BURLEY

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

KEITH LAMONT BURLEY, JR., )

)

Plaintiff, ) Civil Action No. 1:23-cv-276

)

)

v. )

) Magistrate Judge Patricia L. Dodge

)

CO FRITZ, and McDUFFIE, )

SUPERINTENDENT/WARDEN, )

)

Defendants. )

MEMORANDUM OPINION1

Presently before the Court are separate motions for summary judgment by Defendant

McDuffie (ECF No. 115) and Defendant CO Fritz (ECF No. 118).

I. Relevant Procedural History

Plaintiff Keith Lamont Burley, Jr., an inmate at the State Correctional Institution at Coal

Township, brought this pro se civil rights action under 42 U.S.C. § 1983. Plaintiff was convicted

on August 28, 2023, of, inter alia, murder of the first degree, in the Court of Common Pleas of

Lawrence County. He was sentenced to life imprisonment on September 19, 2023.

Plaintiff commenced this action in 2023. In the operative Complaint, he brought claims

against ten defendants. (ECF No. 11.) Following disposition of Defendants’ motions to dismiss,

the sole remaining claims are: (1) a deliberate indifference claim against McDuffie, the warden

of the Mercer County Jail, for denial of medical treatment for Covid-19; and (2) claims of

1 In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties have voluntarily

consented to have a United States Magistrate Judge conduct proceedings in this case. Therefore,

the undersigned has the authority to decide dispositive motions and enter final judgment.

excessive force and conditions of confinement against Fritz, a corrections officer at the State

Correctional Institution at Forest. (ECF No. 83.)

The claim against McDuffie arose in January of 2022, when Plaintiff was housed at the

Mercer County Jail as a pre-trial detainee. Plaintiff’s claim against Fritz relates to matters that

occurred in September 2023, when Plaintiff was housed at SCI Forest as a convicted detainee

awaiting sentencing. During these periods, however, he was also being detained for violation of

his parole. Because the precise nature of his parole status at the relevant time periods is unclear,

and because pretrial detainees generally enjoy greater constitutional protections than sentenced

prisoners, the Court will assume that Plaintiff was a pretrial detainee for purposes of these

motions.

McDuffie filed his Motion for Summary Judgment on July 3, 2025, supported by a Brief

and a Concise Statement of Material Facts. (ECF Nos. 115-117.) Plaintiff filed a Brief in

Opposition. (ECF No. 133.)

Fritz also filed his Motion for Summary Judgment on July 3, 2025, supported by a Brief,

a Concise Statement of Material Facts, and an Appendix. (ECF Nos. 118-121.) Plaintiff filed a

Brief in Opposition. (ECF No. 132.)

Thus, both motions are ripe for consideration.

II. Factual Background

A. McDuffie2

Plaintiff arrived at the Mercer County Jail on January 26, 2022. (ECF No. 117 ¶ 1; ECF

No. 133 at 3 ¶ 1.) At that time, he tested positively for Covid-19 and was informed of the test

2 Other than as noted, the facts referenced here are undisputed.

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results. (ECF No. 117 ¶¶ 6, 7; ECF No. 133 at 3 ¶¶ 6, 7.) That evening, Plaintiff experienced

difficulty breathing, which he described as a “weight on [his] chest” while lying on his back.

(ECF No. 117 ¶¶ 8-9; ECF No. 133 at 3 ¶¶ 8-9.) He also had pain in his back. (ECF No. 117 ¶ 9;

ECF No. 133 at 3 ¶ 9.) This pain lasted approximately 12 to 24 hours. (ECF No. 117 ¶ 10; ECF

No. 133 at 3 ¶ 10.) On one occasion, Plaintiff had discolored urine. (ECF No. 117 ¶ 11; ECF No.

133 at 3 ¶ 11.) He also experienced loss of taste and smell for approximately two to three

months. (ECF No. 117 ¶ 12; ECF No. 133 at 3 ¶ 12.)

Plaintiff first reported these symptoms to two corrections officers and two nurses. (ECF

No. 117 ¶¶ 14-16; ECF No. 133 at 3 ¶¶14-16.) He also discussed his symptoms with McDuffie.

(ECF No. 117 ¶ 17; ECF No. 133 at 3 ¶ 17.) According to Plaintiff, when he and McDuffie

discussed these issues, McDuffie told him that he decided to keep him confined to the H unit.

(ECF No. 115-2 at 7). It was Plaintiff’s belief that McDuffie did so in order to quarantine those

with Covid-19 so that it would not spread throughout the jail. (Id.)3

Plaintiff was seen by a medical doctor the day after he tested positive. (ECF 115-2 at13.)

He was offered Gatorade and vitamins by the medical staff.4 (ECF No. 117 ¶ 22; ECF No. 133 at

3 ¶ 22.) He was also provided education for the Covid-19 protocol regarding isolation, medicine,

and care. (ECF No. 117 ¶ 38; ECF No. 133 at 3 ¶ 38.)As plaintiff testified, he is not claiming that

he was not offered any type of medical treatment, but since he has obsessive compulsive

3 Plaintiff made these statements under oath during his deposition. Thus, his subsequent

unverified denial of these facts in his response to McDuffie’s Concise Statement of Material

Facts must be disregarded. He also admits that he has no knowledge of what steps were taken to

prevent the spread of Covid-19 at the Mercer County Jail. (ECF No. 133 at 3 ¶ 18.) Further, he

does not provide any evidence for his allegation that he needed hospitalization and a ventilator at

that time.

4 Plaintiff disputes that this represented medical treatment.

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disorder, he was reluctant to and refused to take what was offered to him. (ECF No. 115-2 at 8,

9, 14.) In fact, he doesn’t take any medications. (Id. at 9.)

Daily assessments of Plaintiff were conducted by medical personnel. (ECF No. 115-2 at

14.) He had no recurrent symptoms. (Id.) Plaintiff was seen by multiple nurses on several

occasions while he was Covid-19 positive. (ECF No. 117 ¶ 20; ECF No. 133 at 3 ¶ 20.) He

represents that he told nurses that he should be taken to an outside facility for medical treatment

but did not express this to McDuffie.5 (ECF 115-2 at 8, 9.) He believed that he needed a

ventilator and to be hospitalized. (ECF No. 133 at 3 ¶¶ 26-27.) Plaintiff also agreed under oath

that McDuffie is not a medical expert and not the person to provide medical treatment. (ECF

115-2 at 10.)

In an Inmate Request Form dated January 31, 2022, Plaintiff stated:

In the same sense a person files a grievance when things go wrong, I file

compliments when things go right. Medical has been prompt and very

professional. I wanted to thank you all for your patience in hearing and addressing

my concerns about covid. THANK YOU ALL!

(ECF No. 115-3.)

Plaintiff did not file a grievance with regard to deliberate indifference to his medical care

at the Mercer County Jail. (ECF No. 117 ¶ 42; ECF No. 133 at 3¶ 42.)

B. Fritz

In his verified Complaint, Plaintiff alleged that he was moved to cell JD 1009 at SCI

Forest on September 9, 2023. (ECF No. 11 ¶ 20.) While Plaintiff was housed in JD 1009, he

5 Despite this sworn testimony, Plaintiff claims in his response to the Concise Statement of

Material Facts that he told McDuffie he needed outside medical treatment. Even if accepted as

true, however, there is no evidence to support Plaintiff’s claim that he required outside medical

treatment.

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claims that Fritz denied him food and hygiene supplies. (Id. ¶ 25.) JD 1009 is extremely cold,

and Plaintiff was without appropriate clothing and bedding. (Id. ¶ 28.)

Plaintiff further alleges in the Complaint that on September 16, 2023, Fritz moved

Plaintiff to a “hard cell” (JD 1006). (Id. ¶ 24.) During the move to the new cell, Fritz twisted

Plaintiff’s wrists, breaking one of his fingers. (Id. ¶ 26.) Fritz deliberately failed to bring

Plaintiff’s glasses to JD 1006, which resulted in Plaintiff suffering from migraine headaches,

disorientation, sleep loss, dizziness, and impaired vision. (Id. ¶ 27.)

As the parties agree, Plaintiff filed three grievances between September 9, 2023, and

October 6, 2023. (ECF No. 120 ¶ 1; ECF No. 132 at 2 ¶ 1.)6

In Grievance No. 1053112, Plaintiff alleges that several corrections officers, including

Fritz, physically assaulted him. (ECF No. 120 ¶ 3; ECF No. 132 at 2 ¶ 3.) Plaintiff appealed the

denial of this grievance to the facility manager but did not pursue final review by the Secretary’s

Office of Inmate of Grievances and Appeals (“SOIGA”) thereafter. (ECF No. 120 ¶ 4; ECF No.

132 at 2 ¶ 4.)

In Grievance No. 1054353, Plaintiff alleged that several corrections officers, including

Fritz, deprived him of hygiene items and food. (ECF No. 120 ¶ 5; ECF No. 132 at 2 ¶ 5.)

Plaintiff did not appeal the denial of this grievance to the facility manager. (ECF No. 120 ¶ 7;

ECF No. 132 at 2 ¶ 7.)

III. Legal Standard

Rule 56 of the Federal Rules of Civil Procedure provides that: “The court shall grant

summary judgment if the movant shows that there is no genuine dispute as to any material fact

6 Plaintiff did not make any allegations against Fritz in Grievance No. 1504445. (ECF No. 120

¶ 6; ECF No. 132 at 2 ¶ 6.)

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and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary

judgment may be granted against a party who fails to adduce facts sufficient to establish the

existence of any element essential to that party’s case, and for which that party will bear the

burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party

bears the initial burden of showing the absence of a genuine, material dispute and an entitlement

to judgment. Id. at 323. This showing does not necessarily require the moving party to disprove

the opponent’s claims. Instead, this burden may often be discharged simply by pointing out for

the court an absence of evidence in support of the non-moving party’s claims. Id.

Once the moving party has met their initial burden, then the burden shifts to the non-

moving party to demonstrate, by affidavit or other evidence, “specific facts showing that there is

a genuine issue for trial” or the factual record will be taken as presented by the moving party and

judgment will be entered as a matter of law. Matsushita Elec. Indus. Corp. v. Zenith Radio

Corp., 475 U.S. 574, 587 (1986). A non-moving party must “go beyond the pleadings” and show

probative evidence creating a triable controversy. Celotex, 477 U.S. at 324. An issue is genuine

only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In following this directive, a court

must take the facts in the light most favorable to the non-moving party and must draw all

reasonable inferences and resolve all doubts in that party’s favor. Hugh v. Butler Cty. Fam.

YMCA, 418 F.3d 265, 267 (3d Cir. 2005).

Although courts must hold pro se pleadings to “less stringent standards than formal

pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), at the summary

judgment stage a pro se plaintiff is not exempt from his burden of providing some affirmative

evidence, not just mere allegations, to show that there is a genuine dispute for trial. See, e.g.,

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Barnett v. NJ Transit Corp., 573 Fed. Appx. 239, 243 (3d Cir. 2014) (holding that the pro se

plaintiff was still “required to designate specific facts by use of affidavits, depositions,

admissions, or answers to interrogatories . . . sufficient to convince a reasonable fact finder to

find all the elements of her prima facie case”) (citation and quotation omitted); Siluk v. Beard,

395 Fed. Appx. 817, 820 (3d Cir. 2010) (“[T]he right of self-representation does not exempt a

party from compliance with relevant rules of procedural law.”); Mala v. Crown Bay Marina,

Inc., 704 F.3d 239, 245 (3d Cir. 2013) (pro se plaintiffs “cannot flout procedural rules—they

must abide by the same rules that apply to all other litigants.”)

IV. Analysis

A. McDuffie

In support of his Motion for Summary Judgment, McDuffie argues, among other things,

that the undisputed facts establish that he was not deliberately indifferent to Plaintiff’s serious

medical needs. (ECF No. 116 at 3-6.)7 He is correct.

To state a claim that a defendant delayed or denied medical care, a plaintiff must allege

(1) a serious medical need and (2) that the defendant was deliberately indifferent to that need.

Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). For a pretrial detainee, whether the defendant

was deliberately indifferent is an objective, not subjective, inquiry. Conley-Reifer v. Butler Cty.

Prison, Civ. A. No. 23-1804, 2024 WL 5347837, at *9 (W.D. Pa. Nov. 12, 2024). “[M]ere

disagreement between the prisoner and medical personnel over the proper course of treatment”

7 McDuffie also argues that Plaintiff failed to exhaust his administrative remedies. However,

Plaintiff claims that he was unable to file a grievance as the forms were not available on the

housing unit. (ECF No. 133 at 6 ¶ 42.) Thus, while it is uncontroverted that Plaintiff failed to

grieve his complaints about McDuffie, there is a genuine issue of material fact about whether the

grievance process was available to him. As a result, Court cannot grant summary judgment on

this basis.

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falls short of establishing deliberate indifference. Montanez v. Price, 125 F.4th 127, 141 (3d Cir.

2025).

In a claim under 42 U.S.C. § 1983, a plaintiff must plead a defendant’s personal

involvement in the alleged deprivation of the constitutional right. See, e.g., Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). That is because, as stated in the text of

§ 1983 itself, only a person who “subjects, or causes to be subjected” another person to a civil

rights violation can be held liable under § 1983. Thus, each defendant is liable only for his or her

own conduct. See, e.g., id.; see also Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir. 2016);

Barkes v. First Correctional Med., 766 F.3d 307, 316 (3d Cir. 2014) (rev’d sub. nom. on other

grounds 575 U.S. 822 (2015)); C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 173 (3d Cir. 2005)

(“To impose liability on the individual defendants, Plaintiffs must show that each one

individually participated in the alleged constitutional violation or approved of it.”) (citing C.H. v.

Oliva, 226 F.3d 198, 201-02 (3d Cir. 2000) (en banc)).

The doctrine of respondeat superior, which makes an employer or supervisor

automatically responsible for the wrongdoing of its employees, does not apply under § 1983.

Iqbal, 556 U.S. at 676 (“Because vicarious liability is inapplicable to … § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the official’s own individual

actions, has violated the Constitution.”); Rode, 845 F.2d at 1207. For that reason, a supervisor-

defendant cannot be held liable for every illegal act that takes in a correctional facility. They are

only liable for their own conduct.

The Court of Appeals has identified two general ways in which a supervisor-defendant

may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if

the supervisor, “with deliberate indifference to the consequences, established and maintained a

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policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K.

v. Luzerne Cty. Juv. Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting

Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor

may be personally liable under § 1983 if he or she participated in violating the plaintiff’s rights,

directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in

the subordinate’s unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190

(3d Cir. 1995)). “Allegations of participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity.” Rode, 845 F.2d at 1208.

Plaintiff does not allege that McDuffie established any policy, practice, or custom that

violated his civil rights. Rather, he alleges that McDuffie was deliberately indifferent to

Plaintiff’s serious medical needs because he knew of and acquiesced in the denial of medical

care to Plaintiff.

Even assuming arguendo that Plaintiff’s Covid-19 symptoms, many of which lasted less

than 24 hours, represented a serious medical need, the undisputed facts confirm that Plaintiff was

provided with medical evaluation and care for his symptoms. And “[i]f a prisoner is under the

care of medical experts, a non-medical prison official will generally be justified in believing that

the prisoner is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

It is uncontroverted that Plaintiff was seen by medical personnel during his confinement

in the Mercer County Jail. Plaintiff was seen by a physician the day after he tested positive. By

then, many of his symptoms had abated. He declined the offer of vitamins or aspirin by medical

personnel because it is his practice not to take any medications. He received daily assessments by

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medical personnel and had no recurrent symptoms.8 Nonetheless, he believed he should have

been taken to an outside facility for treatment, and that his treatment should have included an

MRI and a ventilator. There is no evidence that Plaintiff required a ventilator, an MRI, or any

other treatment outside of the jail. Simply put, a mere disagreement with medical personnel on

the proper course of treatment does not establish deliberate indifference.

Moreover, Plaintiff’s sworn testimony refutes any claim of deliberate indifference on the

part of McDuffie. As Plaintiff admits, McDuffie is not a medical expert or qualified to render

medical opinions or treatment. Plaintiff discussed his symptoms with McDuffie after he tested

positive for Covid-19, and McDuffie made the decision to keep him in isolation. Thereafter,

Plaintiff received medical assessments and recommendations for treatment. There is no evidence

that McDuffie was personally involved in these medical assessments and recommendations, or

indeed, was even aware of them. Plaintiff admitted under oath that he did not tell McDuffie of

his belief that he needed treatment at an outside facility. Even if he had done so, however, or

otherwise discussed with McDuffie his disagreement with his medical treatment at Mercer

County Jail, there is no evidence that McDuffie was not reasonably justified in relying on the

treatment decisions of the jail’s medical personnel.

Thus, an objective evaluation of the record evidence conclusively establishes that

Plaintiff’s claim that McDuffie was deliberately indifferent to a serious medical need is without

merit. McDuffie was not personally involved in his medical treatment. Moreover, to the extent

that he had any knowledge of the treatment Plaintiff received by medical personnel, Plaintiff’s

8 During this time, Plaintiff complimented medical personnel for their professionalism and

addressing his concerns about Covid-19.

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mere disagreement about the proper course of his medical treatment falls far short of establishing

a civil rights claim against McDuffie.

Thus, McDuffie is entitled to summary judgment in his favor on Plaintiff’s claim against

him.

B. Fritz

1. Excessive Force

Fritz first argues that he is entitled to summary judgment on the excessive force claim

because Plaintiff failed to exhaust his administrative remedies with regard to this claim. (ECF

No. 119 at 3-6.) As discussed below, Fritz is correct.

The Prison Litigation Reform Act (“PLRA”) provides that:

No 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.

42 U.S.C. § 1997(e)(a). The Supreme Court has held that prisoners must exhaust their

administrative remedies before bringing suit. Woodford v. Ngo, 548 U.S. 81 (2006). The Court

has also held that the PLRA requires “proper exhaustion,” that is, exhaustion as set forth in the

procedures described. Id.

Failure to exhaust available administrative remedies is an affirmative defense. Jones v.

Bock, 549 U.S. 199, 216 (2007). As such, the defendant has the burden of pleading and proving

that the prisoner failed to exhaust available administrative remedies. Brown v. Croak, 312 F.3d

109, 111 (3d Cir. 2002). Importantly, the prison’s grievance policy is what “define[s] the

boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill v. Gillis, 372 F.3d 218, 230-31

(3d Cir. 2004) (“prison grievance procedures supply the yardstick for measuring procedural

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default.”). Thus, the procedural requirements for exhaustion in a given case “are drawn from the

policies of the prison in question rather than from any free-standing federal law.” Shifflett v.

Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill, 372 F.3d at 231).

The DOC’s relevant inmate grievance system is set forth in DC-ADM 804. The DOC has

adopted a three-part grievance process that inmates must follow. After a grievance is filed, it is

subject to an initial review by a correctional official. If dissatisfied with the results of the initial

review, an inmate must then appeal to the Facility Manager and if still dissatisfied, appeal to

SOIGA. See 37 Pa. Code § 93.9; DC-ADM 804; Spruill, 372 F.3d at 232.

It is undisputed that Plaintiff filed Grievance No. 1053112 on September 16, 2023, and

complained of an assault by Fritz and others. (ECF No. 120 ¶ 3; ECF No. 132 at 2 ¶ 3.) The

parties also agree that Plaintiff appealed the denial of this grievance to the facility, which upheld

the initial denial. (ECF No. 120 ¶ 4; ECF No. 132 at 2 ¶ 4.) Further, Plaintiff admits that he did

not pursue an appeal to SOIGA. (Id.) Thus, it is undisputed that Plaintiff did not exhaust his

administrative remedies with regard to this grievance.

Plaintiff does not argue that the administrative process was unavailable to him. In fact,

other than admitting that he did not pursue an appeal to SOIGA, Plaintiff does not address in any

fashion Fritz’s argument that the excessive force claim is barred by his failure to exhaust his

administrative remedies.9 That is fatal to his claim. “Courts within the Third Circuit have

routinely held that a non-movant’s failure to offer any response to an opposing party’s summary

judgment arguments constitutes an abandonment of claims left undefended.” Diodato v. Wells

9 Plaintiff opposes Fritz’s argument with regard to failure to exhaust another grievance (No.

1054353), (ECF No. 132 at 4), but does not respond to the argument with regard to Grievance

No. 1053112.

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Fargo Ins. Servs., USA, 44 F. Supp. 3d 541, 556 (M.D. Pa. 2014) (collecting cases).

Accordingly, as Petitioner has abandoned this claim, Fritz is entitled to summary judgment in his

favor with respect to Plaintiff’s excessive force claim.

2. Conditions of Confinement

Fritz also argues that he is entitled to summary judgment on Plaintiff’s conditions of

confinement claim because Plaintiff failed to exhaust his administrative remedies. (ECF No. 119

at 3-6.) It is undisputed that Plaintiff did not exhaust this claim because he failed to appeal the

initial denial of Grievance No. 1054353 to the facility manager. (ECF No. 120 ¶ 7; ECF No. 132

at 2 ¶ 7.)

Plaintiff does not argue that the administrative process was unavailable to him. Rather, he

argues that he was not required to appeal the denial because prison authorities failed to timely

respond to the grievance. (ECF No. 132 at 4.)10

While the Court of Appeals has held that a prison may render its administrative remedies

unavailable when it fails to timely respond to a grievance, Robinson v. Superintendent Rockview

SCI, 831 F.3d 148, 154 (3d. Cir. 2016), that did not occur here. As the record reflects, Plaintiff

filed Grievance No. 1054353 on September 28, 2023. (ECF No. 121-3 at 3.) Per DC-ADM 804

§ 1.C.5.g., a response shall be provided to the inmate within 15 working days. An extension of

ten additional working days may be requested if the investigation of the grievance is ongoing. Id.

§ 1.C.5.h. On October 13, 2023, within the initial 15-working-day period, the facility grievance

coordinator issued a notice of an extension of ten additional working days to properly investigate

and respond to the grievance. (ECF No. 121-3 at 2.) The response was then issued on October

10 Plaintiff also asserts that because the signature on the response was not that of a grievance

coordinator, the response is “legally null.” (ECF No. 132 at 4.) He provides no legal authority to

support this argument.

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25, 2020, 19 working days after the submission of the grievance. (Id. at 1.) Thus, it is

uncontroverted that the response was timely. Thereafter, Plaintiff did not appeal the initial denial

to the facility manager.

In short, because Plaintiff failed to exhaust his administrative remedies, Fritz is entitled to

summary judgment on the conditions of confinement claim.

V. Conclusion

For these reasons, the motions for summary judgment filed by McDuffie (ECF No. 115)

and Fritz (ECF No. 118) will be granted.

Appropriate orders follow.

Dated: March 3, 2026 BY THE COURT:

/s/ Patricia L. Dodge

PATRICIA L. DODGE

UNITED STATES MAGISTRATE JUDGE

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