The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SHAKOUR BROWN, : CIVIL ACTION NO. 1:22-CV-293
:
Plaintiff : (Judge Conner)
:
v. :
:
WILLIAM NICKLOW, et al., :
:
Defendants :
MEMORANDUM
This is a prisoner civil rights case filed pursuant to 42 U.S.C. § 1983. Plaintiff,
Shakour Brown, alleges violations of the First, Eighth, and Fourteenth
Amendments arising from an incident in which he was pepper sprayed in his cell
and his subsequent placement on a behavior modification plan. Defendants have
moved for summary judgment. The motion will be granted.
I. Procedural History
Brown initiated this case through the filing of a complaint on February 22,
2022, which the court received and docketed on February 28, 2022. (Doc. 1). The
complaint asserts claims for violation of Brown’s First Amendment right to freedom
of speech, supervisory liability, excessive force in violation of the Eighth
Amendment, deliberate indifference in violation of the Eighth Amendment, and
violation of Brown’s Fourteenth Amendment right to due process. (Id. at 5).
On February 3, 2023, the court dismissed Brown’s freedom of speech and
supervisory liability claims, his claims for injunctive relief, and his claims against
defendant Little, the secretary of the DOC, without prejudice and granted plaintiff
leave to file an amended complaint. (Docs. 39-40). Brown did not file an amended
complaint, so the court dismissed those claims without further leave to amend on
May 26, 2023, and allowed the case to proceed solely with respect to his excessive
force, deliberate indifference, and due process claims against defendants Nicklow,
Ritchie, Beaver, Bartow, and Johnson. (Doc. 47).
Defendants filed the instant motion for summary judgment on August 12,
2024, along with a supporting brief and a statement of material facts as required by
Local Rule 56.1. (Docs. 73-75). Defendants argue that summary judgment is
warranted because Brown failed to exhaust administrative remedies, because his
claims fail on their merits, and because he is not entitled to compensatory damages.
(Doc. 74). Brown has not responded to the motion, nor has he filed a statement of
material facts responding to defendants’ statement as required by Rule 56.1.
Pursuant to Local Rules 7.6 and 56.1, the motion for summary judgment is now
deemed unopposed and the factual assertions in defendants’ statement of material
facts are deemed admitted. See M.D. PA. L.R. 7.6, 56.1.
II. Material Facts1
A. Factual Background
1 Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” M.D. PA. L.R. 56.1. A party
opposing the motion must file a separate statement responding to the numbered
paragraphs set forth in the moving party’s statement and identifying genuine issues
to be tried. Id. Because Brown has not responded to defendants’ statement, the
statement is deemed admitted pursuant to Local Rule 56.1 and we cite directly to it.
Brown’s claims arise from an alleged pepper-spraying on February 2, 2022
and his placement on a behavior modification plan on February 14, 2022. (See
generally Doc. 1 at 1-4). The February 2, 2022, incident began when Brown covered
his cell door with a towel and refused verbal commands to uncover it. (Doc. 75 ¶ 1).
The towel prevented prison staff from seeing Brown in his cell, potentially creating
a dangerous situation for Brown and the prison staff. (Id. ¶¶ 2-4). Defendant
Bartow directed defendant Johnson to use pepper spray to get Brown to comply
with the officers’ orders. (Id. ¶ 5). Johnson gave Brown several more verbal
commands to remove the towel from his cell door. (Id. ¶ 6). When Brown again
refused to remove the towel, Johnson pepper-sprayed into the cell at approximately
9:05 p.m. (Id. ¶ 7). Brown continued to refuse to remove the towel. (Id. ¶ 8).
Johnson gave him several additional commands to remove the towel from the cell
door. (Id. ¶ 9). Brown again refused, at which point Johnson again pepper sprayed
into the cell at approximately 9:15 p.m. (Id. ¶ 10). Brown continued to refuse to
remove the towel. (Id. ¶ 11). Seeing that Brown was standing far away from the
door in the cell, Johnson reached through the aperture used to pass meals through
the door and removed the towel. (Id. ¶¶ 12-15).
Brown was not in apparent physical distress following the two uses of pepper
spray. (Id. ¶ 16). Johnson asked him if he wanted medical attention, but Brown
refused. (Id. ¶¶ 17-18). Following the use of the pepper spray, prison procedures
required Brown to be removed from the cell and taken to a strip search area so that
the cell could be decontaminated and his clothes could be changed. (Id. ¶ 19).
Johnson asked Brown to submit to being handcuffed so that these procedures could
be completed, but Brown refused. (Id. ¶¶ 20-21).
A member of the prison’s counseling staff approached the cell and spoke with
Brown. (Id. ¶ 22). Brown told the staff member that he was refusing to comply with
orders to protest his food portions being cut. (Id. ¶ 23). A registered nurse
attempted to speak with Brown during this conversation, but he refused to talk to
the nurse. (Id. ¶¶ 24-25). Bartow then spoke with Brown and told him that Brown’s
perceived issue with his meals had been resolved. (Id. ¶ 26). Bartow asked Brown if
he wanted to be decontaminated, but Brown refused. (Id. ¶¶ 27-28).
Brown eventually submitted to officers handcuffing him. (Id. ¶ 29). He was
taken to a strip search area where he was stripped, searched, and given a new
jumpsuit. (Id. ¶ 30). Bartow then told him that he would need to change into a
smock, but Brown refused. (Id. ¶¶ 31-32). The counselor came to the strip search
area and attempted to get Brown to comply, but he again refused. (Id. ¶¶ 33-34).
While they were speaking, a member of the prison’s mental health staff approached
Brown and asked him about his mental health. (Id. ¶ 35). Brown responded, “I
ain’t got no mental health problems.” (Id. ¶ 36). Bartow and the counselor
attempted to get Brown to change into a smock several more times. (Id. ¶¶ 37-43).
When Brown continued to refuse to comply, Bartow gathered an extraction team
and received permission from the registered nurse to use pepper spray on Brown
again. (Id. ¶¶ 44-45). Bartow returned to the cell and gave Brown four orders to
submit to being handcuffed. (Id. ¶ 46). Brown refused all four orders, at which
point Bartow sprayed pepper spray into the cell. (Id. ¶¶ 47-48). The use of pepper
spray did not cause Brown to comply, so Bartow gave three additional orders to
come to the door to be handcuffed. (Id. ¶¶ 49-50). When Brown again refused to
comply, Bartow sprayed pepper spray into the cell. (Id. ¶¶ 51-52). Bartow then
opened the cell door and the extraction team entered, handcuffed him, and carried
him out of the cell and into another cell. (Id. ¶¶ 53-55). Within four minutes of
Brown arriving in the new cell, Bartow asked the nurse to examine Brown, but
Brown refused to be examined. (Id. ¶¶ 55-56).
On February 14, 2022, Brown assaulted a prison staff member and was
placed in administrative custody. (Id. ¶ 57). A few hours later, he stated that he was
going to harm himself because “that is all there is left to do.” (Id. ¶ 58). Prison staff
moved him into a psychiatric observation cell. (Id. ¶ 59). He was discharged from
the psychiatric observation cell on February 18, 2022. (Id. ¶ 60).
Shortly after his discharge from the psychiatric observation cell, prison staff
informed Brown that he would be placed in a behavior plan because of his volatile
behavior. (Id. ¶ 61). The behavior plan, which went into effect on February 22,
2022, required Brown to meet with a Psychiatric Review Team (“PRT”) once a week
to determine his mental state and to document any progress or regression in his
behavior. (Id. ¶¶ 62-63). The plan also required weekly meetings with a Program
Review Committee (“PRC”). (Id. ¶ 64). The program review committee and the
psychiatric review team were tasked with determining what personal property and
clothing Brown would be allowed to have in his cell. (Id. ¶ 65). The plan allowed
prison staff to use an “IRS system”—a restraint system that restricts an inmate’s
ability to use his hands—if he attempted self-harm. (Id. ¶¶ 66-67).
Brown met with the PRT on February 22, 2022, March 1, 2022, March 8, 2022,
and March 15, 2022, and he met with the PRC on February 23, 2022, March 2, 2022,
March 9, 2022, and March 16, 2022. (Id. ¶¶ 69-71). He was then transferred from
SCI-Camp Hill to SCI-Fayette on March 22, 2022. (Id. ¶ 73). His behavior plan was
placed on hold when he was transferred. (Id. ¶ 74).
B. Exhaustion of Administrative Remedies
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. 74-
27).2 Under DC-ADM 804, a prisoner must first submit a written grievance within
15 working days from the date of the incident. Id. § 1(A)(8). If the inmate is unable
to comply with the 15-working day deadline, he may request an extension of time to
file a grievance. Id. § 1(C)(2). 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). Once a grievance has been filed, the prison
must respond to the grievance within 15 working days. Id. § 1(C)(5)(g). Next, the
prisoner must submit a written appeal to the facility manager within 15 working
days. Id. § 2(A)(1)(a). Upon receiving the grievance, the facility manager must
respond to the appeal within 15 working days. Id. § 2(A)(2)(d)(1). Finally, the
inmate must submit an appeal to the Secretary’s Office of Inmate Grievances and
2 A copy of DC-ADM 804 has been produced for the court’s review as part of
Exhibit 27 to Defendants’ motion for summary judgment. (See Doc. 74-27).
Appeals (“SOIGA”) within 15 working days. Id. § 2(B)(1)(b). SOIGA must respond
to the final appeal within 30 working days. Id. § 2(B)(2)(a)(1).
Brown filed five grievances during the period relevant to this case, between
February 2, 2022, and April 30, 2022. (Doc. 75 ¶ 83). Two of these grievances were
appealed through final review by SOIGA, but did not reference any of the conduct
at issue in this case and instead complained about events that occurred in January
2022. (Id. ¶¶ 84-89; Doc. 74-27 at 43-61). The other three grievances were not
appealed through final review by SOIGA. (Doc. 75 ¶¶ 90-95; Doc. 74-27 at 62-77;
Doc. 74-28).
III. Legal Standard
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of his right to relief. Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This
evidence must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-
57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89
(1986). Only if this threshold is met may the cause of action proceed. See Pappas,
331 F. Supp. 2d at 315.
IV. Discussion
We first address defendants’ argument that Brown failed to exhaust
administrative remedies. 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, 904 F.3d 257, 268 (3d Cir. 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 a defendant establishes that the
plaintiff failed to exhaust administrative remedies, the burden shifts to the plaintiff
to show that the administrative process was unavailable to him. Id. at 268.
Defendants argue Brown failed to exhaust administrative remedies none of
the grievances he appealed through final review by SOIGA advance the claims he
asserts in this litigation. (Doc. 74 at 16-17).
We agree. The summary judgment record establishes that Brown filed five
grievances during the relevant period, two of which were appealed through final
review by SOIGA but pertained to events that happened before the facts of this
case, and the other three of which were not appealed through final review by
SOIGA. (See Doc. 75 ¶ 83-89; Doc. 74-27 at 43-77; Doc. 74-28). Brown has not
produced any evidence to create a genuine dispute of material fact on this issue, nor
has he produced any evidence or advanced any arguments to show that the
grievance process was unavailable to him. Hence, we will grant the motion for
summary judgment for Brown’s failure to exhaust administrative remedies. We do
not reach defendants’ alternative summary judgment arguments.
V. Conclusion
We will grant defendants’ motion for summary judgment and close this case.
An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: December 18, 2024