Perry v. Welker

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MARK ANTHONY PERRY, SR. :

Plaintiff : CIVIL ACTION NO. 3:18-1430

v. : (JUDGE MANNION)

MIKE WELKER, :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Mark Anthony Perry, Sr., an inmate formerly confined at the

Dauphin County Prison, Harrisburg, Pennsylvania, filed the above caption

civil rights action pursuant to 42 U.S.C. §1983.1 (Doc. 1). The named

Defendants are the following Dauphin County Prison employees: Jill Cuffalo,

Treatment Counselor; Russell Hewitt, Lieutenant of Security; and Mike

Welker, Classification Supervisor. Id. Plaintiff states that he was “put in

protective custody” on June 30, 2018, due to “serious safety issues” at

Dauphin County Prison. Id. He lists each Defendant individually, and the

claims against each, as follows:

1 Plaintiff is currently housed in the ADAPPT, residential reentry center,

428 Walnut Street, Reading, Pennsylvania.

Cuffalo

Plaintiff states that Defendant Jill Cuffalo “put [his] life in danger on

May 14, 2018”. Specifically, he claims that on May 13, 2018, he put in a

separation request from inmate, Mason Williams, after Williams “found out

Plaintiff gave information on him back in late January concerning vast

amounts of drugs being brought in daily.” Id. Plaintiff claims that Cuffalo “also

knew about [his] dealings with security”, as he “wrote her a letter on March

8, 2018 explaining everything [he] did, it is on record”. Id. Plaintiff states that

“knowing all of this she decided to make comments on May 14, 2018 to

inmate Ruffis Foster when he mentioned [Plaintiff’s] request at his

disciplinary hearing.” Id. Mr. Foster, “was in fact [Plaintiff’s] cellmate the day

of May 14th” and “Foster made an inquiry about [Plaintiff’s] separation

request”, to which Cuffalo “stated to Foster ‘stop trying to cop pleas for your

celly, I am letting him get moved anyway.” Id.

On May 16, 2018, Plaintiff states that he was “in fact moved from P-6

block to P-1, where Williams was housed.” Id. On May 17, 2018, Plaintiff put

a grievance in “on treatment for blatantly disregarding my well-being and

safety.” Id. Plaintiff was “immediately moved back May 17, 2018 to cell P-6-

13, 30 minutes after grievance was retrieved by Cuffalo.” Id.

Hewitt

Plaintiff states that “during a court line proceeding for Nathyn Edelman

on April 9, 2018, Lt. Russell Hewitt disclosed to Mr. Edelman that [Plaintiff]

was the one who gave information on him that led to his original move to lock

in status on February 5, 2018.” Id. Plaintiff claims that on May 28, 2018, Mr.

Edelman “notified [Plaintiff] that he was told by Hewitt in the presence of no

other than Jill Cuffalo that [Plaintiff] told on [Edelman]”. Id. Plaintiff has “been

in lock in status since March 6, 2018, because he has been labeled as a

“jailhouse snitch.” Id.

Welker

Plaintiff alleges that on March 14, 2018, Defendant, Mike Welker,

“knowingly and deliberately moved [Plaintiff] to cell P-1-10 with Shaquon

Thompson”, who Plaintiff claims had recently been “found guilty by Jill

Cuffalo and Lt. Hewitt for sexual harassment and sexual assault on his

former cellmate.” Id.

On April 11, 2018, Plaintiff states that “Mr. Thompson sexually

assaulted [Plaintiff] and attacked [him] from behind” and “grabbed his

genitals and when [Plaintiff] went to the cell door he came up from behind

and punched [Plaintiff] numerous times in the head and face.” Id. Plaintiff

claims that when he informed Defendants Cuffalo and Hewitt that Thompson

sexually assaulted him, they “laughed and said we didn’t have any idea he

was gay.” Id. Plaintiff was moved to another cell on April 11, 2018 and

Thompson was moved to a single cell.

Plaintiff further alleges that on June 20, 2018, his June 11, 2018

request for a single cell was denied by Defendant Welker, even though a

single cell was available. Plaintiff believes this to be “characteristics of

malicious intent, to say the very least.” Id. Plaintiff alleges that after his

request for a single cell was denied, an inmate, Omar Stoddard, that Plaintiff

classifies as a “mentally deranged man” was moved into his cell. Id.

Thus, Plaintiff filed the instant action in which he seeks compensatory

and punitive damages for “the negligence, endangerment, mental anguish,

pain and suffering that administration, security, treatment and classification

of Dauphin County Prison subjected [him] to for malicious reasons.” Id.

On September 12, 2018, Defendants filed a motion to dismiss. (Doc.

17). On September 26, 2018, Defendants filed a brief in support of their

motion to dismiss. (Doc. 19).

On February 20, 2019, in accordance with Paladino v. Newsome, 885

F.3d 203 (3d Cir. 2018), (holding that the District Court shall provide the

parties notice that it will consider exhaustion in its role as fact finder under

Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013)), this Court issued an

Order, converting Defendants’ motion to dismiss to a motion for summary

judgment and allowing the parties an opportunity to supplement the record

with supporting evidence relevant to the exhaustion of administrative

remedies. (Doc. 23).

On March 25, 2019, Defendants filed a motion for summary judgment

on the issue of administrative exhaustion, along with a statement of material

facts and brief in support. (Docs. 27, 28). On April 3, 2019, Plaintiff filed a

brief in opposition to Defendants’ motion for summary judgment, (Doc. 29)

and on April 17, 2019, Defendants filed a reply brief. (Doc. 30).

Defendants’ motion is ripe for disposition. For the reasons set forth

below, the Court will grant Defendants’ motion for summary judgment.

II. SUMMARY JUDGMENT

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 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 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 2590488, at *4 (M.D. Pa. Sept. 8, 2006)

(pro se parties must follow the Federal Rules of Civil Procedure).

III. STATEMENT OF MATERIAL FACTS2

2 The Local Rules of Court 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. Unless otherwise noted, the factual

background herein is taken from Defendants’ Rule 56.1 statement of material

facts. (Doc. 27). Plaintiff did not file a response to Defendants’ statement of

facts in compliance with M.D. Pa. L.R. 56.1. Thus, the Court deems the facts

set forth by Defendants to be undisputed. See M.D. Pa. LR 56. 1; Fed. R.

Civ. P. 56(e)(2).

The Dauphin County Prison has an inmate grievance procedure. (See

Doc. 27-7 at 1). The process first requires the inmate to “write out the

complete grievance being as brief but as specific as possible soon after the

alleged occurrence.” Id. The grievance must be submitted to the Warden,

Deputy Warden, or a Security Major. Id. If the grievance is denied, the inmate

can appeal to the Chairman of the Dauphin County Prison Board of

Inspectors. Id. A further appeal is then to be taken to the full Prison Board.

Id. Finally, an appeal from the full Prison Board can be taken to the Dauphin

County Solicitor. Id.

The undisputed facts set forth by the Defendants reveal the following

with regard to Plaintiff’s failure to exhaust administrative remedies:

a. First Request for Single Cell

On or about March 12, 2018, Plaintiff submitted a request slip to

Defendant Cuffalo stating:

I am putting this request in for hope that I can get the single cell

on P-1 or P-6. To negate any issues security wise fore I am not

the best candidate for being someone’s celly. The reason I’m

here is interesting to say the least and I need to process it [...]

(Doc. 27-9, Request Slip).

In response to Plaintiff’s request, Defendant Cuffalo wrote, “Moved to

P1. No single cell available.” Id. Plaintiff did not file a grievance in relation to

the denial of this request. (See Doc. 27-8, Treatment Program Notes).

b. Complaints concerning DCP officer’s alleged statements

Plaintiff alleges that on March 30, 2018, he complained to Defendants

about officers spreading information about him around the prison. (See Doc.

1 at 4-5). The record reveals that, while Plaintiff submitted three Inmate

Request Forms (See Docs. 27-10, 27-11, 27-12) and a letter (Doc. 27-13)

about rumors being spread, he never filed a grievance beyond his initial

request slips, or the responses thereto. (See Doc. 27-8, Treatment Program

Notes).

c. Being celled with Inmate Thompson

Plaintiff submitted the following undated letter, he calls a “grievance”,

to Defendant Cuffalo:

I am putting this grievance in on the treatment department head.

On 3-13-18 I was moved from segregation P-3-5 to regular lock

in P-1 -10. I was celled up with Mr. Shaquon Thompson. This

should never be allowed. It has been brought to my awareness

that Mr. Thompson was found guilty of sexual harassment/

assault on his former celly. Mr. Thompson propositioned and

ultimately tried to use force on his celly Eric Foster. There is

witnesses who heard the altercation as well as Mr. Thompson

repeatedly making lewd and inappropriate nature to several PC

inmates. Mr. Thompson wanted oral & anal sex from Foster. I

was, on several occasions, attempted to be baited via comments

by Mr. Thompson. He would talk about erections & wet dreams,

etc., which led up to our altercation on 4-11-18. The emergency

call button was pressed when C.O. Johnson appeared at my

door I went to tell what was going on and Mr. Thompson attacked

me from behind. When I subdued him he also grabbed a hold of

my genitalia. I feel as though I was purposely put in that cell with

Thompson because of my original reason for being in Locks and

my ultimate exposing of Lt. Polygon and his insubordination and

letting it beknown to 3 other white shirts and a sgt. that my

intentions where[sic] to retrieve contraband (drugs) for Polygon’s

investigation which he had no authorization to give. I found out

after. I was working with officials for over 2 months and even

went so high as to meet with the Warden. After my removal from

P-1 ironically Thompson was then moved to a single cell,

somewhere where he should have been in the first place. He is

in here for stabbing someone 4 times by his heart, he has been

in 3 altercations in here and is a known Homosexual predator

inside these walls and I was put in a cell with him. I have been

wrongfully accused and mistreated since 3-6-18 and this is

definitely a case of unnecessary duress and endangerment. I

was purposefully put in a cell with a sociopath with severe mental

health issues and predatory natures of the sexual kind and this

is no secret to the prison. Needless to say I am perturbed and I

need resolution to this issue. I am subject to all this abuse for

telling the 100% truth and doing what I thought was right

according to officials.

(Doc. 27-13, letter).

On August 7, 2018, the Warden denied Plaintiff’s grievance as follows:

This memorandum is in response to an undated grievance that

was submitted by Inmate Mark Perry and was found in his

Treatment file. It is believed to have been submitted on May 5,

2018. [...] On March 6, 2018, Perry was moved to P-3-05 for a

disciplinary report he received. On March 13, 2018, Perry was

transferred from P-3-05 to P-1-10 with Thompson. On April 11,

2018, they were involved in an altercation and both received

disciplinary reports against them. Perry went to the in-house

disciplinary board (“Courtline”) on April 16, 2018, and pled guilty

to the charge of fighting and received 60 days to serve in the

disciplinary unit. Perry was not placed into a cell with Thompson

due to any retaliatory measures; he was simply moved to an

open housing location. Perry was in that cell for 28 days without

any request slips indicating a problem him and his cellmate. In

fact, on March 29, 2018, Perry signed a “Request for Protective

Custody” sheet indicating that he did not need Protective

Custody (PC). After researching Perry’s grievance, Perry and his

cellmate lived together with no issues until an altercation

occurred for a reason only known to them. He even signed a form

that he did not need PC from his cellmate of his housing block

during that time. Therefore, I find his complaint has no merit.

(Doc. 27-14). Plaintiff received the Warden’s response on August 24, 2018,

and filed the following “appeal” the same day:

Mr./Ms. Chairperson this is an appeal to the no merit response

by Mike Welker concerning putting me at serious risk being

celled with Shaquon Thompson. First off how is it possible that a

grievance put in 2 weeks before a second one is answered 23

days after second as well as it being 4 months less a week!?

Blatant interference! [illegible] Mr. Welker definitely is biased in

his opinion. He [illegible] the names of defendants on my civil

case. He says that my grievance is believed to have been

submitted on May 5, 2018. Believed? This must mean there is

no documentation for whatever reason. Another mystery. What I

do know is I [illegible] in claim for civil action that I submitted a

grievance on May 4, 2018. In this claim I [illegible] all info I did in

original grievance. Coincidence? I think not. All documents I

submit one followed with request asking for [illegible] of

submitting [illegible] attached request to guidance dating EXACT

DATE. Not believed to be [illegible]. Continuing forward, Mr.

Thompson admitted to grabbing my genitals. C.O. [illegible]

confirmed this to me & my celly several weeks ago. I also was in

the same room with him for 30 minutes on 8-1-18. He admitted

to it in front of C.O. Melcher, the barber, me and DeAngelo

[illegible]. This took place in P-block multi room in afternoon

during P.C. haircuts. You will see me [illegible] amount for my

[illegible] been in the room with him? We have a separation

[illegible] Answer, no. After making allegations I still was put at

risk. The incident on April 11, 2018. My failure to [illegible]

problems [illegible] The fact is I should of never [illegible] placed

in the cell. Eighth Amendment [illegible] protect from substantial

risk existed because [illegible] deliberately indifferent to this risk

and failure to take reasonable safety measures. Risk of [illegible]

existed for I was double celled with an [illegible] predatory

behavior and was [illegible] write ups in which he was found guilty

for [illegible] disgusting behavior, and [illegible] So the prison

knew who [illegible] celled with. After altercations [illegible] raped

[illegible] single cell P-1-2. Coincidence? No. I did not found out

about his violent & sexually predatory behavior until I was moved

to P-6 and talked with Eric Foster and other P.C. inmates so I

had no reason to suspect Thompson for the previous 27 days of

being housing with him! I found out for myself on the 28th day. I

also informed several officers about sexual assault. I also

informed Cuffalo and Hewitt at my Courtline hearing that he was

gay & he grabbed by genitals. They found it humorous and stated

they had no knowledge of him being Homosexual. They were the

ones who found him guilty for sexual harassment and assault.

Thinking he solicited Eric Foster for oral & anal sex and then

became [illegible]. Also my 8th Amendment [illegible] due to

administration putting [illegible] dangerous housing knowing I

was an inmate informant. My denial from P.C. was [illegible] of

pride and had nothing to do with Thompson which Welker

[illegible] because he was there. It was because of Security

telling [illegible] an informant and had it is not [illegible] in this

prison but other & [illegible] as well. I have proof of that and was

truly afraid once I obtained it. [illegible] May 29, [illegible] the

officer [illegible] mistreatment and abuse [illegible] me or I would

of definitely exposed the office. Now that I [illegible] of protection

[illegible] fear to be forthcoming but am still weary about my

safety! I also [illegible] guilty because [illegible] are [illegible] by

[illegible] official to plead guilty and [illegible] or plead not guilty

and [illegible] the maximum. 60 days at that time was better than

90. At review [illegible] written documentation [illegible] which

brought [illegible] in the first place. It is on record. Right to Know

[illegible] back up my claim [illegible] informant [illegible]

dangerous housing falls on the administration. I [illegible] and

with 5 people. I gave info [illegible] Thompson called me a rat

after I was moved and as I was leaving. Also on P-1 & P-6 where

housed Mason Williams, Ja[illegible] Hoff[illegible], Adr[illegible] ,

Nathan Edelman, individuals I gave info about [illegible] off of

[illegible] and time I was housed with all 5 people [illegible]

Thompson egregious risk? Without [illegible] !! [illegible] to have

Oscar award with my performances to say the least.

Administration left me out in the open to be slaughtered. Once I

was threatened with serious bodily harm I had to take action

[illegible] security [illegible] For the life of me [illegible] in the

prison so [illegible] My life is [illegible] to officials except for

Director Smeltzer [illegible] Also I have [illegible] to my first

appeal submitted 8-2-18.

(Doc. 27-16, Appeal). On September 19, 2018, Commissioner Michael Pries

denied Plaintiff’s appeal as follows:

I have reviewed your complaint outlined in your correspondence

to me dated 8/24/18. File Records were pulled and thoroughly

reviewed.

After reviewing the information in your appeal, on 3/6/18, you

were moved to P3-05 due to a disciplinary report which was

issued to you. On 3/13/18 due to an open housing location, you

were reassigned via housing transfer from P3-05 to P1-10 (with

Shaquan Thompson). You remained housed with Thompson for

28 days without incident or submitting any request slips

indicating any issues with your cellmate (Thompson). If you felt

threatened or as if any inmate would do you harm, the option

remains you could request Protective Custody. Furthermore, on

3/29/18 (while still housed with Thompson), you signed a

Request for Protective Custody sheet indicating that you did not

need Protective Custody (PC).

On 4/11/18, both you and Thompson were involved in an

altercation resulting in disciplinary measures. At your Courtline

review, you plead guilty to the charge of fighting and

subsequently received 60 days to serve in a disciplinary unit.

There is no basis for further action. You were not housed in a

cell with Thompson due to any “retaliatory measures.” The

Warden’s response stands as previously written. Therefore, your

grievance appeal is denied.

If you do not agree with the above findings, you may appeal to

the next level, that being the full Prison Board. This appeal, along

with any additional information, should be directed to the

Administrative Offices for forwarding to the Prison Board for

review at its next scheduled monthly meeting.

(Doc. 27-14, Appeal Response). Plaintiff received this grievance appeal

denial on October 4, 2018. (Doc. 27-18, receipt). No further appeal to the full

Prison Board or Dauphin County Solicitor was filed. (See Doc. 27-8,

Treatment Program Notes).

d. Separation Request from Inmate Williams

Plaintiff filed two grievances regarding a separation between he and

Inmate Williams. (Docs. 27-20, 27-21).

By response dated July 19, 2018, the Warden denied Plaintiff’s

grievances, finding the following:

This memorandum is in response to a grievance submitted by

Mark Perry dated May 16, 2018, Perry wrote that he submitted a

request for separation between him and Inmate Mason Williams

on Monday (which would have been May 14, 2018) and does not

want Protective Custody (PC). Perry wrote that his request was

disregarded because he was moved on May 16, 2018 to P-1 (the

block where Williams was housed). Perry also wrote that he

doesn't understand the Administration’s disregard for his well-

being, understands that this grievance will not be honored, and

wants a copy of his request for separation.

Perry submitted two requests for separation from Williams; one

dated May 13, 2018, and another dated May 21, 2018. I received

and responded to the first one on May 18, 2018. On May 16,

2018, Perry was moved from P-6 to P-1 where Williams was

housed. On the morning of May 17, 2018, the conflict and

separation request was brought to my attention and I had Perry

immediately moved back to P-6.

Perry was on P-6 from April 11, 2018, and I receive no request

for separation from Williams. On his request of May 13, 2018,

Perry gives no reason for this separation request. I responded to

both requests and the responses were returned to him.

After researching Perry’s grievance, it appears that Perry’s

request for separation from Williams was sent so close to his

move that it was not able to be processed before his move to P-

1 occurred. When I was informed of the request, Perry was

immediately removed from the block where Williams was housed

to protect his well-being. His grievance is being honored and a

response to his request was given to him. Therefore, I find his

complaint has no merit.

(Doc. 27-24, Grievance Response). Plaintiff received the Warden’s response

om August 1, 2018. (Doc. 27-23, receipt).

On or around August 1, 2018, Plaintiff sent a request slip addressed to

“Administration” that stated, “enclosed is an appeal to grievance dated 7-25-

18 out of Wardens office, for prison board chairperson.” (Doc. 27-25,

Appeal). The enclosed “grievance appeal” directed to the Prison Board

Chairperson stated:

This is an appeal to my complaint that was deemed to have no

merit on supposedly the date of 7-19-18. I put in a document to

you about my ordeal and the negligence in my grievance process

6-25-18 so you should be familiar. It’s ironic to say the least, my

complaint is finally responded to Two days ago. My motion to file

lawsuit was granted and notices were sent out to me & prison.

Mr. Welker is one of the defendants on my suit so it’s of no

surprise my situation was downplayed. Welker among others

[illegible] aware of my situation. It is [illegible] I gave information

on Mason Williams since back in January. So when I asked to be

separated to avoid conflict and physical altercation my

separation should of immediately been handled. Welker

[illegible] no reason but in the same breath states [illegible] was

brought to his attention was immediately moved to protect my

well-being If I have no reason what is the reason to protect?

Makes no sense. [illegible] thing is all a covering of tracks that I

see as [illegal] and the U.S. Middle District Court upon

explanation of my situation has granted my motion stating blatant

interference. My remedies were exhausted because of this

interference. I wrote to you & the solicitor to rectify this. The only

reason this grievance was humored was I did what I said I was

gonna do and took legal action. My ignorance has allowed things

to happen to me that the prison [illegible] not by allowing I

[illegible] have rectified that and have done my due diligence to

say the least.

I have solid 8th amendment arguments that are self explainable

as well. Once again, my grievance having no merit is false and

my separation request was valid. I should not of been moved it

clearly shows because once I took a stand I was returned to old

block. Therefore request should have been handled. It was

received 5-14-18 at 8 in the morning. I wasn’t moved til 5-16-18

at 5 pm. If request was not disregarded on the 14th none of this

would be necessary, at least concerning this matter. 30+ hrs is

not enough time?

But as the 17th it only took 1 hr!! I would appreciate some

accountability and fairness in this matter. Good day to you.

[...]

Also Welker, if not informed before, was informed on 3-30-18

about my situation as well as security’s involvement in the

leaking of me being an informant. I also did not know Williams

intention until 5-11-18 once I received a slip to use.

I stated that I know grievance wouldn’t be changed. Welker is

saying it is only after my motion was granted for lawsuit. If this

was of [illegible] grievance would have been responded to in a

timely manner. I know of several inmates who’s [sic] were

responses to several weeks before mine (30+days) and they put

their grievance in a [illegible].

Id. On August 29, 2018, Commissioner Pries denied Plaintiff’s appeal as

follows:

I have reviewed your complaint outlined in your correspondence

to me dated 8/1/18. File Records were pulled and thoroughly

reviewed.

After reviewing your appeal, it appears that Treatment Evaluator

Mike Welker performed his job duties and rectified the situation

as soon as he was notified of any issues. If you felt as if any

inmate would harm you, you could request Protective Custody.

At no point did Welker intentionally jeopardize your safety or well-

being. On Monday May 14, you declined PC status.

Subsequently, you were moved to P-1 on May 16, 2018. When

Treatment Evaluator Welker received notice, that there was an

issue between you and another inmate on the unit, you were

immediately moved off the block (P-1) back to P-6 where you

were originally housed.

It appears that your request for separation and the move to P-1

occurred simultaneously. Once Welker received knowledge of

the separation request, he acted appropriately, and within the

scope of his job duties to acknowledge your request and returned

you to your previous housing unit.

There is no basis for further action. The Warden’s response

stands as previously written. Therefore, your grievance appeal is

denied.

If you do not agree with the above findings, you may appeal to

the next level, that being the full Prison Board. This appeal, along

with any additional information, should be directed to the

Administrative Offices for forwarding to the Prison Board for

review at its next scheduled monthly meeting.

(Doc. 27-26, Appeal Response). Plaintiff received a copy of the grievance

appeal denial on September 5, 2018. (Doc. 27-27, receipt). No further appeal

to the full Prison Board or Dauphin County Solicitor was filed. (See Doc. 27-

8, Treatment Program Notes).

e. Plaintiff’s second request for single cell

On June 11, 2018, Plaintiff sent a request slip to Defendant Welker

stating the following:

Mike, when a cell that is single on my block (7,8) opens up can I

move into it. I got 21 days left and I got a lot on my mind I just

ask can I get my mind right and ready to go back into population

as we all know I got issue with and in this jail.

(Doc. 27-28, Inmate Request Form). A June 20, 2018 response stated,

“denied @ this time.” Id. No formal grievance was filed regarding the denial

of his request for a single sell. (See Doc. 27-8, Treatment Program Notes).

f. Plaintiff’s Placement with Stoddard

Plaintiff alleges that after his request for a single cell was denied, an

inmate, Omar Stoddard, when Plaintiff classifies as a “mentally deranged

man” was moved into his cell. (See Doc. 1 at 6).

Plaintiff did not file any grievances concerning being housed with

inmate Stoddard. (See Doc. 27-8, Treatment Program Notes).

g. Plaintiff receiving threatening letters

On June 28, 2018, Plaintiff sent a letter within the prison stating:

I have no request slip so I am using this. I am stating for the

record I received a threatening note a few weeks ago. I wasn’t

quite sure if I wanted to reveal this but after receiving counsel

from my lawyer and family and considering what my attorney has

in writing about an officer telling an inmate, someone who I

actually implicated in the drug situation, I told on him leads me to

tell I received a note saying when I get out the hole my head is

gonna get split wide open. For working with the “black shirts”.

This is what I wanted to talk to Director Smeltzer about. This is

ongoing issue all behind individuals trying to see me harmed for

telling the truth! Like I said it is no longer hearsay my attorney

has proof. Signed & witnessed. I get out of locks Monday or

Tuesday.

(Doc. 27-29, letter).

On June 29, 2018, Defendant Cuffalo noted in the DCP Treatment

Notes that:

Received a letter from inmate stating that he has received threats

of bodily harm when he gets out of lock in. I reported this to

Director Smeltzer and Smeltzer did speak to inmate. It was

decided that inmate will be moving to PC tonight on the move list.

The letter was placed in inmate’s TX file.

(See Doc. 27-8, Treatment Program Notes). Plaintiff never filed any

grievance in relation to this course of action. Id.

h. Plaintiff’s grievance regarding response time to grievances

On August 24, 2018, Plaintiff sent a request slip directed to “Director

Smeltzer” enclosed with a document stating the following:

This grievance is on treatment for showing conflict of interest,

negligence, and blatant interference concerning the process of

my two grievances one Dated 5-4-18 the other 5-17-18. Dates of

responses were 8-1-18, 8-2-18 and 8-24-18. My grievances were

not answered in order to was given and responses were 75 days

later and 114 days respectfully. We all know this is an absurd

amount of time. I was told by several officials process takes 30

days. My appeal was responded to for my drug, contraband write

up 2½ weeks after submitted and sent from office to me

(determination ) 2 weeks later. Second, Mike Welker knows the

name on my civil action. He answered this with a biased mindset,

who wouldn’t His responses were mere covering of tracks and

has multiple holes which is proven! Thirdly, on my grievance for

serious [illegible] being housed with Shaquon Thompson. Welker

states grievance was “believed to be” submitted on 5-5-18. What

exactly does this mean? Where is my original grievance &

request slip that was dated? What I do know is on my civil claim

I stated my grievance was submitted 5-4-18 a day after his

“guess” and also all info concerning grievance was on claim. I

need my original grievance & slip produced. From my perception

my grievance was neglected & discarded. What else would the

date be believed to be 5-5-18? And why was my first grievance

answered and given to me 23 days after (13 days before-36 days

total) my second grievance was answered? My perception once

again is my grievances were neglected and not going to be

answered. There were once motion was filed and subsequently

granted. They would still be collecting dust if civil suit wasn’t

granted. I’m sure there is proof the other grievance were

responded to after May 4th and before August 24th, of other

inmates. I know for a fact grievances & appeals are answered in

an orderly & monthly fashion. Good day to you. I await a

response with eagerness. A response from the head of

treatment. I request respectfully.

(Doc. 27-30, Inmate Request Form).

On September 25, 2018, Defendant Welker found no merit to Plaintiff’s

complaint, based on the following:

This memorandum is in response to a grievance submitted by

Inmate Mark Perry dated August 24, 2018. [...]

After researching Perry’s Treatment file, I found 2

grievance/grievances responses authored by me. The first

grievance, which he claimed was submitted on May 4, 2018, but

was undated and did not have a request slip attached when I

received it to answer (copy attached), was found in his Treatment

file and answered on August 7, 2018. I am unsure how it was

placed in his Treatment, unanswered, but can only say that the

Treatment department was undergoing changes at the time and

was inadvertently filed. When it was discovered it was answered

as soon as possible.

The second grievance which he claimed was filed on May 17,

2018, is dated May 16, 2018 (copy attached). That grievance

was answered on July 16, 2018. This grievance was answered

first because I received it before the other grievance.

To my knowledge there is no time frame to answer grievances

except as soon as possible. Variables such as grievance routing

time, vacations, workload, etc. may change response time for

grievances.

I answered his grievances in a professional manner, guided by

the facts in each case, and did not let other factors bias my

responses.

After researching Perry’s grievance, it appears that all of Perry’s

prior grievances were answered and none were neglected.

Therefore, I find his complaint has no merit.

(Doc. 27-31, Grievance Response). Plaintiff received this grievance denial

on October 25, 2018. (Doc. 27-32, receipt). Plaintiff never filed any appeal

to this grievance denial. (See Doc. 27-8, Treatment Program Notes).

IV. DISCUSSION

A. Exhaustion

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 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”). Moreover, while Plaintiff was released from prison after filing

the above-captioned case (Doc. No. 10), he is still bound by the exhaustion

requirement because he has raised claims concerning events that occurred

prior to his release. See Ahmed v. Dragovich, 297 F.3d 201, 210 (3d Cir.

2002).

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 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. 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).

The Supreme Court has 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 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)).

Here, Defendants argue that Plaintiff’s grievance record demonstrates

that he failed to properly exhaust his administrative remedies prior to filing

the instant action. The record clearly demonstrates that Plaintiff either failed

to initiate the grievance process or failed to fully complete the process

regarding his many issues raised within his complaint.

In opposition, Plaintiff attempts, but fails, to demonstrate that he has

exhausted three of the issues raised. (See Doc. 29, Brief in Opposition).

Initially, Plaintiff attempts to demonstrate that he exhausted his claims

concerning being housed with Inmate Thompson. In particular, Plaintiff

attempts to rely on a September 6, 2018 entry in his Treatment Program

Notes which states the following:

Inmate turned in a sealed homemade envelope asking me to

forward it to as a grievance appeal. I did speak to inmate on P4

with CO Myers. I asked Inmate what step appeal it is, and he told

me to open the envelope. I explained to inmate that he will need

to open the envelope. When inmate opened the envelope, it was

discovery that it was a 3rd Step grievance. I instructed Inmate to

refer to his inmate handbook in which it states that he will need

to mail the grievance appeal downtown. I returned the paperwork

to inmate and inmate stated he will mail it.

Id. at 10. Plaintiff states that, in accordance with CO Myers’ recommendation,

he “mailed 3rd step appeal on 9-7-18.” Id. While Plaintiff may have attempted

to appeal his grievance relating to Inmate Thompson, it appears that such

attempt came several months after the July 19, 2018 filing of his federal

action and almost a month before the October 4, 2018 denial of his grievance

appeal. (See 27-17, 27-18).

Likewise, Plaintiff’s attempts to bolster his argument of exhaustion with

respect to his claims regarding Inmate Williams and his claims concerning

grievance response time, fail for the same reason. With respect to his claims

regarding Defendant Williams, Plaintiff attempts to argue that he filed a third

step grievance appeal yet provides no evidence of such. Regardless, even

if Plaintiff filed a third step review, the grievance process contemplates four

levels of review. Exhaustion is not complete until final review before the

Solicitor of Dauphin County.

Plaintiff’s same argument with respect to his claims concerning

grievance response times fares no better. Plaintiff again claims that he filed

this grievance to third step review. He fails, however, to submit any evidence

of such, or to refute Defendants’ exhibits which demonstrate that Plaintiff

never filed a second step grievance appeal to the original grievance denial.

Finally, and most fatal to Plaintiff’s opposition, is that all of Plaintiff’s

exhibits in opposition are dated well beyond the July 19, 2018 filing date of

the instant action. Thus, the Court finds even if Plaintiff attempted to exhaust

his grievance to final review, he did so after he had already filed the above

captioned action in federal court. To that end, the PLRA mandates that

prisoners exhaust all available administrative remedies prior to initiating a

suit under §1983 for the deprivation of Constitutional rights. 42 U.S.C.

§1997e(a); Woodford v. Ngo, 548 U.S. 81, 85 (2006) (finding that prisoners

must pursue their claims through prison channels prior to commencing

related litigation in federal courts). The record is clear that Plaintiff did not

exhaust his administrative remedies prior to filing the instant action, and

Defendants are therefore entitled to summary judgment.

V. MOTION FOR RECONSIDERATION

On February 20, 2019, in accordance with Paladino v. Newsome, 885

F.3d 203 (3d Cir. 2018), (holding that the District Court shall provide the

parties notice that it will consider exhaustion in its role as fact finder under

Small v. Camden Cty., 728 F.3d 265 (3d Cir. 2013)), this Court issued an

Order, converting Defendants’ motion to dismiss to a motion for summary

judgment and allowing the parties an opportunity to supplement the record

with supporting evidence relevant to the exhaustion of administrative

remedies. (Doc. 23).

On March 25, 2019, Defendants filed a motion for summary judgment

on the issue of administrative exhaustion, along with a statement of material

facts and brief in support. (Docs. 27, 28). On April 3, 2019, Plaintiff filed a

brief in opposition to Defendants’ motion for summary judgment, (Doc. 29)

and on April 17, 2019, Defendants filed a reply brief. (Doc. 30).

Because this Court converted Defendants’ motion to a motion for

summary judgment, and then Defendants filed a separate motion for

summary judgment, this Court dismissed their original motion to dismiss as

moot. (See Doc. 35).

On October 19, 2019, Defendants filed a motion for reconsideration,

seeking to reinstate their original motion to dismiss, which challenges the

legal sufficiency of Plaintiff’s claims. (See Doc. 37).

Based on the record before this Court, Defendants’ have demonstrated

that they are entitled to summary judgment for Plaintiff’s failure to exhaust

his administrative remedies prior to bringing the instant federal action. This

procedural bar negates the need to address the substance of Plaintiff’s

claims. Consequently, Defendants’ motion for reconsideration will be denied

as moot.

VI. CONCLUSION

For the reasons set forth above, the Court will grant Defendants’

motion for summary judgment, based on Plaintiff’s failure to exhaust

administrative remedies prior to filing his federal action. Defendants’ motion

for reconsideration will be dismissed as moot. A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: February 19, 2021

18-1430-01