Good v. DOE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JONATHAN ALAN GOOD, :

Plaintiff :

: No. 1:20-cv-00446

v. :

: (Judge Kane)

JOHN DOE, et al., :

Defendants :

MEMORANDUM

Presently before the Court is the motion for summary judgment (Doc. No. 25) filed by

Defendant Lieutenant Bartow (“Bartow”). Pro se Plaintiff Jonathan Alan Good (“Plaintiff”) has

filed neither a response nor a motion seeking an extension of time to do so. Accordingly,

because the time for filing a response has expired, the motion for summary judgment is ripe for

disposition.

I. BACKGROUND

On March 18, 2020, Plaintiff, who was then incarcerated at the State Correctional

Institution Benner Township in Bellefonte, Pennsylvania (“SCI Benner Township”), initiated the

above-captioned action by filing a complaint pursuant to 42 U.S.C. § 1983 against five (5) John

Doe Defendants, all of whom were employed at SCI Camp Hill, concerning events that occurred

while Plaintiff was incarcerated there. (Doc. No. 1.) In an Order dated March 19, 2020, the

Court granted Plaintiff leave to proceed in forma pauperis and directed him to provide names for

the John Doe Defendants within thirty (30) days. (Doc. No. 7.) Plaintiff subsequently filed a

motion seeking to add Lieutenant Bartow as a Defendant. (Doc. No. 8.) In an Order dated April

3, 2020, the Court denied Plaintiff’s motion without prejudice to Plaintiff’s right to file an

amended complaint setting forth his claims against Lieutenant Bartow. (Doc. No. 10.) The

Court advised Plaintiff that if he failed to file his amended complaint within thirty (30) days, the

above-captioned case would proceed on his original complaint. (Id. at 2.)

Plaintiff filed his amended complaint on April 30, 2020, naming the five (5) John Does

and Lieutenant Bartow as Defendants. (Doc. No. 11.) Plaintiff alleges that in March of 2018, he

had built a snowman in the yard, and Sergeant Border “singled [him] out from the other two

inmates who had built a snowman in the yard.” (Id. at 6.) Sergeant Border issued a misconduct

charging Plaintiff with disobeying an order. (Id.) Plaintiff said that he “didn’t f***ing do

anything,” and Sergeant Border responded, “yeah, yeah, suck my d***.” (Id.) Plaintiff

subsequently submitted a PREA complaint against Sergeant Border, and he was subsequently

transferred to the Diversionary Treatment Unit (“DTU”). (Id.)

Plaintiff avers that the second shift corrections officers and sergeant refused to let him out

of his cell for showers, refused to give him hygiene supplies and a cup for water, and refused to

let him out of his cell for any DTU therapy groups. (Id.) Plaintiff also did not receive four (4)

dinner trays. (Id. at 7.) Plaintiff threatened to smear feces all over his cell if he did not receive a

cup and hygiene supplies. (Id.) He followed through with the threat. (Id.) Plaintiff

subsequently took his sheet, tied it around his neck, and sat down on the floor, strangling

himself. (Id. at 8.) Plaintiff maintains that the next thing he remember, his face was smashed by

a plastic riot shield. (Id.) He claims that the second shift sergeant and four (4) corrections

officers had entered his cell without a camera, nurse, or lieutenant present. (Id.) Plaintiff claims

that after the sheet was removed from his neck, the corrections officers slammed his head to the

floor and held his hands behind his back while the sergeant repeatedly punched him in the face.

(Id.) Plaintiff was subsequently taken to the medical department for a bloody nose, and he was

transferred to an emergency room in Harrisburg, Pennsylvania. (Id. at 8-9.) Plaintiff claims that

Defendant Bartow was the senior ranking officer in charge of supervising the DTU on March 24,

2018. (Id. at 10.) Based on the foregoing, Plaintiff asserts violations of his Eighth Amendment

right to be free from the use of excessive force. He seeks damages as relief. (Id. at 13.)

Defendant Bartow filed an answer to the amended complaint on June 29, 2020. (Doc.

No. 19.) The parties subsequently engaged in discovery, which closed on March 5, 2021. (Doc.

No. 22.) In an Order dated January 4, 2021, the Court directed Plaintiff to show cause why the

John Doe Defendants should not be dismissed from the above-captioned action pursuant to Rule

4(m) of the Federal Rules of Civil Procedure. (Doc. No. 20.) Plaintiff did not respond to the

Court’s Order. Accordingly, on February 23, 2021, the Court dismissed the John Doe

Defendants without prejudice pursuant to Rule 4(m). (Doc. No. 23.)

Defendant Bartow filed his motion for summary judgment and supporting materials on

April 22, 2021. (Doc. Nos. 25, 26, 27.) On April 23, 2021, observing that Defendant Bartow

raised the issue of whether Plaintiff properly exhausted his administrative remedies with respect

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

Paladino Order informing the parties that it would consider the exhaustion issue in the context of

summary judgment and, by doing so, would consider matters outside the pleadings in its role as

factfinder.1 (Doc. No. 28.) The Court directed Plaintiff to file a brief in opposition addressing

the issue of administrative exhaustion and a statement of material facts responding to

Defendants’ statement within thirty (30) days. (Id.) As noted supra, Plaintiff has not responded.

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

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(a) requires the Court to render summary judgment “if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” See Fed. R. Civ. P. 56(a). “[T]his standard provides

that the mere existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; the requirement is that there be no

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

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

of the case under applicable substantive law. See id. at 248; Gray v. York Newspapers, Inc., 957

F.2d 1070, 1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such

that a reasonable jury could return a verdict for the nonmoving party. See Anderson, 477 U.S. at

257; Brenner v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1287-88

(3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the Court must view

the facts and all reasonable inferences in favor of the nonmoving party. See Moore v. Tartler,

986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992);

White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment,

however, the nonmoving party may not rest on the unsubstantiated allegations of his or her

pleadings. When the party seeking summary judgment satisfies its burden under Rule 56 of

identifying evidence that demonstrates the absence of a genuine issue of material fact, the

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

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

genuine issue. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The party opposing the

motion “must do more than simply show that there is some metaphysical doubt as to the material

facts.” See Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule

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

show the existence of every element essential to its case that it bears the burden of proving at

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

case necessarily renders all other facts immaterial.” See Celotex, 477 U.S. at 323; see also

Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

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

evidence in the light most favorable to the nonmoving party. See White, 862 F.2d at 59. In

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

his favor. See id. (citations omitted). However, a party opposing a summary judgment motion

must comply with Local Rule 56.1, which specifically directs the oppositional party to submit a

“statement of the material facts, responding to the numbered paragraphs set forth in the statement

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

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

required to be served by the moving party will be deemed to be admitted.” See L.R. 56.1. A

party cannot evade these litigation responsibilities in this regard simply by citing the fact that he

is a pro se litigant. These rules apply with equal force to all parties. See Sanders v. Beard, No.

09-cv-1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010) (stating that pro se parties “are

not excused from complying with court orders and the local rules of court”); Thomas v. Norris,

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

parties must follow the Federal Rules of Civil Procedure).

III. STATEMENT OF MATERIAL FACTS2

In March of 2018, Plaintiff was incarcerated at SCI Camp Hill, where the events alleged

in his complaint occurred. (Doc. No. 26 ¶¶ 1-2.) At all relevant times, Defendant Bartow was a

Corrections Officer or Lieutenant at SCI Camp Hill. (Id. ¶ 3.) Plaintiff was released on parole

on June 3, 2020. (Id. ¶ 4.)

On March 24, 2018, Plaintiff was housed in cell A-4, E Unit, in the DTU. (Id. ¶ 5.)

“Plaintiff smeared his feces inside his cell and informed staff that he was going to harm himself.”

(Id. ¶ 6.) Defendant Bartow “instructed staff to put on jump suits and when he arrived at the cell,

he observed Plaintiff with a sheet tied around his neck and sitting on the floor.” (Id. ¶ 7.)

Defendant Bartow notified the control center and medical of the emergency, and he ordered that

Plaintiff’s cell door be opened. (Id. ¶¶ 8-9.) Defendant Bartow stood outside Plaintiff’s cell

while the team entered the cell. (Id. ¶ 9.) “When the team entered the cell, Plaintiff jumped to

his feet and attempted to strike staff but ran face first into the capture shield.” (Id. ¶ 10.)

“Plaintiff was pinned to the floor while he was restrained with handcuffs.” (Id. ¶ 11.) “Plaintiff

2 The Local Rules provide that in addition to the requirement that a party file a brief in

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

for summary judgment shall include a separate, short and concise statement of material facts

responding to the numbered paragraphs set forth in the statement [of material facts filed by the

moving party] . . . as to which it is contended that there exists a genuine issue to be tried.” See

M.D. Pa. L.R. 56. 1. The Rule further requires the inclusion of references to the parts of the

record that support the statements. See id. Finally, the Rule states that the statement of material

facts required to be served by the moving party will be deemed to be admitted unless

controverted by the statement required to be served by the opposing party. See id. Unless

otherwise noted, the background herein is derived from Defendant Bartow’s Rule 56.1 statement

of facts. (Doc. No. 26.) Plaintiff has not filed a response to Defendant Bartow’s statement of

material facts in compliance with Local Rule 56.1. Accordingly, the Court deems the facts set

forth by Defendant Bartow to be undisputed. See Fed. R. Civ. P. 56(e)(2); M.D. Pa. L.R. 56.1;

United States v. Alberto, No. 3:18-cv-1014, 2020 WL 730316, at *2 (M.D. Pa. Feb. 13, 2020)

(concluding that the “[f]ailure to file this [responsive statement of material facts] results in

admission of the moving party’s statement of facts”).

was assessed by medical and taken to an outside facility for a possible broken nose.” (Id. ¶ 12.)

At no time did Defendant Bartow touch Plaintiff, and a “portion of the incident was captured on

a hand held video camera.” (Id. ¶¶ 13-14.)

“Plaintiff first filed a grievance regarding the incident on September 2, 2019, but

[Defendant] Bartow was not named in the grievance.” (Id. ¶ 15.) “Grievance form was available

to Plaintiff from the law library at a minimum, but Plaintiff chose not to obtain the form and file

in a timely manner.” (Id. ¶ 16.) “Plaintiff’s grievance was denied as untimely because his

grievance/appeals were not submitted within fifteen (15) working days of the March 24, 2018

incident pursuant to the requirements of DC-ADM 804, but about a year and a half later on

September 2, 2019.” (Id. ¶ 17.)

IV. DISCUSSION

Defendants assert that they are entitled to summary judgment because: (1) Plaintiff

cannot maintain his official capacity claims against Defendant Bartow; (2) Plaintiff cannot

maintain his supervisory liability claims against Defendant Bartow; and (3) Plaintiff failed to

exhaust his administrative remedies. (Doc. No. 27 at 4.) The Court considers Defendant

Bartow’s arguments below.

A. Official Capacity Claims

Plaintiff has brought suit against Defendant Bartow in his individual and official

capacities. (Doc. No. 11 at 2.) However, Plaintiff’s official capacity claims against Defendant

Bartow are “barred by sovereign immunity.” See Jones v. Unknown D.O.C. Bus Driver and

Transp. Crew, 944 F.3d 478, 482 (3d Cir. 2019): see also Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (noting that a suit against a state official in his official capacity is a suit

against his office and cannot proceed under § 1983); Kentucky v. Graham, 473 U.S. 159, 165-67

(1985) (holding that claims for damages against a state officer acting in his official capacity are

barred by the Eleventh Amendment); Wells v. Wetzel, No. 3:16-cv-842, 2021 WL 1197699, at

*3 (M.D. Pa. Mar. 30, 2021) (concluding that state officers were entitled to summary judgment

with respect to the inmate-plaintiff’s claims for monetary damages against them in their official

capacities). Accordingly, the Court will grant Defendant Bartow’s motion for summary

judgment with respect to Plaintiff’s claims for monetary damages against him in his official

capacity.

B. Exhaustion of Administrative Remedies

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

applicable grievance system before initiating a federal civil rights action. See 42 U.S.C.

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

irrespective of the forms of relief sought and offered through administrative avenues”). Section

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

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

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

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

Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. at 742 (holding

that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the

relief offered through administrative procedures”). Moreover, while Plaintiff was released from

prison after initiating the above-captioned action, he is still bound by the exhaustion requirement

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

App’x 22 (3d Cir. 2008).

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

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

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

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

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

complaint was] determinative of the Medical Defendants’ administrative exhaustion defense.”

See id. at 87. In the instant case, however, Plaintiff is proceeding on the amended complaint he

filed while still incarcerated. The Court concludes that Garrett is inapposite to the above-

captioned case and, therefore, does not apply to excuse Plaintiff from satisfying the PLRA’s

exhaustion requirement.

This broad rule favoring full exhaustion allows for a narrowly-defined exception; if the

actions of prison officials directly caused the inmate’s procedural default as to a grievance, the

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

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

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

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

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

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

“he was misled or that there was some extraordinary reason he was prevented from complying

with the statutory mandate.” See Warman, 49 F. App’x at 368.

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

some other extraordinary circumstances warranting a departure from strict compliance with the

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

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

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

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

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

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

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

excuse a failure to exhaust. See Casey v. Smith, 71 F. App’x 916 (3d Cir. 2003); see also Marsh

v. Soares, 223 F.3d 1217, 1220 (10th Cir. 2000) (“[I]t is well established that ‘ignorance of the

law, even for an incarcerated pro se petitioner, generally does not excuse prompt filing.’”

(citations omitted)).

Recently, the Supreme Court considered what renders administrative remedies

unavailable to an inmate such that a failure to exhaust may be excused. See Ross v. Blake, 136

S. Ct. 1850 (2016). The Court noted “three kinds of circumstances in which an administrative

remedy, although officially on the books, is not capable of use to obtain relief.” See id. at 1859.

First, an administrative procedure is not available “when (despite what regulations or guidance

materials may promise) it operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates.” See id. Second, a procedure is not

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

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

advantage of a grievance process through machination, misinterpretation, or intimidation.” See

id. at 1860. However, “once the defendant has established that the inmate failed to resort to

administrative remedies, the onus falls on the inmate to show that such remedies were

unavailable to him.” See Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018). The Third

Circuit recently established that:

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

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

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

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

actually misled by the misrepresentation.

See Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020).

Defendant Bartow maintains that he is entitled to summary judgment because Plaintiff

failed to properly exhaust his administrative remedies. (Doc. No. 27 at 11-13.) He avers that

Plaintiff did not name him in his grievance and that, in any event, Plaintiff’s “grievance was not

filed in accordance with the time requirements of DC[]-ADM 804.” (Id. at 13.) In support of his

argument, Defendant Bartow has provided a transcript of Plaintiff’s deposition, a copy of DC-

ADM 804, and copies of Plaintiff’s grievances and responses thereto. (Doc. Nos. 26-1, 26-4, 26-

5.) With respect to proper exhaustion under the PLRA, “it is the prison’s requirements, [] not the

[Act], that define the boundaries of proper exhaustion.” See Wright v. Sauers, 729 F. App’x 225,

227 (3d Cir. 2018) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).

DC-ADM 804 provides that a grievance must be submitted “to the Facility Grievance

Coordinator/designee, usually the Superintendent’s Assistant, within 15 working days after the

event upon which the claim is based.” (Doc. No. 26-5 at 5.) Time extensions for filing

grievances are “considered on a case-by-case basis.” (Id. at 9.) “The inmate must notify the

Facility Grievance Coordinator/designee of the reason for the delay.” (Id.) The Facility

Grievance Coordinator/designee considers that reason and also considers whether the delay was

caused by: (1) a temporary transfer from the facility where the inmate should have filed the

grievance; (2) a permanent transfer from the facility where the inmate should have filed the

grievance; (3) an authorized temporary absence for an extended period; (4) mail delivery delay;

or (5) any other reason deemed appropriate. (Id.) “If it is determined that a delay was caused by

a circumstance listed above, a reasonable extension of time for filing shall be permitted.” (Id.)

The record before the Court reflects that Plaintiff filed a grievance regarding the March

24, 2018 incident on September 2, 2019, while he was incarcerated at SCI Benner Township.

(Doc. No. 26-4 at 2.) In the grievance, Plaintiff mentioned that he had filed a PREA complaint

against Sergeant Border. (Id.) Plaintiff referenced the second shift sergeant and corrections

officers involved in the alleged assault, but did not mention Defendant Bartow. (Id.)4 On

4 In his grievance, Plaintiff references that under Pennsylvania law, he has two (2) years from the

date of the incident to file a lawsuit. (Doc. No. 26-4.) To the extent Plaintiff believed he had

two (2) years to file a grievance, he is “confusing the applicable statute of limitations for the

claims asserted in his complaint with the time limits for the grievance procedure set forth in DC-

September 6, 2019, the Facility Grievance Coordinator rejected Plaintiff’s grievance because it

was “not submitted within fifteen (15) working days after the events upon which claims are

based.” (Id. at 3.) Plaintiff appealed the rejection to the Facility Manager, arguing that he never

had an opportunity to file within the fifteen (15)-day time limit. (Id. at 4-5.) The Facility

Manager upheld the rejection on September 27, 2019. (Id. at 6.) Plaintiff then appealed to the

Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”). (Id. at 7.) SOIGA upheld the

rejection on November 14, 2019. (Id. at 1.) SOIGA noted that while DC-ADM 804 “does allow

for a time extension to file a grievance depending on the circumstances, it also states that a

reasonable extension of time for filing shall be permitted—an 18 month delay far exceeds a

reasonable extension of time.” (Id.)

During his deposition, Plaintiff testified that he was unable to file a grievance about the

events of March 24, 2018 while he was still incarcerated at SCI Camp Hill because he was

transferred out three (3) days after the incident occurred and because corrections officers refused

to give him a grievance form when he asked for one. (Doc. No. 26-1 at 34-35.) Plaintiff,

however, admitted that he could have gone to the law library and obtained a grievance form. (Id.

at 37.) Plaintiff testified further that when he was transferred to SCI Huntingdon, he did not

learn that he could file a grievance regarding something that happened at another facility until a

month after he arrived there. (Id. at 39.) Plaintiff also testified that he was placed in the

Restricted Housing Unit (“RHU”) at SCI Huntingdon, and that corrections officers assigned to

the RHU either refused to give him a grievance form or made the form unusable by blacking out

certain portions of the form. (Id. at 40.) Plaintiff noted that he was unable to go to the law

ADM 804.” See Glenn v. Mataloni, No. 1:20-cv-69, 2020 WL 7027597, at *19 n.10 (M.D. Pa.

Nov. 30, 2020).

library during his time at SCI Huntingdon. (Id.) He was transferred to SCI Benner Township

three (3) months later. (Id. at 41.) Plaintiff testified that he could have submitted a grievance in

August of 2018 when he arrived at SCI Benner but waited because he did not “want to get off on

the wrong foot with [those] COs.” (Id. at 43.) He also indicated that he attempted to file his

grievance several times before September of 2019, but that the original three (3) versions were

sent back “because of administration people of the DOC writing on the envelope return to

sender, don’t have this included, return to sender, don’t have this included.” (Id. at 44-45.)

Plaintiff, however, threw all of those documents out while he was incarcerated at SCI Benner

Township. (Id. at 45-46.)

The Third Circuit has recognized that the refusal to provide an inmate with a grievance

form, if the form is necessary for exhaustion, renders the grievance process unavailable within

the meaning of 42 U.S.C. § 1997e(e). See Spada v. Martinez, 579 F. App’x 82, 86 (3d Cir.

2014) (remanding for the district court to consider whether prison officials refused to provide the

inmate-plaintiff with grievance forms within the fifteen (15)-day working period). As noted

supra, Plaintiff’s testimony during his deposition suggests that the grievance process was

rendered unavailable because officers at SCI Camp Hill and SCI Huntingdon refused to provide

grievance forms to him. Plaintiff, however, also testified that he knew that he could obtain

grievance forms in the law library at SCI Camp Hill, but he chose not to do so. (Doc. No. 26-1

at 37.) DC-ADM 804 provides that initial grievance forms “shall be readily available on every

housing unit as well as in the main and mini-law libraries.” (Doc. No. 26-4 at 4.) Plaintiff’s own

testimony, therefore, does not conclusively establish that the grievance process was rendered

unavailable to him during his remaining days at SCI Camp Hill. See Spada v. Martinez, 663 F.

App’x 112, 114-15 (3d Cir. 2016) (affirming the district court’s grant of summary judgment on

the basis that even though the inmate-plaintiff argued that staff members refused his requests for

grievance forms, such forms were freely available near the nurse’s station in his housing unit

and, therefore, the inmate-plaintiff had not demonstrated that his administrative remedies were

obstructed).

In any event, even if Plaintiff had timely filed his grievance regarding the events of

March 24, 2018, DC-ADM 804 also provides that the inmate must “identify individuals directly

involved in the event(s)” in his grievance. (Doc. No. 26-5.) As noted supra, Plaintiff did not

name Defendant Bartow in his grievance proceedings regarding the events of March 24, 2018.

The Third Circuit has noted that “a Pennsylvania inmate’s failure to properly identify a

defendant constitute[s] a failure to properly exhaust his administrative remedies under the

PLRA.” See Williams v. Pa. Dep’t of Corr., 146 F. App’x 554, 557 (3d Cir. 2005). In the

instant case, Plaintiff did not identify Defendant Bartow in his grievance, and he did not

“identify any harm perpetuated by” him. See Watson v. Wingard, 782 F. App’x 214, 217 (3d

Cir. 2019).

In sum, the record before the Court reflects that the administrative grievance procedure

was not rendered unavailable to Plaintiff during the fifteen (15)-day period for filing his

grievance after the events of March 24, 2018 and that, in any event, he failed to name Defendant

Bartow in his grievance. Moreover, the “filing [of] an untimely or otherwise procedurally

defective administrative grievance or appeal” does not satisfy the PLRA’s exhaustion

requirement. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). Defendant Bartow, therefore, is

entitled to summary judgment on the basis that Plaintiff failed to exhaust his administrative

remedies with respect to his claims against him. Nevertheless, the Court considers the merits of

Plaintiff’s claims below.

C. Supervisory Liability Claims

In his amended complaint, Plaintiff avers that Defendant Bartow was the “senior ranking

officer” in charge of supervising the DTU on March 24, 2018. (Doc. No. 11 at 10.) He claims

that because of Defendant Bartow’s supervisory position, he “is to be held equally responsible

for [Plaintiff] being assaulted” because the sergeant and four (4) corrections officers “would not

have made the decision to enter [his] cell and assault [him] without [Defendant] Bartow knowing

of their intentions to do so.” (Id.) Plaintiff also suggests that Defendant Bartow assisted the

sergeant and corrections officers in “covering up” the assault by instructing them to not include

their names anywhere on the misconduct issued to Plaintiff. (Id.) Defendant Bartow asserts that

Plaintiff’s Eighth Amendment claim against him fails “because there is no supervisory liability

under [§] 1983.” (Doc. No. 27 at 7.)

Under Section 1983, individual liability may be imposed only if the state actor played an

“affirmative part” in the alleged misconduct. See Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.

2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Liability “cannot be

predicated solely on the operation of respondeat superior.” See id. In other words, defendants

“must have personal involvement in the alleged wrongs . . . shown through allegations of

personal direction or of actual knowledge and acquiescence.” See Atkinson v. Taylor, 316 F.3d

257, 271 (3d Cir. 2003).

With respect to supervisory liability, there are two theories: “one under which supervisors

can be liable if they established and maintained a policy, practice or custom which directly

caused the constitutional harm, and another under which they can be liable if they participated in

violating plaintiff’s rights, directed others to violate them, or, as the persons in charge, had

knowledge of and acquiesced in their subordinates’ violations.” See Santiago v. Warminster

Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010) (quotation and alteration marks omitted). As to the

second theory, a plaintiff must show that each defendant personally participated in the alleged

constitutional violation or approved of it. See C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159,

173 (3d Cir. 2005); see also Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). With respect to the

first theory, “the plaintiff must establish that: (1) existing policy or practice creates an

unreasonable risk of constitutional injury; (2) the supervisor was aware that the unreasonable risk

was created; (3) the supervisor was indifferent to that risk; and (4) the injury resulted from the

policy or practice.” See Merring v. City of Carbondale, 558 F. Supp. 2d 540, 547 (M.D. Pa.

2008) (citing Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989)). At a minimum,

supervisory liability can be imposed “only where there are both (1) contemporaneous knowledge

of the offending incident or knowledge of a prior pattern of similar incidents, and (2)

circumstances under which the supervisor’s inaction could be found to have communicated a

message of approval to the offending subordinate.” See Chinchello v. Fenton, 805 F.2d 126, 133

(3d Cir. 1986).

In the instant case, Plaintiff fails to establish plausible supervisory liability claims against

Defendant Bartow. Plaintiff cites no evidence from which a reasonable jury could conclude that

Defendant Bartow directed others to violate Plaintiff’s constitutional rights, knew of such

violations and acquiesced in them, or maintained a policy or custom that caused Plaintiff

constitutional harm. See A.M. ex rel. J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572,

586 (3d Cir. 2004). Rather, in his deposition, Plaintiff testified that Defendant Bartow was “not

[his] concern” and that he “needed to include him in this whole lawsuit because he was there and

because I know that he knows” the names of the John Doe Defendants. (Doc. No. 26-1 at 23-

24.) The Court, therefore, will grant Defendant Bartow summary judgment with respect to

Plaintiff’s claims against him.5

V. CONCLUSION

For the foregoing reasons, the Court will grant Defendant Bartow’s motion for summary

judgment (Doc. No. 25). An appropriate Order follows.

5 As noted supra, Plaintiff also appears to suggest that Defendant Bartow conspired with the John

Doe Defendants to cover up the assault by instructing them to not include their names anywhere

on the misconduct issued to Plaintiff. (Doc. No. 11 at 10.) However, “[b]are conclusory

allegations of ‘conspiracy’ or ‘concerted action’ will not suffice to allege a conspiracy. The

plaintiff must expressly allege an agreement or make averments of communication, consultation,

cooperation, or command from which such an agreement can be inferred.” See Flanagan v.

Shively, 783 F. Supp. 922, 928 (M.D. Pa. 1992). Plaintiff, however, cites no evidence from

which a reasonably jury could conclude that Defendant Bartow conspired with the John Doe

Defendants. Plaintiff’s conspiracy claim amounts to nothing more than mere conjecture and bare

speculation.