BEHLER v. BARBEAU

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MR. WESLEY BEHLER, :

Plaintiff, :

: No. 1:19-cv-01243

v. :

: (Judge Kane)

MR. MARCEL BARBEAU, et al., :

Defendants :

MEMORANDUM

Presently before the Court is the second motion for summary judgment (Doc. No. 39) filed

by Defendants Marcel Barbeau (“Barbeau”), Ryan Long (“Long”), and Timothy Fritz (“Fritz”).

Despite being directed to do so (Doc. No. 43), pro se Plaintiff Wesley Behler (“Plaintiff”) has not

filed a response to Defendants’ motion. Accordingly, because the time period for filing a

response has expired, Defendants’ motion for summary judgment is ripe for disposition and

deemed unopposed. For the reasons that follow, the Court will grant Defendants’ motion.

I. BACKGROUND

Plaintiff initiated the above-captioned action on July 8, 2019, while incarcerated at the

Carbon County Correctional Facility in Nesquehoning, Pennsylvania (“CCCF”), by filing a

complaint against Defendants Barbeau, Long, and Fritz in the United States District Court for the

Eastern District of Pennsylvania. (Doc. No. 2.) Plaintiff alleges that from March 3-5, 2019,

CCCF experienced a loss of water pressure because of a frozen water main. (Id. at 4-6.) He

maintains that this frozen water main caused CCCF to lose fresh water. (Id. at 5.) At 10:00 p.m.

on March 3, 2019, Plaintiff refused to “lock in” to his cell for the night because of the lack of

running water and because his “toilet bowl was filled with human waste, feces, and urine.” (Id.)

Plaintiff alleges that he was subsequently pepper sprayed by Defendant Barbeau and other

corrections officers because of the refusal to “lock in.” (Id.) Plaintiff was removed from his

housing unit and placed in a cell in the Restrictive Housing Unit (“RHU”). (Id.) He maintains

that another inmate in the RHU cell “had been urinating, defecating, and vomiting in the toilet, in

that cell, throughout the entire day.” (Id.) Plaintiff alleges that he remained in the RHU cell for

over forty-eight (48) hours with no water to drink or use to rinse his face and eyes after being

pepper sprayed. (Id. at 5-6.) He maintains further that he was not given clean clothing and

bedding. (Id. at 6.) According to Plaintiff, he had to “sustain [his] thirst with only a 4 oz. carton

of milk each day.” (Id.) Plaintiff was released from the RHU without being charged with any

misconduct. (Id.) Based on these allegations, Plaintiff alleges that Defendants violated his Eighth

Amendment rights. (Id. at 7.) As relief, he seeks damages. (Id.)

In an Order dated July 15, 2019, the Eastern District of Pennsylvania transferred the

above-captioned case to this Court for further proceedings. (Doc. No. 5.) In an Order dated

September 10, 2019, the Court granted Plaintiff leave to proceed in forma pauperis and directed

service of his complaint upon Defendants. (Doc. No. 20.) Defendants filed an answer on

November 6, 2019 (Doc. No. 25) and a motion for summary judgment on November 13, 2019

(Doc. No. 26). On January 21, 2020, observing that Defendants raised the issue of whether

Plaintiff properly exhausted his administrative remedies with respect to 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. 33.)

The Court directed Plaintiff to file a brief in opposition addressing the issue of administrative

exhaustion and a statement of material facts responding to Defendants’ statement within thirty

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

(30) days. (Id.) Plaintiff filed his response on February 18, 2020 (Doc. No. 34), and Defendants

filed a reply on February 27, 2020 (Doc. Nos. 35, 36).

In an Order dated April 9, 2020, the Court denied Defendants’ motion for summary

judgment without prejudice to their right to refile one that complied with the Court’s Local Rules

once discovery closed on May 6, 2020. (Doc. No. 38.) In doing so, the Court concluded that the

parties’ statements of fact failed to conform to Local Rule 56.1 because they did not include

references to the parts of the record supporting the statements. (Id. at 3.) The Court also noted

that Defendants’ brief in support of their motion failed to address all issues raised by Plaintiff in

his complaint. (Id.)

Defendants filed their second motion for summary judgment on May 6, 2020. (Doc. No.

39.) On May 7, 2020, observing that Defendants again raised the issue of whether Plaintiff

properly exhausted his administrative remedies with respect to his claims in accordance with the

PLRA, the Court issued a Paladino Order directing Plaintiff to respond to the motion within

twenty-one (21) days. (Doc. No. 43.) Plaintiff, however, has neither filed a response nor a

motion seeking an extension of time to do so.

II. 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.” See 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. See 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 for the nonmoving party. See Anderson, 477

U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters & 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. See 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 Elec. 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 that demonstrates the absence of a genuine issue of material fact, the

nonmoving party is required to go beyond his pleadings with affidavits, depositions, answers to

interrogatories, or the like in order to demonstrate specific material facts that give rise to a

genuine issue. See 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.” See Matsushita Elec. 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 that it bears the burden of proving at trial,

for “a complete failure of proof concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” See Celotex, 477 U.S. at 323; see also 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. See White, 862 F.2d at 59. In doing

so, the Court must accept the nonmovant’s allegations as true and resolve any conflicts in his

favor. See 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.” See 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, Civ. No. 09-

1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010) (stating that pro se parties “are not

excused from complying with court orders and the local rules of court”); Thomas v. Norris, Civ.

No. 02-01854, 2006 WL 2590488, at *4 (M.D. Pa. Sept. 8, 2006) (explaining that pro se parties

must follow the Federal Rules of Civil Procedure).

III. STATEMENT OF MATERIAL FACTS2

Plaintiff was a pretrial detainee during the events complained of in his complaint. (Doc.

No. 40 ¶ 4.) He pled guilty to possession of a controlled substance on April 8, 2019. (Id. ¶ 3.)

A. Facts Regarding Conditions at CCCF from March 3-5, 2019

A frozen water main caused CCCF to lack running water “for at most 2 ½ days.” (Id.

¶ 16.) Carbon County “took all reasonable steps to get the water running as soon as possible.”

(Id. ¶ 17.) During the outage, Defendant Fritz and his staff took various remedial actions,

including: (1) melting ice from the ice machine to provide an emergency supply of water; (2)

providing potable water to all inmates in Igloo coolers and not restricting inmates’ water intake;

(3) spending approximately $20,000.00 to have a tanker bring in water for the inmates; (4)

making bottled water available; (5) keeping cell doors open so that inmates could spend more

time outside their cells in the units’ dayrooms; (6) continuing normal meal service with

beverages; and (7) having medical staff onsite to address any health concerns. (Id. ¶ 18.)

Although toilets could not be flushed and inmates could not shower during this time, “this was a

minor discomfort given the exigencies of dealing with a frozen water main.” (Id. ¶ 19.) “During

2 The Local Rules provide that in addition to the requirement that a party file 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.” See 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. See 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. Unless otherwise noted, the background

herein is derived from Defendants’ Rule 56.1 statement of facts. (Doc. No. 40.) Plaintiff failed to

file a response to Defendants’ statement of material facts in compliance with M.D. Pa. L.R. 56.1.

Accordingly, the Court deems the facts set forth by Defendants to be undisputed. See Fed. R.

Civ. P. 56(e)(2); M.D. Pa. L.R. 56.1; United States v. Alberto, No. 3:18-cv-1014, 2020 WL

730316, at *2 (M.D. Pa. Feb. 13, 2020) (concluding that “[f]ailure to file this [responsive

statement of material facts] results in admission of the moving party’s statement of facts”).

the outage, all conditions at the CCCF complied with the standards set forth at 37 Pa. Code,

Chapter 95, including § 95.231, which states that inmates shall bathe at least twice per week.”

(Id. ¶ 20.)

At approximately 10:30 p.m. on the day the water main froze, Plaintiff “and other inmates

on his unit refused officers’ directions to lock in their cells for the night.” (Id. ¶ 21.) Plaintiff

“was running around the unit, ignoring officers’ orders to lock down, and even jumped off the

tier, requiring the officers to use pepper spray to regain control of the unit.” (Id. ¶ 22.) Plaintiff

“put a towel over his face to protect himself from the spray.” (Id. ¶ 23.) After officers regained

control, Plaintiff was transferred to the RHU. (Id. ¶ 24.)

During the water outage, Plaintiff “had access to water that was brought into the units.”

(Id. ¶ 25.) “Water was brought to the cells and even inmates in disciplinary custody had access to

water brought by officers and during their daily one-hour recreational time.” (Id. ¶ 26.) A nurse

“visited the unit daily and was available to address any concerns, if any, that [Plaintiff] had.” (Id.

¶ 27.) Plaintiff “was able to clean his face, drink as much water as he wanted[,] and could have

asked for medical attention if his needs were not being met.” (Id. ¶ 28.) Plaintiff’s cellmate in

the RHU, Joseph Fritz-Rex, “made no report to the staff about vomiting or any medical issues.”

(Id. ¶ 29.)

B. Facts Regarding Administrative Exhaustion

The CCCF’s grievance procedure is set forth in the inmate handbook. (Id. ¶ 6.) Plaintiff

received a copy of the inmate handbook when he first arrived at the CCCF. (Id. ¶ 7.) The

grievance procedure allows inmates at CCCF to make complaints about: (1) conditions of their

confinement; (2) complaints against officers relating to their treatment of them or about officers’

misbehavior; (3) dissatisfaction with medical care; and (4) claims that officers subjected them to

harm or failed to provide a proper level of medical care. (Id. ¶ 8.) The claims that Plaintiff raises

in his complaint “were claims that were covered by the CCCF grievance procedure.” (Id. ¶ 9.)

The grievance procedure at CCCF “provides for several levels of review if an inmate is

dissatisfied with the response he receives from his grievances.” (Id. ¶ 10.) Defendant Fritz, as

Warden, is “the final level of review in the grievance process and all grievances and decisions

responding to grievances or grievance appeals are commemorated in writing.” (Id. ¶ 11.)

Plaintiff did not submit any grievances or grievance appeals “relating to any of the claims [he]

makes in his complaint.” (Id. ¶ 12.) Plaintiff “filed no grievances or grievance appeals against

the three CCCF administrators he named as defendants or relating to their actions as [Plaintiff]

described in the complaint.” (Id. ¶ 13.) Plaintiff “filed no grievances or grievance appeals

relating to claims against Carbon County.” (Id. ¶ 14.) If Plaintiff had submitted grievances, “they

would have been investigated and addressed.” (Id. ¶ 15.)

C. Facts Regarding Defendants’ Involvement

Defendants are “three CCCF officials who had supervisory roles and who did not

personally interact with [Plaintiff] during the events he describes.” (Id. ¶ 30.) Defendant Fritz,

the Warden, “was not involved with [Plaintiff] and had no knowledge of [Plaintiff’s] claims until

this lawsuit was filed.” (Id. ¶ 31.) Defendant Long, the Deputy Warden, “was not even working

during the days of the water outage and [had] no knowledge of [Plaintiff’s] concerns until after

water service was reinstated.” (Id. ¶ 32.) Defendant Barbeau “last saw [Plaintiff] when he was

transferred to the RHU and had no further contact with him nor personal knowledge about the

conditions of his confinement or his complaints. (Id. ¶ 33.) Carbon County “has no record in its

files of any injuries suffered by [Plaintiff] during the outage.” (Id. ¶ 34.) “There was no Carbon

County policy or practice that caused [Plaintiff] to suffer a deprivation of his federal

constitutional rights.” (Id. ¶ 35.)

IV. DISCUSSION

Pursuant to the PLRA, a prisoner must pursue all available avenues of relief through the

applicable grievance system before initiating 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

1997e provides, in relevant part, that “[n]o action shall be brought with respect to prison

conditions under [S]ection 1983 of this title, or any other [f]ederal law, by a prisoner confined in

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

are exhausted.” See 42 U.S.C. § 1997e(a). The exhaustion requirement is mandatory. See

Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also 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”). Moreover, although Plaintiff was released

from custody after filing the above-captioned case, he is still bound by the exhaustion requirement

because he has raised claims concerning events that occurred prior to his release.3 See Ahmed v.

Dragovich, 297 F.3d 201, 210 (3d Cir. 2002).

3 The Court recognizes that the Third Circuit recently concluded that the PLRA’s exhaustion

requirement did not apply to a situation where a plaintiff had been released from prison during the

pendency of his lawsuit and, after release, filed a third and fourth amended complaint. See

Garrett v. Wexford Health, 938 F.3d 69, 84 (3d Cir. 2019). The Garrett court noted that in that

instance, the plaintiff’s “status as a non-prisoner at the time he filed the [third amended complaint

was] determinative of the Medical Defendants’ administrative exhaustion defense.” See id. at 87.

In the instant case, however, Plaintiff is proceeding on the complaint he filed while still

incarcerated. The Court concludes that Garrett is inapposite to the above-captioned case and,

therefore, does not apply to excuse Plaintiff from satisfying the PLRA’s exhaustion requirement.

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

no futility exception to Section 1997e’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d

65, 75-76 (3d Cir. 2000). Courts have typically required across-the-board exhaustion by inmates

seeking to pursue claims in federal court. See id. Additionally, courts have interpreted this

exhaustion requirement as including a procedural default component, holding that inmates must

fully satisfy the administrative requirements of the inmate grievance process before proceeding

with a claim in federal court. See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004); see also Oriakhi

v. United States, 165 F. App’x 991, 993 (3d Cir. 2006) (providing that “there appears to be

unanimous circuit court consensus that a prisoner may not fulfill the PLRA’s exhaustion

requirement by exhausting administrative remedies after the filing of the complaint in federal

court”). Courts have also concluded that inmates who fail to complete the prison grievance

process in a full and timely manner are barred from subsequently litigating claims in federal

court. See, e.g., Booth v. Churner, 206 F.3d 289 (3d Cir. 2000); Bolla v. Strickland, 304 F. App’x

22 (3d Cir. 2008).

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 as to a grievance, the

inmate will not be required to comply strictly with this exhaustion requirement. See Camp v.

Brennan, 219 F.3d 279 (3d Cir. 2000). However, courts also recognize a clear “reluctance to

invoke equitable reasons to excuse [an inmate’s] failure to exhaust as the statute requires.” See

Davis v. Warman, 49 F. App’x 365, 368 (3d Cir. 2002). Thus, an inmate’s failure to exhaust will

be excused only “under certain limited circumstances,” see Harris v. Armstrong, 149 F. App’x 58,

59 (3d Cir. 2005), and an inmate may 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.” See 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 warranting a departure from strict compliance with the

exhaustion requirement, courts frequently reject inmate requests for their failure to exhaust to be

excused. An inmate, therefore, may not excuse a failure to comply with these grievance

procedures in a timely manner by simply claiming that his efforts constituted “substantial

compliance” with this statutory exhaustion requirement. See Harris, 149 F. App’x at 59.

Furthermore, an inmate may not avoid this exhaustion requirement by merely alleging that the

administrative policies were not clearly explained to him. See Warman, 49 F. App’x at 368.

Consequently, an inmate’s confusion regarding these grievances procedures does not, alone,

excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916 (3d Cir. 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 may 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.” See 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.” See id. Second, a procedure is not available when it is

“so opaque that it becomes, practically speaking, incapable of use.” See id. Finally, a procedure

is unavailable when “prison administrators thwart inmates from taking advantage of a grievance

process through machination, misinterpretation, or intimidation.” See id. at 1860. However,

“once the defendant has established that the inmate failed to resort to administrative remedies, the

onus falls on the inmate to show that such remedies were unavailable to him.” See Rinaldi v.

United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third Circuit recently established that

to defeat a failure-to-exhaust defense based on a misrepresentation by prison staff,

an inmate must show (1) that the misrepresentation is one which a reasonable

inmate would be entitled to rely on and sufficiently misleading to interfere with a

reasonable inmate’s use of the grievance process, and (2) that the inmate was

actually misled by the misrepresentation.

See Hardy v. Shaikh, No. 19-1929, 2020 WL 2551046, at *7 (3d Cir. May 20, 2020).

In the instant case, Defendants argue that Plaintiff failed to properly exhaust his

administrative remedies prior to filing suit. (Doc. No. 41 at 7-9.) Specifically, they maintain that

Plaintiff never submitted any grievances concerning the claims he raises in his complaint. (Id. at

3.) In support of these arguments, Defendants have submitted affidavits as well as a copy of

CCCF’s grievance policy. (Doc. Nos. 40-1 at 1-7, 40-3 at 2, 40-4 at 4.) CCFS’s grievance

procedure states:

If you feel that someone or some action that has been taken against you is unjust or

unfair, you may file a grievance. A grievance includes at least one level of appeal.

It is encouraged that problem solving begin at the level of most direct inmate

contact. You should utilize the grievance procedure only after addressing the

problem with the Correctional Officer, and reaching no satisfaction to the problem

which you feel there is reason for a complaint. You should fill out an inmate request

slip, and fill in the space provided with a short explanation of the problem. This

completed form should be forwarded to the Sergeant.

The Sergeant will try to settle the grievance at this level and provide a written

response to you or forward to the Deputy Warden.

The Deputy Warden will try to settle the grievance at this level and provide a

written response to you or forward it to the Warden.

The Warden will review previous responses and try to settle the grievance at this

level and provide a written response to you. The Warden is the final step in the

grievance procedure.

(Doc. No. 40-1 at 7.) This procedure allows inmates to raise complaints about: (1) conditions of

confinement; (2) issues regarding officers’ treatment of them or their behavior;

(3) dissatisfactions with medical care; and (4) claims that officers “subjected [them] to harm or

failed to provide [them] with a proper level of medical care.” (Doc. No. 40-1 at 2.) The claims

Plaintiff raises in his complaint “were claims that were covered by the CCCF grievance

procedure.” (Id.) Plaintiff, however, never availed himself of the grievance procedure to address

the issues he now raises in his complaint. (Id. at 2-3; Doc. Nos. 40-3 at 2, 40-4 at 3.)

Plaintiff has not responded to Defendants’ second motion for summary judgment. In his

complaint, however, Plaintiff states that there were “no administrative procedures to provide [a]

remedy for the issues raised in this complaint.” (Doc. No. 2 at 4.) Plaintiff’s complaint is

verified and, therefore, may be treated as an affidavit in opposition to summary judgment. See

Ziegler v. Eby, 77 F. App’x 117, 120 (3d Cir. 2003) (noting that “the complaint was not verified,

thereby precluding the District Court from treating it as the equivalent of an affidavit for purposes

of Federal Rule of Civil Procedure 56(e)”); Reese v. Sparks, 760 F.2d 64, 67 (3d Cir. 1985)

(treating a verified complaint as an affidavit in opposition to a motion for summary judgment).

This Court, however, is not “required to accept unsupported, self-serving testimony as evidence

sufficient to create a jury question.” See Hammonds v. Collins, No. 12-cv-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)). Plaintiff has provided no evidence to support his assertion that there were no

administrative grievance procedures available to address his claims. Moreover, Plaintiff has

provided no evidence suggesting that CCCF’s grievance procedure was rendered unavailable to

him under any of the circumstances set forth in Ross. See Ross, 136 S.Ct. at 1859-60. Plaintiff,

therefore, has not refuted the defense that he failed to properly exhaust his claims against

Defendants. Accordingly, because the PLRA requires full and proper exhaustion prior to the

initiation of Plaintiff’s claims in federal court, and this Court cannot excuse compliance with

those requirements, the Court will grant Defendants’ motion for summary judgment on the basis

that Plaintiff failed to properly exhaust his administrative remedies as to his claims against them.4

V. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment (Doc. No. 39) will

be granted. An appropriate Order follows.

4 Given the Court’s conclusion that Plaintiff did not properly exhaust his administrative remedies,

the Court declines to address Defendants’ alternate arguments that they are entitled to summary

judgment because Plaintiff’s claims lack merit and because they had no personal involvement in

the alleged violations.