Murdock v. Brown

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ERIC MURDOCK, : No. 1:20-cv-02138

Plaintiff, :

:

v. : (Judge Rambo)

:

GENE BROWN, et al., :

Defendants. :

MEMORANDUM

Before the Court for resolution is the issue of whether the remaining

Defendants—i.e., C.O. Rosse (“Rosse”), C.O. Terra (“Terra”), and Lt. Rininger1—

have met their burden to establish the affirmative defense of pro se Plaintiff Eric

Murdock (“Murdock”)’s failure to exhaust administrative remedies in accordance

with the Prison Litigation Reform Act (“PLRA”) before commencing this action in

federal court. As explained further below, the Court finds that Defendants have

met their burden to prove that Murdock failed to exhaust his administrative

remedies. Accordingly, the Court will enter judgment in their favor and against

Murdock.

1 Murdock incorrectly spelled the last name of this Defendant as “Rinnger” in the

complaint. (Doc. 1 at 2.) The Court will refer to the correct spelling, i.e.,

“Rininger,” in this Memorandum.

I. BACKGROUND

Murdock commenced this action by filing a complaint against Defendants

Gene Brown (“Brown”), Rosse, Terra, Lt. Rininger, P.S.S.2 Dunn (“Dunn”),

Superintendent Robert Marsh (“Supt. Marsh”), and the Pennsylvania Department

of Corrections (“DOC”) on November 10, 2020. (Doc. 1.) In the complaint,

Murdock asserted the following claims against Defendants in their official and

individual capacities: (1) claims under 42 U.S.C. § 1983 for violations of his rights

under the Fourth, Fifth, Eighth, and Fourteenth Amendments to the United States

Constitution (including claims under Monell v. Department of Social Services of

City of New York, 436 U.S. 658 (1978)); (2) claims for violations of Article I of

the Pennsylvania Constitution; and (3) claims under Pennsylvania law relating to a

failure to protect and intervene. (Id. at 4, 17–23.) Murdock sought monetary

damages as well as injunctive and mandamus relief. (Id. at 19, 23.)

Regarding his factual allegations, Murdock alleged that he and Brown were

incarcerated at Pennsylvania State Correctional Institution Benner (“SCI Benner”)

in late February 2020. (Id. ¶¶ 7–8, 21, 23.) On February 28, 2020, Brown was in a

cell on “J-block,” where Rosse was working. (Id. ¶¶ 16, 22.) At this time, Rosse

was aware that Brown had a mental disability, a “D-code” classification, and a

2 Murdock appears to use “P.S.S.” as an abbreviation for “Psychiatrist Social

Service Liaison.” (Doc. 1 ¶ 25.)

history of violent behavior.3 (Id. ¶ 18.) Brown’s violent history included

victimizing vulnerable inmates on J-block and assaulting cellmates. (Id. ¶ 19.)

While in his cell, Brown “vociferously expressed” his desire to be released

from his cell on J-block after completing his sanctioned time there. (Id. ¶ 21.) He

also warned Rosse, Terra, and Lt. Rininger about placing anyone else in his cell

because if they did, “there w[ould] be a problem.” (Id. ¶¶ 22, 27 (emphasis

omitted)). Despite this warning, Murdock was placed into Brown’s cell at

approximately 1:30 p.m. after receiving a thirty (30)-day sanction for having a

“dirty urine.”4 (Id. ¶ 28.)

Prior to Murdock’s placement into Brown’s cell, Dunn conducted a

psychological evaluation of Murdock in accordance with SCI Benner/DOC

procedures. (Id. ¶ 25.) Dunn’s evaluation led her to believe that Murdock should

be placed into Brown’s cell. (Id. ¶ 26.) Murdock asserts that his placement into

Brown’s cell shows that the SCI Benner/DOC evaluation procedure was flawed.

(Id.)

3 The Court infers from the complaint that “D-Code” is a housing classification

given to incarcerated individuals with mental illnesses.

4 Murdock alleges that he “does not have a violent past, [wa]s not incarcerated for

a violent crime, [and] has never been placed in solitary confinement for any jail-

house [sic] infractions.” (Doc. 1 ¶ 24.)

Upon Murdock’s entry into Brown’s cell, Murdock “was immediately

overwhelmed by the strong smell of urine and the sight of feces smeared all over

the walls.” (Id. ¶ 29.) Over the course of the next three days, Murdock observed

Brown’s “dangerous” and “psychotic” behavior, including Brown “pac[ing] the

floor of the locked cell[] for five, six hours at a time, while spewing loud,

profanity-laced tirades at the wall, floors, and door.” (Id. ¶¶ 30, 31.) Brown also

would stand with his back to the door and “psychotically star[e]” at Murdock for

hours at a time and without speaking to him. (Id. ¶ 32.)

On March 2, 2020, Rosse and Terra escorted Murdock from the cell so he

could get a shower. (Id. ¶ 33.) On the way to the showers, Murdock told Rosse

and Terra that he feared for his life because Brown’s “unstable mental condition

posed an unnecessary threat to his safety.” (Id. ¶¶ 33, 35.) Murdock also told them

that “he should not have to handle violent, unstable[] psychopaths.” (Id. ¶ 36.)

Due to Brown’s behavior, Murdock asked Rosse and Terra to be immediately

removed from Brown’s cell. (Id. ¶ 33.) Rosse told Murdock, inter alia, he would

not be moved and pointed out that Murdock was a “big-boy,” he and Brown were

“about the same size,” and he could “handle [him]self.” (Id. ¶ 34.)

The following day, Rosse approached Brown and Murdock’s cell and started

to antagonize and upset Brown. (Id. ¶ 38.) While at the cell door, Rosse told

Brown, “You’ve sent ya’ last two cellies out on a stretcher to the infirmary. I bet

you can’t do that to Murdock.” (Id. (emphasis omitted)). Rosse then told Brown,

“If you can beat on [Murdock] the same way you beat on those other guys, I’ll

make sure you get a bed in [general population].” (Id. ¶ 39 (emphasis omitted)).

Although Murdock pleaded with Rosse to stop provoking Brown, Rosse laughed at

Murdock and told him to stop complaining.5 (Id. ¶¶ 40, 41.)

Later that evening, after approximately 9 p.m., Murdock was asleep on the

top bunk in the cell when Brown awakened him by grabbing him around his neck

and pulling him off the top bunk. (Id. ¶¶ 42, 43.) Brown placed Murdock into a

“sleeper hold,” which cut off oxygen to Murdock’s brain. (Id. ¶ 43.) Murdock

passed out, and Brown proceeded to “violently and barbarically assault[] . . .

Murdock” for an unknown period. (Id. ¶ 44.)

When Murdock finally woke up on March 4, 2020, he was in Mt. Nittany

Hospital. (Id. ¶ 45.) He could not see because his eyes were swollen shut, and he

had a severe migraine headache, a fractured nose, and stitches in his face. (Id.)

Additionally, Murdock’s entire body “was in non-stop agonizing pain.” (Id.)

Murdock ended up spending one full day in the hospital and another seven (7) days

in SCI Benner’s infirmary. (Id. ¶ 48.) Murdock asserts that he still suffers from

pain, migraines, nightmares, anxiety, and extreme paranoia to this day. (Id. ¶ 46.)

5 Murdock alleges that this entire incident is on video. (Id. ¶¶ 39, 41.)

On November 25, 2020, after Murdock remitted the filing fee for this case,

the Court entered an Order which, inter alia, dismissed Brown as a Defendant and

directed the Clerk of Court to send copies of the complaint, requests to waive

service, and waiver of service forms to the other Defendants. (Doc. 5.)6 These

Defendants waived service (Doc. 10), and they filed a motion to dismiss

Murdock’s claims against the DOC in the complaint on April 20, 2021 (Doc. 19).

They filed a supporting brief on May 25, 2021.7 (Doc. 25.)

On June 10, 2021, the Court entered a Memorandum and Order granting the

motion to dismiss and dismissing with prejudice Murdock’s claims against the

DOC under Federal Rule of Civil Procedure 12(b)(6) because of its Eleventh

Amendment Immunity. (Docs. 26, 27.) The remaining Defendants filed an answer

with affirmative defenses to the complaint on June 27, 2021. (Doc. 28.) As

relevant to this Memorandum, among Defendants’ affirmative defenses was a

claim that Murdock failed to exhaust his administrative remedies regarding his

claims against them. (Id. at 10.)

6 The Court dismissed Brown because Murdock failed to allege that he acted under

color of state law for purposes of liability under Section 1983. (Doc. 5 at 1 n.1.)

7 In between Defendants’ filing of their motion and supporting brief, Murdock

filed a motion seeking a default judgment (Doc. 20), which the Court denied on the

day it was docketed (Doc. 21).

This matter than proceeded to discovery, after which Defendants filed a

motion for summary judgment and statement of undisputed material facts in

support of the motion on February 25, 2022. (Docs. 44, 45.) They filed a

supporting brief on March 11, 2022. (Doc. 47.) Murdock filed a brief in

opposition to the motion along with supporting exhibits on May 24, 2022. (Docs.

56, 57.) Defendants filed a reply brief to Murdock’s response in opposition on

June 7, 2022. (Doc. 58.)

On July 19, 2022, the Court entered a Memorandum and Order granting in

part and denying in part Defendants’ motion for summary judgment. (Docs. 59,

60.) The Court granted the motion as to Murdock’s (1) Section 1983 claims for

monetary damages against Defendants in their official capacities, (2) Section 1983

claims against Supt. Marsh and Dunn due to lack of personal involvement in the

alleged wrongdoing, (3) Section 1983 Fourth, Fifth, and Fourteenth Amendment

claims, (4) Section 1983 Monell claims, and (5) claim for monetary damages under

the Pennsylvania Constitution. (Doc. 60 at 1.) The Court denied the motion as to

Murdock’s (1) Section 1983 Eighth Amendment failure-to-protect claim against

Ross, Terra, and Lt. Rininger, (2) Section 1983 claims for prospective injunctive

relief against Defendants in their official capacities, and (3) claim for prospective

injunctive relief under the Pennsylvania Constitution. (Id. at 2.) The Court further

denied the motion as to Defendants’ argument that Murdock failed to exhaust his

request for monetary relief. (Id.)

Counsel entered appearances for Murdock in early November 2022. (Docs.

66, 68.) The Court entered an Order on January 4, 2023, which, inter alia, directed

the parties to file a joint status report. (Doc. 71.) On January 24, 2023, the parties

filed a joint status report in which they requested the Court to hold an exhaustion

hearing. (Doc. 72.) The Court held an evidentiary hearing on exhaustion on

August 3, 2023.8 (Doc. 84.) The parties then timely filed their post-hearing

written submissions (Docs. 89, 90). The administrative exhaustion issue is now

ripe for disposition.

8 A plaintiff is not entitled to a jury trial under the Seventh Amendment on the

issue of whether they exhausted their administrative remedies under the PLRA.

See Small v. Camden Cnty., 728 F.3d 265, 271 (3d Cir. 2013) (“In sum, we agree

with the Second, Fifth, Seventh, Ninth, and Eleventh Circuits and hold that judges

may resolve factual disputes relevant to the exhaustion issue without the

participation of a jury. . . . [T]he District Court did not err by acting as the fact

finder because exhaustion constitutes a preliminary issue for which no right to a

jury trial exists.”). In addition, “‘exhaustion of administrative remedies under the

PLRA is a question of law to be determined by the judge.’” Shumanis v. Lehigh

Cnty., 675 F. App’x 145, 147 (3d Cir. 2017) (unpublished) (quoting Drippe v.

Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010)). Thus, the Court must decide the

exhaustion issue by holding an evidentiary hearing and resolving any factual

disputes. See, e.g., Jacobs v. Pittsburgh Police Dep’t, No. 08-cv-00470, 2014 WL

3401656, at *4 (W.D. Pa. July 10, 2014) (adopting report and recommendation

which explained that three circuit courts of appeals had determined that “district

courts should resolve fact disputes about procedural exhaustion at a pre-trial

evidentiary hearing” and recommended that the district court “conduct an

evidentiary hearing to resolve the factual disputes among the parties regarding

Plaintiff’s exhaustion of administrative remedies”).

II. DISCUSSION

A. Administrative Exhaustion Under the PLRA

The PLRA’s exhaustion requirement mandates that “[n]o action shall be

brought with respect to prison conditions under [S]ection 1983 of this title, 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. § 1997e(a) (emphasis added). In other words, exhaustion of available

administrative remedies is a prerequisite for a prisoner asserting a claim under

Section 1983 regarding their prison conditions. See Rinaldi v. United States, 904

F.3d 257, 265 (3d Cir. 2018); see also Ross v. Blake, 578 U.S. 632, 638 (2016)

(reiterating that the PLRA’s “language is ‘mandatory’: An inmate ‘shall’ bring ‘no

action’ (or said more conversationally, may not bring any action) absent exhaustion

of available administrative remedies” (quoting Woodford v. Ngo, 548 U.S. 81, 85

(2006))); Jones v. Bock, 549 U.S. 199, 211 (2007) (stating that “[t]here is no

question that exhaustion is mandatory under the PLRA and that unexhausted

claims cannot be brought in court” (citation omitted) (alteration added)); Booth v.

Churner, 532 U.S. 731, 733–34 (2001) (stating that the PLRA “now requires a

prisoner to exhaust ‘such administrative remedies as are available’ before suing

over prison conditions” (quoting 42 U.S.C. § 1997e(a))). This requirement

“applies to all inmate suits 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 (2002). Additionally,

while this exhaustion requirement is not a jurisdictional bar to litigation, it is

strictly enforced by the courts. See Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000)

(explaining that under the PLRA, courts may not excuse an incarcerated

individual’s compliance with the exhaustion requirement).

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

administrative review process in accordance with the applicable procedural rules.’”

Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (alteration in

original) (quoting Woodford, 548 U.S. at 88). “These applicable procedural rules

are supplied by the individual prisons.” Id. (citations omitted). Thus, determining

whether “whether a prisoner has ‘properly’ exhausted a claim . . . is made by

evaluating the prisoner’s compliance with the prison’s administrative regulations

governing inmate grievances.” Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004);

Jones, 549 U.S. at 218 (explaining that “[t]he level of detail necessary in a

grievance to comply with the grievance procedures will vary from system to

system and claim to claim”); Woodford, 548 U.S. at 90 (indicating that “[p]roper

exhaustion demands compliance with an agency’s deadlines and other critical

procedural rules”).

A prisoner’s failure to follow a prison’s procedural rules will result in a

procedural default of their claims. See Spruill, 372 F.3d at 230–32 (concluding

that PLRA’s exhaustion requirement includes a procedural default component); see

also Drippe, 604 F.3d at 781 (pointing out that Spruill held “that the PLRA

includes a procedural default component and the determination whether a prisoner

properly exhausted a claim is made by evaluating compliance with the prison’s

specific grievance procedures”). “Consequently, an ‘untimely or otherwise

procedurally defective grievance or appeal’ is insufficient to satisfy the PLRA’s

exhaustion requirement.” Payne v. Pitkins, 447 F. App’x 291, 292 (3d Cir. 2011)

(unpublished) (quoting Woodford, 548 U.S. at 83). As such, courts have concluded

that inmates who fail to fully, or timely, complete the grievance process are barred

from subsequently litigating claims in federal court. See Booth v. Churner, 206

F.3d 289, 299–300 (3d Cir. 2000) (concluding that district court properly dismissed

plaintiff’s Section 1983 excessive force action without prejudice because he never

appealed prison’s denial of grievances as set forth in Inmate Grievance System),

aff’d 532 U.S. 731 (2001); Payne, 447 F. App’x at 292 (determining that district

court properly found that plaintiff failed to properly exhaust claim where plaintiff

untimely filed grievance).

An inmate’s failure to exhaust may be excused, however, if the inmate can

show that the administrative remedies were unavailable to them. See Rinaldi, 904

F.3d at 266 (“The PLRA requires only ‘proper exhaustion,’ meaning exhaustion of

those administrative remedies that are ‘available.’” (quoting Woodford, 548 U.S. at

93)). Administrative remedies are unavailable:

(1) when the remedy “operates as a simple dead end—with officers

unable or consistently unwilling to provide any relief to aggrieved

inmates”; (2) when it is “so opaque that it becomes, practically

speaking, incapable of use”; and (3) “when prison administrators thwart

inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.”

Hardy v. Shaikh, 959 F.3d 578, 584 (3d Cir. 2020) (quoting Ross, 578 U.S. at 643–

44). Similarly, “[w]hen [an inmate] fail[s] to receive even a response to [a]

grievance[] addressing the . . . incident[], much less a decision as to th[e]

grievance[], the [administrative remedy] process was unavailable to [them].”

Small, 728 F.3d at 273.

Finally, requiring a prisoner to exhaust available administrative remedies

before filing suit in federal court advances the policy justifications of the PLRA,

i.e., to “return[] control of the inmate grievance process to prison administrators,

encourag[e] the development of an administrative record, and perhaps settlements,

within the inmate grievance process, and reduc[e] the burden on the federal courts

by erecting barriers to frivolous prisoner lawsuits.” Downey, 968 F.3d at 305

(citation and internal quotation marks omitted); see also Jones, 549 U.S. at 204

(explaining that exhaustion requirement “allows prison officials an opportunity to

resolve disputes concerning the exercise of their responsibilities before being haled

into court”). It also “reduces any incentive that prison officials otherwise might

have to use threats to prevent inmates from exhausting their administrative

remedies and thereby safeguards the benefits of the administrative review process

for everyone.” Rinaldi, 904 F.3d at 268 (citation and internal quotation marks

omitted).

B. Findings of Fact Relating to Administrative Exhaustion9

1. Facts Concerning DC-ADM 804

1. DC-ADM 804 is the DOC’s policy regarding inmate grievances.10

(Doc. 86 at 5:7–12, 30:24–31:4.)

2. Under DC-ADM 804, an inmate has fifteen (15) working days after an

event to file an initial written grievance relating to that event. (Id. at 5:13–15, 6:7–

9, 31:7–8, 31:17–20.)

9 The following findings of fact are supported by the evidence in the record.

Where a particular fact was controverted, the Court weighed the evidence and

evaluated the credibility of the testifying witnesses to make a finding.

10 DCM-804 is available at https://www.cor.pa.gov/About%20Us/-

Documents/DOC%20Policies/804%20Inmate%20Grievances.pdf (last visited July

8, 2024). Under DC-ADM 804, the DOC requires every inmate in its custody to

“have access to a formal procedure” through which the inmates can “seek

resolution of problems or other issues of concern arising during the course of

[their] confinement.” DC-ADM 804, Policy Statement, § 3.

Additionally, although Defendants identified DC-ADM 804 as an exhibit

prior to the evidentiary hearing (Doc. 83-2, Ex. 1) no party introduced it as an

exhibit and attempted to admit it during the hearing. Nevertheless, the Court takes

judicial notice of DC-ADM 804.

3. The inmate’s initial grievance can include only two (2) pages. (Id. at

6:10–12, 31:21–32:5.)

4. The two (2) pages can consist of the one-page grievance form along

with one (1) additional page. (Id. at 31:21–32:5; see, e.g., Doc. 45-6 (official

inmate grievance form)).

5. Upon receiving an inmate’s grievance, it is assigned to a grievance

officer for investigation and an initial review response. (Doc. 86 at 5:15–17, 5:23–

6:1.)

6. The grievance officer will reject the grievance if it is not submitted in

accordance with DC-ADM 804, such as, inter alia: (1) the grievance is untimely;

(2) the grievance is longer than two (2) pages; (3) the inmate failed to provide

supporting documentation; or (4) the grievance relates to multiple events. (Id. at

6:2–6.)

7. After receiving the initial review response from the grievance officer,

an inmate may appeal to the facility manager if they are dissatisfied with the initial

review response. (Id. at 5:17–20, 31:12–14.)

8. Upon receiving an inmate’s appeal, the facility manager has the option

to remand a grievance to the grievance coordinator if the initial review response

did not address the inmate’s issue in the grievance correctly or appropriately. (Id.

at 6:13–24.)

9. If a facility manager remands a grievance to the grievance officer,

there is no onus on the inmate to do anything until the time that the grievance

officer renders another initial review response. (Id. at 7:4–10, 17:14–17.)

10. Once the grievance officer issues an initial review response on

remand, the inmate may again appeal from the response to the facility manager if

they are dissatisfied with the response. (Id. at 33:23–34:1.)

11. Upon receiving a response from the facility manager on appeal, an

inmate dissatisfied with the facility manager’s response may appeal to final review

with the DOC Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”).

(Id. at 5:20–22, 31:14–16.)

12. Under DC-ADM 804, SOIGA generally has thirty (30) working days

from receipt of the final review appeal to respond to the appeal. See DC-ADM

804 § 2.B.2.a(1) (“[A]n appeal to final review is responded to within 30 working

days of receipt unless otherwise extended and/or referred[.]”).

13. “SOIGA will issue a decision with one of the following dispositions:

Uphold Response, Uphold Inmate, Dismiss, or Uphold in Part/Deny in Part.” Id. §

2.B.2.e.

14. An inmate may withdraw their grievance at any time. (Doc. 86 at

7:11–13.)

15. Under DC-ADM 804, an inmate seeking to withdraw a grievance

must complete a specific form, which is signed by the grievance officer. (Id. at

7:17–20.)

16. After the withdrawal form is completed, it is sent to the inmate’s

counselor, who then meets with the inmate to ensure that the inmate was not forced

to withdraw the grievance. (Id. at 7:20–23.)

2. Facts Concerning Murdock’s Use of DC-ADM 804

Procedures

17. Plaintiff was incarcerated at SCI Benner from February 2020 through

April 2020. (Doc. 1 ¶¶ 8, 21–48.)

18. SCI Benner uses the Captor grievance tracking system to track

grievances filed by inmates at SCI Benner. (Doc. 86 at 8:13–15.)

19. Once an official at SCI Benner receives a grievance, it is entered into

the Captor system and is issued a number. (Id. at 8:17–20.)

20. All grievances, including any appeals to the facility manager or to

SOIGA, are kept in the Captor system. (Id. at 8:19–20.)

21. SOIGA keeps paper and electronic copies of all records of appeals

received from inmates pertaining to grievances they filed. (Id. at 32:9–12.)

22. The Captor system is updated daily by SCI Benner’s grievance

coordinator and her administrative officer. (Id. at 8:21–9:3.)

23. Murdock filed two (2) grievances in March 2020. (Id. at 10:15–18;

Defs.’ Exs. 2, 3.)

24. The two grievances were numbered 854683 and 858386. (Doc. 86 at

10:19–21.)

25. Both grievances related to an incident on March 3, 2020, in which

Murdock’s cellmate, Brown, assaulted him while he was sleeping. (Id. at 35:25.)

26. Murdock lost consciousness during Brown’s assault. (Id. at 38:2–4.)

27. When Murdock regained consciousness, he was in Mount Nittany

Hospital, where he was first told about the assault. (Id. at 36:1–3.)

28. Murdock was released from Mount Nittany Hospital and placed in

SCI Benner’s infirmary. (Id. at 36:3–4.)

29. Murdock submitted his first grievance, No. 854683 (“Grievance

854683”), which is dated March 9, 2020, on March 10, 2020. (Id. at 12:1–9,

12:24–13:2, 21:2–7, 44:11–20; Defs.’ Ex. 3.)

30. Murdock wrote Grievance 854683. (Doc. 86 at 46:13–16.)

31. Grievance 854683 is legible and written in complete sentences.

32. In Grievance 854683, which is two (2) pages in length, Murdock

complained as follows:

On 3/3/20 I, ERIC R. MURDOCK WAS VIOLENTLY

ASSAULTED BY ANOTHER INMATE BY THE NAME OF

BROWN. INMATE BROWN WAS MY CELL-MATE [sic] WHEN

HE SNATCHED ME FROM MY BED AND BEAT ME SO BAD

THAT MY FACE IS FRACTURED AND SWOLLEN. I WAS

UNCONSCIOUS AT ONE POINT AND DID NOT KNOW WHAT

WAS GOING ON OR THAT I GOT ASSAULTED.

I CAN REMEMBER ASKING THE R.H.U[.] C/O ROSSE TO

MOVE MY CELL ON THE 2ND OF MARCH AT 3:45pm.

BECAUSE TO ME SOMETHING WAS OFF (MENTALLY) WITH

INMATE BROWN. C/O ROSSE TOLD ME THAT “HE KNOWS

BUT HE IS NOT MAKING NO MOVES.”

ON THE SAME DAY 3/2/20 BETWEEN 5pm. – 9pm. Lt.

RININGER CAN BE SEEN ON CAMERA AT MY CELL DOOR

TALKING WITH INMATE BROWN ABOUT HIS BED

AVAILABILITY, MENTAL HEALTH PROBLEMS AND NOT

GOING TO P.R.C[.] ON HIS SHIFT.

THE DAY I ARRIVED TO THE R.H.U[.] 2/28/20 INMATE

BROWN ASKED THE R.H.U[.] STAFF NO [sic] TO PUT ME IN HIS

CELL. I WAS PLACED IN CELL 218 ANYWAY. THERE WAS NO

CARE FOR MY SAFETY, WELL-BEING, OR LIFE.

FORTUNATELY, ON THE 3rd OF MARCH I DID NOT DIE IN THIS

ENVIRONMENT.

I, ERIC R. MURDOCK, WAS DELIBERTY [sic] PLACED IN

DANGER WHEN I WAS PUT IN THE CELL WITH INMATE

BROWN. BECAUSE THE STAFF IN THIS FACILITY KNEW

INMATE BROWN HAD MENTAL ISSUES HE WAS SUFFERING

FROM, I SHOULD NOT HAVE BEEN PLACED IN THAT CELL.

I, ERIC R. MURDOCK, AM SEEKING RELIEF FOR MY

PAIN AND SUFFERING, MENTAL AND PHYSICAL DAMAGES. I

CAN’T SLEEP, HAVE BAD HEAD ACHES [sic] AND

NIGHTMERES [sic].

I AM ASKING FOR THE R.H.U[.] STAFF TO BE

REPRIMAND [sic] FOR NOT TAKING MENTAL HEALTH

PROPERLY AND ALLOWING THIS TO HAPPEN TO ME.

(Defs.’ Ex. 3.)

33. Murdock filed Grievance 854683 seven (7) days after the date of the

alleged assault (Doc. 86 at 44:21–24) and eight (8) days after (a) he allegedly

asked Rosse to move him from the cell with Brown and (b) Lt. Rininger allegedly

spoke to Brown.

34. Murdock timely filed Grievance 854683 because he filed it within

fifteen (15) working days of Brown’s assault on March 3, 2020.

35. An initial review response was not rendered for Grievance 854683

because Murdock ultimately withdrew this grievance. (Doc. 86 at 13:3–11.)

36. No one told Murdock to withdraw Grievance 854683. (Id. at 37:10–

11.)11

37. At the time Murdock decided to withdraw Grievance 854683, he was

still in the infirmary.12 (Id. at 35:18–21.)

11 Shortly before this cited testimony, Murdock testified that “(Inaudible) kept

asking me to withdraw my grievance, and I just withdrew my grievance because . .

. I just wanted to be left alone.” (Doc. 86 at 37:3–6.) To the extent that Murdock

testified that prison staff kept asking him to withdraw Grievance 854683, the Court

finds this testimony to be incredible. In addition, Murdock’s desire to be left alone

would not support a finding that he did not knowingly and voluntarily withdraw

this grievance.

12 Defendants’ witnesses at the evidentiary hearing could not recall whether

Murdock was in the infirmary during the process of him withdrawing Grievance

854683. (Doc. 86 at 25:13–15, 28:16–18.) Nevertheless, Murdock credibly

testified that he was still in the infirmary at the time he decided to withdraw his

grievance. The Court also notes that Defendants attached a copy of Murdock’s cell

history to their motion for summary judgment, and this cell history reflects that

Murdock was in the infirmary until March 13, 2020. (Doc. 45-2 at 2.)

38. At the time Murdock decided to withdraw Grievance 854683, he

claims that both of his eyes were swollen shut and his nose was fractured. (Id. at

37:20–23.)

39. Murdock’s physical condition did not affect his ability to knowingly

and voluntarily withdraw Grievance 854683.13

40. At the time Murdock decided to withdraw Grievance 854683, he

claims that he could not think and speak normally because he was “on

medication,” namely “Tylenol 4 or Tylenol 3.” (Id. at 37:15–19.)

41. Murdock’s taking of “Tylenol 4 or Tylenol 3” did not affect his ability

to knowingly and voluntarily withdraw Grievance 854683.14

42. Murdock claims that he withdrew Grievance 854683 “because [he]

kept being taken in and out of [his] infirmary bed to the security office and they

kept coming in [his] room to question [him, and at] that time, [he] was kinda [sic]

afraid for [his] life.” (Id. at 35:19–22.)

13 Murdock admitted that he wrote Grievance 854683. If his eyes were swollen

shut as he claims, he would not have been able to write this grievance. The Court

finds Murdock’s testimony concerning the effect of his physical condition on his

capacity to withdraw his grievance to be incredible.

14 To the extent Murdock is attempting to assert that he did not knowingly

withdraw his grievance due to his taking of Tylenol, the Court finds his testimony

to be incredible.

43. Murdock being taken in and out of his infirmary bed, his discussions

with security, and his alleged fear for his life did not affect his ability to knowingly

and voluntarily withdraw Grievance 854683.15

44. To withdraw the grievance, Murdock signed a grievance withdrawal

form (“Withdrawal Form”). (Id. at 13:9–11, 23:21–24:20, 26:7–25; 44:25–45:3;

Defs.’ Ex. 3.)

45. The Withdrawal Form contains the signature of a grievance

officer/coordinator, Cpt. Robert Williamson (“Cpt. Williamson”). (Defs.’ Ex. 3.)

46. Cpt. Williamson signed the Withdrawal Form on March 11, 2020.

(Doc. 86 at 27:11–25.)

47. At the time of the evidentiary hearing, Cpt. Williamson had worked

for the DOC for 24 years. (Id. at 26:18–21.)

48. Although Cpt. Williamson now works at Central Office for the DOC,

in March 2020, he was working at SCI Benner. (Id. at 26:15–17, 26:22–24.)

49. During his time as a Captain at SCI Benner, he completed inmate

grievance withdrawal forms with inmates. (Id. at 26:25–27:2.)

15 While the Court does not discount the serious trauma Murdock seemingly

experienced due to Brown’s assault, the Court does not find Murdock’s statement

that he withdrew Grievance 854683 out of fear for his life to be credible. He was

in the infirmary at the time and, as he mentioned, he was having conversations

with security. He also did not explain why being questioned by security or being

taken in and out of the infirmary would have caused him to withdraw this

grievance.

50. Cpt. Williamson would not have signed the Withdrawal Form if he

thought that Murdock was being coerced to withdraw Grievance 854683. (Id. at

28:1–3.)

51. Cpt. Williamson would not have signed the Withdrawal Form if he

thought that Murdock was incoherent and unable to make decisions for himself.

(Id. at 28:4–6.)

52. Cpt. Williamson acted on Murdock’s withdrawal of Grievance 854683

as he would with any other form he worked with during his career. (Id. at 28:7–

10.)

53. Murdock met with his correctional counselor, Olivia Halfpenny-

Fishbaine (“Counselor Halfpenny-Fishbaine”), to discuss his intent to withdraw

Grievance 854683 on March 18, 2020. (Id. at 23:14–16, 24:16–17.)

54. This meeting occurred fifteen (15) calendar days after Brown’s assault

on March 3, 2020.

55. During Murdock’s meeting with Counselor Halfpenny-Fishbaine,

Murdock confirmed that he wanted to withdraw Grievance 854683. (Id. at 24:16–

20, 45:4–11.)

56. Counselor Halfpenny-Fishbaine signed the Withdrawal Form on

March 18, 2020. (Id. at 24:1–9; Defs.’ Ex. 3.)

57. By signing the Withdrawal Form, Counselor Halfpenny-Fishbaine

verified that she met with Murdock, he was not coerced into withdrawing

Grievance 854683, and he still wished to withdraw Grievance 854683. (Doc. 86 at

24:16–20.)

58. Counselor Halfpenny-Fishbaine would not have signed the

Withdrawal Form if she thought that Murdock was being coerced into withdrawing

Grievance 854683. (Id. at 24:21–23.)

59. Counselor Halfpenny-Fishbaine would not have signed the

Withdrawal Form if she thought that Murdock was incoherent and unable to decide

whether to withdraw Grievance 854683. (Id. at 24:24–25:2.)

60. Counselor Halfpenny-Fishbaine, who dealt specifically with grievance

withdrawal forms at SCI Benner, handled Murdock’s withdrawal of Grievance

854683 as she would have when other inmates decided to withdraw grievances.

(Id. at 22:25–23:5, 25:3–6.)

61. Murdock voluntarily and knowingly withdrew Grievance 854683.

62. Via an Inmate’s Request to Staff Member dated March 22, 2020,

Murdock requested the following:

Deputy Booher,

I AM WRITING YOU TO INQUIRE ABOUT THE PROCESS

THE PRISON MADE TO HAVE ME TALK WITH THE SECURITY

DEPARTMENT AFTER COMING FROM THE HOSPITAL.

I DONT [sic] BELIEVE AS IF [sic] I WAS MENTALLY

ADEQUATE TO ANSWER QUESTIONS OR PUT MY SIGNATURE

ON ANYTHING.

DID A DOCTOR CLEAR ME TO MAKE RATIONAL

DECISIONS?

I REMEMBER BEING ASKED QUESTIONS ABOUT

PRESSING CHARGES ON THE INMATE THAT ASSAULT [sic]

ME, BUT I DONT [sic] REMEMBER WHAT I SIGNED OR WHAT

ELSE HAPPEND [sic].

PLEASE HELP ME UNDERSTAND WHAT HAPPEND [sic]

SIR.

(Pl.’s Ex. 1.)

63. Murdock received the following response to this request from

Lieutenant Hoffman on April 7, 2020:

YOU WERE INTERVIEWED TWICE AND ASKED IF YOU

WANTED CHARGES PRESSED. YOU RESPONDED IN THE

NEGATIVE BOTH TIMES. CHARGES CAN STILL BE BROUGHT

AGAINST THE INMATE. PLEASE NOTIFY THE SECURITY

OFFICE IF THIS IS THE CASE.

(Id.)

64. Murdock filed his second grievance, No. 858386 (“Grievance

858386”), which is dated March 26, 2020, on March 27, 2020. (Doc. 86 at 15:9–

12; 21:18–20, 45:25–46:5; Defs.’ Ex. 4.)

65. Murdock wrote Grievance 858386. (Doc. 86 at 46:13–16.)

66. Grievance 858386 is three (3) pages in length, consisting of the

grievance form and two additional pages. (Id. at 15:18–20; Defs.’ Ex. 4.)

67. Murdock’s filing of a grievance with three pages was improper under

DC-ADM 804. (Id. at 15:21–23.)

68. In Grievance 858386, Murdock complained as follows:

THE REASON WHY IM [sic] FILING THIS GRIEVANCE IS

BECAUSE I FEEL AS IF THIS INSTITUTION “S.C.I[.] BENNER

TOWNSHIP” FAILED TO PROTECT ME FROM BEING

VIOLENTLY ASSAULTED AND SERIOUSLY INJURIED [sic] AT

THE HANDS OF ANOTHER INMATE.

ON THE DATE OF MARCH 3, 2020[,] I WAS PHYSICALLY

REMOVED FROM MY BED AND BEATEN SO LONG THAT MY

NOSE WAS FRACTURED AND MY HEAD AND EYES SWELLED

(2X) TWO TIMES THE SIZE IT SHOULD HAVE BEEN.

OFFICIALS IN THIS INSTITUTION ALLOWED ME TO BE

ASSAULTED SO LONG, THAT NO ONE REALLY KNOWS THE

AMOUNT OF TIME I WAS SUFFERING BEFORE A C/O

RESPONDED.

FOR A MULTITUDE OF REASONS, ME AND INMATE

“BROWN” SHOULD HAVE NEVER BEEN HOUSED IN THE

SAME CELL FOR THAT LONG.

OFFICIALS WORKING IN THE “RHU” KNEW ABOUT THE

DISRUPTIVE BEHAVIOR OF INMATE BROWN. C/O ROSSE

HADE [sic] NUMEROUS THINGS TO SAY AND JOKE ABOUT,

IMPLEMENTING [sic] THAT INMATE “BROWN” HAD

PROBLEMS WITH PREVIOUS CELLMATES BEFORE ME.

THEREBY, CREATING EXCESSIVE RISK OF HARM FOR

ME. THERE SHOULD BE INCIDENT REPORTS VERIFYING

HOW MANY CELLMATES WERE MOVED OUT OF THE CELL

WITH “BROWN” BEFORE I WAS ASSAULTED.

AS WELL, I ASKED C/O ROSSE TO MOVE ME OUT OF

CELL 218 ON THE DATE 3/2/20 AT 4pm. AFTER SHOWERS.

THE CONDITIONS IN THIS INSTITUTIONS [sic] “RHU” IS

[sic] ANOTHER REASON WHY I SUFFERED THESE INJURIES

BY INMATE BROWN. BECAUSE INMATE BROWN WAS ONLY

IN THE “RHU” PENDING BED AVAILABILITY HE WAS A (AC)

ADMINISTRATIVE CUSTODY INMATE.

HE, INMATE BROWN[,] KEPT TELLING THE OFFICIALS

THAT HE DID NOT BELONG IN THE “RHU” NO MORE, HIS (DC)

DISCIPLINARY CUSTODY TIME WAS OVER. LT. RININGER,

KNEW THAT THIS INMATE SHOULD HAVE BEEN OUT OF THE

“RHU,” BUT BECAUSE THERE IS NO BED SPACE IN THIS

INSTITUTION I GOT PHYSICALLY ASSAULTED.

“RELIEF THAT IM [sic] SEEKING”

AS MY MEDICAL RECORDS SHOW AND PLAINLY DONT

[sic] SHOW… IM [sic] SUFFERING EVERY DAY. HEADACHES,

PAIN IN MY FACE AND EYES, ANXIETY, NIGHTMARES . . . MY

WORLD HAS BEEN TURNED UPSIDE DOWN.

I AM ASKING THAT A [sic] INVESTIGATION INTO MY

ASSAULT BE PROPERLY DONE BECAUSE FOR SOME REASON

OFFICIALS ALLOWED ME TO SUFFER BEING ASSAULTED

WITHOUT RESPONDING IN ADEQUATE TIME.

I AM ASKING FOR A LIST OF ALL THE OFFICIALS [sic]

NAMES WHO ARE RESPONSIBLE FOR “BED AVAILABILITY”

IN THIS INSTITUTION.

I AM ASKING THAT THESE OFFICIALS BE PUNISHED

(TERMINATED) C/O ROSSE, LT JACKSON, LT RININGER, PSS.

DUNN . . . FOR NOT MAKING THE RIGHT MOVES FOR MY

SAFETY.

AS WELL, I AM SEEKING COMPENSATORY DAMAGES

FOR SUFFERING PHYSICAL INJURIES; MENTAL AND

EMOTIONAL ANGUISH.

(Defs.’ Ex. 4.)

69. Murdock did not timely file Grievance 858386 because he did not file

it within fifteen (15) working days from the events of which he was complaining,

the latest of which was March 3, 2020. (Id.; Doc. 86 at 15:24–16:8.)

70. On March 27, 2020, the same date Murdock filed Grievance 858386,

SCI Benner grievance officer J. Burd filed a “Rejection Form,” rejecting this

grievance because Murdock failed to comply with DC-ADM 804 insofar as “[t]he

issue(s) presented on the . . . grievance has been reviewed or is currently being

reviewed and addressed” via Grievance 854683. (Defs.’ Ex. 4; Doc. 86 at 16:9–

22.)

71. Murdock filed an appeal from the initial rejection to the facility

manager, which was dated April 6, 2020, and received on April 7, 2020.16 (Defs.’

Ex. 4; Doc. 86 at 16:23–17:2, 46:10–12, 47:17–19.)

72. Murdock wrote this appeal. (Doc. 86 at 46:13–16, 47:8–9.)

16 The transcript from the evidentiary hearing indicates that the grievance was

received on “August 7th of 2020.” (Doc. 86 at 17:2.) This appears to be either a

typographical error or a misstatement from the witness providing the testimony

because Murdock’s facility manager appeal is stamped as being received on April

7, 2020. (Defs.’ Ex. 4.) In addition, the witness later testified that the facility

manager remanded the grievance, which is precisely what occurred with

Murdock’s April 7, 2020 appeal to the facility manager, as discussed infra. There

was no other evidence introduced which would support a finding that Murdock

filed any appeal on August 7, 2020.

73. Upon review of Murdock’s appeal, the facility manager remanded the

grievance to the grievance officer on April 29, 2020. (Defs.’ Ex. 4; Doc. 86 at

17:3–13.)

74. In remanding the grievance, the facility manager explained:

In accordance with the provisions of DC-ADM 804, Inmate Grievance

System Policy, the Facility Manager has reviewed your initial

grievance, the initial review response, and the issues you raised in your

appeal. Upon completion of this review, it is the determination of this

Office to return your grievance to the respective Grievance Officer for

additional review and appropriate response.

. . .

In accordance with the procedures set forth in the DC-ADM 804, the

Grievance Officer will provide you with a revised response. If you

remain dissatisfied with the revised response, you may once again

appeal to the Facility Manager within 15 working days of the date of

the revised decision.

(Defs.’ Ex. 4.)

75. On April 29, 2020, the grievance officer rejected Grievance 858386

on remand due to its “failure to comply with the provisions of the DC-ADM 804.”

(Defs.’ Ex. 4; Doc. 86 at 17:24–18:1.)

76. The grievance officer stated that Grievance 858386 failed to comply

with DC-ADM 804 because it (1) “was not submitted within fifteen (15) days after

the events upon which claims are based,” (2) “exceeded the two page limit,” and

(3) presented issues which have “been reviewed or [are] currently being reviewed

and addressed” via Grievance 854683. (Defs.’ Ex. 4.)

77. On or about May 12, 2020, Murdock sent items relating to Grievance

858386 to SOIGA. (Id.; Doc. 86 at 18:5–19:9.)

78. SOIGA treated Murdock’s submission, which was dated May 12,

2020, as an appeal and, through a response dated June 1, 2020, concluded that such

an appeal was premature because he did not first file an appeal from the remanded

rejection to the facility manager. (Defs.’ Ex. 4; Doc. 86 at 18:23–19:9, 32:13–22.)

79. In SOIGA’s response,17 it explained:

I am in receipt of your appeal to this office dated 5/12/20 for the above

referenced grievance number. Please be advised, your appeal to this

office is found to be premature. Review of our tracking system finds

that the next step in your appeal process for this grievance would be to

appeal the Remanded Rejection to the Facility Manager. Once you

receive their response and if you remain dissatisfied, you may then

submit a timely written appeal to Final Review. I encourage you to

review the DC ADM 804 in its entirety to ensure you are familiar with

the grievance process.

(Defs.’ Ex. 4; Doc. 86 at 18:25–19:9, 33:8–34:5.)

80. Murdock appealed from the remanded rejection by submitting an

Inmate Appeal to Facility Manager, dated June 12, 2020, which was received by

SCI Benner staff on June 15, 2020. (Defs.’ Ex. 4; Doc. 86 at 19:13–18, 47:19–25.)

81. Murdock wrote this appeal. (Doc. 86 at 48:1–3.)

17 Michael Bell (“Bell”), a grievance officer with SOIGA since 2013, testified that

SOIGA’s response was called a “file without action,” i.e., SOIGA’s

“correspondence back to the inmate.” (Doc. 86 at 30:16–23, 32:23–33:7; Defs.’

Ex. 4.)

82. Murdock admits that Grievance 854683, Grievance 858386, his April

7, 2020 Inmate Appeal to Facility Manager, and his June 15, 2020 Inmate Appeal

to Facility Manager were legible. (Id. at 46:13–16, 47:19–48:5.)

83. In Murdock’s Inmate Appeal to Facility Manager, he provided the

following statement:

I, ERIC MURDOCK AM SEEKING A TIME EXTENSION OF

THE FOLLOWING GRIEVANCE APPEAL FOR THE REASON(S)

STATED HEREIN:

A MISINTERPRETATION OF THE GRIEVANCE SYSTEM

PROCEDURES MANUAL, DUE TO A LACK OF AVAILABILITY

TO THE INMATE LIBRARY BECAUSE OF THE PANDEMIC.

RESPECTFULLY, I ASK THAT YOU TAKE A SECOND

LOOK AT THE ISSUES PUT FORTH OF [sic] APPEAL[.]

(1) MY MEDICAL CONDITION AT THE TIME OF MY

FAILING OF THE GRIEVANCE WAS INSUFFERABLE BECAUSE

OF MY INJURIES. I WAS HOUSED IN [THE] INFIRMARY, NOT

ABLE TO MAKE RATIONAL DECISIONS.

(2) OFFICIALS IN THE INSTITUTION HAVE NOT

ADDRESSED THE FACT THAT I WAS PHYSICALLY

ASSAULTED DUE TO PRISON CONDITIONS.

(3) LT. RININGER, HAD KNOWLEDGE OF THE

OVERCROWDED CONDITIONS IN THE INSTITUTION THAT

CONTRIBUTED TO MY ASSAULT BUT FAILED TO RESPOND

REASONABLY.

(4) C/O ROSSE HAD KNOWLEDGE THAT THERE WAS A

SUBSTANTIAL RISK TO MY SAFETY BECAUSE OF INMATE

BROWN’S BEHAVIOR HISTORY.

FOR THE FOLLOWING REASON(S) I SUBMIT THIS

GRIEVANCE APPEAL BECAUSE NO ONE HAS ADDRESSED

THESE WITH ME. I LIVE WITH ANXIETY, NIGHTMARES AND

UNCERTAINTY.

(Defs.’ Ex. 4.)

84. On June 30, 2020, the facility manager issued an appeal response to

Murdock’s appeal, which upheld the remanded initial rejection. (Id.; Doc. 86 at

19:19–20:4.)

85. The facility manager’s appeal response stated:

I have reviewed your Official Inmate Grievance, Initial Grievance

Rejection, Grievance Appeal, and facts surrounding your complaint.

In investigating the issues in which you claim, I see where the

Grievance Coordinator rejected the above referenced Initial Grievance

because the grievance was not filed in accordance with departmental

policies and procedures. In your Initial Grievance, you were grieving

the fact that you [sic] on March 3, 2020 you were physically removed

from your bed and beaten by another inmate.

A review of the CAPTOR Grievance Tracking system reveals that your

Initial Grievance was received on March 27, 2020. In accordance with

DC-ADM 804, Inmate Grievance System Procedures Manual Section

1-Grievances & Initial Review A. 8. The [sic] inmate must submit a

grievance to the Facility Grievance Coordinator/designee, usually the

Superintendent’s Assistant, within 15 working days after the event upon

which the claim is based.

In addition, your Initial Grievance consisted of three pages. In

accordance with DC-ADM 804, Inmate Grievance System Procedures

Manual Section 1-Grievances & Initial Review A. 12. The [sic]

statement of facts must not exceed two pages and must be handwritten

or typed on writing paper (one DC-804, Part 1 and one one-sided 8 ½”

x 11” page).

Lastly, the issues that you presented within this Initial Grievance were

previously addressed within Initial Grievance #854683. In accordance

with DC-ADM 804, Inmate Grievance System Procedures Manual

Section 1-Grievances & Initial Review A. 15. Any [sic] grievance issue

that has been or is currently being addressed will not be re-addressed in

a subsequent grievance.

Based on the information provided, I do not see where your grievance

was filed in accordance with departmental policy and procedures.

The Initial Grievance Rejection is Upheld.

(Defs.’ Ex. 4; Doc. 86 at 19:25–20:20.)

86. According to Bell’s review of SOIGA’s file for Grievance 858386,

Murdock never submitted an appeal from the facility manager’s appeal response to

SOIGA. (Doc. 86 at 34:11–15.)

87. Nevertheless, Murdock typed, signed, and sent a letter, dated July 7,

2020, and titled, “INMATE APPEAL TO FINAL REVIEW,” to SOIGA (“July 7th

Letter”). (Pl.’s Ex. 2;18 Doc. 86 at 41:17–42:7, 49:8–50:15.)

88. Murdock asserts that he had to type the July 7th Letter because the

prison, which was amid the COVID-19 pandemic, lacked inmate appeal to SOIGA

forms. (Doc. 86 at 42:8–13.)

89. In the July 7th Letter, Murdock stated as follows:

Grievant incorporates by reference herein, as if stated here in full and

at length, the initial grievance, attachments & Petitioners [sic] DOC

18 During the hearing, the Court took the admissibility of this exhibit under

advisement. (Doc. 86 at 41:13–14, 42:14–16.) The Court finds Plaintiff’s Exhibit

2 to be authentic and admissible.

medical records. I can only hope & pray, that the honorable men and

women in your office will not allow the viscious [sic] attack, that I was

subjected too [sic], to be eclipsed by something as frivolous as “one

extra piece of paper”. The assault I fell victim to in your facilities [sic]

RHU, exposes your current training curriculum’s flaws, is contrary to

law and fails to protect.

Requested relief is warranted.

(Pl.’s Ex. 2.)

90. Along with the July 7th Letter, Murdock asserts that he typed, signed,

and sent a document dated July 7, 2020, and titled, “INMATE APPEAL TO FINAL

REVIEW GRIEVANCE--ATTACHMENT,” to SOIGA (“July 7th Attachment”).19

(Pl.’s Ex. 3;20 Doc. 86 at 42:24–43:12; 51:6–9.)

91. Murdock testified that he had to type the July 7th Attachment because

the prison lacked the forms for him to file an appeal. (Doc. 86 at 43:13–15.)

92. The July 7th Attachment states as follows:

Grievant incorporates by reference herein, as if stated here in full and

at length, the initial grievance, attachments & Petitioners [sic] DOC

medical records.

19 Although Plaintiff testified that he sent this document to SOIGA, it is unclear

whether he included it with the July 7th Letter or sent it separately. Unlike the July

7th Letter, the July 7th Attachment does not contain SOIGA’s address in

Mechanicsburg. In addition, while Murdock titled the document as being related to

his Inmate Appeal to Final Review, the body of the document (as indicated below)

appears to relate to his June 15, 2020 Inmate Appeal to Facility Manager.

20 During the hearing, the Court also took the admissibility of this exhibit under

advisement. The Court finds Plaintiff’s Exhibit 3 to be authentic and admissible.

I’m reaching back out to you, for a response to my last appeal filed,

6/12/20. The (15) days in which you were to respond per DC-ADM

804, expired 7/3/20. The “Remanded Rejection”, dated 4/29/20,

authored by (F.G.C[.]) J. Burd, is hereby denied as incorrect contrary to

the facts and otherwise meritless. The assault I fell victim to in your

facilities [sic] RHU, exposes your current training curriculum’s flaws,

is contrary to law and fails to protect.

Requested relief is warranted.

(Pl.’s Ex. 3.)

93. SOIGA sent Murdock a document dated August 3, 2020, and titled,

“ACTION REQUIRED” (“SOIGA’s AR”) seemingly in response to one of

Murdock’s July 7, 2020 documents. (Defs.’ Ex. 7.)21

94. SOIGA’s AR references Grievance 858386. (Id.)

95. SOIGA’s AR informed Murdock that:

Review of the information you provided indicates that your appeal is

incomplete. You are not permitted to appeal to this office unless you

have complied with the procedures established in the DC-ADM 804

requiring that all documentation relevant to the appeal be provided

upon appeal. Therefore, you have fifteen (15) working days from the

date of this notice to provide this office with all completed documents

necessary for conducting final review. A failure to provide the missing

information (identified below) within this time period may result in a

dismissal of your appeal. Further, any future appeals received that do

not contain the required documents may result in an immediate

dismissal. This notice is only a courtesy of this office and may not be

provided again.

(Id.)

21 Prior to the evidentiary hearing, Murdock had not provided SOIGA’s AR to his

counsel and, as such, it had not been provided to defense counsel. (Doc. 86 at

51:19–22, 52:5–10.) Nevertheless, counsel reviewed it during the hearing.

96. SOIGA’s AR also informed Murdock that he needed to provide

SOIGA with his (1) “Initial review response and/or rejection” and (2) “Remanded

initial review response or rejection.” (Id.; Doc. 86 at 54:14–19.)

97. SOIGA’s AR was signed by Grievance Review Officer Amanda West.

(Defs.’ Ex. 7.)

98. SOIGA’s AR treated Murdock’s filing as an appeal to final review.

(Defs.’ Ex. 7.)

99. Murdock asserts that SOIGA’s AR serves as proof that he mailed the

July 7th Letter and July 7th Attachment to SOIGA. (Doc. 86 at 50:16–23, 51:6–

12.)

100. In response to SOIGA’s AR, Murdock sent a letter dated August 11,

2020, to Ms. West, in which he purports to include a copy of the Initial Review

Response and Remanded Initial Review Response (“August 11th Letter”). (Id. at

54:20–24, 55:11–16; Defs.’ Ex. 8.)

101. Murdock never received a response to the August 11th Letter. (Doc.

86 at 55:11–16.)

102. Bell did not see the August 11th Letter in his review of the SOIGA file

for Grievance 858386. (Id. at 57:18–24.)

C. Analysis Relating to Administrative Exhaustion

The failure to exhaust available administrative remedies “is an affirmative

defense under the PLRA.” See Jones, 549 U.S. at 216. As such, “[t]he burden to

plead and prove failure to exhaust as an affirmative defense rests on the

defendant.” See Rinaldi, 904 F.3d at 268 (citing Ray v. Kertes, 285 F.3d 287, 295

(3d Cir. 2002)). However, “once the defendant has established that the inmate

failed to resort to administrative remedies, the onus falls on the inmate to show that

such remedies were unavailable to [them].” See id. (citation omitted).

Here, Defendants argue that Murdock failed to exhaust his administrative

remedies as to Grievances 854683 and 858386. (Doc. 89 at 15–19.) Concerning

Grievance 854683, Defendants point out that Murdock withdrew this grievance

and, as such, never appealed it to SOIGA. (Id. at 15.) They also argue that

Murdock’s excuses for withdrawing his grievance are meritless and otherwise do

not show that any administrative remedies were unavailable to him. (Id. at 16–17.)

Regarding Grievance 858386, Defendants contend that Murdock failed to exhaust

his claims in this grievance because he never properly appealed it to SOIGA. (Id.

at 18.) Defendants further contend that Murdock procedurally defaulted his claims

because (1) he filed an untimely grievance, (2) his grievance was a page too long,

and (3) he had previously filed and withdrew a grievance relating to the same

events. (Id. at 17–18.)

In response to Defendants’ arguments, Plaintiff contends that he exhausted

his administrative remedies because the administrative appeal process was

unavailable to him insofar as SOIGA failed to respond to his appeal. (Doc. 90 at

2–3.) He also points out that even if he untimely filed Grievance 858386, “[a] late

filing that the system accepts and resolves on the merits satisfies the exhaustion

requirement.” (Id. at 2 (citations omitted)). He further argues that equitable tolling

applies to the filing of Grievance 858386 because he was in fear for his life when

he withdrew Grievance 854683. (Id. at 3.)

This Court must initially address the parties’ dispute over whether Murdock

appealed from the facility manager’s June 30, 2020 decision upholding the denial

of Grievance 858386 due to its failure to comply with DC-ADM 804. As the

factual record sufficiently shows, the resolution of this dispute is simple: Murdock

appealed from the facility manager’s June 30, 2020 decision to SOIGA. Even

though Bell testified that SOIGA’s records did not show any appeal, SOIGA

responded to something (presumably the July 7th correspondence) Murdock sent it

via SOIGA’s AR. In addition, the record demonstrates that SOIGA recognized

Murdock had appealed to final review as demonstrated through several statements

in SOIGA’s AR:

• “This serves to acknowledge receipt of information based on your

intent to appeal the grievance noted below to final review.”

• “Review of the information you provided indicates that your appeal

is incomplete.”

• “A failure to provide the missing information (identified below)

within this time period may result in a dismissal of your appeal.”

(Defs.’ Ex. 7.)

Strangely, Defendants do not mention SOIGA’s AR in their proposed

findings of fact and conclusions of law despite its apparent authenticity and

relevance to the administrative exhaustion issue. Equally as strange is that this

document was not in SOIGA’s records for Grievance 858386 according to Bell’s

review of SOIGA’s records related to Murdock filed in March 2020. (Doc. 86 at

32:13–16, 34:11–15.) Instead, the only appeal to final review document in

Murdock’s SOIGA file was his May 12, 2020 premature appeal to final review,

which he improperly filed prior to appealing the decision on his remanded

grievance to the facility manager. (Id. at 32:17–34:10.)

Putting SOIGA’s record-keeping issues aside, even though Murdock filed an

appeal to final review, SOIGA’s AR shows that the appeal was incomplete insofar

as Murdock had failed to attach two documents to his appeal. (Defs.’ Ex. 7.)

Murdock claims that he responded to SOIGA’s AR by sending the requested

documents along with the August 11th Letter. (Defs.’ Ex. 8.) The Court finds

Murdock’s claim to be credible, i.e., he properly and timely responded to SOIGA’s

AR by mailing the requested documents to SOIGA. Although Murdock mailed the

requested documents, there is, unfortunately, no evidence in the record that SOIGA

ever received them, as Murdock does not have any documentation showing that

SOIGA received his August 11th Letter with attachments, and it is not included in

SOIGA’s records. This being the case, the question turns to how to resolve these

circumstances where Murdock did what he was supposed to do (by timely

appealing to SOIGA and then timely responding to SOIGA’s request for

documents), but SOIGA seemingly could not do what it was supposed to do if it

did not have the requested documents. Both Murdock and SOIGA appear to be

blameless. Nevertheless, upon closer examination, it appears that SOIGA is the

erring entity.

As already explained, SOIGA’s AR shows it received Murdock’s appeal to

final review. Once it received the appeal, it had to issue a decision on the appeal.

See DC-ADM 804 § 2.B.2.e. (“SOIGA will issue a decision with one of the

following dispositions: Uphold response, Uphold Inmate, Dismiss, or Uphold in

Part/Deny in Part.”). If Murdock timely supplied the missing documents, SOIGA

would have ruled on his appeal. If Murdock did not, which would have occurred if

SOIGA did not have his August 11th Letter in its file, then SOIGA should have

dismissed the appeal or possibly requested the additional information again. See

(Defs.’ Ex. 7 (explaining that SOIGA’s AR “is only a courtesy of this office and

may not be provided again”)). SOIGA acknowledged as much in SOIGA’s AR

when it admonished Murdock: “A failure to provide the missing information . . .

within this time period may result in a dismissal of your appeal.” (Id.) Yet,

presuming SOIGA did not receive Murdock’s August 11th Letter, it neither

dismissed the appeal nor requested the missing information again. Ultimately,

SOIGA’s failure to decide Murdock’s appeal means that the appeals process was

unavailable to him for exhaustion purposes. See Shifflett v. Korzniak, 934 F.3d

356, 365 (3d Cir. 2019) (“[A]s 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); Small, 728 F.3d at 273

(concluding that prison’s failure to respond to grievance excused plaintiff’s failure

to appeal because he had nothing to appeal from and, therefore, “the appeals

process was unavailable to him”); see also DeFranco v. Miller, No. 20-cv-00368,

2023 WL 3876779, at *6 (W.D. Pa. Mar. 23, 2023) (concluding that administrative

remedies under DC-ADM 804 were unavailable to plaintiff who submitted appeal

of denied grievance to final review, SOIGA never received appeal due to apparent

mail system issues, and SOIGA never responded to appeal), report and

recommendation adopted, 2023 WL 3170400 (W.D. Pa. May 1, 2023).

Having concluded that the final appeal process was unavailable to Murdock

due to SOIGA’s failure to address his appeal, the next question for the Court to

consider is the effect this determination has on Murdock’s claims here. In

particular, the record before the Court shows that, inter alia, Murdock did not

submit Grievance 858386 in accordance with DC-ADM 804 because he untimely

filed it and improperly used three pages for it.22 These were two of the three

procedural defects the grievance officer identified in the remanded initial review

22 Murdock attempts to challenge the untimeliness of his grievance by arguing that

equitable tolling should apply. (Doc. 90 at 3.) Although at least one other circuit

court has determined that equitable tolling may apply in the PLRA exhaustion

context, see Wendell v. Asher, 162 F.3d 887 (5th Cir. 1998), overruled by

implication on other grounds by Jones, 549 U.S. at 216, the Third Circuit Court of

Appeals has not. Even if the principle of equitable tolling did apply to the

deadlines in DC-ADM 804, it would not assist Murdock here.

Regarding applying equitable tolling, it

is to be “applied sparingly.” Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002). Its use is appropriate in three principal, though

non-exclusive, circumstances: “(1) where the defendant has actively

misled the plaintiff respecting the plaintiff's cause of action; (2) where

the plaintiff in some extraordinary way has been prevented from

asserting his or her rights; or (3) where the plaintiff timely asserted his

or her rights mistakenly in the wrong forum.” Oshiver v. Levin,

Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994),

abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 4[2]2, 428

(3d Cir. 2018) (en banc).

Bello v. Capital One Bank USA N.A., No. 23-2758, 2024 WL 2794418, at *3 (3d

Cir. May 31, 2024) (unpublished). Here, while Murdock claims an entitlement to

equitable tolling because he withdrew Grievance 854683 out of fear for his life, the

Court finds that his purported fear, which the Court determines is incredible, is, in

any event, insufficient to warrant equitable tolling. Murdock admitted that no one

coerced him or caused him to withdraw his grievance, and he has not shown that

this fear constitutes an “extraordinary way” in which he was prevented from

asserting his rights.

response as reasons to deny Grievance 858386, and they were also the reasons the

facility manager provided for upholding the grievance denial.23 Ordinarily, these

procedural defects would result in the procedural default of Murdock’s Section

1983 claims. See Spada v. Martinez, 663 F. App’x 112, 114–15 (3d Cir. 2016)

(unpublished) (“Judgment in favor of Martinez on the ground that Spada

procedurally defaulted his available administrative remedies was proper because

Spada did not substantially comply with the prison grievance process, resulting in

the rejection of his grievance not on the merits but as untimely filed . . . .”); Watson

23 The Court recognizes that the third defect identified was Murdock grieving an

event that was part of Grievance 854683, which Murdock voluntarily and

knowingly withdrew. Although this does not affect the Court’s resolution of this

matter, the Court notes that third defect appears to be a questionable ground for

denying Murdock’s grievance. It essentially means that if an inmate withdraws

their grievance, they are precluded from filing another grievance relating to the

events of the withdrawn grievance. It is unclear that there is support for this in

DC-ADM 804.

DC-ADM 804 provides that “[a]t any point in the grievance process, the

inmate may withdraw the grievance” using the Grievance Withdrawal Form. See

DC-ADM 804 § 1.A.25. This form does not inform the inmate that withdrawing

the grievance precludes the inmate from raising the issue identified therein in a

future grievance. (Defs.’ Ex. 3.) In addition, DC-ADM 804 itself does not state

that an inmate is precluded from grieving an event raised in a withdrawn

grievance. Instead, it states that “[o]nce a grievance is withdrawn, the inmate

cannot then proceed to appeal to either the Facility Manager or Final Review.”

DC-ADM 804 § 1.A.25.e. Furthermore, only if a grievance is “addressed” will the

inmate be precluded from re-raising a claim from a prior grievance. Id. § 1.A.15

(“Any grievance issue that has been or is currently being addressed will not be re-

addressed in a subsequent grievance.”). It is unclear whether withdrawing a

grievance means that the grievance was “addressed” under DC-ADM 804.

v. Fisher, 558 F. App’x 141, 144 (3d Cir. 2014) (unpublished) (“An untimely or

otherwise procedurally defective administrative grievance or appeal results in a

procedural default and does not satisfy the exhaustion requirement, thereby

precluding an action in federal court.”). Given this determination, does the Court’s

conclusion that the final appeal process was unavailable to Murdock excuse his

procedural default? The Court concludes that it does not.

In researching this issue, the Court could not locate an appellate or district

court decision addressing the factual scenario presented here, i.e., where an

inmate’s initial grievance and appeal to facility manager are denied on procedural

grounds but then SOIGA failed to respond to the inmate’s appeal to final review,

thus rendering that final review unavailable for exhaustion purposes. Nevertheless,

existing precedent supports the Court’s conclusion that this unavailability

determination does not excuse Murdock’s procedural default. In this regard, the

Court’s unavailability determination here relates only to “whether [Murdock] has

exhausted his administrative remedies in the literal sense-whether further avenues

of relief are available to him within the prison’s inmate grievance process.”

Spruill, 372 F.3d at 232. Thus, SOIGA’s failure to respond to Murdock’s appeal to

final review only means that Murdock “has no further administrative process

available” to him. Id.

Turning to the “procedural default component,” id., Murdock’s procedural

default is not excused because the unavailability of final review is not related to the

procedural defects with Grievance 858386 identified on initial review and on

appeal to the facility manager. In addition, Murdock’s procedural default is not

excused because this grievance was never addressed on the merits at any level of

the grievance process, including the highest authority, SOIGA. See Rinaldi, 904

F.3d at 271 (“[W]here a prison disregards its own procedures and rejects an

inmate’s otherwise procedurally defaulted complaint on the merits, the claim is

‘properly exhausted’ under the PLRA.”). For the Court to determine Murdock’s

procedural default is excused, the Court would have to either (1) conclude that

SOIGA’s failure to respond to Murdock’s appeal equates to a decision on the merits

of his grievance or (2) presume that SOIGA would have, for the first time in

Murdock’s grievance process, addressed his grievance on the merits. There is no

legal support for the Court to do so. Accordingly, the Court concludes that

Defendants have satisfied their burden to show Murdock failed to properly exhaust

his administrative remedies.24

24 Although Defendants have not raised this issue in their submission, any Section

1983 claim Murdock would have against Terra would be procedurally defaulted

because Murdock failed to name him in Grievance 858386, and he is not

referenced in any other document created during the processing of that grievance.

See Spruill, 372 F.3d at 234 (explaining that, unless excused, prisoner plaintiff’s

failure to name defendant in grievance results in procedural default of Section

1983 claim against that defendant).

D. Conclusions of Law Relating to Administrative Exhaustion25

1. Murdock knowingly and voluntarily withdrew Grievance 854863.

2. Murdock failed to administratively exhaust Grievance 854683.

3. Murdock both appealed from the facility manager’s upholding of the

denial of his remanded grievance and supplied SOIGA with the missing documents

identified in SOIGA’s AR.

4. Due to SOIGA’s failure to respond to Murdock’s appeal to final

review, the final appellate process under DC-ADM 804 was unavailable to him.

5. Grievance 858386 was untimely filed.

6. Grievance 858386 was one page longer than permitted under DC-

ADM 804.

7. Murdock’s claims raised in Grievance 858386 are procedurally

defaulted due to his failure to file his grievance in compliance with the

requirements of DC-ADM 804.

8. The unavailability of the final appellate process under DC-ADM 804

for Murdock does not excuse Murdock’s procedurally defaulted claims against

Defendants.

25 The Court incorporates the prior discussion relating to exhaustion in Section

II.A. of this Memorandum and the analysis in Section II.C. herein.

9. Defendants have met their burden to demonstrate Murdock failed to

exhaust his administrative remedies as to the remaining Section 1983 claims

against Defendants.

10. Defendants are entitled to judgment in their favor on Murdock’s

remaining Section 1983 claims against them.

11. Judgment in favor of Defendants on Murdock’s remaining Section

1983 claims leaves only Murdock’s claim for prospective injunctive relief under

the Pennsylvania Constitution for the Court’s consideration.

12. The Court lacks an independent basis for subject-matter jurisdiction

over Murdock’s claim under the Pennsylvania Constitution because the parties are

not completely diverse for purposes of 28 U.S.C. § 1332.

13. The Court declines to exercise supplemental jurisdiction over

Murdock’s claim for prospective injunctive relief under the Pennsylvania

Constitution and will dismiss this claim without prejudice to Murdock refiling it in

an appropriate Pennsylvania state court. See 28 U.S.C. § 1367(c)(3); United Mine

Workers of Am. v. Gibbs, 383 U.S. 715, 726–27 (1966).

An appropriate Order follows.

s/ Sylvia H. Rambo

SYLVIA H. RAMBO

United States District Judge