Andino-Hernandez v. Mason

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

EUGENIO ANDINO-HERNANDEZ, :

Plaintiff : CIV. ACTION NO. 3:21-CV-1570

v. : (JUDGE MANNION)

MS. MASON, et al., :

Defendants :

MEMORANDUM

Presently before the court in this prisoner civil rights case are plaintiff’s

motion to compel discovery and defendant’s motions for summary judgment.

For the reasons set forth below, the motion to compel discovery will be

denied, the motions for summary judgment will be granted in-part, all

defendants other than Torres, Martin, Gavala, Derr, and Matrey will be

granted summary judgment and terminated from this case, and the court will

grant the remaining defendants leave to file a second motion for summary

judgment with respect to plaintiff’s Eighth Amendment claim arising from his

fall on February 24, 2020.

I. BACKGROUND

Plaintiff, Eugenio Andino-Hernandez, an inmate in Mahanoy State

Correctional Institution (“SCI-Mahanoy”) who was incarcerated in that prison

during the events at issue in this case, brings the instant case pursuant to 42

U.S.C. §1983. (Doc. 1). Andino-Hernandez alleges Eighth Amendment,

Fourteenth Amendment, and ADA violations from two separate incidents that

occurred at SCI-Mahanoy. (Id.) Specifically, Andino-Hernandez claims that

on October 19, 2019, he was moved to Cell #2 in the restricted housing unit

(“RHU”) at SCI-Mahanoy. (Id. at 8). He alleges that, although he had “bottom

bunk status” due to having an I.V.C. Filter in his Vena Cava Vein, he was

instructed to enter the cell with another inmate who already occupied the

bottom bunk. (Id. at 8-9). Shortly thereafter, Andino-Hernandez fell while

dismounting the top bunk. (Id.) He claims the nurse and staff failed to provide

immediate medical treatment following his fall. (Id.)

Several months later, on February 24, 2020, Andino-Hernandez

alleges he was forced to use a non-handicap shower over his objections and

fell, hitting his lower back on the shower step. (Id. at 18). Andino-Hernandez

files the instant action seeking compensatory and punitive damages for “the

injuries sustained and suffered” as a result of defendants' “medical

indifference and negligence, in violation of Eighth Amendment, Americans

with Disabilities Act and Medical Professionalism.” (Id. at 25).

On March 24, 2023, the court granted in part and denied in part

defendants’ motions to dismiss, dismissing the complaint to the extent that it

asserted claims for deliberate indifference to a serious medical need,

violation of the ADA, or violation of state law, but allowing Andino-

Hernandez’s Eighth Amendment conditions of confinement claim to proceed.

(Docs. 38-39). Defendants Correct Care Solutions, Wellpath LLC, Williams,

O’Brien, Baddick, and Bora (“medical defendants”) answered the complaint

on April 13, 2023. (Doc. 40). Defendants Mason, White, Stetler, Steinhart,

Brown, Beury, Matrey, Burger, Torres, Derr, Taylor, Gavala, Martin, Hauser,

Jankowski, Krill, Long, and Ramer (“corrections defendants”) answered the

complaint on April 28, 2023. (Doc. 41).

Andino-Hernandez filed a motion to compel discovery on February 6,

2024. (Doc. 62). The corrections defendants filed a motion for summary

judgment on February 27, 2024, arguing that they are entitled to summary

judgment because Andino-Hernandez failed to exhaust administrative

remedies with respect to his claim arising from his fall from a top bunk. (Docs.

66-67). The corrections defendants additionally argue that defendants Nurse

Alicia, Rammer, Hauser, Matrey, Steinhart, White, Taylor, Stetler, Nurse

Jackie, Nurse Tina, and Mason are entitled to summary judgment because

they were not personally involved in Andino-Hernandez’s remaining claims.

(Id.) The medical defendants then moved for summary judgment on March

28, 2024. (Docs. 71, 73).

Andino-Hernandez filed a brief responding to the motions for summary

judgment on May 10, 2024. (Doc. 78). Andino-Hernandez concedes that

summary judgment is appropriate as to Hauser, Matrey, Jackie, Tina, Stetler,

Mason, Taylor, White, Alicia, Ramer, Steinhart, Rodgers, Baddick, O’Brien,

Bora, and Williams, but he opposes the corrections defendants’ motion to

the extent that it seeks summary judgment for his purported failure to exhaust

administrative remedies. (Id.) Defendants filed reply briefs on May 23, 2024,

and May 24, 2024, making the motions ripe for review. (Docs. 79-80).

II. MOTION TO COMPEL DISCOVERY

The court will first consider Andino-Hernandez’s motion to compel

discovery. Andino-Hernandez seeks to compel defendants to produce

copies of his medical records and any incident reports that were authored by

Pennsylvania Department of Corrections (“DOC”) staff following the

incidents that give rise to his claims. (Doc. 62).1 Andino-Hernandez notes

that when he initially requested his medical records from the defendants,

they responded that the records could be obtained directly from the DOC’s

1 Andino-Hernandez has not filed a brief in support of the motion as required

by Local Rule 7.5. Although this would ordinarily be cause to deem the

motion withdrawn, see M.D. Pa. L.R. 7.5, the court will consider the motion

to compel discovery on its merits in light of Andino-Hernandez’s pro se status

and the fact that the corrections defendants have responded to the merits of

the motion. (See Doc. 63).

medical department. (Id.) Andino-Hernandez acknowledges that he could

make such a request to the medical department, but he represents that the

department will charge a $20 retrieval fee plus $1.00 for every page of the

records. (Id.) Andino-Hernandez states he cannot afford such charges. (Id.)

The corrections defendants oppose the motion, noting that DOC policy

allows Andino-Hernandez to obtain his medical records directly from the

DOC and that he can contact the outside hospital directly for any medical

records that are not in the DOC’s possession. (Doc. 63). As for Andino-

Hernandez’s request for incident reports, defendants note that no such

reports were authored with the exception of “accident reports” that would be

contained within his medical records. (Id.) Andino-Hernandez has not

responded to these contentions through a reply brief or any other document.

The court will deny the motion to compel discovery to the extent that it

seeks to compel production of any incident reports related to the underlying

incidents. The corrections defendants represent that no such evidence

exists, and Andino-Hernandez has not rebutted this contention. The court

“cannot compel the production of things that do not exist. Nor can the court

compel the creation of evidence by parties who attest that they do not

possess the materials sought by an adversary in litigation.” Tech v. United

States, 284 F.R.D. 192, 198 (M.D. Pa. 2012).

The court will also deny the motion to compel discovery, with respect

to Andino-Hernandez’s medical records. Indigent civil litigants generally

must bear their own litigation costs. While a district court may, as part of its

inherent equitable power to manage discovery, order defendants to provide

copies to plaintiff of documents that are already in their possession under

certain circumstances. The court sees no reason to deviate from the normal

requirements that a plaintiff, including pro se plaintiffs, must fund their own

litigation and it is not the government’s burden to fund pro se litigation. Cf.

Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993)

Because it does not appear that any of this discovery would be

necessary to resolve the instant motions for summary judgment, however,

the court will proceed to consideration of those motions.

III. ALL DEFENDANTS WHO PROVIDED MEDICAL CARE TO ANDINO-HERNANDEZ

WILL BE GRANTED SUMMARY JUDGMENT

At the outset, the court will grant summary judgment to defendants

Hauser, Matrey, Jackie, Tina, Stetler, Mason, Taylor, White, Alicia, Ramer,

Steinhart, Rodgers, Baddick, O’Brien, Bora, and Williams,2 because Andino-

Hernandez concedes that summary judgment is appropriate against these

defendants for lack of personal involvement. (Doc. 78 at 8).

2 This defendant is identified by her first name in Andino-Hernandez’s brief

as “Jenna.” (See Doc. 78 at 8).

The court additionally finds that summary judgment is appropriate with

respect to defendants Correct Care Solutions and Wellpath LLC because

Andino-Hernandez has not alleged that either company maintained a policy

or custom that caused the alleged violations of his civil rights. See Palakovic

v. Wetzel, 854 F.3d 209, 232 (3d Cir. 2017) (“To state a claim against a

private corporation providing medical services under contract with a state

prison system, a plaintiff must allege a policy or custom that resulted in the

alleged constitutional violations at issue.” (citing Natale v. Camden Cnty.

Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003))).

Considering these conclusions, the medical defendants’ motion for

summary judgment will be granted in its entirety, as will the portion of the

corrections defendants’ motion seeking summary judgment for lack of

personal involvement. The court’s analysis will therefore only address the

corrections defendants’ argument that summary judgment on Andino-

Hernandez’s conditions of confinement claim is warranted for failure to

exhaust administrative remedies. The below material facts section will

accordingly only address facts that are pertinent to the exhaustion issue.

IV. FACTS REGARDING EXHAUSTION3

Exhaustion of administrative remedies in the DOC is governed by the

three-step process outlined in the DOC’s grievance policy, DC-ADM 804.

(See Doc. 67-1 at 7-41). Under DC-ADM 804, a prisoner must first submit a

written grievance within fifteen working days from the date of the incident.

Id. §1(A)(8). DC-ADM 804 provides that the grievance must include “a

statement of the facts relevant to the claim,” “identify individuals directly

involved in the events,” and “specifically state any claims [the inmate] wishes

to make concerning violations of Department directives, regulations, court

orders, or other law.” Id. §1(A)(11). Next, the prisoner must submit a written

appeal to an intermediate review level within fifteen working days. Id.

3 As required by Local Rule 56.1, defendants have filed statements of

material facts. (Docs. 68, 72). Rule 56.1 also requires that the party opposing

a motion for summary judgment file a statement responding to the numbered

paragraphs in the movant's statement of material facts, which “shall include

references to the parts of the record” that supports the nonmovant’s

opposition to the motion. L.R. 56.1. Andino-Hernandez has not filed a

response to defendants’ statements as required by Rule 56.1, but he has

cited record evidence which he contends establishes genuine issues of

material fact. Although Andino-Hernandez’s failure to respond to defendants’

statements would ordinarily lead to the factual contentions in the defendants’

statements being deemed admitted, see L.R. 56.1, the court will consider the

evidence he has produced and determine whether it creates a genuine issue

of material fact in light of his pro se status. Where defendants have asserted

a fact in their statement and Andino-Hernandez has not produced any

evidence that would rebut that fact, the court will cite directly to defendants’

statement of material facts.

§2(A)(1)(a). Finally, the inmate must submit an appeal to the Secretary’s

Office of Inmate Grievances and Appeals (“SOIGA”) within fifteen working

days. Id. §2(B)(1)(b).

Andino-Hernandez filed five grievances between October 19, 2019,

and December 31, 2019. (Doc. 68 ¶ 5). It is undisputed that Andino-

Hernandez failed to exhaust four of the five grievances by properly appealing

the grievances through all stages of administrative review. (See Doc. 68 ¶¶

7-10).

The only grievance for which the parties dispute the relevant facts is

grievance number 831781. Andino-Hernandez filed that grievance on

October 28, 2019, complaining about, inter alia, defendants’ alleged

deliberate indifference that caused his fall on October 19, 2019. (See Doc.

67-1 at 43-44). On October 30, 2019, SCI-Mahanoy’s facility grievance

coordinator rejected the grievance for failure to comply with DC-ADM 804,

noting that “[g]rievances based upon different events must be presented

separately” and that grievance number 831781 grieved several issues,

including Andino-Hernandez’s “bottom bunk status, housing, officer

responses, healthcare, medical practice, etc.” (Id. at 45).

Andino-Hernandez appealed the rejection to the facility manager on

November 1, 2019. (Doc. 68 ¶ 6; Doc. 67-1 at 46). The facility manager

rejected the appeal on procedural grounds on November 19, 2019,

upholding the facility grievance coordinator’s decision to reject the initial

grievance for failure to grieve separate issues in separate grievances. (See

Doc. 67-1 at 47).

Defendants contend that upon receiving the rejection from the facility

manager, Andino-Hernandez did not file a final appeal to SOIGA. (Doc. 68 ¶

6). Andino-Hernandez disputes this contention, asserting that he did file an

appeal to SOIGA, but that SOIGA never responded to the appeal. (Id. at 5).

Andino-Hernandez has filed several documents to support this contention,

including (1) the appeal he purportedly filed to SOIGA; (2) a follow-up letter

he purportedly sent to SOIGA on January 8, 2020, inquiring why he had not

received a response from SOIGA; (3) a second follow-up letter he

purportedly sent to SOIGA on February 11, 2020, inquiring why he had not

received a response; and (4) a cash slip that purports to deduct the cost of

postage to mail the appeal to SOIGA from Andino-Hernandez’s prisoner trust

account. (See Docs. 78-1, 78-2, 78-3, 78-4).

Corrections defendants assert that the evidence Andino-Hernandez

has filed to support his contention that he appealed to SOIGA is “highly

suspect, for several reasons.” (Doc. 80 at 10). Corrections defendants first

note that SOIGA has no record of ever receiving Andino-Hernandez’s appeal

or either one of his letters or of any responses SOIGA sent to these

documents. (Id.) Second, corrections defendants note that Andino-

Hernandez “has filed literally hundreds of grievances and appeals on the

docket” of this case, but that he “curiously” did not file the relevant appeal to

SOIGA on the docket until he opposed the motion for summary judgment.

(Id. at 10 n.2). Third, corrections defendants note that although the cash slip

that purportedly shows payment of postage for the appeal to SOIGA

indicates that Andino-Hernandez was charged $0.78 for the postage on

November 25, 2019, prison financial records do not indicate that such an

amount was deducted from Andino-Hernandez’s account on that date or any

other time shortly thereafter. (Id. at 11). Finally, corrections defendants note

that although the purported appeal to SOIGA and the cash slip indicate that

Andino-Hernandez was housed in cell EB 27 at SCI-Mahanoy on November

23, 2019, his prison housing records state that he was actually housed in

Lehigh County Correctional Facility on November 23, 2019, and that he was

not returned to SCI-Mahanoy until December 3, 2019. (Id.)

V. STANDARD OF REVIEW

Summary judgment is appropriate “if the pleadings, the discovery

[including, depositions, answers to interrogatories, and admissions on file]

and disclosure materials on file, and any affidavits show that there is no

genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.

v. Catrett, 477 U.S. 317, 322-23 (1986); Turner v. Schering-Plough Corp.,

901 F.2d 335, 340 (3d Cir. 1990). A factual dispute is genuine if a reasonable

jury could find for the non-moving party, and is material if it will affect the

outcome of the case under governing substantive law. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986); Aetna Cas. & Sur. Co. v. Ericksen,

903 F. Supp. 836, 838 (M.D. Pa. 1995). At the summary judgment stage,

“the judge's function is not himself to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.”

Anderson, 477 U.S. at 249; see also Marino v. Indus. Crating Co., 358 F.3d

241, 247 (3d Cir. 2004) (a court may not weigh the evidence or make

credibility determinations). The court must consider all evidence and

inferences drawn therefrom in the light most favorable to the non-moving

party. Andreoli v. Gates, 482 F.3d 641, 647 (3d Cir. 2007).

To prevail on summary judgment, the moving party must affirmatively

identify those portions of the record which demonstrate the absence of a

genuine issue of material fact. Celotex, 477 U.S. at 323-24. The moving party

can discharge that burden by showing that “on all the essential elements of

its case on which it bears the burden of proof at trial, no reasonable jury could

find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir.

2003); see also Celotex, 477 U.S. at 325. If the moving party meets this initial

burden, the non-moving party “must do more than simply show that there is

some metaphysical doubt as to material facts,” but must show sufficient

evidence to support a jury verdict in its favor. Boyle v. County of Allegheny,

139 F.3d 386, 393 (3d Cir. 1998) (quoting Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1986)). However, if the non-moving

party “fails to make a showing sufficient to establish the existence of an

element essential to [the non-movant's] case, and on which [the non-movant]

will bear the burden of proof at trial,” Rule 56 mandates the entry of summary

judgment because such a failure “necessarily renders all other facts

immaterial.” Celotex Corp., 477 U.S. at 322-23; Jakimas v. Hoffman-La

Roche, Inc., 485 F.3d 770, 777 (3d Cir. 2007).

VI. DISCUSSION

As discussed above, the sole remaining issue for which the court must

address the merits of the pending summary judgment motions is corrections

defendants’ argument that Andino-Hernandez failed to exhaust

administrative remedies with respect to his Eighth Amendment conditions of

confinement claim. The court’s discussion is further narrowed to the specific

issue of whether Andino-Hernandez exhausted administrative remedies with

respect to grievance number 831781 because Andino-Hernandez has not

disputed defendants’ contention that he failed to properly appeal the other

four grievances he filed between October 19, 2019, and December 31, 2019,

through all stages of administrative review. (See Doc. 68 ¶¶ 5-10). With the

discussion appropriately cabined, the court turns its attention to the

remaining issue of whether Andino-Hernandez exhausted administrative

remedies with respect to grievance number 831781.

Under the Prison Litigation Reform Act (“PLRA”), prisoners

complaining about the conditions of their confinement must exhaust

available administrative remedies before they may file suit in federal court.

42 U.S.C. §1997e(a). The PLRA requires proper exhaustion, meaning

plaintiffs must administratively grieve their claims in accordance with the

procedural rules of the prison in which they are incarcerated. Downey v. Pa.

Dep’t of Corr., 968 F.3d 299, 305 (3d Cir. 2020) (citing Woodford v. Ngo, 548

U.S. 81, 88 (2006)). Failure to exhaust administrative remedies is an

affirmative defense that defendants must plead and prove; it is not a pleading

requirement for plaintiffs. Jones v. Bock, 549 U.S. 199, 216 (2007).

A prisoner is only required to exhaust administrative remedies that are

“available.” Rinaldi v. United States, 904 F.3d 257, 268 (2018) (citing

Woodford, 548 U.S. at 93). An administrative remedy is unavailable, and

administrative exhaustion is thus excused, in three situations: “(1) when ‘it

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,’ such as when no ordinary

prisoner can discern or navigate it; or (3) when ‘prison administrators thwart

inmates from taking advantage of a grievance process through machination,

misrepresentation, or intimidation.’” Id. at 266-67 (quoting Ross v. Blake, 578

U.S. 632, 643-44 (2016)). If defendants establish failure to exhaust

administrative remedies, the burden shifts to the plaintiff to show that the

administrative remedy process was unavailable. Id. at 268.

Corrections defendants concede that grievance number 831781

pertains to Andino-Hernandez’s October 19, 2019 fall, but they argue that

the grievance was not fully exhausted because Andino-Hernandez did not

appeal the grievance to SOIGA. (Doc. 67 at 8).

In response, Andino-Hernandez advances several arguments as to

how the grievance process was purportedly unavailable to him. First, he

asserts that he attempted to file an appeal to SOIGA but never received a

response, which made the process unavailable. (Id.) Second, he argues that

the course of proceedings when this case was referred to mediation from

December 2023 to January 2024 provides another “example of the lengths

that the Commonwealth employees have gone to, to ensure that Mr.

Hernandez receives no assistance in this litigation.” (Id. at 6-7). Third, he

argues that the grievance process is a “dead-end,” and thus unavailable,

because DOC policy requires an inmate to request damages in his grievance

before he may seek damages in court, but the grievance officers who answer

the grievances are not themselves empowered to award damages. (Id. at 7-

8 (quoting Ross, 578 U.S. at 643-44)). Finally, he argues that the grievance

process is unavailable because prison officials are “‘consistently unable to

or unwilling to provide any requested relief,’” because the superintendent of

SCI-Mahanoy simply “rubber-stamp[s]” the denial of grievances in the prison.

(Id. at 8 (quoting Ross, 578 U.S. at 643-44)). Andino Hernandez cites five

examples of grievances that were denied to support this argument. (Id.)

Corrections defendants reply that the evidence Andino-Hernandez has

filed to establish that he appealed to SOIGA is “suspect” for the reasons

outlined above. (Doc. 3, 10-11). Corrections defendants additionally argue

that, regardless of whether the evidence shows that Andino-Hernandez

appealed to SOIGA, the evidence is irrelevant because (1) he failed to

properly respond to corrections defendants’ statement of material facts and

their factual assertion that he never appealed to SOIGA is therefore deemed

admitted under Local Rule 56.1; and (2) even if he did appeal to SOIGA, he

did not do so properly because his grievance was rejected on procedural

grounds at earlier stages of the grievance process. (Id. at 3-4). Corrections

defendants further argue that Andino-Hernandez’s other unavailability

arguments are meritless. (Id. at 5-8).

Having reviewed the parties’ arguments and the record of this case,

the court finds that there is a genuine issue of fact as to whether Andino-

Hernandez appealed grievance number 831781 to SOIGA. The corrections

defendants have filed record evidence to establish that Andino-Hernandez

did not appeal to SOIGA; Andino-Hernandez has filed record evidence to

establish the opposite. (See Doc. 67-1 at 43-47; Doc. 78-1; Doc. 78-2; Doc.

78-3; Doc. 78-4). Although corrections defendants have produced evidence

to show that Andino-Hernandez’s proffered evidence is “highly suspect,”

(see Doc. 80 at 10-11), the court cannot reach this conclusion at this stage

of litigation. See, e.g., Marino, 358 F.3d at 247 (noting that a court

considering a motion for summary judgment may not weigh the evidence or

make credibility determinations).

This genuine issue of fact, however, is not material to the ultimate issue

of whether Andino-Hernandez exhausted administrative remedies. See

Anderson, 477 U.S. at 248 (noting that a factual dispute is genuine if a

reasonable jury could find for the non-moving party, and is material if it will

affect the outcome of the case under governing substantive law). Andino-

Hernandez contends that he appealed his grievance to SOIGA, but

regardless of whether this happened, the grievance was already

procedurally defaulted when SCI-Mahanoy’s facility grievance coordinator

and facility manager rejected the grievance and first-level appeal for failure

to comply with DC-ADM 804. (Doc. 67-1 at 45-47); see also Downey, 968

F.3d at 305 (“The PLRA requires proper exhaustion, meaning ‘complet[ing]

the administrative review process in accordance with the applicable

procedural rules.’” (quoting Woodford, 548 U.S. at 88)); Mitchell v. Dodrill,

696 F. Supp. 2d 454, 463 (M.D. Pa. 2010) (“Failure to substantially comply

with procedural requirements of the applicable prison's grievance system will

result in a procedural default of the claim.” (quoting Spruill v. Gillis, 372 F.3d

218, 227-32 (3d Cir. 2004))). Put another way: even if it is true, as Andino-

Hernandez contends, that SOIGA did not respond to his appeal, SOIGA only

had the opportunity to fail to comply with the DOC’s grievance process

because Andino-Hernandez first failed to comply with the DOC’s grievance

process. Thus, because Andino-Hernandez procedurally defaulted

grievance number 831781 by failing to comply with DOC policy at earlier

stages of administrative review, SOIGA’s purported failure to respond to his

appeal is immaterial.

Andino-Hernandez’s remaining unavailability arguments similarly do

not show the existence of a genuine issue of material fact. First, the course

of proceedings during mediation in this case in 2023 and 2024 is plainly

irrelevant to the question of whether administrative remedies were available

to Andino-Hernandez in 2019.

Second, as defendants correctly note, (see Doc. 80 at 6), his argument

regarding money damages has been squarely rejected by the Supreme

Court. See Booth v. Churner, 532 U.S. 731, 733 (2001) (“The question is

whether an inmate seeking only money damages must complete a prison

administrative process that could provide some sort of relief on the complaint

stated, but no money. We hold that he must.”).

Finally, Andino-Hernandez’s argument that the grievance process was

unavailable because the superintendent of SCI-Mahanoy simply “rubber-

stamp[s]” the denial of grievances is pure speculation that is not sufficient to

create a genuine issue of material fact. To the extent that any response is

needed to rebut such an undeveloped argument, defendants have cited

instances where other inmates, and Andino-Hernandez himself, have

obtained relief through the DOC’s grievance process. (See Doc. 80 at 8

(collecting cases); Doc. 80-2).

In sum, there is no genuine issue of material fact on the issue of

exhaustion because even if SOIGA failed to respond to Andino-Hernandez’s

appeal of grievance number 831781, the record shows that the grievance

was procedurally defaulted at earlier stages of the administrative process.

There is also no genuine issue of material fact as to whether the grievance

process was available to Andino-Hernandez. The court will accordingly grant

summary judgment to all remaining defendants on Andino-Hernandez’s

claims arising from his October 19, 2019 fall.

VII. CONDITIONS OF CONFINEMENT CLAIM ARISING FROM FEBRUARY 24, 2020

FALL

Although the court has concluded that summary judgment is warranted

with respect to all of the arguments defendants have asserted, corrections

defendants’ motion does not advance any arguments for summary judgment

for the Eighth Amendment claim arising from Andino-Hernandez’s February

24, 2020 fall, apparently based on the erroneous belief that the court

dismissed such a claim in its March 24, 2023 memorandum and order

addressing defendants’ motions to dismiss.4 (See Doc. 67 at 5).

4 Because Andino-Hernandez concedes that summary judgment is

appropriate for all medical defendants, it is immaterial whether medical

defendants’ motion for summary judgment has advanced any arguments on

this claim.

To the contrary its March 24, 2023 memorandum and order solely

addressed facts of defendants allegedly placing Andino-Hernandez in a top

bunk and stat[ed] that the motions to dismiss were granted “on all claims

except for Plaintiff’s eighth Amendment conditions of confinement claim”.

There is no analysis of Andino-Hernandez’s claims arising from the February

24, 2020 fall in the March 24, 2023 memorandum, nor is there any legal basis

cited to dismiss those claims.

Finally, because it appears the defendants were operating under a

good faith belief that the court previously dismissed all claims arising from

the February 24, 2020 fall and moreover that it appears that there may have

been confusion of what was originally challenged and briefed in the earlier

motion to dismiss, in the interest of justice the defendants Torres, Martin,

Gavala, Derr, and Matrey may file a second motion for summary judgment

with respect to this claim. A schedule for such a motion shall be included in

the accompanying order.

VIII. CONCLUSION

For the foregoing reasons, the court will deny plaintiff’s motion to

compel discovery, grant defendants’ motions for summary judgment,

terminate all defendants other than Torres, Martin, Gavala, Derr, and Matrey

from the docket of this case, and grant Torres, Martin, Gavala, Derr, and

Matrey leave to file a second motion for summary judgment with respect to

plaintiff’s remaining Eighth Amendment claim. An appropriate order shall

issue.

s/ Malachy E. Mannion

Malachy E. Mannion

United States District Judge

Dated: September 30, 2024

21-1570-02