CONWAY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

CHRISTOPHER CONWAY, ) Civil Action No. 1:24-CV-00078-CBB

)

)

Plaintiff, )

) United States Magistrate Judge

vs. ) Christopher B. Brown

)

SUPERINTENDENT RANDY IRWIN, )

CO MOWREY, CO HIMES, CO )

)

SLOUTHER, CO CROSE, CO )

RICHARDS, LT. WALKER, LT )

LOWE, CO YOUNG, CO YOUNT, CO )

)

KOIL, CO HANES, LT FELDOR, CO )

BLUM, CO BARGER, CO )

MUNKSGARD, CO MCCRACKEN, CO )

)

RANKINI, CO GUARNIERI, CO

)

BABCOCK, )

Defendants,

MEMORANDUM OPINION1 ON DEFENDANTS’

PARTIAL MOTION FOR SUMMARY JUDGMENT ECF NO. 50

I. Introduction

Plaintiff Christopher Conway (“Conway”), proceeding pro se and in forma

pauperis, initiated this 42 U.S.C. § 1983 civil action on March 15, 2024. ECF No. 1.

Conway, then an inmate at SCI-Forest, brings numerous constitutional claims

against Defendants, who are staff at that facility.2 In the Second Amended

1 All parties have consented to jurisdiction before a United States Magistrate Judge; therefore

the Court has the authority to decide dispositive motions, and to eventually enter final judgment.

See 28 U.S.C. § 636, et seq.

2 Defendants informed the Court that certain Defendants’ names are spelled incorrectly on the

docket. The Court will refer to them with the correct spelling here. Accordingly “Defendant Koil”

Complaint, Conway does not set forth specific claims. Rather, he makes a number

of allegations against Defendants within his “Statement of Facts” which alleges

Defendants either threatened him, deprived him of meals, labeled him as a “rat” or

a “snitch,” used excessive force, or turned a blind eye to the abuse. ECF No. 32.

The Court construes these allegations to include claims of deliberate indifference,

failure to protect, retaliation, civil conspiracy, cruel and unusual punishment,

sexual assault, excessive force, and defamation/libel.

Conway seeks compensatory damages, punitive damages, and fees. Id. at 2.

This court has subject matter jurisdiction under 28 U.S.C. § 1331. Presently

pending before the Court is Defendants’ Motion for Summary Judgment, which the

Court deems to be a partial motion as it seeks summary judgment on some, but not

all, of Conway’s claims as set forth in the chart below. ECF No. 50. The Motion is

fully briefed and ripe for consideration. ECF Nos. 50-53, 66-67. In addition to

seeking summary judgment against Defendant Irwin on all claims against him,

Defendants move for summary judgment on the following claims either on the

merits or based on exhaustion:

Claim Defendant Against Whom Against Whom

Defendants are Defendants are

Seeking Dismissal Seeking Dismissal

on the Merits on Exhaustion

Deliberate Mowrey, Mowrey, Yount, Yount, Himes, Young,

Indifference Yount, Himes, Young, Walker, Richards

(Verbal Himes, Walker, Richards

Harassment) Young,

will be referred to in this Opinion as Defendant Coyle, and “Defendant Slouther” will be referred to

in this Opinion as Defendant Slother.

Walker,

Richards

Failure to Hanes, Coyle Hanes, Coyle

Protect

Retaliation Mowrey, Yount, Himes, Young

Yount,

Himes,

Young,

Crose, Lowe

Civil Conspiracy Mowrey, Yount

Yount

Cruel & Unusual Mowrey, Mowrey, Himes Yount

Punishment Yount, Himes

(Deprivation of

Food)

Sexual Assault Feldor, Blum,

Barger,

Munksgard,

McCracken,

Rankini,

Guarnieri,

and Babcock

Excessive Force Crose, Slother

Feldor, Blum,

Barger,

Munksgard,

McCracken,

Rankini,

Guarnieri,

and Babcock,

Slother

Defamation/Libel Himes, Himes, Young,

Young, Walker, Richards

Walker,

Richards

For the reasons below, Defendants’ Partial Motion for Summary Judgment is

granted in part and denied in part:

• Defendants’ Motion for Summary Judgment on all claims against

Defendant Irwin is GRANTED and he will be dismissed from the lawsuit;

• Defendants’ Motion for Summary Judgment as to Conway’s failure to

exhaust some claims against Defendant Himes and all claims against

Defendants Yount, Young, Walker, Richards, Hanes, Coyle, and Slother is

DENIED without prejudice to reassert after a Small evidentiary hearing;

• Defendants Motion for Summary Judgment on all Eighth Amendment

claims based on verbal harassment against Defendants Mowrey, Yount,

Himes, Young, Walker, and Richards will be GRANTED;

• Defendants’ Motion for Summary Judgment on all Eighth Amendment

claims based on the deprivation of meals against Defendants Mowrey,

Himes, and Yount will be GRANTED.

In an effort to keep the record clear since the Defendants’ only moved for

summary judgment on some but not all claims, the Court notes the following claims

remain active in the case:

• Conway’s sexual assault and excessive force claims against Defendants

Feldor, Blum, Barger, Munksgard, McCracken, Rankini, Guarnieri

survive summary judgment;

• Conway’s excessive force and retaliation claims against Defendant Crose

survive summary judgment;

• Conway’s retaliation claim against Defendant Lowe survives summary

judgment;

• Conway’s retaliation claims against Defendants Mowrey, Himes, and

Yount to the extent they are based on verbal harassment or deprivation of

food survive summary judgment pending the Small evidentiary hearing;

• Conway’s conspiracy claims against Defendants Mowrey and Yount for

conspiring to deprive him of food survive summary judgment pending the

Small evidentiary hearing;

• Conway’s claims against Defendants Himes, Young, Walker, and Richards

for defamation/libel for labeling him as either a “rat” or a “snitch” survive

summary judgment pending the Small evidentiary hearing.

By separate Order, the Court will schedule a conference with the Parties to

discuss the Small evidentiary hearing prior to setting a hearing date.

II. Factual Background and Overview of Claims

Conway is bringing claims for deliberate indifference, failure to protect,

retaliation, civil conspiracy, cruel and unusual punishment, sexual assault,

excessive force, and defamation/libel. ECF No. 32 at 2. Conway does not specify

which claims he is bringing against which Defendant. Id. Since Conway is

representing himself pro se, the Court will liberally construe the Complaint. See

Renchenski v. Williams, 622 F.3d 315, 337 (3d Cir. 2010).

Defendants are moving for summary judgment on some but not all claims

asserted against them in the Second Amended Complaint. ECF No. 51 at 2.

Accordingly, as neither their briefing nor their Statement of Material Facts

encompasses all allegations in the Second Amended Complaint, the Court refers

below to Second Amended Complaint as needed. The following facts are derived

from the Second Amended Complaint and the Defendants’ Concise Statement of

Material Facts.

As a matter of organization, the facts related to Conway’s claims have been

put into sequential events beginning with his filing a grievance against a

correctional officer and the alleged retaliation by that correctional officer and others

that ensued.

a. Grievance #1072166:

On January 26, 2024, Conway filed Grievance # 1072166 alleging that a

correctional officer, Defendant Mowery, threatened him. See ECF No. 53-4 at 2.

See also ECF No. 52 at ¶¶ 30-33; ECF No. 67 at ¶¶ 30-33. The Parties do not

dispute this grievance was filed nor do they dispute that Conway appealed its

denial through the final appeal. Id.

b. February 8, 2024

Conway alleges that, beginning on February 8, 2024, a number of Defendants

began retaliating against him in a number of different ways for filing the January

26, 2024 grievance. ECF No. 32 at ¶ 1. The retaliation resulted in a variety of

claims against individual Defendants, which Defendants collectively move for

partial summary judgment as follows:

Defendant Mowrey:

On February 8, 2024, Conway alleges Defendant Mowrey was the first to

retaliate by calling him names, telling him to kill himself because Conway “likes

filing paperwork,” and “conspired” with Yount to deny Conway lunch that day. Id.

at ¶¶ 2-4; 5-8. The Court construes this as claims for deliberate indifference, cruel

and unusual punishment, retaliation, and civil conspiracy. Defendants seek

summary judgment on the deliberate indifference and cruel and unusual

punishment claims against Mowrey; they do not seek summary judgment on

Conway’s retaliation claim. ECF No. 51.

Defendant Yount:

That same day, Defendant Yount conspired with Defendant Mowrey to

harass Conway, threaten him, and deprive him of lunch in retaliation for filing

grievances. ECF No. 32 at ¶ 50. The Court construes this as claims for deliberate

indifference, cruel and unusual punishment, retaliation, and conspiracy.

Defendants seek summary judgment as to Yount on exhaustion and deliberate

indifference. ECF No. 51 at 3-12. Defendants do not move for summary judgment

on Conway’s retaliation, cruel and unusual punishment, or conspiracy claims

against Defendant Yount. Id.

Defendant Himes:

That same day, Defendant Himes retaliated against Conway for filing

grievances by calling him a “rat” or a “snitch,” threatening him, and denying him

his dinner tray. ECF No. 32 at ¶¶ 10-13. The Court construes these as claims for

deliberate indifference, cruel and unusual punishment, retaliation, and

defamation/libel. Defendants seek summary judgment as to Himes on exhaustion,

as well as for the deliberate indifference and cruel and unusual punishment claims.

ECF No. 51 at 3-12. Defendants have not moved for summary judgment on the

retaliation and defamation/libel claims. Id.

Defendant Young:

That same day, Conway alleges Young called him a “rat,” and told Defendant

Crose to slam Conway’s hand in the wicket all in retaliation for filing grievances.

ECF No. 32 at ¶¶ 9, 14. The Court construes these as claims for retaliation,

deliberate indifference, and defamation/libel. Defendants seek summary judgment

as to Young on exhaustion and deliberate indifference. ECF No. 51 at 3-12.

Defendants do not move for summary judgment on Conway’s retaliation or

defamation/libel claims against Young. Id.

Defendant Crose:

That same day, Conway alleges Defendant Crose slammed Conway’s arm in

the wicket in the door, with “reckless and malicious intent” to injure him. ECF No.

32 at ¶ 15. Conway alleges Crose told him “this is what happens when you file

paperwork.” Id. at ¶ 16. The Court construes this as claims for excessive force and

retaliation. Defendants do not move for summary judgment on any claim involving

Crose, including on the basis of exhaustion. See generally, ECF No. 51.

Defendant Lowe:

That same day, Conway alleges Defendant Lowe arrived right after Crose

had slammed his hand in the wicket on February 8, 2024, and that Lowe told

Conway that he “ain’t learn yet about filing paperwork,” and that he would not help

him because he “filed grievance on my officers.” ECF No. 32 at ¶¶ 17-18. Lowe

then called the extraction team on him in retaliation for filing the grievances. Id. at

¶¶ 19. The Court construes this as a retaliation claim. Defendants do not move for

summary judgment on any claim involving Lowe, including on the basis of

exhaustion. See generally, ECF No. 51.

Defendants Feldor, Blum, Barger, Munksgard, McCracken, Rankini,

Guarnieri, and Babcock:

That same day, Conway alleges the “Extraction Team” made up of

Defendants Feldor, Blum, Barger, Munksgard, McCracken, Rankini, Guarnieri, and

Babcock ( used excessive force against him in a cell extraction and caused him

bodily harm. ECF No. 32 at ¶¶ 19-25. He also alleges Defendant Guarnieri

sexually assaulted him during the cell extraction, Id. at ¶¶ 24-25, and that

Defendant Feldor turned a blind eye to the situation. Id. at ¶ 25. Based on these

allegations, Conway brings claims of excessive force and sexual assault. Defendants

do not move for summary judgment on any claims against these Defendants,

including on the issue of exhaustion. See generally ECF Nos. 50-51.

c. Grievance # 1073594:

Following the alleged retaliatory events on February 8, 2024, Conway filed

Grievance # 1073594 (dated Feb. 9, 2024). See ECF No. 53-5 at 2-15. See also ECF

No. 52 at ¶¶ 34-52; ECF No. 67 at ¶¶ 34-52. This grievance deals with the

allegations from prior day against Defendants Mowrey, Himes, Crose, Yount, and

the Extraction Team – Defendants Feldor, Blum, Barger, Munksgard, McCracken,

Rankini, Guarnieri, and Babcock. Id. See also ECF No. 52 at ¶¶ 34-52; ECF No. 67

at ¶¶ 34-52. In the grievance, Conway alleged retaliation, threats, name calling,

denial of meals, excessive force, and assault. Id. The Parties do not dispute

Conway appealed the denial of this grievance through the final appeal. ECF No. 52

at ¶¶ 42-44; ECF No. 67 at ¶¶ 42-44. The Parties do, however, dispute whether

Conway sufficiently exhausted his claims against Defendants Yount, Young, Himes,

Walker, Richards, Hanes, Coyle, and Slother because this Grievance does not fully

discuss their conduct. ECF No. 53-5 at 2. As discussed below, Conway argues that

he supplemented Grievance # 1073594 via a video interview during an investigation

into the grievance to include allegations against each of the Defendants. ECF Nos.

66 at 2-6; 53-5 at 11.

d. February 9, 2024 - Allegations

Conway next alleges that on February 9, 2024, Defendants Walker and

Richards intentionally put his life in jeopardy by labeling him as a “rat” and

“snitch” to incite other inmates to harm him when Defendants accompanied Conway

to the nurse after his alleged assault. ECF No. 32 at ¶¶ 29-31. The Court construes

these as claims for deliberate indifference and defamation/libel. Defendants seek

summary judgment as to Walker and Richards on exhaustion and deliberate

indifference; they do not move for summary judgment on the defamation/libel claim.

ECF No. 51 at 3-12.

e. February 12, 2024 - Allegations

Conway further alleges that on February 12, 2024, while accompanying him

to the hospital following his alleged assault, Defendant Slother threatened to kill

him, and that Defendants Hanes and Coyle looked the other way. ECF No. 32 at ¶¶

35-38. The Court construes this as a claim for excessive force against Slother and

failure to protect claims against Hanes and Coyle. Defendants seek summary

judgment against these Defendants on the basis of exhaustion and do not address

the claims on the merits. ECF No. 51 at 3-9.

f. Defendant Irwin – Allegations

Lastly, Conway has only one allegation in the Second Amended Complaint

related to Defendant Irwin. Conway alleges that he “sent the Superintendent R.

Irwin a request slip pertaining to the incident that occurred on 2/8/24.” ECF No. 32

at ¶ 45. Defendants seek summary judgment on all potential claims against

Defendant Irwin on the merits – arguing a lack of personal involvement – and on

the issue of exhaustion. ECF No. 51 at 14-17.

III. Standard of Review

The standard for assessing motions for summary judgment is well-settled.

Summary judgment is appropriate “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). The Court must ask whether the evidence presents “a

sufficient disagreement to require submission to a jury or whether it is so one-sided

that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 251-52 (1986).

In making this determination, “all reasonable inferences from the record

must be drawn in favor of the nonmoving party and the court may not weigh the

evidence or assess credibility.” Goldenstein v. Repossessors Inc., 815 F.3d 142, 146

(3d Cir. 2016) (cleaned up). “Only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the entry of summary

judgment.” Anderson, 477 U.S at 247-48. An issue is “genuine” if a reasonable jury

could hold in the nonmovant’s favor with respect to that issue. Id.

This standard is somewhat relaxed with respect to pro se litigants. Simmons

v. Gilmore, No. 2:17-CV-00996, 2021 WL 1215773, at *8 (W.D. Pa. Mar. 31, 2021)

(citing Anderson, 477 U.S. at 256). Where a party is representing himself pro se,

the complaint is to be construed liberally. Renchenski, 622 F.3d at 337. A pro se

plaintiff may not, however, rely solely on his complaint to defeat a summary

judgment motion. See, e.g., Anderson, 477 U.S. at 256 (“Rule 56(e) itself provides

that a party opposing a properly supported motion for summary judgment may not

rest upon mere allegation or denials of his pleading, but must set forth specific facts

showing that there is a genuine issue for trial.”). At the summary judgment stage

of the proceedings, the Court need not credit bald assertions or legal conclusions

unaccompanied by evidentiary support. Jones, 214 F.3d at 407. “[A] pro se plaintiff

is not relieved of his obligation under [Federal Rule of Civil Procedure] 56 to point

to competent evidence in the record that is capable of refuting a defendant's motion

for summary judgment.” Dawson v. Cook, 238 F. Supp. 3d 712, 717 (E.D. Pa. 2017).

IV. Discussion

Defendants move for partial summary judgment. ECF Nos. 50-51.

Specifically, they move for summary judgment on all claims against Defendant

Irwin, on the issue of exhaustion against Defendants Himes, Yount, Young, Walker,

Richards, Slother, Hanes, and Coyle, and on any Eighth Amendment claims based

on either verbal harassment or deprivation of food. Id. To make the record clear,

the Court also discusses the claims not covered by Defendants’ partial motion.

a. Excessive Force and Sexual Assault – Extraction Team

Conway brings claims of excessive force and sexual assault against

Defendants Feldor, Blum, Barger, Munksgard, McCracken, Rankini, Guarnieri, and

Babcock (the “Extraction Team”). He alleges the Extraction Team used excessive

force against him in a cell extraction on February 8, 2024 and caused him bodily

harm. ECF No. 32 at ¶¶ 19-25. He also alleges Defendant Guarnieri sexually

assaulted him during the cell extraction, Id. at ¶¶ 24-25, and that Defendant Feldor

turned a blind eye to the situation. Id. at ¶ 25.

Defendants do not move for summary judgment on any claims of excessive

force or sexual assault related to the February 8, 2024 cell extraction against the

Extraction Team. See generally, ECF Nos. 50-51. Defendants also note that they do

not argue that Conway failed to exhaust either his excessive force or sexual assault

claims against these Defendants. ECF No. 51 at pg. 4, n. 1.

Accordingly, Conway’s claims against Defendants Feldor, Blum, Barger,

Munksgard, McCracken, Rankini, Guarnieri, and Babcock for sexual assault and

excessive force will survive summary judgment.

b. Defendants Crose and Lowe

As stated above, the Court is construing the Second Amended Complaint as

bringing claims against Crose for excessive force and retaliation, and against Lowe

for retaliation. See ECF No. 32 at ¶¶ 15-19.

Defendants do not move for summary judgment on any claims against Crose

and Lowe. See generally ECF Nos. 50-51. In fact, Defendants only address Crose to

say that Conway included him in Grievance # 1073594 – so they are not challenging

him on the basis of exhaustion – and do not address Lowe at all in their briefing.

ECF No. 51 at 7. The Court declines to address these claims sua sponte under §

1997e(c) and § 1915(e)(2). Accordingly, Conway’s claims against Crose and Lowe

will survive summary judgment.

c. Defendant Irwin

Defendants next move for summary judgment on all claims against

Defendant Irwin, then-Superintendent of SCI-Forest, both on the merits and for

failure to exhaust. ECF No. 51 at 14. Defendants argue summary judgment should

be granted in their favor because the limited allegations against Irwin are neither

sufficient to establish personal involvement nor supervisory liability. Id. The Court

agrees. As Conway’s claims against Irwin fail on the merits, the Court does not

address Defendant’s exhaustion argument.

Defendant Irwin is the former Superintendent of SCI-Forest. Conway’s

allegations against Irwin in the Second Amended Complaint are limited to one

sentence – “Plaintiff not only notified Security but also sent the Superintendent R.

Irwin a request slip pertaining to the incident that occurred on 2/8/24.” ECF No. 32

at ¶ 45. Conway elaborates in his Opposition brief that he believes Irwin should be

responsible for the lost interview for Grievance # 1073594 as the Superintendent,

and that Irwin conspired to cover up the incidents by signing off on untrue

documents and fabricating statements. ECF No. 66 at 6-7. However, none of these

allegations appear in the Second Amended Complaint. See generally, ECF No. 32.

Summary judgment is appropriate here because Conway has not established

Irwin’s personal involvement. To prevail on a claim pursuant to § 1983, a plaintiff

must prove that a defendant, acting under color of state law, deprived the plaintiff

of a right secured by the Constitution or laws of the United States. Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Liability under § 1983 requires a

defendant's “personal involvement” in the deprivation of a constitutional right.

Gould v. Wetzel, 547 F. App'x 129 (3d Cir. 2013). “Personal involvement requires

particular ‘allegations of personal direction or of actual knowledge and

acquiescence.’” Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (quoting Rode,

845 F.2d at 1207). In the absence of specific allegations that a defendant played a

role in depriving the plaintiff of a constitutional right, dismissal is appropriate. See,

e.g., Williams v. City of York, Pennsylvania, 967 F.3d 252, 261 (3d Cir. 2020).

Conway’s allegation that he notified Irwin via a request slip about the events

is insufficient to show that Irwin had any personal involvement in the activities

from February 8, 2024 – February 12, 2024. See Walker v. Glunt, 654 F. App'x 531,

533 (3d Cir. 2016) (granting summary judgment for defendants on personal

involvement because plaintiff “only broadly alleged that Braumbaugh received his

‘request slip’ after the incident but did not respond. [Plaintiff] has not alleged

Braumbaugh’s knowledge and acquiescence with the required particularly, nor has

[Plaintiff[ offered evidence tending to show that Braumbaugh had the necessary

level of involvement in the underlying allegedly unconstitutional conduct for the

claim against him to survive summary judgment”); Washington v. Wetzel, No. CV

18–1390, 2022 WL 1782509, at *6 (W.D. Pa. June 1, 2022), aff'd, No. 22-2182, 2024

WL 5154024 (3d Cir. Dec. 18, 2024) (“Informing Defendant Buzas about these

discrete incidents that already happened via a request slip does not establish

personal involvement in the underlying action on the part of Buzas”).

Nor is this allegation sufficient for Irwin to be held liable as a supervisor.

There are “two general ways in which a supervisor-defendant may be liable for

unconstitutional acts undertaken by subordinates.” Barkes v. First Corr. Med., Inc.,

766 F.3d 307, 316 (3d Cir. 2014), cert. granted, judgment rev'd on other grounds,

Taylor v. Barkes, 575 U.S. 822 (2015). First, a supervisor may be held liable if he

“participated in violating the plaintiff's rights, directed others to violate them, or, as

the person in charge, had knowledge of and acquiesced in his subordinates’

violations.” Santiago v. Warminster Twp., 629 F.3d 121, 129 & n. 5 (3d Cir. 2010)

(citing A.M. ex rel. J.M.K. v. Luzerne Cnty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir.

2004)); Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citing Rode, 845 F.2d at

1207). The plaintiff's allegations must describe the defendant’s participation in or

acquiescence in the wrongful conduct. Chavarriaga v. New Jersey Dep't of Corr.,

806 F.3d 210, 222 (3d Cir. 2015). Constructive knowledge is not enough; the

defendant must have actual knowledge of the conduct. Id. Second, a supervisor

may be liable if “with deliberate indifference to the consequences, established and

maintained a policy, practice or custom which directly caused [the] constitutional

harm.” A.M. ex rel. J.M.K., 372 F.3d at 586; see also Santiago, 629 F.3d at 129 n.5.

Here, the Defendants, as the moving party, have met their burden. They

correctly argue the only allegation directed against Irwin – that Conway “sent [him]

a request slip pertaining to the incident that occurred on 2/8/24,” – is “not sufficient

to establish the necessary personal involvement of a supervisory official” because he

does not allege Irwin was involved in, had actual knowledge of, or acquiesced to the

various events in the Second Amended Complaint from February 2024. ECF No. 51

at 15 (citing ECF No. 32 at ¶ 45).

Because the Defendants met their burden, Conway, as the non-moving party,

must set forth “specific facts showing that there is a genuine issue for trial” or the

factual record will be taken as presented by the Defendants and judgment will be

entered as a matter of law. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475

U.S. 574, 587 (1986). As the non-moving party, Conway “cannot rely upon

conclusory allegations in its pleadings or in memoranda and briefs to establish a

genuine issue of material fact.” Drumgo v. Funk, No. 3:20-cv-01829, 2024 WL

3489849, at *3 (M.D. Pa. July 19, 2024) (quoting Pastore v Bell Tel. Co. of

Pennsylvania, 24 F.3d 508, 511-12 (3d Cir. 1994)).

Conway’s argument in his Opposition that Irwin conspired to cover up the

February 2024 incidents is not enough to show that Irwin had any personal

involvement or supervisory liability in the conduct. Conway has not pointed to

concrete evidence in the record establishing that Irwin played an “affirmative part”

or had any personal involvement in the events in February 2024. See Williams, 967

F.3d at 261; Chinchello v Fenton, 805 F.2d 126, 133 (3d Cir. 1986).

Accordingly, Defendants’ Motion for Summary Judgment on all claims

against Defendant Irwin is GRANTED.

d. Exhaustion – Defendants Himes, Yount, Young, Walker,

Richards, Hanes, Coyle, Slother

Defendants argue Conway has only partially exhausted his claims against

Himes and has failed to exhaust any of his claims against Defendants Yount,

Young, Walker, Richards, Hanes, Coyle, and Slother. ECF No. 51 at 3-9.

Any merits challenges will be discussed later in the Opinion. Defendants

challenge the allegations against Himes, Yount, Young, Walker, and Richards at

least partially on the merits, but do not challenge the allegations against Hanes,

Coyle, and Slother on the merits. See generally, ECF No. 51.

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides

that “[n]o action shall be brought with respect to prison conditions under section

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.” As explained by the Court of Appeals:

The exhaustion mandate is a “centerpiece” of the statute, see Woodford

v. Ngo, 548 U.S. 81, 84 (2006), that serves three important statutory

goals: “(1) to return control of the inmate grievance process to prison

administrators; (2) to encourage development of an administrative

record, and perhaps settlements, within the inmate grievance process;

and (3) to reduce the burden on the federal courts by erecting barriers

to frivolous prisoner lawsuits, Spruill [v. Gillis], 372 F.3d [218,] 230 [3d

Cir. 2004]. The PLRA requires “proper exhaustion,” Woodford, 548 U.S.

at 92, which means “complet[ing] the administrative review process in

accordance with the applicable procedural rules.” Downey v.

Pennsylvania Dep’t of Corrections, 968 F.3d 299, 305 (3d Cir. 2020)

(quoting Woodford, 548 U.S. at 88). The only limit on § 1997e(a)’s

mandate is that “administrative remedies must be available to the

prisoner” as both a formal and practical manner. Id. (citing Ross v.

Blake, 578 U.S. 632, 641-42 (2016)).

Talley v. Clark, 111 F.4th 255, 262 (3d Cir. 2024). An administrative remedy is

unavailable, and administrative exhaustion is excused, when it “operates as a

simple dead end(,) . . . is so opaque that it becomes, practically speaking, incapable

of use, or when prison administrators thwart inmates from taking advantage of a

grievance process through machination, misrepresentation, or intimidation.’ ”

Downey, 968 F.3d at 305 (quoting Shifflett v. Korszniak, 934 F.3d 356, 365 (3d Cir.

2019)) (cleaned up). “Just as inmates must properly exhaust administrative

remedies per the prison’s grievance procedures, prison officials must strictly comply

with their own policies.” Id. In these situations, “[w]hat is good for the goose is

good for the gander,” and “as 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.” Shifflett, 934 F.3d at 335, 367.

The prison’s grievance policy is what “define[s] the boundaries of proper

exhaustion.” Jones v. Bock, 549 U.S. 199, 218 (2007); Spruill v. Gillis, 372 F.3d 218,

230–31 (3d Cir. 2004) (explaining that “prison grievance procedures supply the

yardstick for measuring procedural default.”). The procedural requirements for

exhaustion in each case “are drawn from the policies of the prison in question rather

than from any free-standing federal law.” Shifflett, 934 F.3d at 364. Proper

exhaustion requires full compliance with the prison’s deadlines and procedures, and

an untimely or procedurally defective grievance or appeal does not satisfy the PLRA

and precludes a prisoner from subsequently filing his claims in federal court.

Spruill, 372 F.3d at 231; Booth v. Churner, 206 F.3d 289 (3d Cir. 2000).

It is not the plaintiff’s burden to demonstrate exhaustion. Jones, 549 U.S. at

216 (holding that “failure to exhaust is an affirmative defense under the PLRA, and

that inmates are not required to specially plead or demonstrate exhaustion in their

complaints.”). The failure to exhaust must be asserted and proven by the

defendant. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).

The relevant Pennsylvania Department of Corrections (“DOC”) policy here is

DC-ADM 804,3 which governs the grievance and appeals process in Pennsylvania

correctional institutions. According to DC-ADM 804, “every individual committed

to [DOC] custody shall have access to a formal procedure through which to seek

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

confinement. For every such issue, there shall be a forum for review and two

avenues of appeal.” DC-ADM 804 at p.1.

The DC-ADM 804 Inmate Grievance System sets forth three separate stages:

First, the prisoner must timely submit a written grievance for review by the facility

grievance coordinator using the approved form within fifteen working days of the

incident, at which time the facility coordinator will assign a tracking number to the

grievance and respond within fifteen business days. DC-ADM 804 §§ 1.A, C. The

Inmate Grievance System provides that the grievance must include “a statement of

facts relevant to the claim” and shall include, inter alia, “the date, approximate

time, and location of the event(s) that gave rise to the grievance,” “shall identify

individuals directly involved in the events,” and “shall specifically state any claims

he wishes to make concerning violation of Department directives, regulations, court

orders, or other law.” DC-ADM 804 §1.A.11.

At the second stage in the DC-ADM 804 Inmate Grievance System, the

inmate must timely submit a written appeal within fifteen working days from the

3 See DC-ADM 804 Policy Statement, available online at:

https://www.pa.gov/content/dam/copapwp-pagov/en/cor/documents/about-us/doc-

policies/804%20Inmate%20Grievances.pdf (effective May 1, 2015) (last visited December 29, 2025).

initial review, and again the inmate will receive a written response thereto within

fifteen working days. Id. at § 2.A. Lastly, the inmate must submit a timely appeal

for final review to SOIGA within fifteen working days, and the inmate will receive a

final determination in writing within thirty days thereafter. Id. at § 2.B. An

inmate appealing a grievance to final review must provide SOIGA with the

following documentation: (1) a legible copy of the Initial Grievance; (2) a copy of the

initial review response/rejection and/or remanded initial review response/rejection;

(3) a legible copy of the Inmate Appeal to the Facility Manager; (4) a copy of the

Facility Manager/designee’s decision and/or remanded Facility Manager/designee’s

decision; and (5) a written appeal to the SOIGA. Id. at §§ 2.B.1.j.1-5. DC-ADM 804

further provides that “failure to provide any of the documentation noted above may

result in the appeal being dismissed[.]” Id. at §2.B.1.j.6.

The Parties do not dispute that Conway filed several grievances, including

Grievance # 1073594 (dated Feb. 9, 2024). See ECF No. 53-5 at 2-15. See also ECF

No. 52 at ¶¶ 34-52; ECF No. 67 at ¶¶ 34-52. As set forth previously, this grievance

deals with the allegations from February 8, where Conway alleged retaliation,

threats, name calling, denial of meals, excessive force, and assault. Id. The Parties

also do not dispute that Conway appealed Grievance # 1073594 through the final

appeal. ECF No. 52 at ¶¶ 42-44; ECF No. 67 at ¶¶ 42-44.

Instead, Defendants argue Grievance # 1073594 is insufficient for exhaustion

because it does not include any allegations against Defendants Yount, Young,

Walker, Richards, Hanes, Coyle, and Slother, and only certain allegations against

Himes. ECF No. 51 at 7. The Court notes that indeed, Grievance # 1073594

primarily discusses Defendant Mowrey’s actions on February 8, 2024, and does not

include any allegations from February 9 or February 12. ECF No. 53-5 at 2.

Conway responds that despite the face of Grievance # 1073594, he fully

exhausted each of his claims against these Defendants because he supplemented

the grievance through a video interview. ECF No. 66 at 2-6. He argues he

discussed each of these Defendants’ actions in more detail on video with

Lieutenants Hollis and Kopchick4 during an investigation into Grievance #

1073594. Id. In Conway’s Appeal to the Superintendent for Grievance # 1073594,

he says the Investigators told him he could give a verbal statement on the events of

February 8, 2024 and the February 12, 2024 hospital trip and that it would be part

of the Grievance record. ECF No. 53-5 at 11. He names each of these Defendants in

his Appeal to the Superintendent, saying he discussed them all in his video

interview, including Defendants Richards and Walker, which he alleges violated his

rights on a different day, February 9, 2024. Id. Conway also says the interviewers

“promise[d]” him that the video is part of his statement/grievance. Id. Defendants

did not respond to this argument.

Notably, this video interview is not in the current record. Conway began

asking for this video in his Appeal to the Superintendent on April 29, 2024. ECF

No. 53-5 at 11. Conway has filed two discovery motions and a motion for spoliation

4 Lieutenants Hollis and Kopchick are not parties to this action.

about this video. See ECF Nos. 36, 46, 72. In response, Defendants represented

they have produced all available video evidence. ECF Nos. 43, 48, 75.

As discussed above, prison officials can “thwart” inmates from taking

advantage of a grievance process through “machination, misrepresentation, or

intimidation.” Downey, 968 F.3d at 305. See also Brown v. Croak, 312 F.3d 109 (3d

Cir. 2002) (misleading or clearly erroneous statements can render a grievance

process unavailable). The Third Circuit Court of Appeals established a two-part

test for when an inmate’s use of the grievance process is thwarted by

misrepresentation. Hardy v. Shaikh, 959 F.3d 578, 590 (3d Cir. 2020) (finding that

all “available” remedies were exhausted because the prison “provided misleading

instructions on which a reasonable inmate would rely and on which the undisputed

record shows Hardy did rely to his detriment”). First, as an objective matter, the

instruction “must be of the sort that a reasonable inmate would be ‘entitled to rely

on,’ even though it is ‘at odds with the wording’ of the grievance process.’” Id. at 588

(citing Brown v. Croak, 312 F. 3d 109, 112 (3d. Cir. 2002). At this first step, the

instruction must also “be so misleading to a reasonable inmate to interfere with his

use of the grievance process.” Id.

Next, at the second step and as a subjective matter, the inmate “must

persuade the district court that he in fact did rely on the misrepresentation to his

detriment.” Id. Documents, affidavits, or live testimony may be warranted. Id.

(citing Rinaldi v. U.S., 904 F.3d 257, 268-69 (3d. Cir. 2018).

There are several material factual disputes here surrounding exhaustion. It

is not clear whether Conway supplemented his Grievance with the video interview.

It is not clear whether he incorporated all of the events of February 8-12, 2024 in

the supplement, as the initial grievance only dealt with February 8, 2024 and it is

unclear from Conway’s recounting of the facts whether his interview incorporated

his allegations against Defendants Richards and Walker. It is also not clear at this

time whether a video interview is even a permissible way to supplement his

grievance, or whether he was misled by representations of prison officials into

thinking his statements in the interview were a permissible supplement.

Since more information is needed, this exhaustion question cannot be decided

at this stage and an evidentiary hearing is needed. See West v. Emig, 787 F. App’x

812 (3d Cir. 2019) (vacating the district court’s decision to grant summary judgment

on defendants’ exhaustion defense when there was a material issue of fact and

remanding with instructions that it may hold an evidentiary hearing on that

defense). Exhaustion-related evidentiary hearings are often referred to as Small

hearings, pursuant to Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013),

where the Court stated factual disputes related to exhaustion should be resolved by

the court rather than a jury.

It will be necessary for the Court to conduct a Small evidentiary hearing to

resolve disputes of facts relevant to exhaustion. See DuBoise v. Woods, No. 1:19-CV-

00007, 2020 WL 437706, at *7 (W.D. Pa. Jan. 9, 2020), report and recommendation

adopted, No. 1:19-CV-7, 2020 WL 435918 (W.D. Pa. Jan. 28, 2020) (denying

summary judgment and scheduling a Small evidentiary hearing to decide factual

dispute surrounding exhaustion); Fahey v. Sacks, No. CV 15-431, 2018 WL 1509023,

at *5 (W.D. Pa. Mar. 27, 2018) (denying summary judgment and scheduling a Small

evidentiary hearing because plaintiff “produced evidence that the full

administrative remedy process may not have been available to him”). See also

Hasbajrami v. Hill, No. 1:20-CV-00220, 2022 WL 486617, at *6 (W.D. Pa. Feb. 17,

2022) (explaining evidentiary hearing pursuant to Small necessary to sufficiently

develop the record on exhaustion); Freeman v. Wetzel, No. 17-1506, 2020 WL

6730897, at *10 (W.D. Pa. Aug. 6, 2020), report and recommendation adopted, No.

2:17-CV-1506, 2020 WL 5362050 (W.D. Pa. Sept. 8, 2020) (explaining evidentiary

hearing was necessary to determine exhaustion factual dispute).

Accordingly, Defendants’ Motion for Summary Judgment as to Conway’s

failure to exhaust claims against Himes, Yount, Young, Walker, Richards, Hanes,

Coyle, and Slother is denied without prejudice to reassert after the Small

evidentiary hearing.

e. Verbal Harassment – Mowrey, Yount, Himes, Young, Walker,

and Richards

Defendants argue summary judgment should be granted in their favor on any

of Conway’s Eighth Amendment claims of verbal harassment by Defendants

Mowrey, Yount, Himes, Young, Walker, and Richards. ECF No. 9-12. Defendants

do not move to dismiss any of Conway’s First Amendment Retaliation claims

against Defendants Mowrey, Yount, or Himes, to the extent they are based on his

claims of verbal harassment nor any claims of defamation/libel. Id. Conway does

not address this except to reiterate his allegations. ECF No. 66 at 2-6.

In the Second Amended Complaint, Conway alleges Defendants Mowrey and

Yount verbally harassed him in retaliation for filing grievances. ECF No. 32 at ¶¶

5-7. Conway also alleges Defendants Himes, Young, Walker, and Richards each

labeled him as either a “rat” or a “snitch.” Id. at ¶¶ 9, 12-13, 30-31. He alleges

Defendant Himes labeled him as a “rat” in retaliation for filing “paperwork,” but

does not allege the other Defendants were acting in retaliation. Id. at ¶¶ 11-13.

As to Defendants Mowrey and Yount, summary judgment will be granted to

Defendants on any Eighth Amendment claims. It is well-established that “verbal

harassment of a prisoner, although deplorable, does not violate the Eighth

Amendment.” Robinson v. Taylor, 204 F. App'x 155, 156 (3d Cir. 2006). See also

Pena v. Clark, 21-2931, 2022 WL 897037, at *2 (3d Cir. Mar. 28, 2022) (granting

summary judgment to defendants on Eighth Amendment claim based on verbal

harassment) (citing McBride v. Deer, 240 F.3d 1287, 1291 n.3 (10th Cir. 2001)

(explaining “acts or omissions resulting in an inmate being subjected to nothing

more than threats and verbal taunts do not violate the Eighth Amendment”)).

Summary judgment will also be granted to Defendants on any Eighth

Amendment claims against Defendants Himes, Young, Walker, and Richards based

on allegations they labeled Conway as a “rat” or a “snitch.” Being “labeled a ‘snitch’

or a ‘rat’ can be a dangerous designation in prison.” Jackson v. O'Brien, No. 1:18-

CV-00032, 2021 WL 3174687, at *4 (W.D. Pa. July 27, 2021). See also Stringer v.

Henderson, No. 21-CV-0547, 2023 WL 8652904, at *7 (W.D. Pa. Dec. 14, 2023)

(“[l]abeling an inmate a snitch may give rise to an Eighth Amendment violation if

the prison official acted with deliberate indifference to a substantial risk of harm to

the inmate.”) (quoting Tabb v. Hannah, No. 1:10-cv-1122, 2012 WL 3113856, at *6

(M.D. Pa. July 30, 2012)). Defendants argue summary judgment should be granted

in their favor because the record does not show that Conway suffered any harm

from those labels. ECF No. 51 at 11-12. Defendants are correct, there must be

some evidence that Conway “suffered any harm from other inmates as a result of

the labelling.” Moore v. Wetzel, No. CIV.A. 14-1709, 2015 WL 7163114, at *4 (W.D.

Pa. Nov. 13, 2015). See also Hudson v. Kennedy, 2013 WL 4778700, at *10 (W.D.Pa.

Sept. 5, 2013) (“[T]he fear of assault has been held to be insufficient to state a

cognizable Eighth Amendment failure to protect claim”). Here, there is no evidence

in the record Conway suffered harm from being labeled as a “rat” or a “snitch.” See

generally, ECF Nos. 52, 67. Summary judgment on all Eighth Amendment claims

based on verbal harassment will be GRANTED to Defendants.

However, since Defendants do not move for summary judgment on Conway’s

retaliation claims against Mowrey, Yount, and Himes – which are based, in part, on

claims of verbal harassment or being labeled a “rat” – those claims will move

forward pending the Small exhaustion evidentiary hearing. Conway’s

defamation/libel claims against Himes, Walker, Young, and Richards are also based

on them labeling him as either a “rat” or a “snitch,” and Defendants do not move for

summary judgment on the defamation/libel claims. Accordingly, those claims will

move forward pending the Small exhaustion evidentiary hearing. The Court

declines to address these sua sponte under § 1997e(c) and § 1915(e)(2).

f. Deprivation of Food – Defendants Mowrey, Himes, and Yount

On the merits, Defendants also seek summary judgment on Conway’s Eighth

Amendment cruel and unusual punishment claims against Defendants Mowrey and

Himes for denying him two meals on February 8, 2024. ECF No. 51 at 13-14.

While Defendants do not include Defendant Yount in their argument, the Court will

sua sponte address Conway’s Eighth Amendment cruel and unusual punishment

claim against Defendant Yount under § 1997e(c) and § 1915(e)(2) here. Defendants

do not move to dismiss Conway’s retaliation claims against these Defendants nor

the conspiracy claims against Mowrey and Yount, to the extent the claims are based

on the deprivation of food.

Conway alleges Mowrey, Himes, and Yount were retaliating against him for

filing grievances against Mowrey. ECF No. 32 at ¶¶ 1-13. One of those retaliatory

actions was they denied him lunch and dinner, respectively, on February 8, 2024.

Id. at ¶¶4-8, 10. Conway alleges denying him food was part of a larger pattern of

retaliation that day, which also included Mowrey and Yount threatening him with

violence, and Himes calling him a “rat.” Id. at ¶¶ 1-13.

Defendants argue summary judgment should be granted in their favor

because depriving him of two meals does not rise to the level of cruel and unusual

punishment. ECF No. 51 at 13 (citing Newmones v. Ransom, No. 1:21-CV-00276,

2024 WL 624239, at *5 (W.D. Pa. Feb. 14, 2024) (determining allegations the

inmate-plaintiff “was denied meals over the course of . . . two and one-half days do

not rise to the level of cruel and unusual punishment”)). Defendants also argue

Conway does not allege, nor does the record contain, any evidence Conway suffered

ill health effects from missing the meals. Id. (citing Lindsey v. Shaffer, 411 F.App’x

466, 468 (3d Cir. 2011) (“The critical issue for Eighth Amendment purposes is . . .

whether the alleged [deprivation] has somehow harmed the prisoner”). Conway

does not respond directly to Defendants’ arguments in his Opposition except to

recount the facts from the Second Amended Complaint. ECF No. 66 at 1-2, 4.

The Eighth Amendment's prohibition of cruel and unusual punishment

imposes constitutional limitations on a prisoner's conditions of confinement. See

Rhodes v. Chapman, 452 U.S. 337 (1981); Graham v. Connor, 490 U.S. 386 (1989);

Wilson v. Seiter, 501 U.S. 294 (1991). To state a viable conditions of confinement

claim, the plaintiff must: (1) allege a deprivation that is “objectively, sufficiently

serious”; and (2) show that the prison official “ha[s] a sufficiently culpable state of

mind.” Beers-Capitol v. Whetzel, 256 F.3d 120,125 (3d Cir. 2001) (quoting Farmer v.

Brennan, 511 U.S. 825, 834 (1994)) (quotation marks and citations omitted).

The Court agrees with Defendants – deprivation of two meals does not rise to

the level of an Eighth Amendment claim. See Ball v. Struthers, 2012 WL 2946785,

at *13 (M.D. Pa. July 19, 2012) (“purported deprivation of a single meal is not of

such magnitude as to rise to the level of a constitutional violation”); Newmones v.

Ransom, 1:21-CV-00276, 2024 WL 624239, at *4 (W.D. Pa. Feb. 14, 2024) (granting

summary judgment because deprivation of meals for two days does not rise to the

level of an Eighth Amendment conditions of confinement claim). Accordingly,

Summary Judgment will be GRANTED to Defendants for Conway’s Eighth

Amendment claims based on deprivation of meals.

As Defendants did not move for summary judgment on Conway’s retaliation

or civil conspiracy claims, the Court notes Conway’s claims for retaliation against

Mowrey, Himes, and Yount, and Conway’s conspiracy claims against Mowrey and

Yount – to the extent they are based in part on the deprivation of meals – remain

active in the case pending the Small exhaustion evidentiary hearing. The Court

declines to address these sua sponte under § 1997e(c) and § 1915(e)(2).

V. Conclusion

The Defendants’ Partial Motion to Dismiss is granted in part and denied in

part as set forth above and in the chart below. As noted previously, summary

judgment is also granted to Defendants as to all claims against Defendant Irwin.

Claim Defendant SJ granted to SJ denied Survive

Defendants w/out summary

prejudice judgment

pending the in all

respects

hearing

Deliberate Mowrey, Mowrey, Yount, Himes,

Indifference Yount, Yount, Himes, Young, Walker,

(Verbal Himes, Young, Richards

Harassment) Young, Walker,

Walker, Richards

Richards

Failure to Hanes, Coyle Hanes, Coyle

Protect

Retaliation Mowrey, Yount, Himes, Mowrey,

Yount, Young Crose,

Himes, Lowe

Young, Crose,

Lowe

Civil Conspiracy Mowrey, Yount Mowrey

Yount

Cruel & Unusual Mowrey, Mowrey, Yount

Punishment Yount, Himes Himes

(Deprivation of

Food)

Sexual Assault Feldor, Blum, Feldor,

Barger, Blum,

Munksgard, Barger,

McCracken, Munksgard,

Rankini, McCracken,

Guarnieri, Rankini,

and Babcock Guarnieri,

Babcock

Excessive Force Crose, Slother Crose,

Feldor, Blum, Feldor,

Barger, Blum,

Munksgard, Barger,

McCracken, Munksgard,

Rankini, McCracken,

Guarnieri, Rankini,

and Babcock, Guarnieri,

Slother Babcock

Defamation/Libel Himes, Himes, Young,

Young, Walker,

Walker, Richards

Richards

An appropriate Order will be issued. By separate Order, the Court will

schedule a conference with the Parties to discuss the Small evidentiary hearing

prior to setting a hearing date.

DATED this 29th day of December, 2025.

BY THE COURT:

s/Christopher B. Brown

United States Magistrate Judge

CC: CHRISTOPHER CONWAY

LK4896

SCI FOREST

P.O. Box 307

286 Woodland Drive

Marienville, PA 16239

All counsel of record, via ECF