Nieves v. Department of Corrections

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LUIS NIEVES, : CIVIL ACTION NO. 4:20-CV-652

Plaintiff, :

v. : (JUDGE MANNION)

DEPARTMENT OF :

CORRECTIONS, et al.,

Defendants. :

ORDER

Presently before the court in this pro se civil rights lawsuit is the report

and recommendation of Magistrate Judge William I. Arbuckle, (Doc. 226),

and Plaintiff’s Motion for Jury Trial, (Doc. 227). Judge Arbuckle recommends

that Defendants’ motion for summary judgment, (Doc. 173), be granted. In

lieu of a timely objection Plaintiff filed a self-styled Motion for Jury Trial that

does not dispute or even question Judge Arbuckle’s findings.

Where no objection is made to a report and recommendation, the court

should, as a matter of good practice, “satisfy itself that there is no clear error

on the face of the record in order to accept the recommendation.” Fed. R.

Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v.

Dentsply Intern., Inc. 702 F. Supp.2d 465, 469 (M.D. Pa. 2010) (citing

Henderson v. Carlson, 812 F. 2d 874, 878 (3d Cir. 1987)(explaining judges

should give some review to every report and recommendation)). In any

event, whether timely objections are made or not, the district court may

accept, not accept, or modify, in whole or in part, the findings or

recommendations made by the magistrate judge. 28 U.S.C. '636(b)(1);

Local Rule 72.31.1

Defendants move for summary judgment under Rule 56 of the Federal

Rules of Civil Procedure, which empowers courts to dispose of those claims

that do not present “a genuine dispute as to any material fact.” Fed. R. Civ.

P. 56(a). For a dispute to be genuine, “all that is required is that sufficient

evidence supporting the claimed factual dispute be shown to require a jury

or judge to resolve the parties’ differing versions of the truth at trial.”

Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d

Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986)).

The moving party has the initial burden of identifying evidence that it

believes shows an absence of a genuine issue of material fact. Conoshenti

1 To the extent Plaintiff’s Motion for Jury Trial could be construed as a

timely objection to Judge Arbuckle’s report the district court would need to

review de novo those portions of the report to which objections are made. 28

U.S.C. 636(b)(1); Brown v. Astrue, 649 F. 3d 193, 195 (3d Cir. 2011)

However, Plaintiff’s motion does not object to, let alone mention, any aspect

of the report. Thus, even when viewed as an objection, Plaintiff’s Motion for

Jury Trial does not require the court review any aspect of the report de novo.

v. Pub. Serv. Elec. & Gas Co., 364 F. 3d 135, 145-46 (3d Cir. 2004). Once

the moving party has shown that there is an absence of evidence to support

the non-moving party’s claims, “the non-moving party must rebut the motion

with facts in the record and cannot rest solely on assertions made in the

pleadings, legal memoranda, or oral argument.” Berckeley Inv. Grp. Ltd. v.

Colkitt, 455 F. 3d 195, 201 (3d Cir. 2006); Celotex Corp v. Catrett, 477 U.S.

317, 324 (1986). If the non-moving party “fails to make a showing sufficient

to establish the existence of an element essential to that party’s case, and

on which that party will bear the burden at trial,” summary judgement is

appropriate. Celotex, 477 U.S. at 322.

Since the report correctly states the procedural and factual background

of this case, (Doc. 226, at 5-8), it will not be repeated herein. In short Plaintiff

alleges that his Eighth Amendment Rights were violated during his

incarceration in a Pennsylvania state prison. Specifically, Plaintiff alleges

that on March 30, 2020, he sustained injuries to his arms and wrist as a result

of excessive force by correction officers. Conversely Defendants assert that

on March 30, 2020, Plaintiff became aggressive while being moved to a new

cell, forcing staff to hold Plaintiff’s arm in the food aperture until he complied

with their orders. Regardless Judge Arbuckle found, and this court agrees,

that Plaintiff cannot bring a claim against Defendants Department of

Corrections (“DOC”) or SCI Camp Hill and has failed to exhaust his

administrative remedies as to Defendant Corrections Officers Parry and

Lugo.

Plaintiff attempts to bring a claim under 42 U.S.C. '1983 against

Defendants DOC and SCI Camp Hill for failure to properly train Defendants

Parry and Lugo, failure to hold them accountable, and failure to “impede” his

injuries from occurring. “Section 1983 imposes civil liability upon any person

who, acting under the color of state law, deprives another individual of any

rights, privileges, or immunities secured by the constitution or laws of the

United States.” Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d

Cir. 2005) (citing Gruenke v. Seip, 225 F. 3d 290, 298 (3d Cir. 2000)).

However, states, state agencies, and state officials acting in their official

capacities are not persons within the meaning of 42 U.S.C. '1983. See Will

v. Michigan Dept. of State Police, 491 U.S. 8, 71 (1989); see also Godfrey v.

Little, No. CV 3:22-0885, 2023 WL 6276702, at *2 (M.D. Pa. Sept. 26, 2023)

(“States and their derivative governmental institutions, including the

Department of Corrections (DOC), prisons, and prison medical departments,

are not ‘persons’ for purposes of civil rights action.”) Thus, Plaintiff’s claims

against Defendants DOC and SCI Camp Hill will be dismissed with prejudice

since any amendment as to these Defendants would be futile.

Additionally, Defendants Parry and Lugo argue that Plaintiff has failed

to exhaust his administrative remedies, as required by the Prison Litigation

Reform Act (“PLRA”), and thus his claims against them are barred. The

PLRA requires prisoners to first pursue their claims through an administrative

grievance process before seeking redress in federal court. Exhaustion is

mandatory and applies to all inmate lawsuits “about prison life, whether they

involve general circumstances or particular episodes, and whether they

allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,

532 (2003).

Here Plaintiff does not factually dispute Defendants Parry and Lugo’s

statement that he failed to appeal his grievance to final review under DC-

ADM 804, and therefore failed to exhaust the grievance procedure as

required by the PLRA. Plaintiff makes only the legal argument that he

exhausted his administrative remedies by reporting his alleged abuse in

accordance with DC-ADM 001. However, Third Circuit precedent is clear that

an inmate can only exhaust by following the grievance procedure under DC-

ADM 804 and cannot exhaust under DC-ADM 001. See Prater v. Dep’t of

Corr., 76 F. 4h 184, 203-04 (3d Cir. 2023). Thus, there is no genuine dispute

of material fact that Plaintiff failed to exhaust his administrative remedies and

Defendants Parry and Lugo motion for summary judgment will be granted.

Plaintiff does not object to any of these findings and instead filed a self-

styled Motion for Jury Trial in which he baldly request inter alia the court “stop

covering the constitution with bias law favers (sic.) and please grant trial.”

(Doc. 227 at 2.) However, this request does not change the fact that Plaintiff

has failed to defeat Defendant’s motion for summary judgment. Since that

motion will be granted Plaintiff’s motion for jury trial will also be dismissed as

moot.

NOW THEREFORE IT IS HEREBY ORDERED THAT:

(1) The report and recommendation of Judge Arbuckle, (Doc. 226), is

ADOPTED IN ITS ENTIRETY as the decision of the court.

(2) Plaintiff’s claims against Defendants DOC and SCI Camp Hill are

DISMISSED with prejudice.

(3) Defendants Parry and Lugo’s Motion for Summary Judgment, (Doc.

173), is GRANTED.

(4) Plaintiff’s motion for jury trial, (Doc. 227), is DENIED as moot.

(5) The Clerk of Court is directed to CLOSE this case.

s/ Malachy E. Mannion__

MALACHY E. MANNION

United States District Judge

DATE: January 5, 2024

20-652-01