive law. Id. at 248; Gray v.

York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). An issue of material

fact is “genuine” if the evidence is such that a reasonable jury could return a verdict

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for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United

Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the court

must view the facts and all reasonable inferences in favor of the nonmoving party.

Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963

F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59

(3d Cir. 1988). In order to avoid summary judgment, however, the nonmoving party

may not rest on the unsubstantiated allegations of his or her pleadings. When the

party seeking summary judgment satisfies its burden under Rule 56 of identifying

evidence which demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required by Rule 56 to go beyond his pleadings with affidavits,

depositions, answers to interrogatories or the like in order to demonstrate specific

material facts which give rise to a genuine issue. Celotex Corp. v. Catrett, 477 U.S.

317, 324 (1986). The party opposing the motion “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Electric

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56 shifts the

burden of production to the nonmoving party, that party must produce evidence to

show the existence of every element essential to its case which it bears the burden

of proving at trial, for “a complete failure of proof concerning an essential element

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of the nonmoving party’s case necessarily renders all other facts immaterial.”

Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir.

1992).

In determining whether an issue of material fact exists, the court must

consider the evidence in the light most favorable to the nonmoving party. White,

826 F.2d at 59. In doing so, the Court must accept the nonmovant’s allegations as

true and resolve any conflicts in his favor. Id. (citations omitted). However, a party

opposing a summary judgment motion must comply with Local Rule 56.1, which

specifically directs the oppositional party to submit a “statement of the material

facts, responding to the numbered paragraphs set forth in the statement required [to

be filed by the movant], as to which it is contended that there exists a genuine issue

to be tried”; if the nonmovant fails to do so, “[a]ll material facts set forth in the

statement required to be served by the moving party will be deemed to be admitted.”

L.R. 56.1. A party cannot evade these litigation responsibilities in this regard simply

by citing the fact that he is a pro se litigant. These rules apply with equal force to

all parties. See Sanders v. Beard, No. 09-CV-1384, 2010 WL 2853261, at *5 (M.D.

Pa. July 20, 2010) (pro se parties “are not excused from complying with court orders

and the local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 WL

8

2590488, at *4 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the Federal Rules

of Civil Procedure).

B. Statement of Material Facts2

During his incarceration at SCI Huntingdon, Allen was housed in the RHU.

(Doc. No. 67 ¶ 1.) On June 30, 2015, Defendants Sparr and Goughnour were

escorting Allen to his cell from the law library. (Id. ¶ 2.) Prior to leaving the law

library, Defendant Goughnour pulled Allen’s jumpsuit out of his socks.3 (Id. ¶ 3.)

2 As noted supra, this Court’s Local Rules provide that in addition to filing a brief in opposition

to the moving party’s brief in support of its motion, “[t]he papers opposing a motion for summary

judgment shall include a separate, short and concise statement of material facts responding to the

numbered paragraphs set forth in the statement [of material facts filed by the moving party] . . . as

to which it is contended that there exists a genuine issue to be tried.” M.D. Pa. L.R. 56. 1. The

Rule further requires the inclusion of references to the parts of the record that support the

statements. Id. Finally, the Rule states that the statement of material facts required to be served

by the moving party will be deemed to be admitted unless controverted by the statement required

to be served by the opposing party. See id.

Here, Allen filed a response to Defendants’ statement of material facts in compliance with

Local Rule 56.1. (Doc. No. 75.) Allen’s statement of additional disputed material facts (Doc. No.

76), however, does not comply with Local Rule 56.1, as it does not respond specifically to the

numbered paragraphs in Defendants’ statement of material facts. Moreover, while Allen’s verified

complaint may be treated as an affidavit in opposition to the motion for summary judgment, see

Ziegler v. Eby, 77 F. App’x 117, 120 (3d Cir. 2003), the allegations must be based on personal

knowledge, and this Court is not “required to accept unsupported, self-serving testimony as

evidence sufficient to create a jury question.” See Hammonds v. Collins, Civ. No. 12-236, 2016

WL 1621986, at *3 (M.D. Pa. Apr. 20, 2016) (citing Brooks v. Am. Broad. Co., 999 F.2d 167, 172

(6th Cir. 1993)). Accordingly, the Court sets forth the undisputed facts above with footnotes

setting forth the parties’ relevant factual disputes.

3 Defendants assert that Defendant Goughnour pulled Allen’s jumpsuit out of his socks “[d]uring

the required pat down prior to leaving the law library.” (Doc. No. 67 ¶ 3.) Allen maintains that

Defendant Goughnour did not conduct a pat down and that “nowhere in the Restricted Housing

Unit (“RHU”) inmate handbook does it state trouser (jumpsuit) cuffs may not be work inside of

socks.” (Doc. No. 75 ¶ 3.)

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Subsequently, an unplanned use of force occurred. (Id. ¶ 4.) Defendants Sparr

and Goughnour, along with Allen, arrived at Allen’s cell at 4:02 p.m. (Id. ¶ 5.) Allen

began to “tug[] and pull[]” Defendant Sparr into his cell.4 (Id. ¶ 6.) To gain control

of Allen, Defendants Sparr and Goughnour pulled him out of the cell and placed him

on the floor while other officers arrived with leg restraints.5 (Id. ¶ 7.) Allen was

then placed inside a secure search area.6 (Id. ¶ 8.) No other force was used against

Allen. (Id. ¶ 9.) Allen was subsequently found guilty of misconduct charges of

assault, threatening an employee, using abusive language, and refusing to obey an

order. (Id. ¶¶ 10-11.)

4 Allen maintains that once he was in his cell, Defendant Sparr “pulled him back out by the tether”

that was attached to the handcuffs. (Doc. No. 1 ¶ 15.) He also “disagrees that the recording shows

Defendant Sparr being tugged or pulled into [his] cell.” (Doc. No. 75 ¶ 6.)

5 Allen asserts that Defendants Sparr and Goughnour “picked [him] up and slammed [him] face

first down onto the concrete floor and then Defendant Goughnour jumped on [his] back.” (Doc.

No. 1 ¶ 15; see also Doc. No. 75 ¶ 7.) According to Allen, the “assault lasted for approximately 5

minutes.” (Doc. No. 1 ¶ 15.)

6 Defendants admit that “[i]nitial hand held video of the incident malfunctioned and only began to

record at 4:04:47 pm, when [Allen] was already placed inside the secure search area.” (Doc. No.

67 ¶ 8.)

Allen maintains that while he was in the secure search area, Defendant Swanger came to

take pictures of his injuries, but did not provide any medical care. (Doc. No. 1 ¶ 18.) He claims

that he was “clearly injured” because “the left side of his face was bruised and swollen.” (Id. at

¶ 19.) Allen was dizzy and had “severe pain in his head and throughout his body.” (Id.) He faults

Defendant Swanger for not arranging for him to be transported to the nearest emergency room and

for not giving him two (2) tablets of Tylenol. (Id. ¶ 20.) Allen alleges that because of Defendant

Swanger’s deliberate indifference, he ultimately suffered “prolonged and extreme pain,” such as

chest pain and an upper respiratory infection. (Id. ¶¶ 23-24.)

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On July 6, 2015, Allen filed grievance 574224 “concerning the use of force

incident that occurred between him and Defendants Sparr and Goughnour.” (Id.

¶ 12.) He did not file a grievance against Defendants Eckard or Eberling “related to

a failure to train or supervise RHU officers.”7 (Id. ¶ 13.) Moreover, Allen did not

file a grievance against Defendant Swanger “related to the medical care received

after the use of force incident.”8 (Id. ¶ 14.)

C. Excessive Force Claim Against Defendants Sparr and Goughnour

The Eighth Amendment prohibits the infliction of cruel and unusual

punishment on prisoners. In Estelle v. Gamble, the Supreme Court held that

“deliberate indifference to serious medical needs of prisoners constitutes the

‘unnecessary and wanton infliction of pain’ . . . proscribed by the Eighth

Amendment.” Estelle v. Gamble, 429 U.S. 97, 104 (1976) (quoting Gregg v.

Georgia, 428 U.S. 153, 173 (1976)); see also Farmer v. Brennan, 511 U.S. 825, 834

(1994) (internal quotation marks and citations omitted) (“To violate the Cruel and

Unusual Punishment Clause, a prison official must have a sufficiently culpable state

7 Allen asserts that he has filed “several grievances against both Defendants Eckard and Eberling

alleging among other things deliberate indifference, better supervision, supervisory officials[’]

blind eyes to abuse, etc.” (Doc. No. 75 ¶ 13.)

8 Allen maintains that he “did file a grievance involving this mater which was investigated by

security,” and that Defendant Swanger “was aware of job duties.” (Doc. No. 75 ¶ 14.) In his brief

in opposition, however, Allen concedes that he never filed a grievance concerning Defendant

Swanger’s actions and asks to “voluntarily dismiss her from this civil matter.” (Doc. No. 74 at

10.)

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of mind. . . . In prison-conditions cases that state of mind is one of ‘deliberate

indifference’ to inmate health or safety.”). An Eighth Amendment claim includes

both objective and subjective components. Wilson v. Seiter, 501 U.S. 294, 298

(1991). Serious hardship to the prisoner is required to satisfy the Eighth

Amendment’s objective component. See id. The subjective component is met if the

person or persons causing the deprivation acted with “a sufficiently culpable state of

mind.” See id.

The Eighth Amendment’s protection against cruel and unusual punishment is

the “primary source of substantive protection in cases where an inmate challenges a

prison official’s use of force as excessive and unjustified.” Brooks v. Kyler, 204

F.3d 102, 105 (3d Cir. 2000). The standard governing the Court’s inquiry as to

whether a plaintiff has a viable excessive force claim is “whether force was applied

in a good faith effort to maintain or restore discipline or maliciously and sadistically

for the very purpose of causing harm.” Giles v. Kearney, 571 F.3d 318, 326 (3d Cir.

2009) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)).

The issue of whether excessive force was used is one that, in proper

circumstances, can be determined as a matter of law. In such cases, summary

judgment is appropriate when “it appears that the evidence, viewed in the light most

favorable to the plaintiff, will [not] support a reliable inference of wantonness in the

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infliction of pain.” Brooks, 204 F.3d at 106 (quoting Whitley, 475 U.S. at 322). In

making this determination, courts are tasked with evaluating the following Whitley

factors:

(1) the need for the application of force; (2) the relationship between

the need and the amount of force that was used; (3) the extent of injury

inflicted; (4) the extent of the threat to the safety of staff and inmates,

as reasonably perceived by the responsible officials on the basis of the

facts known to them; and (5) any efforts made to temper the severity of

a forceful response.

Id. The United States Supreme Court has stated:

[W]hen prison officials maliciously and sadistically use force to cause

harm, contemporary standards of decency are always

violated . . . whether or not significant injury is evident. Otherwise, the

Eighth Amendment would permit any physical punishment, no matter

how diabolic or inhuman, inflicting less than some arbitrary quantity of

injury.

Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting Hudson v. McMillian, 503 U.S.

1 (1992)).

When a court considers such claims, the reasonableness of a particular use of

force often depends upon the relevant factual context and must be “judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” See Graham v. Connor, 490 U.S. 386, 396-97 (1989); see also Fuentes

v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000) (“[E]ven if we concede [that an inmate]

has established at most that prison officials over-reacted to the disturbance that he

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caused . . . any such over-reaction would still fall short of supporting a finding that

prison officials acted ‘maliciously and sadistically to cause harm.’”). Additionally,

de minimis use of physical force does not qualify as excessive force unless the force

is “repugnant to the conscience of mankind.” See Brooks, 204 F.3d at 107 (citing

Hudson, 503 U.S. at 6); see also Wilkins, 559 U.S. 34 (2010) (clarifying that de

minimis force, rather than de minimis injury, is the dispositive issue). Not “every

malevolent touch by a prison guard gives rise to a federal cause of action.” Hudson,

503 U.S. at 9.

Defendants argue that they are entitled to summary judgment on Allen’s

excessive force claim because “video evidence does not show a sadistic or malicious

use of force.” (Doc. No. 66 at 10.) In support of their motion, they have submitted

documentation pertaining to the use of force incident as well as video evidence from

surveillance and handheld cameras. (Id., Exs. A-C.) In response, Allen avers that

Defendants Sparr and Goughnour pulled him out of his cell, “lifted [him] in the air

and slammed him face first onto the concrete floor.” (Doc. No. 75 ¶ 7; see Doc. No.

1 ¶ 15.) He also maintains that Defendant Goughnour “jumped on [his] back” and

that he was “severely injured” from the use of force. (Doc. No. 1 ¶ 15, 17.)

At the summary judgment stage, the Court must generally:

take the facts in the light most favorable to the non-moving party when

disposing of a summary judgment motion. However, a “limited

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exception” to this general rule exists where the nonmovant’s version of

the events may be disregarded to the extent those facts are “blatantly

contradicted” by the summary judgment record.

Millbrook v. United States, No. 3:15-CV-0832, 2016 WL 4734658, at *9 (M.D. Pa.

Sept. 12, 2016); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (noting that

“[w]hen opposing parties tell two different stories, one of which is blatantly

contradicted by the record, so that no reasonable jury could believe it, a court should

not adopt that version of the facts for purposes of ruling on a motion for summary

judgment”). This Court has noted that “[w]hile video footage has been found to

establish this ‘limited exception,’ not all video footage or mechanical depictions will

allow a court to disregard the non-movant’s version of the events.” See Millbrook,

2016 WL 4734658, at *9. For example, “courts have declined to apply the limited

exception set forth in Scott v. Harris where a videotape or other mechanical

depiction does not capture the whole incident . . . or where the videotape or

mechanical depiction is susceptible to multiple reasonable interpretations.” See

Patterson v. City of Wildwood, 354 F. App’x 695, 698 (3d Cir. 2009); see also Mills

v. City of Harrisburg, 589 F. Supp. 2d 544, 552 n.5 (M.D. Pa. 2008) (concluding

that audio recording did not qualify for the Scott limited exception because it was

susceptible to multiple reasonable interpretations), aff’d, 350 F. App’x 770 (3d Cir.

2009).

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The Court has reviewed the video provided by Defendants in support of their

motion. Video footage from the surveillance cameras depicts Defendants Sparr and

Goughnour escorting Allen back to his cell. Allen enters his cell, and one of the

officers stands at the entrance to the open cell, holding the tether. The other officer

stands next to the cell, waiting to close the cell door. While Allen cannot be seen,

the video shows the arm and upper body of the officer holding the tether being pulled

into Allen’s cell. Defendants Sparr and Goughnour then pull Allen out of the cell

and place him on the ground. Shortly thereafter, other officers arrive with leg

restraints. After viewing the video, the Court concludes that there is nothing “that

could even be remotely characterized as in any way malicious or sadistic, the

essential prerequisite to an Eighth Amendment violation.” See McMillian v. Walsh,

No. 1:11-CV-2223, 2014 WL 310386, at *11 (M.D. Pa. Jan. 28, 2014). The Court

simply cannot say that any “reasonable finder of fact could view the video of the

incident and determine that [Defendants] acted maliciously and sadistically.” See

Tindell v. Beard, 351 F. App’x 591, 596 (3d Cir. 2009).

The video of the June 30, 2015 incident contradicts Plaintiff’s account and,

therefore, renders summary judgment in favor of Defendants Sparr and Goughnour

proper. The video does not show Defendant Sparr pulling Allen back out of the cell

by the tether, as Allen claims. The video also does not show Defendants Sparr and

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Goughnour picking him up and “slamm[ing]” him to the ground, as Allen also

claims. Moreover, the video does not depict Defendant Goughnour “jump[ing]” on

Allen’s back. Therefore, because the video evidence does not support Allen’s

allegations regarding the events of June 30, 2015, and, as a result, “no reasonable

jury could believe [them],” the Court will not adopt Allen’s version of the facts for

purposes of summary judgment. See Scott, 550 U.S. at 380. In sum, Defendants

have satisfied their burden under Rule 56 of identifying evidence that demonstrates

the absence of a genuine issue of material fact as to Plaintiff’s claims of excessive

force regarding the incident that occurred on June 30, 2015. Accordingly, the Court

will grant Defendants’ motion as to Allen’s excessive force claim.

D. Allen’s Claims Against Defendants Eckard, Eberling, and Swanger

Under the PLRA, a prisoner must pursue all available avenues for relief

through the prison’s grievance system before bringing a federal civil rights action.

See 42 U.S.C. § 1997e(a); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001) (“[A]n

inmate must exhaust irrespective of the forms of relief sought and offered through

administrative avenues.”). Section 1997(e) provides, in relevant part “[n]o action

shall be brought with respect to prison conditions under section 1983 of the Revised

Statutes of the United States, or any other Federal law, by a prisoner confined in any

jail, prison, or other correctional facility until such administrative remedies as are

17

available are exhausted. 42 U.S.C. § 1997(e). The exhaustion requirement is

mandatory. Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); Booth, 532 U.S.

at 742 (holding that the exhaustion requirement of the PLRA applies to grievance

procedures “regardless of the relief offered through administrative procedures”).

The United States Court of Appeals for the Third Circuit has further provided

that there is no futility exception to § 1997e’s exhaustion requirement. Nyhuis v.

Reno, 204 F.3d 65, 75-76 (3d Cir. 2000). Courts have typically required across-the-

board administrative exhaustion by inmates who seek to pursue claims in federal

court. Id. Additionally, courts have imposed a procedural default component on

this exhaustion requirement, holding that inmates must fully satisfy the

administrative requirements of the inmate grievance process before proceeding into

federal court. Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004). Courts have concluded

that inmates who fail to fully, or timely, complete the prison grievance process are

barred from subsequently litigating claims in federal court. See e.g., Bolla v.

Strickland, 304 F. App’x 22 (3d Cir. 2008); Booth v. Churner, 206 F.3d 289 (3d Cir.

2000).

This broad rule favoring full exhaustion allows for a narrowly defined

exception. If the actions of prison officials directly caused the inmate’s procedural

default on a grievance, the inmate will not be held to strict compliance with this

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exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).

However, case law recognizes a clear “reluctance to invoke equitable reasons to

excuse [an inmate’s] failure to exhaust as the statute requires.” Davis v. Warman, 49

F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will only be

excused “under certain limited circumstances,” Harris v. Armstrong, 149 F. App’x

58, 59 (3d Cir. 2005), and an inmate can defeat a claim of failure to exhaust only by

showing “he was misled or that there was some extraordinary reason he was

prevented from complying with the statutory mandate.” Warman, 49 F. App’x at

368.

In the absence of competent proof that an inmate was misled by corrections

officials, or some other extraordinary circumstances, inmate requests to excuse a

failure to exhaust are frequently rebuffed by the courts. Thus, an inmate cannot

excuse a failure to timely comply with these grievance procedures by simply

claiming that his efforts constituted “substantial compliance” with this statutory

exhaustion requirement. Harris v. Armstrong, 149 F. App’x 58, 59 (3d Cir. 2005).

Nor can an inmate avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. Warman, 49 F. App’x at

368. Thus, an inmate’s confusion regarding these grievances procedures does not,

standing alone, excuse a failure to exhaust. Casey v. Smith, 71 F. App’x 916 (3d Cir.

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2003); see also Marsh v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well

established that ‘ignorance of the law, even for an incarcerated pro se petitioner,

generally does not excuse prompt filing.’”) (citations omitted).

Recently, the Supreme Court considered what renders administrative

remedies unavailable to an inmate such that a failure to exhaust can be excused. See

Ross v. Blake, 136 S. Ct. 1850 (2016). The Court noted “three kinds of

circumstances in which an administrative remedy, although officially on the books,

is not capable of use to obtain relief.” Id. at 1859. First, an administrative procedure

is not available “when (despite what regulations or guidance materials may promise)

it operates as a simple dead end—with officers unable or consistently unwilling to

provide any relief to aggrieved inmates.” Id. Second, a procedure is not available

when it is “so opaque that it becomes, practically speaking, incapable of use.” Id.

Finally, a procedure is unavailable when “prison administrators thwart inmates from

taking advantage of a grievance process through machination, misinterpretation, or

intimidation. Id. at 1860.

The Third Circuit recently joined other circuits to hold “that administrative

remedies are not ‘available’ under the PLRA where a prison official inhibits an

inmate from resorting to them through serious threats of retaliation and bodily

harm.” Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018). To defeat a

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failure-to-exhaust defense based on such threats, “an inmate must show (1) that the

threat was sufficiently serious that it would deter a reasonable inmate of ordinary

firmness and fortitude from lodging a grievance and (2) that the threat actually did

deter this particular inmate.” Id. at 269.

Finally, failure to exhaust is an affirmative defense that must be pled by the

defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). “In a motion for summary

judgment, where the movants have the burden of proof at trial, ‘they [have] the

burden of supporting their motion for summary judgment with credible evidence . .

. that would entitle [them] to a directed verdict if not controverted at trial.’” Foster

v. Morris, 208 F. App’x 174, 179 (3d Cir. 2006) (quoting In re Bressman, 327 F.3d

229, 237 (3d Cir. 2003) (internal quotations omitted)). If “the motion does not

establish the absence of a genuine factual issue, the district court should deny

summary judgment even if no opposing evidentiary matter is presented.” Id.

(quoting Nat’l State Bank v. Fed. Reserve Bank of N.Y., 979 F.2d 1579, 1582 (3d

Cir. 1992) (internal quotations omitted)).

In support of their motion for summary judgment, Defendants have submitted

a declaration from Connie Green, the Superintendent’s Assistant at SCI Huntingdon

(Doc. No. 66-4 (“Green Decl.”) at 2-5); a copy of the Pennsylvania Department of

Corrections’ (“DOC”) policy DC-ADM 804, which sets forth the grievance system

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procedures (id. at 7-41); and a transcript of Allen’s deposition (Doc. No. 66-3 at 2-

41). The DOC maintains a computerized system, known as the Automated Inmate

Grievance Tracking System, to store and retrieve data regarding the grievance

system. (Green Decl ¶ 4.) An inmate wishing to submit a grievance submits it to

the Facility Grievance Coordinator, who assigns a tracking number and enters the

grievance into the Automated Inmate Grievance Tracking System. (Id. ¶ 5.) Of

note, if the grievance states a staff member’s name, the Facility Grievance

Coordinator is able to include that individual’s name in the Automated Inmate

Grievance Tracking System. (Id. ¶ 8.)

Once an initial response to the grievance is prepared, the date of the response

and a summary are entered into the Automated Inmate Grievance Tracking System.

(Id. ¶ 9.) If the inmate appeals, the date the appeal was received is also entered into

the system. (Id. ¶ 10.) When the appeal is addressed by the Facility Manager, the

date of the response and a summary are entered into the Automated Inmate

Grievance Tracking System. (Id. ¶ 11.) The inmate may then appeal to the

Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”). (Id. ¶ 12.)

SOIGA’s response is also entered into the system. (Id.)

Green searched the Automated Inmate Grievance Tracking System and

determined that Allen had filed ninety (90) grievances prior to 2016. (Id. ¶ 15.)

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After cross-referencing staff names, however, she did not locate a grievance filed by

Allen concerning either Defendant Eberling or Defendant Eckard. (Id.) Moreover,

she did not locate any grievance filed by Allen about Defendant Swanger. (Id. ¶ 16.)

During his deposition, Allen confirmed that he never filed a grievance against

Defendants Eberling and Eckard “related to this event or the training of employees

or anything like that.” (Doc. No. 66-3 at 26.)

In his brief in opposition, Allen concedes that he did not file a grievance

against Defendant Swanger. (Doc. No. 74 at 10.) He therefore requests to

voluntarily dismiss her as a defendant to this action. (Id.) Defendants “agree with

this concession as they were unable to locate a grievance filed against Defendant

Swanger.” (Doc. No. 78 at 10.) In light of this, the Court will grant Allen’s request

and dismiss Defendant Swanger as a defendant to this action.

With respect to his claims against Defendants Eberling and Eckard, Allen

contends that he “has filed several grievances against both Defendants Eckard and

Eberling alleging among other things deliberate indifference, better supervision,

supervisory officials blind eyes to abuse, etc.” (Doc. No. 75 ¶ 13.) However, upon

review of the grievances that Allen has provided to support his claim (see Doc. No.

77-3), the Court concludes that none of them set forth an allegation that Defendants

Eberling and Eckard failed to train and supervise RHU officers regarding the use of

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force. Allen also maintains that “a number of inmates filed grievances and lawsuits

about the substantial risk of harm in the RHU at SCI Huntingdon but Defendants

Eckard and Eberling turn a blind eye.” (Doc. No. 74 at 10.) However, the fact that

other inmates filed such grievances “does not excuse [Allen] from filing his own

grievance. To allow [Allen] to circumvent the PLRA’s exhaustion requirement

because other inmates filed similar grievances would be contrary to Congress’s

intent in enacting the [PLRA].” Laureano v. Pataki, No. 99Civ.10667 (LAP), 2000

WL 1458807, at *2 (S.D.N.Y. Sept. 29, 2000); see also Martin v. Gold, No. 1:05-

CV-28, 2005 WL 1862116, at *7 (D. Vt. Aug. 4, 2005) (citing Laureano for same

proposition); cf. Boyer v. Taylor, No. 06-694-GMS, 2013 WL 1332443, at *4 n.6

(D. Del. Mar. 30, 2013) (noting that “vicarious exhaustion” has not been recognized

“except in some circuits when it has been permitted in § 1983 class actions filed by

inmates”).

Consequently, because the undisputed record reflects that Allen did not

exhaust his administrative remedies regarding his claim that Defendants Eberling

and Eckard failed to train and supervise RHU officers regarding the use of force, and

because Allen has not “come forth with ‘affirmative evidence, beyond the

allegations of the pleadings,’” that refutes the defense that he has failed to properly

exhaust this claim, see U.S. Bank, Nat. Ass’n v. Greenfield, Civ. No. 12-2125, 2014

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WL 3908127, at *2 (M.D. Pa. Aug. 11, 2014) (quoting Pappas v. City of Lebanon,

331 F. Supp. 2d 311, 315 (M.D. Pa. 2004)), summary judgment will be entered in

favor of Defendants Eberling and Eckard as to Allen’s failure to train and failure to

supervise claims.9

III. FAILURE TO SERVE DEFENDANT MCCONNELL

On January 5, 2018, the Court directed Allen to show cause why his claims

against Defendant McConnell should not be dismissed without prejudice for failure

to effect service pursuant to Rule 4(m) of the Federal Rules of Civil Procedure.

(Doc. No. 27.) In response, Allen provided the address of the Corizon regional office

in Philadelphia for use in serving Defendant McConnell. (Doc. No. 29.) The Court

has twice issued a summons and directed that Defendant McConnell be served at

that address. (Doc. Nos. 31, 69.) However, the United States Marshals Service has

been unable to effect service because Defendant McConnell is not known at that

location.

Rule 4(m) states that “[i]f a defendant is not served within 90 days after the

complaint is filed, the court—on motion or on its own after notice to the plaintiff—

must dismiss the action without prejudice against that defendant or order that service

9 Defendants argue, alternatively, that they are entitled to summary judgment because Allen cannot

establish failure to train and failure to supervise claims against Defendants Eberling and Eckard.

Because the Court has concluded that Allen did not exhaust his administrative remedies with

respect to these claims, the Court does not address this argument.

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be made within a specified time.” Fed. R. Civ. P. 4(m). The Court has on several

occasions warned Allen that Defendant McConnell is subject to dismissal if he

cannot be served with the complaint. This action has been pending before the Court

for more than two (2) years, and service has not been made on Defendant

McConnell. Accordingly, the Court will dismiss Defendant McConnell from this

action pursuant to Rule 4(m).

IV. CONCLUSION

For the foregoing reasons, the Court will grant Allen’s request to voluntarily

dismiss Defendant Swanger as a defendant to this action. The amended motion for

summary judgment (Doc. No. 65) will be granted with respect to Allen’s remaining

claims against Defendants Eberling, Eckard, Goughnour, and Sparr. In light of the

dismissal of Defendant Swanger as a defendant, the Court will deny as moot the

amended motion for summary judgment (Doc. No. 65) with respect to Allen’s claims

against her. Defendant McConnell will be dismissed without prejudice pursuant to

Rule 4(m) of the Federal Rules of Civil Procedure. An appropriate Order follows.

s/Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge

Dated: August 14, 2019

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