Harrell v. Mayer

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

JOE N. HARRELL :

Plaintiff : CIVIL ACTION NO. 3:22-0730

v. : (JUDGE MANNION)

MATTHEW MAYER, et al., :

Defendants :

MEMORANDUM

BACKGROUND

Plaintiff, Joe N. Harrell, a pretrial detainee confined at the Dauphin

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

action pursuant to 42 U.S.C. §1983. (Doc. 1). The named Defendants are

the Dauphin County Prison and the following Dauphin County Prison

employees: Terri Ozog, Prison Counselor; Jake Kothe, Grievance and Unit

Manager; Matthew Mayer, Correctional Officer; and William Kimmick, C.1.D.

Detective. Id. Plaintiff states that he was “on Q61 cell at Dauphin County

Prison” and he “was put in the hold’ (sic) because Ms. Terri Ozog didn’t mail

[his] motion on 12-28-21.” ld. He claims that he is “listed as bottom bed

' The Court interprets this as Plaintiff's reference to disciplinary

confinement or the “hole.”

because of stitches in [his] left and right hand so one she know that [he] know

she haven't mailed [his] important motion” and she “moved [him] to top bed”

and he “refused to go as [he] was on Q61 cell.” Id.

Plaintiff next complains that on January 23, 2022, Officer Mayer “with

force aggressively grabb[ed] and squeez[ed] [his] arm to the point that his

fingernails were in [Plaintiff's] skin.” Id. He claims that Mayer assaulted him

even though he “wasn't refusing and got found guilty 26 days and 10 days,

so all together 3 days.” Id. He alleges that Defendants, the Dauphin County

Prison, William Kimmick, and Jake Kothe “try to hide what’s going on in the

prison violating [his] constitutional rights.” Id. He believes that Defendant

Kothe “mak[es] the grievances go missing because he is handling the

grievance.” Id.

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

and punitive damages and to have his aggravated assault dismissed and the

time spent in the hole expunged. Id.

On August 22, 2022, Defendants filed a motion to dismiss, along with

a brief in support. (Docs. 14, 15).

On June 22, 2023, 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.

EF ta

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. 36). On July 6, 2023, Defendants filed a statement of material facts

and brief in support. (Doc. 37).

Defendants’ motion for summary judgment based on Plaintiff's failure

to exhaust administrative remedies and Defendants’ motion to dismiss the

merits of Plaintiff's complaint, are ripe for disposition. For the reasons set

forth below, the Court will deny Defendants’ motion for summary judgment

based on exhaustion. Defendants’ motion to dismiss the merits of Plaintiff's

complaint will be granted, in part and denied, in part.

Il. FAILURE TO EXHAUST

A. Standard of Review

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to judgment as a matter of

law.’ 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

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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

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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. GA.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

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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).

B. Statement of Material Facts?

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 an appropriate 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).

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On February 16, 2022, Plaintiff filed an Inmate Request Form stating

the following:

| want to appeal the Grievance on 1-23-22 when Officer Mayer

assaulted me and sprayed me repeatedly, punching and choking

me and he did not write no incident report. | still did not get my

copy.

(Doc. 37-2 at 9).

On March 7, 2022, Plaintiff's request form was responded to with the

following:

You cannot appeal a grievance that you have not received a

response to. The original grievance is in the process of being

investigated.

Id.

On April 29, 2022, Plaintiff drafted the instant complaint, where it was

received and filed with this Court on May 17, 2022. (Doc. 1).

C. Discussion

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

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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

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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.

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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

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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. ld. 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.’ |d.

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)

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(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)).

This court in the past has taken judicial notice of Dauphin County

Prison's grievance procedures. Funk v. DeRose, 2012 WL 6966712, at *8

(M.D. Pa. Nov. 28, 2012) report and recommendation adopted, 2013 WL

393868 (Jan. 31, 2013); see also Shakuur v. Costello, 230 Fed.Appx. 199,

201 (3d Cir. 2007)(taking judicial notice of Philadelphia Prison System’s

grievance procedures). This court has explained the Dauphin County

grievance procedure as follows:

(1) The submission of a grievance for review and determination

by the Warden: (2) an appeal of any decision to the Chairman of

the Dauphin County Prison Board of Inspectors; (3) an appeal of

the Chairman's decision to the full Dauphin County Prison Board

of Inspectors; and (4) an appeal from the Prison Board's decision

to the Dauphin County Solicitor.

sawyers v. Brown, 2014 WL 407337, *2, (M.D. Pa. Feb. 3, 2014).

Here, Defendants argue that Plaintiff's grievance record demonstrates

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

the instant action. Specifically, they argue that Plaintiff failed to fully complete

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the process by filing the instant action on May 17, 2022, prior to receiving a

response to his January 23, 2023, grievance. The Court disagrees.

An inmate does not fail to exhaust if administrative remedies are

unavailable. Ross, 578 U.S. at 643. The question here is whether a prison’s

failure to respond to a grievance renders the remedy unavailable. In Smal! y.

Camden County, an inmate submitted two grievances “in compliance with

[the prison’s] procedures,” but “no decision” was rendered on either of them

and prison rules required inmates to wait for a decision before filing an

appeal. 728 F.3d 265, 273 (3d Cir. 2013). The Third Circuit reasoned that

“[b]Jecause [the prison’s] procedures did not contemplate an appeal from a

non-decision, when [the inmate] failed to receive even a response to the

grievances ... much less a decision as to those grievances, the appeals

process was unavailable to him.’ Id. In Robinson v. Superintendent, 831 F.3d

148, 153-54 (3d Cir. 2016), the Third Circuit similarly held that the exhaustion

requirement is satisfied where prison officials fail to timely respond to an

inmate’s properly filed grievance. See also Martin v. Gearhart, 712 F. App’x

179, 183-84 (3d Cir. 2017) (explaining same).

Here, Plaintiff properly filed his grievance on January 23, 2022. On

February 16, 2022, he inquired as to the status and his interest in filing an

appeal. Almost a month later, on March 7, 2022, his request is responded to

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with the instruction that he can not appeal until a response is received and

that the grievance is in the process of being investigated. Missing, however,

is any indication that Plaintiff's grievance was ever responded to, and that

the response was timely.

In Shifflett v. Korszniak, 934 F.3d 356, 365 (3d Cir. 2019) the United

States Court of Appeals for the Third Circuit held that “as soon as a prison

fails to respond to a properly submitted grievance or appeal within the time

limits prescribed by its own policies, it has made its administrative remedies

unavailable, and the prisoner has fully discharged the PLRA’s exhaustion

requirement.” Thus, Defendants have failed to meet their burden of proof to

demonstrate that Plaintiff received a timely response to his grievance and

that he failed to exhaust administrative remedies by filing the instant action

before filing an appeal of his grievance response. As such Defendants’

motion for summary judgment based on Plaintiff's failure to exhaust will be

denied.

ill. MERITS

A. Standard of Review

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

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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. 570. “The

plausibility standard is not akin to a ‘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

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elements from the legal elements and disregard the legal conclusions. |d. 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).

B. Allegations in Complaint

Plaintiff states that he was “on Q61 cell at Dauphin County Prison” and

he “was put in the hold (sic) because Ms. Terri OZog didn’t mail [his] motion

on 12-28-21.” Id. He claims that he is “listed as bottom bed because of

stitches in [his] left and right hand so one she know that [he] know she

haven't mailed [his] important motion” and she “moved [him] to top bed” and

he “refused to go as [he] was on Q61 cell.” Id.

Plaintiff next complains that on January 23, 2022, Officer Mayer “with

force aggressively grabb[ed] and squeez[ed] [his] arm to the point that his

fingernails were in [Plaintiff's] skin.” Id. He claims that Mayer assaulted him

even though he “wasn’t refusing and got found guilty 26 days and 10 days,

so all together 3 days.” Id. He alleges that his “tooth got pulled because of

the altercation and [his] shoulder bone is rubbing on bone shaving down [his]

bone in [his] shoulder.’ Id. He states that it “it was really hard to move and

use it with [his] hand in cuff while off of this is happening as well as spraying

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[Plaintiff] with pepper spray with COVID 19 in the hold, traumatizing [him] for

the rest of his life.” Id.

Plaintiff contends that Defendants, the Dauphin County Prison,

William Kimmick and Jake Kothe “try to hide what's going on in the prison

violating [his] constitutional rights.” Id. He believes that Defendant Kothe

“mak[es] the grievances go missing because he is handling the grievance”

and that Kothe “isn’t doing his job for [Plaintiff] because if the grievance have

not been response to [he] can’t’ appeal the grievance.” Id. Also he claims

that he “can’t copy grievance, so [he] has to rewrite [his] grievances,” but he

does have “[his] grievance that [he] mailed y’all on 2-1-22” in which he “wrote

the administrative (sic) and nothing.” Id. He believes that “if [he] was guilty

for all of this [he] would have been charged and did more time in the hold

(sic) than 36 days and nurses are tampering with the medical records like

[he] had stitches and they don’t know where it go my medical record with

important things in it.” Id.

For relief, Plaintiff seeks “70 million dollars, [his] layers fees payed (sic)

and all the officers fired and [his] aggravated assault dismissed and five

hundred thousand for every day [he] was in the hold (sic) dismiss without

prejudice.” Id.

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C. Discussion

Defendant Dauphin County Prison

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). It is well-settled that neither a state nor its agencies, are

considered a “person” as that term is defined under § 1983 and, therefore,

are not subject to a §1983 suit. Hafer v. Melo, 502 U.S. 21, 25-27 (1991).

Similarly, neither a prison nor a department within a prison is a person

subject to suit under §1983. Fischer v. Cahill, 474, F.2d 991, 992 (3d Cir.

1973). The Dauphin County Prison is not a person within the meaning of 42

U.S.C. §1983. Thus, it is entitled to dismissal with prejudice.

Defendant Terri Ozo4q

Plaintiff alleges that “Ms. Terri Ozog didn’t mail [his] motion on ?2-28-

21 to the County Clerk.” (Doc. 1 at 4). Plaintiff's claim appears to raise an

access to the courts claim. However, since Lewis v. Casey, 518 U.S. 343

(1996), courts have consistently recognized that access-to-courts claims by

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prisoners require some proof of an actual, concrete injury in the form of direct

prejudice to the plaintiff in the pursuit of some legal claim. See, e.g., Oliver

v. Fauver, 118 F.3d 175 (3d Cir. 1997): Demeter v. Buskirk, No. 03-1005,

2003 WL 22139780 (E.D. Pa. Aug. 27, 2003); Castro v. Chesney, No. 97-

4983, 1998 WL 150961 (E.D. Pa. March 31, 1998).

“[P]risoners may only proceed on access-to-courts claims in two types

of cases, challenges (direct or collateral) to their sentences and conditions

of confinement.” Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008). As

noted in Monroe:

Where prisoners assert that defendants’ actions have inhibited

their opportunity to present a past legal claim, they must show

(1) that they suffered an “actual injury’—that they lost a chance

to pursue a “nonfrivolous’” or “arguable” underlying claim; and (2)

that they have no other “remedy that may be awarded as

recompense’ for the lost claim other than in the present denial of

access suit.

Id. (citing Christopher v. Harbury, 536 U.S. 403, 415 (2002)). Importantly,

Plaintiff must come forward with evidence to show that the underlying

arguable claim is “more than hope,” and he must also describe the “lost

remedy.” See Harbury, 536 U.S. at 416-17. Plaintiff is thus required to allege

plausible facts that he was actually injured by Defendants’ alleged

interference with his right to access the courts.

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Here, Plaintiff does not indicate with any specificity that he missed filing

deadlines and that those filings would have been meritorious. Instead,

Plaintiff simply alleges that Defendant Ozog did not mail his motion to the

County Clerk. Without more, Plaintiff has failed to allege how Ozog

prevented Plaintiffs ability to access the courts. As such, any First

Amendment Access to the Court claim against Ozog will be dismissed.

Defendants Kimmick and Kothe

Plaintiff claims that Grievance Coordinator/Unit Manager Jake Kothe

and CID Detective William Kimmick are “trying to hide what's going on in the

prison, violating [his] constitutional rights.” (Doc. 1). Specifically, he claims

that these Defendants make “grievances go missing.’ |Id. Because questions

of fact remain concerning Plaintiff's efforts to exhaust, Plaintiff has alleged

enough against these Defendants, at this stage, to rise to the level of

grievance interference, and Defendants’ motion to dismiss will be denied.

Defendant Correctional Officer Mayer

Plaintiff alleges that Defendant Mayer “assaulted [him] by aggressively

grabbing [him] and putting his arm around [his] throat choking [him] and

punching [him] repeatedly after choking [him], screaming” and “spray[ing]

[him] all the time [h] was in hand cuff and fearing for [his] life.” (Doc. 1 at 5).

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A pretrial detainee’s claim based upon the alleged use of excessive

force arises under the Due Process Clause of the Fourteenth Amendment.

See Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015) (reiterating that “the

Due Process Clause protects a pretrial detainee from the use of excessive

force that amounts to punishment” (citation and internal quotation marks

omitted)). Because “pretrial detainees (unlike convicted prisoners) cannot be

punished at all, much less ‘maliciously and sadistically[,]”” see Kingsley, 576

U.S. at 400, “‘a pretrial detainee must show only that the force purposely or

knowingly used against him was objectively unreasonable.” See Jacobs v.

Cumberland Cnty., 8 F.4th 187, 194 (3d Cir. 2021) (emphasis in original)

(quoting Kingsley, 576 U.S. at 396-97).

In considering whether the use of force was objectively unreasonable,

“Ta] court (judge or jury) cannot apply this standard mechanically.” See id.

(quoting Kingsley, 576 U.S. at 397). Instead, courts are to assess a variety

of factors when determining whether an officer used “objectively

unreasonable force[:]”

the relationship between the need for the use of force and the

amount of force used; the extent of the plaintiff's injury; any effort

made by the officer to temper or to limit the amount of force; the

severity of the security problem at issue; the threat reasonably

perceived by the officer; and whether the plaintiff was actively

resisting.

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See id. at 194-95 (quoting Kingsley, 576 U.S. at 397). In addition, courts are

to analyze the “circumstances from the perspective of a reasonable officer

on the scene.” See id. at 195 (citation and internal quotation marks omitted);

Kingsley, 576 U.S. at 399 (recognizing that “[rjunning a prison is an

inordinately difficult undertaking, ... and that safety and order at these

institutions requires the expertise of correctional officials, who must have

substantial discretion to devise reasonable solutions to the problems they

face” (citation and internal citation and quotation marks omitted)).

Defendants argue that Defendant Mayer is entitled to dismissal

because Plaintiff conceded that when Defendant Ozog moved him to the top

bed he “refuse to go as [he] was on Q61 cell,” (Doc. 1 at 4), and Officer

Mayer was, therefore justified in his use of force. (Doc. 9 at 14). They argue

that the same applies for the use of O.C. spray ld. Plaintiff alleges that while

he refused to go to the top bed, he claims that while Defendant Mayer

“assaulted [him, he] wasn’t refusing” and that Defendant Mayer “aggravated

assaulted [Plaintiff] with a weapon, while [he] was handcuffed.” (Doc. 1 at 4).

Accepting Plaintiffs allegations as true, which the Court is required to

do in connection with its resolution of Rule 12(b)(6) motion to dismiss, the

Court concludes that the complaint alleges facts sufficient to state a

Fourteenth Amendment excessive use of force claim against Defendant

IF.

Mayer. Liberally construed, the complaint alleges that, while Plaintiff refused

to move to a top bed, he did not resist Defendant’s Mayer use of force,

resulting in Plaintiff being sprayed with OC spray. As a result, the complaint

plausibly alleges that the force used against Plaintiff was objectively

unreasonable. See Jacobs, 8 F.4th at 194.

That being said, the Court acknowledges Defendant Mayer's argument

that the that the force used against Plaintiff was not objectively unreasonable

under the circumstances of this case. (Doc. 15 at 9 (arguing that force is

allowed to be used when an inmate refuses to comply with an order of

extraction from a cell)). Although there may be situations in which application

of the Kingsley factors can occur based upon the pleadings alone, the Court

concludes that, in this matter, a developed factual record is necessary to

determine whether Defendant Mayer's use of force was objectively

unreasonable under the circumstances. As a result, the Court is unable to

conduct an appropriate Kingsley analysis at this time. Thus, the Court finds

that the complaint plausibly states a Fourteenth Amendment excessive use

of force claim against Defendant Mayer. As such, the Court will deny

Defendants’ motion to dismiss Plaintiff's excessive force claim.

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IV. CONCLUSION

For the reasons set forth above, the Court will deny Defendants’ motion

for summary judgment, based on Plaintiff's failure to exhaust administrative

remedies prior to filing his federal action. The Court will grant Defendants’

motion to dismiss with respect to Defendants, the Dauphin County Prison

and Defendant Ozog. The motion will be denied as to Plaintiff's claims of

grievance interference by Defendants Kothe and Kimmick and Plaintiff's

excessive force claim against Defendant Mayer.

A separate Order shall issue.

de E. MANNION

United States District Judge

DATE: September.27 2023

22-0730-01

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