MILLER v. BEDFORD COUNTY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JEFFREY SCOTT MILLER, )

) CIVIL ACTION NO. 3:18-cv-10

Plaintiff, )

) JUDGE KIM R. GIBSON

v. )

)

BEDFORD COUNTY, et al., )

)

)

Defendants. )

MEMORANDUM AND ORDER

This matter is before Magistrate Judge Keith A. Pesto for pretrial proceedings in

accordance with the Magistrates Act, 28 U.S.C. § 636, and Local Civil Rule 72.

I. Background

On April 23, 2018, Plaintiff Jeffrey Scott Miller filed an Amended Complaint,

stemming from an incident in which his cellmate at Bedford County Correctional Facility

(“BCCF”), James Howard Dively, brutally attacked him. (See ECF No. 6). Miller brought his

Amended Complaint against the following Defendants: (1) the County of Bedford, (2)

BCCF, (3) Troy Nelson, the Warden at BCCF at all times relevant to Miller’s Complaint, (4)

Gary Wayne Habinyak, an agent or employee of Bedford County and/or BCCF at all times

relevant to Miller’s Complaint, and (5) other unknown employees of BCCF. (Id. at □□ 1-9).

Miller's Amended Complaint contained two claims against all Defendants— Negligence

(Count I) and Deprivation of Rights under 42 U.S.C. Section 1983 (Count II). (Id. at {1 45-

66). Miller also claimed that he was entitled to punitive damages. (Id. at 53, 66).

On April 27, 2018, Defendants filed a Motion to Dismiss Miller’s Amended

Complaint. (ECF No. 7). On August 10, 2018, the Magistrate Judge issued a Report and

Recommendation, recommending that Defendants’ Motion to Dismiss be granted in part

and denied in part. (ECF No. 16 at 2). Specifically, the Magistrate Judge recommended that

the Court: (1) dismiss Miller’s negligence claim, (2) permit Miller’s Section 1983 claim to

proceed, (3) dismiss Miller’s claim for punitive damages, and (4) strike the unknown

Defendants from the litigation. (See ECF No. 16). On October 30, 2018, this Court adopted.

the Magistrate Judge’s Report and Recommendation, granting in part and denying in part

Defendants’ Motion to Dismiss. (ECF No. 18). Accordingly, following this Court’s Order,

Miller’s only remaining claim is a Section 1983 claim against: (1) Bedford County, (2) BCCF,

(3) Nelson, and (4) Habinyak.

On January 29, 2020, Defendants filed a Motion for Summary Judgment. (ECF No.

24). On February 16, 2022, the Magistrate Judge filed a Report and Recommendation, (ECF

No. 36), recommending that Defendants’ Motion for Summary Judgment be granted in part

and denied in part. (Id. at 1). Specifically, the Magistrate Judge recommended that the Court

grant summary judgment as to Miller's claims against Bedford County and BCCF. (Id. at

11). The Magistrate Judge further recommended that the Court deny summary judgment

as to Miller’s claims against Troy Nelson and Gary Habinyak, thereby permitting Miller’s

claims against those two individuals to proceed to trial. (Id. at 1, 11).

The Magistrate Judge notified the parties that, pursuant to 28 U.S.C. § 636(b)(1), they

had fourteen days to file written objections to the Report and Recommendation. (Id. at 11).

On March 2, 2022, Defendants filed objections to the Report and Recommendation (ECF

No. 37) and a Brief in Support of their Objections. (ECF No. 39). Both of these submissions

were timely. (ECF Nos. 36, 37, 39). On March 16, 2022, Miller filed a Response to

Defendants’ Objections to the Report and Recommendation, (ECF No. 40), as well as a Brief

in Opposition to Defendants’ Objections. (ECF No. 41).

iI. Legal Standard

When a party files timely objections to a magistrate judge’s report and

recommendation, the district court must ““make a de novo determination of those portions

of the report or specified proposed findings or recommendations to which objection is

made.’” EEOC v. City of Long Branch, 866 F.3d 93, 99 (3d Cir. 2017) (quoting 28 U.S.C. §

636(b)(1)); see also Local Civil Rule 72.D.2. In doing so, the Court may “accept, reject, or

modify, in whole or in part, the findings and recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1). A district court is not required to make any separate findings

or conclusions when reviewing a recommendation de novo under Section 636(b). See Hill v.

Barnacle, 655 F. App’x 142, 148 (3d Cir. 2016).

III. Discussion

Upon de novo review of the record and the Report and Recommendation, the Court

will accept the recommendation of the Magistrate Judge in this matter and will grant in part

and deny in part Defendants’ Motion for Summary Judgment. (ECF No. 24).

In doing so, the Court notes that it has reviewed all of Defendants’ objections (ECF

Nos. 37, 39) and generally finds them meritless.! The Court will, however, respond. to

certain of Defendants’ objections.

A. Exhaustion of Administrative Remedies

1. The Magistrate Judge’s Analysis on This Issue

Regarding exhaustion of administrative remedies, the Magistrate Judge noted that

under the “Prison Litigation Reform Act of 1995 (PLRA), ‘[n]Jo action shall be brought with

respect to prison conditions under [42 U.S.C. § 1983], or any other federal law, by a prisoner

... until such administrative remedies as are available are exhausted.” (ECF No. 36 at 8).

The Magistrate Judge further explained that the Supreme Court has outlined three

situations in which a grievance system exists but is effectively unavailable to inmates. (Id.).

1 The Court clarifies one issue with respect to Defendants’ objections. Defendants note that under

Supreme Court precedent, inmates are to err on the side of exhaustion when administrative

processes are susceptible to multiple reasonable interpretations. (ECF No. 39 at 11) (citing Ross v.

Blake, 578 U.S. 632, 644 (2016)). Indeed, the Supreme Court has stated that a prison’s “procedures

need not be sufficiently ‘plain’ as to preclude any reasonable mistake or debate.” Ross, 578 U.S. at

644. Further, the Supreme Court has held that when an “administrative process is susceptible of

multiple reasonable interpretations, Congress has determined that the inmate should err on the side

of exhaustion.” Id.

In his report, the Magistrate Judge stated that a “reasonable inmate could conclude that the

grievance policy did not even apply to a retrospective grievance” and Miller “could not have

determined at all whether grievances about cell assignments or safety checks are excluded from the

grievance procedure.” (ECF No. 36 at 9). The Court agrees with Defendants that if BCCF’s policy

was subject to multiple reasonable interpretations, then Miller was responsible for erring on the side

of exhaustion. Ross, 578 U.S. at 644. The Court finds that, in this respect alone, Defendants’ objections

have some degree of merit.

However, as the Court explains in more detail below, see infra Section III.A.3.c, the Court’s reasoning

on this issue differs from the reasoning of the Magistrate Judge. Specifically, the Court holds that

under the terms of BCCF’s grievance policy, Miller never had the ability to take advantage of BCCF’s

grievance process. Therefore, because BCCF’s policy was not subject to multiple reasonable

interpretations, Miller did not need to err on the side of exhaustion.

One of those exceptions is when “the procedural process is ‘so opaque that it becomes,

practically speaking, incapable of use.” (Id.) (citing Ross v. Blake, 578 U.S. 632 at 643-44

(2016)). Based on his review of BCCF’s grievance procedure, the Magistrate Judge stated

that the procedure was unavailable to Miller because it is “essentially unknowable ‘so that

no ordinary prisoner can make sense of what it demands.” (Id. at 8-9) (citing Ross, 578 U.S.

at 644). And, although the Magistrate Judge noted that there are factual disputes relative to

whether BCCF apprised Miller of the grievance process, he wrote that “even if the Court as

a finder of fact believed Miller did receive the inmate handbook,” the exhaustion defense

would still be rejected “as a matter of law” because “the language of the inmate grievance

process fails to give fair notice of its scope.” (Id. at 8-10).

2. Defendants’ Objections

In Defendants’ Brief supporting their objections to the Magistrate Judge’s Report

and Recommendation, Defendants generally disagree with the Magistrate Judge’s

conclusion that BCCF’s grievance procedure was unavailable to Miller. (ECF No. 39 at 6—

15).

Further, Defendants state that they were not afforded “notice or [the] opportunity

to resolve” the applicability of the exhaustion defense because the Magistrate Judge’s

“decision concluded there [were] no factual disputes which is incorrect.” (Id. at 7).

3. Under the Terms of BCCF’s Grievance Policy, Miller Never Had the Ability

to Take Advantage of BCCF’s Grievance Process

The Court will first turn to the issue BCCF’s grievance procedure and how it

operated relative to Miller. In doing so, the Court notes that it agrees with the Magistrate

Judge’s thoughtful analysis as to the proper disposition of Defendants’ Motion. The Court

agrees with the Magistrate Judge that the PLRA does not bar Miller's claim against Nelson

or Habinyak. However, the Court differs with the Magistrate Judge on the issue of why the

PLRA does not bar Miller’s claim. Therefore, the Court will now provide its analysis of this

issue, which the Court will substitute for the Magistrate Judge’s reasoning on this issue, as

outlined in the “Order of Court” below.

a. The Magistrate Judge’s Reasoning on This Issue

In analyzing whether BCCF’s grievance policy was available to Miller, the

Magistrate Judge noted that the policy states that “Department/Facility Policies and

Procedures” and “Other matters beyond the control of the BCCF” are “not grievable

matters.” (ECF No. 36 at 8). The Magistrate Judge further explained that BCCF’s policy

advises inmates to first attempt to resolve grievances “by informally bringing them to the

attention of a staff member.” (Id. at 9). Therefore, the Magistrate Judge stated that a

“reasonable inmate could conclude that the grievance policy did not even apply to a

retrospective grievance like ‘you failed to protect me from my cellmate attacking me.” (Id.).

Ultimately, given this and other language in BCCF’s policy, the Magistrate Judge held that

BCCF’s grievance procedure was unavailable to Miller because it “fails to give fair notice

of its scope.” (Id. at 10).

b. The Parties’ Arguments

In responding to the Magistrate Judge’s Report, Defendants note that under

Supreme Court precedent, even if BCCF’s policy was ambiguous, Miller had “the

opportunity and obligation to at least file something.” (ECF No. 39 at 11-12). Further,

Defendants dispute the Magistrate Judge’s holding that BCCF’s grievance policy is unclear.

(Id. at 10-11). Defendants state that the “language of the grievance process is easy and clear

... if you do not get any satisfaction from talking to a staff member get a form; write your

complaint; and put it” in the grievance box. (Id.).

For his part, Miller agrees with the Magistrate Judge that given the lack of clarity in

BCCF’s grievance policy, “it fails to give fair notice of its scope.” (ECF No. 41 at 5).

c. Discussion

i. Legal Standard

Prisoners seeking to challenge the conditions of their confinement are subject to the

PLRA, which mandates exhaustion of all available administrative remedies before bringing

a lawsuit. 42 U.S.C. § 1997e(a). Exhaustion is a threshold requirement that district courts

must consider. Woodford v. Ngo, 548 U.S. 81, 88 (2006). Failure to exhaust is an affirmative

defense that the defendant must plead and prove. Jones v. Bock, 549 U.S. 199, 216 (2007)

The PLRA requires proper exhaustion, meaning “complet[ing] the administrative

review process in accordance with the applicable procedural rules.” Woodford, 548 U.S. at

88. These “procedural rules are supplied by the individual prisons.” Downey v. Pennsylvania

Dep't of Corr., 968 F.3d 299, 305 (3d Cir. 2020).

There is “one exception to the mandatory exhaustion requirement: administrative

remedies must be available to the prisoner.” Id. (citing Ross, 578 U.S. at 641-42). An

administrative remedy is unavailable when it “[1] operates as a simple dead end[,] ... [2] is

so opaque that it becomes, practically speaking, incapable of use, or [3] when prison

administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Shifflett v. Korszniak, 934 F.3d 356, 365 (3d

Cir. 2019) (internal quotation marks omitted). When one (or more) of these circumstances

arise, “an inmate’s duty to exhaust ‘available’ remedies does not come into play.” Ross, 578

U.S. at 643. Both the Supreme Court and the Third Circuit have rejected judge-made

exceptions to the PLRA. Downey, 968 F.3d at 305.

Moreover, in Downey, a Third Circuit decision that is highly relevant to the matter

now before this Court, the Third Circuit addressed an argument that the plaintiff-inmate

had failed to exhaust his administrative remedies because he had not gone through the

prison’s normal grievance procedures. Id. at 305-07. In order to determine whether the

plaintiff had failed to exhaust his administrative remedies, the court analyzed the prison’s

grievance policies, an exercise that is ““essentially a matter of statutory construction.” Id.

at 306 (quoting Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004)).

In reviewing the prison’s grievance procedures, the Third Circuit noted that the

general “grievance procedures do not apply to every situation. Rather than going through

the formal grievance process, the Inmate Handbook clarifies that inmates ‘should speak to

the nearest staff person as soon as possible’ when facing emergency situations.” Id.

Moreover, a relevant policy provided the following guidance to inmates: “[w]hen faced

with an incident of an urgent or emergency nature, the inmate shall contact the nearest staff

member for immediate assistance.” Id.

Therefore, because the plaintiff in Downey was faced with an “urgent condition” he

was “exempt from the typical grievance steps[,]” and his failure to go through the typical

grievance steps did not bar his suit. Id. at 306-07. The Third Circuit reached this conclusion

despite the fact that the plaintiff remained incarcerated for approximately one year after his

“urgent condition” had been acted upon by the prison. Id. at 303, 307 (stating that “nothing

in the [relevant grievance policies] instructed [plaintiff] to file a formal grievance once the

harm was complete”).

ii. Analysis

At the onset, the Court notes that the parties agree Miller was still a prisoner at the

time he filed his Complaint and Amended Complaint. (ECF No. 26 at { 7; ECF No. 29 at 7).

Therefore, he was subject to the exhaustion requirements of the PLRA. 42 U.S.C. § 1997e(a);

George v. Chronister, 319 F. App’x 134, 137 (3d Cir. 2009) (“[F]or exhaustion purposes under

the PLRA, the plaintiff's status as a ‘prisoner’ is determined at the time his complaint is

‘brought’ or filed in court, not when the alleged incident(s) occurred.”) (citing Ahmed v.

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

Turning to BCCF’s grievance policy, it states that “[a] grievance can cover any issue,

except for the following, which are not grievable matters: ... (4) Department/Facility

Policies and Procedures ... (7) Other matters beyond the control of the BCCF.” (ECF No. 24-

1 at 44-45) (emphasis in original). The policy then outlines the grievance process, directing

inmates to first “attempt to make the complaint known to a staff member.” (Id. at 45). If an

inmate’s interaction with a staff member does not resolve the issue, the inmate is directed

to ask a staff member for a grievance form, fill it out, and submit it to the grievance box.

(Id.). Depending on the outcome of this initial submission, an inmate’s grievance may make

it to the “appeal stage[,]” in which case the inmate is directed to forward his or her

grievance “with a written explanation ... to the Deputy Warden/Warden.” (Id.).

However, toward the end of BCCF’s grievance policy, BCCF offers the following

guidance on emergency grievances: “[e]mergency grievances may be filed directly from the

inmate to the Warden. An emergency grievance is defined as a matter which the

disposition, within regular limits would subject the inmate to a substantial risk of personal

injury and or cause other serious and irreparable harm to the inmate.” (Id.). Because this

portion of BCCF’s grievance policy states that inmates facing emergency situations may

skip the first steps of the policy and go straight to the Warden, it is plain that BCCF’s

grievance policy places inmates facing emergency situations outside the normal operation

of that policy.?

Having outlined the terms of BCCF’s policy, the Court now examines how those

terms operated relative to Miller. The Court first addresses the question of whether Miller

was facing “a substantial risk of personal injury” such that BCCF would have directed him

to file an emergency grievance.

The answer to this particular question is readily apparent. If the Court were to take

a snapshot of the moment when Dively was attacking Miller, an attack that resulted in

Miller being life-flighted to Pittsburgh for medical care, (ECF No. 36 at 2), Miller was plainly

2 Reading the grievance policy like a statute, Downey, 968 F.3d at 306, the Court notes that the policy

states that inmates facing an emergency “may” go directly to the Warden. (ECF No. 24-1 at 45).

However, the policy begins by stating that if an inmate has a complaint, he or she “may request an

Inmate Grievance Form.” (Id. at 44) (emphasis added). Therefore, because the portion of BCCF’s

grievance policy pertaining to emergency grievances is no more permissive than the entirety of

BCCF’s grievance policy, the Court finds that BCCF directed inmates facing emergency situations to

go directly to the Warden, rather than going through the typical grievance process.

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facing “a substantial risk of personal injury.” In other words, when (if not before) Dively

was attacking Miller, Miller was outside the operation of the normal grievance procedure

at BCCF. At this point, BCCF would have directed Miller to file a grievance directly to the

Warden. However, Miller obviously could not have gone to the Warden when he was

facing a substantial risk of personal injury because Dively was actively attacking him and

because Miller could not extricate himself from the situation. (Id.).

The Court next turns to whether Miller needed to file an emergency grievance when

he returned to BCCF in August of 2016. (ECF No. 26 at {[ 5-6; ECF No. 29 at {[ 5-6).

Once again, BCCF’s grievance policy calls for an inmate to file an emergency

grievance when he or she is facing a situation that would “subject the inmate to a substantial

risk of personal injury and or cause other serious and irreparable harm to the inmate” if

that situation were handled “within regular limits.” (ECF No. 24-1 at 45). The Court has no

indication that Miller was facing a “substantial risk of personal injury” or a risk of “serious

and irreparable harm” at the time he returned to BCCF in August of 2016. In other words,

BCCF’s emergency grievance provision applies to prospective harm, whereas Miller’s

physical harm was retrospective at the time he returned to the prison. Therefore, BCCF’s

grievance policy did not direct Miller to file an emergency grievance upon his return to the

facility in August of 2016.

3 Given the myriad of factual disputes surrounding the events leading up to Dively attacking Miller

(see ECF Nos. 25, 26, 27, 29, 31, 32, 36), it is unclear whether Miller knew that he was facing a

substantial risk of personal injury at the hands of Dively prior to the moment Dively began to attack

him. However, at the moment the attack commenced, Miller did face a substantial risk of personal

injury, a fact that is even clearer given the benefit of hindsight.

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Finally, the Court turns to whether BCCF directed Miller to file a grievance through

the typical, non-emergency process upon his return to the facility in August of 2016.

Critically, just as in Downey, nothing in BCCF’s policy tells inmates who have

previously experienced emergency situations that they need go through the typical, non-

emergency grievance process. (Id. at 44-45); Downey, 968 F.3d at 307 (stating that “nothing

in the [relevant grievance documents] instructed [plaintiff] to file a formal grievance once

the harm was complete”). Instead, BCCF’s policy tells inmates that they cannot grieve

“matters beyond the control of BCCF.” (ECF No. 24-1 at 44-45). An already-completed

assault by one inmate of another inmate is very much beyond the control of BCCF.4

Therefore, at the time that Miller returned to BCCF, the terms of BCCF’s grievance policy

informed Miller that he could not grieve Dively’s already-completed attack.5

Accordingly, for the foregoing reasons, when the Court applies BCCF’s “own

grievance policies[,]” the Court holds that at no relevant point in time did Miller have the

ability to take advantage of BCCF’s grievance policies. Downey, 968 F.3d at 307. At the time

when Miller was being attacked, BCCF would have directed him to file an emergency

4 For purposes of clarity, the Court stresses that it is not holding that there was nothing BCCF’s

employees could have done to have prevented Dively from attacking Miller. Rather, the Court finds

that once Dively had attacked Miller, it was beyond BCCF’s control to go back and undo that attack.

5 The Court notes Defendants’ statement that Miller did not file any grievances regarding events

leading up to the attack, such as requesting “to be transferred out of the cell occupied by Dively.”

(ECF No. 39 at 8-9). However, Miller not grieving pre-attack events does not bar his present suit for

two reasons, working together. First, BCCF’s grievance policy does not contain a time limit within

which prisoners must file a grievance. (ECF No. 24-1 at 44-45). Therefore, at the moment in time

when Dively began attacking Miller, Miller was not time-barred from filing any grievance relating

to Dively being placed in his cell, etc. Second, at the moment Dively began attacking Miller, the entire

situation (including Dively being celled with Miller and similar facts), were all part of the same

emergency situation that Miller could not grieve during the attack and that BCCF effectively

informed Miller he could not grieve after he returned to the facility in August of 2016.

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grievance with the Warden, but he was wholly unable to do so because he was in a prison

cell and the attack resulted in his being life-flighted to Pittsburgh. (ECF No. 36 at 2). Upon

his return, the terms of BCCF’s grievance policy made it clear that Miller was exempt from

both the emergency grievance process and the typical non-emergency grievance process.

Therefore, because Miller had no administrative remedies that he could exhaust, the PLRA

does not stand as a bar to his present suit.

4. Notice and Opportunity to be Heard

The Court now considers Defendants’ contention that the Magistrate Judge (1) did

not afford Defendants notice or an opportunity to resolve the applicability of the exhaustion

defense, and (2) concluded that there are no factual disputes with respect to this issue. (ECF

No. 39 at 7). Although the Court applies different reasoning than the Magistrate Judge in

holding that Miller did not fail to exhaust his administrative remedies, the Court likewise

finds, as explained above, that it may appropriately decide the exhaustion issue as a matter

of law, even though there are factual disputes present. Accordingly, the Court will respond

to Defendants’ objections on this issue.

Under Third Circuit precedent, “exhaustion is a question of law to be determined

by a judge, even if that determination requires the resolution of disputed facts.” Small v.

Camden Cty., 728 F.3d 265, 269 (3d Cir. 2013). Indeed, “judges may resolve factual disputes

relevant to the exhaustion issue without the participation of a jury.” Paladino v. Newsome,

885 F.3d 203, 210 (3d Cir. 2018) (internal quotation marks and citation omitted). When a

district court elects “to resolve factual disputes regarding exhaustion,” it must give some

“form of notice to the parties and an opportunity to respond.” (Id. at 211) (emphasis added).

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Here, in the course of his Report, the Magistrate Judge neither stated nor implied

that there are no factual disputes with respect to the issue of exhaustion. (See ECF No. 36).

Rather, as the Court explained earlier, the Magistrate Judge noted that there are factual

disputes, but he held that the Court need not resolve those disputes because, “as a matter

of law,” the “language of the inmate grievance process fails to give fair notice of its scope.”

(Id. at 8-10). Therefore, Defendants are incorrect when they assert that the Magistrate Judge

“concluded that there [were] no factual disputes.” (ECF No. 39 at 7).°

Further, because the Magistrate Judge did not resolve any factual disputes in his

Report, and because this Court is not now resolving any factual disputes, the Third Circuit's

holding in Paladino is not implicated. See Paladino, 885 F.3d at 210-11 (answering the

question of what “procedures are required when a district court undertakes to serve as the

fact finder on the exhaustion issue” by holding that courts must give the parties “some form

of notice ... and an opportunity to respond”) (emphasis added). The Magistrate Judge

provided the parties the opportunity to file briefs at the summary judgment stage, as well

as the opportunity to object to his Report and Recommendation, and that notice and

opportunity to respond are appropriate and sufficient at this point in this case.

Finally, the Court reiterates that under Third Circuit precedent, the Magistrate

Judge and this Court are permitted to interpret BCCP’s grievance procedure as a matter of

law. Spruill, 372 F.3d at 232-34 (stating that interpreting a grievance policy is a question of

6 Like the Magistrate Judge, this Court recognizes that there are factual disputes present in this case,

and that certain of those factual disputes are relevant to the issue of whether Miller exhausted his

administrative remedies. However, as the Court explained earlier, it is able to decide the exhaustion

issue as a matter of law without resolving those factual disputes.

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law, and holding, as a matter of law, that the plaintiff could not be said to have failed to

follow the prison’s regulations).

B. Qualified Immunity

The second objection that the Court addresses is Defendants’ objection pertaining

to the issue of qualified immunity. (ECF No. 39 at 23-24).

The Third Circuit has explained, in the context of an Eighth Amendment claim, that

when a plaintiff makes a “showing sufficient to overcome summary judgment on the

merits, [he or she has] also made a showing sufficient to overcome any claim to qualified

immunity.” Beers-Capitol v. Whetzel, 256 F.3d 120, 142 n.15 (3d Cir. 2001). Indeed, because

“deliberate indifference under [Farmer v. Brennan, 511 U.S. 825 (1994)] requires actual

knowledge or awareness on the part of the defendant, a defendant cannot have qualified

immunity if [he] was deliberately indifferent.” Id. A reasonable individual cannot “believe

that [his] actions comported with clearly established law while also believing that there is

an excessive risk to” a resident of the prison facility at which he works “and failing to

adequately respond to that risk.” Id.

Here, although the Magistrate Judge did not explicitly address qualified immunity

in his opinion (See ECF No. 36), he did conclude that a reasonable jury could find in favor

of Miller with respect to his Farmer claim against “Nelson or Habinyak, or both.” (Id. at 8).

Therefore, because the Magistrate Judge held, and because this Court agrees, that a

reasonable jury could find in favor of Miller on the issue of deliberate indifference, neither

Nelson nor Habinyak is entitled to summary judgment on the basis of qualified immunity.

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Therefore, after de novo review of the record and the Report and Recommendation,

the following order is entered:

/ORDER OF COURT

AND NOW, this BF aay of March, 2022, IT IS HEREBY ORDERED that

Defendants’ Motion for Summary Judgment (ECF No. 24) is GRANTED IN PART and

DENIED IN PART. Specifically, the Court GRANTS Defendants’ Motion as to Bedford

County and Bedford County Correctional Facility. The Court DENIES Defendants’ Motion

as to Nelson and Habinyak.

IT IS FURTHER ORDERED that the Court will not adopt the two full paragraphs

on page nine of the Magistrate Judge’s Report (the paragraphs beginning with “Precedent

requires” and “As the Supreme Court advises”), as well as the first full paragraph on page

ten of the Magistrate Judge’s Report (the paragraph beginning with “Further, the Prison’s

grievance policy”). (ECF No. 36 at 9-10). The Court will substitute Section I.A.3.c of the

foregoing Memorandum in place of those paragraphs. Moreover, the Court will insert

Section IIL.B of the foregoing Memorandum into the Magistrate Judge’s Report immediately

after Section III.A.3.c. The Court adopts the rest of the Magistrate Judge’s Report in full.

IT IS FURTHER ORDERED that the clerk shall dismiss Defendant Bedford County

and Defendant Bedford County Correctional Facility from this matter. Miller’s claim

against Defendant Troy Nelson and Defendant Gary Wayne Habinyak is referred back to

the Magistrate Judge for further proceedings.

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BY THE,COURT:

Pon, MN » Rew DN MPRA

KIM R. GIBSON

UNITED STATES DISTRICT JUDGE

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