# Perry v. Welker

> District Court, M.D. Pennsylvania · February 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10409807

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** February 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10409807

## How later opinions describe it (automated extraction)

- holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”
- finding that prisoners must pursue their claims through prison channels prior to commencing related litigation in federal courts

## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10409807. Public record. Not legal advice.