# Miller v. Borger

> District Court, M.D. Pennsylvania · September 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10410872

## Case

- **Court:** District Court, M.D. Pennsylvania
- **Decided:** September 30, 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/10410872

## 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”
- rejecting a “special circumstance” exception

## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA

RYAN E. MILLER, :

Plaintiffs : CIVIL ACTION NO. 3:19-0101

v. : (JUDGE MANNION)

C.O. BORGER, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Ryan E. Miller, an inmate formerly confined at the Schuylkill

County Prison, Pottsville, Pennsylvania, filed the above caption civil rights

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

the following Schuylkill County Prison employees: C/O Borger, C/O Sabol,

C/O Rodriguez, C/O Klinger, C/O Rainis, C/O Fritzinger, C/O Ravenzahn,

Lieutenant Escalante, Warden Eugene Berdanier and Deputy Warden

David Wapinsky. Id. Plaintiff also names Kelly Butler, a licensed practical

nurse employed by PrimeCare Medical, Inc., who provides nursing

services to inmates at the Schuylkill County Prison. Id. Plaintiff seeks

1 Plaintiff is currently housed at the Benner State Correctional
Institution (“SCI-Benner”) Bellefonte, Pennsylvania.
1
compensatory and punitive damages for an incident which allegedly
occurred on April 16, 2017, wherein Miller asserts that the Correctional

Officers violated his Eighth Amendment right to be free from cruel and
unusual punishment by using “excessive force”. Specifically, Plaintiff
alleges excessive use of force against C/O Borger, C/O Sabol, C/O

Rodriguez, C/O Klinger, and C/O Rainis for “punching [Plaintiff] and
elbowing [him] in the face and body repeatedly while [he] was held by
multiple SCP guards during a planned use of force.” Id. Additionally, he
asserts claims against C/O Fritzinger, C/O Rauenzahn and Lieutenant

Escalante for allegedly failing to report the SCP guards and stop the SCP
guards from using excessive force and failure to protect and failure to
report claims against Lieutenant Escalante, Warden Berdanier and Deputy

Warden David Wapinsky. Id. Finally, Plaintiff alleges a failure to train claim
against Warden Berdanier. Id.
Presently before the Court is a motion to dismiss filed on behalf of
Kelly Butler and remaining Defendants’ (“Corrections Defendants) motion

to dismiss or for summary judgment. (Docs. 21, 23). For the reasons set
forth below, this Court will grant Defendant Butler’s motion to dismiss and

2
grant, in part and deny, in part, remaining Defendants’ motion to dismiss
and for summary judgment.

II. Standards of Review
a. 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,

3
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

4
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.

5
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).

b. Motion to Dismiss Pursuant to Federal Rule of Civil
Procedure 12(b)(6).
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint for “failure
to state a claim upon which relief can be granted.” Under Rule 12(b)(6),

we must “accept all factual allegations as true, construe the complaint in
the light most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be entitled to

relief.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir.
2009)(quoting Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008)). While a complaint need only contain “a short and plain statement
of the claim,” Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not

required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a
complaint must plead “enough facts to state a claim to relief that is
plausible on its face.” Id. at 570. “The plausibility standard is not akin to a

6
‘probability requirement,’ but it asks for more than a sheer possibility that
a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662

(2009) (quoting Twombly, 550 U.S. at 556). “[L]abels and conclusions” are
not enough, Twombly, 550 U.S. at 555, and a court “is not bound to accept
as true a legal conclusion couched as a factual allegation.” Id. (quoted

case omitted). Thus, “a judicial conspiracy claim must include at least a
discernible factual basis to survive a Rule 12(b)(6) dismissal.” Capogrosso
v. The Supreme Court of New Jersey, 588 F.3d 180, 184 (3d Cir.
2009) (per curiam).

In resolving the motion to dismiss, we thus “conduct a two-part
analysis.” Fowler, supra, 578 F.3d at 210. First, we separate the factual
elements from the legal elements and disregard the legal conclusions. Id.

at 210-11. Second, we “determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a “plausible claim for
relief”.” Id. at 211 (quoted case omitted).

III. Statement of Undisputed Facts
The Schuylkill County Prison has an inmate grievance procedure.
(See Doc. 23-2 at 2). The process first requires the inmate file a grievance

7
any time within thirty (30) days after the potential grievable event has
occurred and submit the grievance to the Deputy Warden, as Grievance

Coordinator. Id. A grievance is to be responded to within fifteen (15)
working days. Id. An inmate dissatisfied with the response to their
grievance has the right to appeal the decision, which must be submitted in

writing to the Warden within ten (10) days after the response to the
grievance is received. Id. The Warden’s decision on the appeal will be
final. Id.
On April 17, 2017, Plaintiff filed Grievance No. 985 with the Deputy

Warden stating the following:
On or about 4-16-17 time on or about 4pm to 5pm while locked
in my cell G24 the was opened so CO Ranes (sic) could take
me to the RHU. I told him no and ran out my cell on to the
block. I then stopped and CO Borger grabbed me and CO
Sable (sic) grabbed me around the neck from behind and I fell
backwards onto CO Stable (sic). Multiple corrections officer
then started to use “excessive force” by punching and
elbowing me in the face repeatedly stating “knock him out, is
he out yet.” I stopped resisting once I was on the ground. I
even put my hands behind my back to be cuffed but the COs
were too worried about punching me and elbowing me to
knock me out. I then took my hands and covered my face to
stop the CO’s from hitting me but they continued. I then put my
hands behind my back again and just let the CO’s punch me.
They kept punching me until they realized my hands were
behind my back already. They then handcuffed me and put a
spit mask on my face because I was bleeding really bad. Then
a CO female (J. Doe) told the other CO’s to watch out for the
8
blood on my face. I was then brought to the RHU on E-11 and
there the J. Doe told the COs to take me to medical first to get
cleaned up. I was brought to medical and RN Kelly cleaned my
wounds and did not take any pictures. When I asked why she
told me they didn’t have a camera. All was done in the C block
camera.

I would like to be awarded $300,000.00 for the beating I took
and the damages that were brought towards me. This is
defined under the use of “excessive force.” And a violation of
my 8th Amendment right to be free from “cruel and unusual
punishment. My witnesses to these events are as follows: Mike
Kanger, Jesse Rautington, Josh Hickey, Robert Poptic, Chris
Keer, Victor Green, George Cope, William Kanornicky, Eric
Muman. And the block camera. My witnesses to me writing this
grievance form and then seeing my injuries are as follows:
William Ladlee, Johnathan Dehaan, RN Kelly.

(Doc. 23-3 at 2, Inmate Grievance Form).
On May 1, 2017, Deputy Warden Wapinsky denied Grievance 985
as follows:
Grievance 985 is denied. A thorough review of the incident
was conducted by Administration. You were non-compliant
with staff’s orders. You were combative with staff. After the
incident you were seen by medical & cleared to be placed in
E-Blk. An appeal of this decision can be filed to Warden
Berdanier.

Id. Plaintiff requested an appeal form, which was mailed to him on July 20,

2017. (Doc. 23-3 at 3).

9
On July 25, 2017, Plaintiff filed an appeal of the denial of his
grievance to Warden Berdanier, (Doc. 23-4 at 1), who denied the appeal

on August 17, 2017 as follows:
After a secondary review of the incident of 4/16/17, you
created a dangerous incident, not only for yourself, but for the
responding officers while they attempted to control you. Not
only were you non-compliant, but you were combative towards
staff. When given medical treatment you were cleared for
placement in E block. I am denying the appeal.

(Doc. 23-4 at 4).

No other grievance was filed by Plaintiff regarding the April 16, 2017

incident.

IV. Discussion

A. Exhaustion of Administrative Remedies

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
10
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

11
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.

12
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 grievance 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 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

13
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.

14
Finally, failure to exhaust is an affirmative defense that must be pled
by the defendant. Jones v. Bock, 549 U.S. 199, 216 (2007). Once

defendants present evidence of a prisoner’s failure to exhaust, the burden
of proof shifts to the inmate to show that exhaustion occurred or that
administrative remedies were unavailable. Rinaldi v. United States, 904

F.3d 257, 268 (3d Cir. 2018). “Both the [United States] Supreme Court and
[the Third Circuit Court of Appeals] have rejected judge-made exceptions
to the PLRA.” Downey, v. Pa. Dep’t of Corr., 968 F.3d 299, 305 (3d Cir.
2020). District courts may not “excuse [a prisoner’s] failure to exhaust.”

Ross, 136 S. Ct. at 1856 (rejecting a “special circumstance” exception).
Likewise, district courts do not have the authority “to excuse compliance
with the exhaustion requirement, whether on the ground of futility,

inadequacy or any other basis.” Nyhius v. Reno, 204 F.3d 65, 71 (3d Cir.
2000).
Corrections Defendants argue that Plaintiff has failed to exhaust his
administrative remedies with respect to Grievance No. 985.

Initially, they argue that the grievance appeal was untimely, due to
Plaintiff’s failure to file his appeal with the Warden, within ten (10) days of
the May 1, 2017 denial of grievance by the Deputy Warden. (Doc. 25 at

15
18). While the record reveals that Plaintiff’s July 25, 2017 appeal was not
received until July 27, 2017, it also reveals that Warden Berdanier

accepted and addressed Plaintiff’s appeal on the merits. Thus, because
Plaintiff’s appeal was denied at the highest level on the merits and
therefore was properly exhausted under the PLRA, the Court will deny

Corrections Defendants’ motion for summary judgment as to Plaintiff’s
failure to exhaust his administrative remedies with respect to Plaintiff’s
excessive force claim and Defendants C/O Rainis, C/O Borger, C/O Sabol,
and Nurse Kelly Butler. See Spada v. Martinez, No. 13–4205, 2014 WL

4056924, at *3 (3d Cir. Aug.18, 2014) (“ ‘[T]he exhaustion requirement of
the PLRA is satisfied by an untimely filing of a grievance if it is accepted
and decided on the merits by the appropriate prison authority.’ ”) (quoting

Hill v. Curcione, 657 F.3d 116, 225 (2d Cir. 2011)) (citing Camp v.
Brennan, 219 F.3d 279, 281 (3d Cir. 2000)).
Corrections Defendants further argue that Plaintiff failed to exhaust
his administrative remedies with respect to Defendants C/O Rodriguez,

C/O Klinger, C/O Fritzinger, C/O Rauenzahn, Lt. Escalante, Warden
Berdanier and Deputy Warden Wapinsky, and the claims raised against
them; namely, claims of excessive force, failure to protect, failure to report

16
or stop, and failure to train. (Doc. 25 at 20). Specifically, Defendants claim
that Plaintiff did not name any of these Defendants in Grievance No. 985,

nor did he include any of the claims he now raises in the instant action.
Plaintiff does not refute this.
The United States Court of Appeals for 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.” Williams v. Pa. Dep’t of Corr., 146 F. App’x 554, 557 (3d
Cir. 2005). In the instant case, Plaintiff did not identify Defendants C/O

Rodriguez, C/O Klinger, C/O Fritzinger, C/O Rauenzahn, Lt. Escalante,
Warden Berdanier and Deputy Warden Wapinsky in Grievance No. 985,
and he did not “identify any harm perpetuated by them” in his grievance.

Watson v. Wingard, 782 F. App'x 214, 217 (3d Cir. 2019). Thus, Plaintiff
failed to exhaust his claims against these Defendants. Defendants,
therefore, are entitled to summary judgment with respect to Plaintiff’s
claims against Defendants C/O Rodriguez, C/O Klinger, C/O Fritzinger,

C/O Rauenzahn, Lt. Escalante, Warden Berdanier and Deputy Warden
Wapinsky.

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B. Personal Involvement
A plaintiff, in order to state an actionable civil rights claim, must plead

two essential elements: (1) that the conduct complained of was committed
by a person acting under color of law, and (2) that said conduct deprived
the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States. See Groman v. Township of Manalapan, 47 F.3d
628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,
1141-42 (3d Cir. 1990).
Furthermore, federal civil rights claims brought under §1983 cannot

be premised on a theory of respondeat superior. Rode v. Dellarciprete,
845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must
be shown, via the complaint’s allegations, to have been personally

involved in the events or occurrences which underlie a claim. See Rizzo
v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,
546 F.2d 1077 (3d Cir. 1976). As explained in Rode:
A defendant in a civil rights action must have personal
involvement in the alleged wrongs.... [P]ersonal involvement
can be shown through allegations of personal direction or of
actual knowledge and acquiescence. Allegations of
participation or actual knowledge and acquiescence, however,
must be made with appropriate particularity.

Rode, 845 F.2d at 1207.
18
Inmates also do not have a constitutional right to a prison grievance
system. See Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119,

137-138 (1977); Speight v. Sims, No. 08-2038, 2008 WL 2600723 at *1
(3d. Cir. Jun 30, 2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th
Cir. 2001)(“[T]he existence of a prison grievance procedure confers no

liberty interest on a prisoner.”)). Consequently, any attempt by Plaintiff to
establish liability against a defendant solely based upon the substance or
lack of response to his institutional grievances does not by itself support a
constitutional due process claim. See also Alexander v. Gennarini, 144

Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident grievance
process not a basis for §1983 liability); Prvor-El v. Kelly, 892 F. Supp. 261,
275 (D. D.C. 1995) (because prison grievance procedure does not confer

any substantive constitutional rights upon prison inmates, the prison
officials’ failure to comply with grievance procedure is not actionable).
With respect to Defendants Warden Berdanier and Deputy Warden
Wapinsky, the Complaint generally contends only that they were aware of

the April 16, 2017 incident and did not try to stop or protect Plaintiff.
Based on those vague assertions and the record which reveals the
only involvement of Defendants Berdanier and Wapinsky were through

19
their involvement with Plaintiff’s grievances, it is apparent that Plaintiff is
attempting to establish liability against these Defendants based upon

either their respective supervisory capacities or their review of his
institutional grievances. Pursuant to the above discussion, either approach
is insufficient for establishing civil rights liability against those Defendants

and they are entitled to judgment as a matter of law.
C. Eighth Amendment Deliberate Indifference
The Eighth Amendment “requires prison officials to provide basic
medical treatment to those whom it has incarcerated.” Rouse v. Plantier,

182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97
(1976)). In order to establish an Eighth Amendment medical claim, an
inmate must allege acts or omissions by prison officials sufficiently harmful

to evidence deliberate indifference to a serious medical need. See Spruill
v. Gillis, 372 F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Ctv.
Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). In the context of
medical care, the relevant inquiry is whether the defendant was: (1)

deliberately indifferent (the subjective component) to (2) the plaintiff's
serious medical needs (the objective component). Monmouth Ctv. Corr.

20
Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve,
571 F.2d 158, 161 (3d Cir. 1979).

A serious medical need is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that a lay person
would easily recognize the necessity for a doctor’s attention.” Monmouth

Cty. Corr. Inst. Inmates, 834 F.2d at 347. “[I]f unnecessary and wanton
infliction of pain results as a consequence of denial or delay in the
provision of adequate medical care, the medical need is of the serious
nature contemplated by the Eighth Amendment.” Young v. Kazmerski, 266

Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth Cty. Corr. Inst.
Inmates, 834 F.2d at 347). Assuming arguendo that the Complaint did
satisfy the serious medical need threshold, there are no facts asserted

which could establish that could support a claim of deliberate indifference.
With respect to the subjective deliberate indifference component, the
Supreme Court has established that the proper analysis for deliberate
indifference is whether a prison official “acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511
U.S. 825, 841 (1994). A complaint that a physician or a medical
department “has been negligent in diagnosing or treating a medical

21
condition does not state a valid claim of medical mistreatment under the
Eighth Amendment [as] medical malpractice does not become a

constitutional violation merely because the victim is a prisoner.” Estelle,
429 U.S. at 106.
When a prisoner has actually been provided with medical treatment,

one cannot always conclude that, if such treatment was inadequate, it was
no more than mere negligence. See Durmer v. O’Carroll, 991 F.2d 64, 69
(3d Cir. 1993). It is true, however, that if inadequate treatment results
simply from an error in medical judgment, there is no constitutional

violation. See id. However, where a failure or delay in providing prescribed
treatment is deliberate and motivated by non-medical factors, a
constitutional claim may be presented. See id.; Ordonez v. Yost, 289 Fed.

Appx. 553, 555 (3d Cir. 2008)(“deliberate indifference is proven if
necessary medical treatment is delayed for non-medical reasons.”).The
Court of Appeals for the Third Circuit in Durmer added that a non-physician
defendant cannot be considered deliberately indifferent for failing to

respond to an inmate's medical complaints when he is already receiving
treatment by the prison’s medical staff. However, where a failure or delay

22
in providing prescribed treatment is deliberate and motivated by non-
medical factors, a constitutional claim may be presented. See id.

Plaintiff has failed to satisfy the deliberate indifference requirement
of Estelle. Specifically, with the exception of Nurse Kelly Butler, all of the
named Defendants are non-medical defendants. The Complaint

acknowledges that Miller was treated by prison medical staff after the April
16, 2017 incident and there is no assertion that any of those Defendant
officials delayed or denied any prescribed treatment. Accordingly, entry of
dismissal in favor of the non-medical Defendants is appropriate with

respect to the claim of deliberate indifference to Plaintiff’s medical needs.
As to Nurse Kelly Butler, Plaintiff’s exhausted claim regarding Butler
states the following:

I was brought to medical and RN Kelly cleaned my wounds
and did not take any pictures. When I asked why she said they
didn’t have a camera. All was done in the C block camera.

(Doc. 23-3 at 2). Plaintiff acknowledges, however, that “when [he] returned
to SCI-Camp Hill, [his] injuries were photographed and documented.”
(Doc. 1 at 8).
Assuming, without deciding, that Plaintiff’s medical needs were
serious in the constitutional sense, the allegations in Plaintiff’s complaint
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clearly demonstrate that Plaintiff received medical attention, and that the
attention Plaintiff received lacks the requisite deliberate indifference to

support a Section 1983 claim. Thus, Plaintiff’s own admission averts any
deliberate indifference with respect to treatment for his injury.
Specifically, Plaintiff states that he was immediately seen by Nurse

Kelly Butler, who addressed and cleaned his wounds. At best, Plaintiff’s
complaint demonstrates his disagreement with the type of treatment
rendered. This is particularly so in light of the fact that there are no
allegations in the complaint that any of the Defendants, including Nurse

Kelly Butler, intentionally withheld medical treatment from Plaintiff in order
to inflict pain or harm upon Plaintiff. Farmer; Rouse. To the extent that
Plaintiff claims that he should have been treated for a concussion (Doc. 1

at 8), there are no allegations that Plaintiff suffered a concussion. Thus,
the allegations in the Plaintiff’s complaint amount to nothing more than
Plaintiff’s subjective disagreement with the treatment decisions and
medical judgment of the medical staff at the prison. At most, the

allegations in the complaint only rise to the level of mere negligence. As
simple negligence cannot serve as a predicate to liability under §1983,

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Hudson v. Palmer, 468 U.S. 517 (1984), Plaintiff’s civil rights complaint
fails to articulate an arguable claim. See White, 897 F.2d at 108-110.

Finally, with respect to Plaintiff’s claim that Nurse Butler did not
photograph his wounds because she did not have a camera, the Court
finds such allegation insufficient to support an Eighth Amendment

deliberate difference claim, in light of Plaintiff’s own admission that Nurse
Butler tended to Plaintiff’s immediate injuries. Moreover, Plaintiff admits
that his wounds were documented by SCI-Camp Hill when he returned.
Thus, the Court finds this claim meritless.

V. Conclusion
For the reasons set forth above, the Court will grant the motion to

dismiss Defendant Kelly Butler. Corrections Defendants’ motion for
summary judgment for Plaintiffs’ failure to exhaust administrative
remedies as to any claim against Defendants C/O Rodriguez, C/O Klinger,
C/O Fritzinger, C/O Rauenzahn, Lt. Escalante, Warden Berdanier and

Deputy Warden Wapinsky will be granted. Corrections Defendants’ motion
for summary judgment based on Plaintiff’s Eighth Amendment medical
claim will be granted. Corrections Defendants’ motion for summary

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judgment with respect to Plaintiff’s failure to exhaust his Eighth
Amendment excessive force claim against Defendants C/O Rainis, C/O

Borger, C/O Sabol will be denied, and Plaintiff’s excessive force claim will
be permitted to proceed as to these Defendants.
A separate Order shall issue.

s/ Malachy E. Mannion
MALACHY E. MANNION

United States District Judge
DATE: September 30, 2021
19-0101-01

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10410872. Public record. Not legal advice.