TALBERT

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

ERIE DIVISION

)

CHARLES TALBERT, 1:24-CV-00166-RAL

) RICHARD A. LANZILLO

) Chief United States Magistrate Judge

Plaintiff )

) MEMORANDUM OPINION ON

) PLAINTIFF'S MOTION FOR

V. ) JUDGMENT ON THE PLEADINGS

) [77], DEFENDANTS’ MOTION FOR

) JUDGMENT ON THE PLEADINGS

DEPARTMENT OF CORRECTIONS, ) [83], PLAINTIFF'S MOTION FOR

et al, ) SUMMARY JUDGMENT [91], and

) DEFENDANTS’ MOTION FOR

) SUMMARY JUDGMENT [103]

Defendants )

)

I. Introduction

Plaintiff Charles Talbert, an inmate formerly in the custody of the

Pennsylvania Department of Corrections (DOC),! initiated this action by filing a pro

se complaint in the Court of Common Pleas of Forest County. ECF No. 1. Defendants

filed a timely Notice of Removal on June 12, 2024. Id. After seeking leave to amend,

Talbert filed his Second Amended Complaint — the currently operative pleading — on

July 8, 2025. ECF No. 70. He asserts federal claims pursuant to the Americans with

Disabilities Act, the Rehabilitation Act, and the Eighth Amendment, as well as state

law claims of assault and battery and civil conspiracy to commit libel. Jd. As

! Plaintiff served his maximum sentence and was released from DOC custody on November 12, 2025.

Defendants, Talbert has identified the DOC, DOC Secretary Laurel Harry, and

corrections officers Lowe, Lesko, Crose, Young, and Keppel. Id.

Talbert and Defendants have filed both cross-motions for judgment on the

pleadings and cross-motions for summary judgment.? See ECF Nos. 77, 83, 91, 103.

Each motion is ripe for adjudication.

IT. Factual Background

According to Talbert, on May 29, 2024, Defendant Crose, “without justification,

and in reckless disregard of Plaintiff being a known asthmatic, ... maliciously and

sadistically deployed the DOC’s strongest OC spray, named Phantom, into Plaintiffs

RHU cell, in grossly large amounts.” ECF No. 70 § 23. As a result, Talbert

experienced breathing difficulties and a burning sensation in his lungs “for a

substantial period of time.” Id. § 25. To cover up his malicious use of spray, Crose

conspired with Lowe, Lesko, Young, and Keppel to “knowingly file a false misconduct

report” alleging that Talbert had refused to obey an order and made threatening

comments to Crose. Id. § 29.

Talbert filed two administrative grievances after the incident. In Grievance

# 1091293, Talbert accused Crose of “maliciously and sadistically spray[ing] OC into

[his] cell, in large amounts, causing [his] breathing to be labored.” ECF No. 105-4.

That grievance was denied on initial review, see id. at p. 6, and Talbert did not appeal.

See ECF No. 105-7 § 16.

Talbert’s second grievance related to the same incident, Grievance # 1091297,

? Because the parties have each submitted cross-motions for summary judgment on a more fully developed record,

their respective motions for judgment on the pleadings will be denied as moot.

alleged that unnamed medical staff failed to provide adequate treatment following

Crose’s use of OC spray. ECF No. 105-5. Although Talbert appealed the denial of

that grievance to final review, he has not sued any of those medical providers in this

action. See ECF No. 70.

Ill. Standard of Review

Federal Rule of Civil Procedure 56(a) requires the court to enter summary

judgment “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 □□ law.” Fed. R. Civ. P. 56(a).

Under this standard “the mere existence of some alleged factual dispute between the

parties will not defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine issue of material fact.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is

“material” if proof of its existence or nonexistence would affect the outcome of the case

under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York

Newspapers, Inc., 957 F.2d 1070, 1078 (8d Cir. 1992). An issue of material fact is

“genuine” if the evidence is such that a reasonable jury could return a verdict for the

nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of

Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (8d Cir. 1991).

When determining whether a genuine issue of material fact remains for trial,

the court must view the record and all reasonable inferences to be drawn therefrom

in favor of the nonmoving party. Moore v. Tartler, 986 F.2d 682 (8d Cir. 1998);

Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (8d Cir. 1992); White v. Westinghouse

Electric Co., 862 F.2d 56, 59 (8d Cir. 1988). To avoid summary judgment, however,

the nonmoving party may not rest on the unsubstantiated allegations of his or her

pleadings. Instead, once the movant satisfies its burden of identifying evidence that

demonstrates the absence of a genuine issue of material fact, the nonmoving party

must go beyond his pleadings with affidavits, depositions, answers to interrogatories

or other record evidence to demonstrate specific material facts that give rise to a

genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

Further, under Rule 56, a defendant may seek summary judgment by pointing

to the absence of a genuine fact issue on one or more essential claim elements. The

Rule mandates summary judgment if the plaintiff then fails to make a sufficient

showing on each of those elements. When Rule 56 shifts the burden of production to

the nonmoving party, “a complete failure of proof concerning an essential element of

the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex,

477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (8d Cir. 1992).

Finally, because Plaintiff is proceeding pro se, the court must “apply the

applicable law, irrespective of whether [the] pro se litigant has mentioned it by

name.” Holley v. Dep’t of Veteran’s Affairs, 165 F.3d 244, 247-48 (8d Cir. 1999).

Nevertheless, “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) (citation omitted). In other words, a plaintiffs pro se

status does not relieve him of his “obligation under Rule 56(c) to produce evidence

that raises a genuine issue of material fact.” Jd. (quoting Boykins v. Lucent Techs.,

Inc., 78 F. Supp. 2d 402, 408 (E.D. Pa. 2000)); see also Winfield v. Mazurkiewicz, 2012

WL 4343176, *1 (W.D. Pa. Sept. 21, 2012).

IV. Analysis

1. Excessive force

Talbert maintains that Crose’s deployment of OC spray in a malicious and

sadistic manner amounted to excessive force in violation of the Eighth Amendment.

Defendants seek summary judgment based, among other things, on Talbert’s failure

to properly exhaust his administrative remedies before initiating this lawsuit.

Because exhaustion is a “prerequisite to an inmate bringing suit,” it is a “threshold

issue that courts must address to determine whether litigation is being conducted in

the right forum at the right time.” Rinaldi v. United States, 904 F.3d 257, 265 (8d

Cir. 2018) (quoting source omitted).

In broad brush, the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e(a)

(the “PLRA”), requires a prisoner to exhaust any available administrative remedies

before he may bring an action pursuant to 42 U.S.C. § 1983 challenging the conditions

of his confinement. 42 U.S.C. § 1997e(a). This exhaustion requirement applies to all

claims relating to prison life that do not implicate the duration of the prisoner's

sentence. Porter v. Nussle, 534 U.S. 516, 532 (2002). Failure to exhaust

administrative remedies under the PLRA is an affirmative defense that defendants

must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).

The grievance system utilized in Pennsylvania’s prison system requires

inmates to satisfy a three-step grievance and appeals process. First, “within 15

working days after the event upon which the claim is based,” the prisoner must

submit a written grievance for review by the Facility Grievance Coordinator (““FGC”)

using the appropriate form. DC-ADM 804, § 1.4.8. See also Lewis v. Sutherland,

2024 WL 6957719, at *5 (W.D. Pa. Oct. 18, 2024). The FGC must provide an initial

review response to the grievance to the inmate “within 15 working days from the date

the grievance was entered into the Automated Inmate Grievance Tracking System.”

DC-ADM 804 at § 1.C.5.g. Second, “if the FGC has rejected the grievance or the

inmate is otherwise dissatisfied with the initial review response,” the inmate may

appeal to the prison’s Facility Manager “within 15 working days from the date” the

inmate receives “the initial review response/rejection.” Lewis, 2024 WL 6957719, at

*5; DC-ADM 804 at § 2.A.1.a, b. The Facility Manager must then notify the inmate

in writing “of his/her decision within 15 working days of receiving the appeal.” Jd. at

§ 2.A.2.d. Finally, “[a]ny inmate who is dissatisfied with the disposition of an appeal

from the [Facility Manager]” may appeal to the Secretarys Office of Inmate

Grievances and Appeals ““SOIGA”) “within 15 working days from the date of the

[Facility Manager’s] decision.” Jd. at § 2.B.1.b. Once these three steps have been

satisfied, a grievance has ordinarily been administratively exhausted for purposes of

the PLRA.

In support of their PLRA exhaustion affirmative defense, Defendants have

submitted Talbert’s complete grievance history and a declaration from Michael Bell,

a SOIGA records custodian. See ECF No. 105-3; 105-7. Bell explains that, as a

SOIGA officer, he has access to all inmate records regarding grievances. ECF No.

105-7 § 12. He explains that he has reviewed the pertinent DOC records for inmate

Talbert and, based on that review, attests that Talbert never appealed Grievance #

1091293 to SOIGA for final review. See id. {{ 15-16. Bell further attests that the

only other grievance filed by Talbert in relation to the OC spray incident alleged

medical abuse on the part of unnamed medical staff, none of whom are defendants in

this action. Id. { 17.

Based on these submissions, Defendants have met their threshold burden of

demonstrating through record evidence that Talbert did not administratively exhaust

his excessive force claim against Crose. Talbert has offered no evidence to support a

contrary finding. Therefore, no genuine dispute exists regarding Talbert’s failure to

exhaust his administrative remedies as to his excessive force claim against Crose.

Talbert does not dispute this failure. Instead, he claims in his summary

judgment response that he “did not receive or otherwise have the ability to respond

[to the denial of Grievance # 1091293] due to him being transferred to SCI Fayette

and not receiving the initial grievance response.” ECF No. 110 at p. 3. The United

States Supreme Court has identified “three kinds of circumstances in which an

administrative remedy, although officially on the books, is not capable of use to obtain

relief.” Ross v. Blake, 578 U.S. 632, 643 (2016). First, an administrative procedure is

not available “when (despite what regulations or guidance materials may promise) it

operates as a simple dead end—with officers unable or consistently unwilling to

provide any relief to aggrieved inmates.” Jd. Second, a procedure is not available

when it is “so opaque that it becomes, practically speaking, incapable of use.” Id. at

643-44. Finally, a procedure is unavailable when “prison administrators thwart

inmates from taking advantage of a grievance process through machination,

misinterpretation, or intimidation.” Id. at 644.

To the extent that Talbert is challenging the availability of the administrative

process, he has provided no factual record to support his claim that the DOC failed to

provide him with the initial review denial. “Once the defendant has established that

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

to show that such remedies were unavailable to him.” Kendrick v. CO Hann, 2021

WL 2914986, at *5 (M.D. Pa. July 12, 2021) (citing Rinaldi v. United States, 904 F.3d

257, 268 (3d Cir. 2018)). Talbert’s unsupported statement in a legal brief that he

never received that document is insufficient to create a genuine issue of material fact

on an issue concerning which he bears the ultimate burden of proof.3 See Childers v.

Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988) (“If the moving party has satisfied its

initial burden, the nonmoving party must, in their opposition to the motion, identify

evidence of record that creates a genuine issue of material fact.”); Player v. Motiva

Enterprises, LLC, 240 Fed. Appx. 513, 522 n. 4 (8d Cir. 2007) (“Where the party

opposing a motion for summary judgment bears the ultimate burden of proof, the

moving party may discharge its initial burden of showing that there is no genuine

2 While Talbert also denies receiving that document in his Responsive Concise Statement, he does not cite any

evidence to support that denial. The only exhibit that he submitted in connection with his summary judgment

response is a declaration that does not address exhaustion. See ECF No. 111.

issue of material fact ‘by showing — that is, pointing out to the district court — that

there is an absence of evidence to support the nonmoving party’s case.”) (quoting

UPMC Health Sys. v. Metro. Life Ins. Co., 391 F.3d 497, 502 (8d Cir. 2004)). See also

Jersey Cent. Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (8d Cir.

1985) (noting that arguments made in briefs “are not evidence and cannot by

themselves create a factual dispute sufficient to defeat a summary judgment

motion”). As such, Defendants are entitled to summary judgment on this claim.

2. ADA/RA

Talbert next claims that the DOC is violating the ADA and RA by “permitting

reckless staff violence with OC spray in nearly all correctional institutions under its

jurisdiction” and “failing to make reasonable accommodations for disabled inmates

with asthma.” ECF No. 70 § 33. The crux of Talbert’s argument appears to be that

the DOC failed to reasonably accommodate his asthmatic condition by exempting him

from the use of OC spray.

Title II of the ADA provides that “no qualified individual with a disability shall,

by reasons of such disability, be excluded from participation in or be denied the

benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12182. Section 504 of the RA

similarly provides that “[nJo otherwise qualified individual with a disability in the

United States ... shall, solely by reason of her or his disability, be excluded from the

participation in, be denied the benefits of, or be subjected to discrimination under any

program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).

“Because the same standards govern both the [Rehabilitation Act] and ADA claims,”

both claims may be addressed “in the same breath.” Chambers ex rel. Chambers v.

School Dist. of Phila. Board of Educ., 587 F.3d 176, 189 (8d Cir. 2009) (citing

McDonald v. Pennsylvania, 62 F.3d 92, 95 (3d Cir. 1995) (‘Whether suit is filed under

the Rehabilitation Act or under the Disabilities Act, the substantive standards for

determining liability are the same.” (citation omitted)).4 To establish a violation of

either statute, a plaintiff must demonstrate: (1) that he is a qualified individual; (2)

with a disability; and (8) that he was denied the opportunity to participate in or

benefit from the services, programs, or activities of a public entity, or was otherwise

subject to discrimination by that entity, by reason of his disability. Bowers v.

National Collegiate Athletic Association, 475 F.3d 524, 553 c. 32 (8d Cir. 2007).

Assuming Talbert’s alleged asthma constitutes a disability within the meaning

of the ADA and RA, he has failed to allege facts or provide evidentiary support for the

proposition that the DOC excluded him from or discriminated against him in

connection with any service, program, or activity because of his disability. This Court

recently rejected a nearly identical claim on a similar record in Barksdale v.

Department of Corrections, 2024 WL 5238210 (W.D. Pa. Dec. 27, 2024). In Barksdale,

as here, the plaintiff brought an ADA claim against the DOC based on a staff

member’s use of OC spray on two occasions despite knowing that he suffered from

asthma, hypertension, and mental health issues. Jd. at *1. As in the instant case,

4 While causation standards are slightly different under the ADA and RA — under the RA, “the disability must be the

sole cause of the discriminatory action, while the ADA only requires but-for causation” — the allegations in this case

are sufficient to establish causation under both standards. See Furgess v. Penn. Dep’t of Corr., 933 F.3d 285, 291 n.

25 (3d Cir. 2019).

the plaintiff challenged the use of OC spray without identifying any “service,

program, or activity offered by the DOC and for which he was qualified and from

which he was excluded.” Jd. at *5. The Court held that this failure was fatal to his

ADA claim:

Assuming for purposes of Defendants’ motion that Barksdale's

alleged asthma and other medical conditions rendered

Barksdale disabled, his ADA claim nevertheless fails because he

has not alleged facts to support that the DOC excluded him from

or discriminated against him in any service, program, or activity

because of his disability. Indeed, Barksdale has not identified

any service, program, or activity offered by the DOC and for

which he was qualified and from which he was excluded. The

absence of factual allegations to support this fundamental

element precludes a viable Title II claim. See Geness v. Admin.

Off. of Pennsylvania Cts., 974 F.3d 263, 275 (8d Cir. 2020)

(holding that the service, program, or activity element is “at the

foundation of ... [a] Title II claim ... [as] a necessary first step to

determining whether his claim is cognizable”).

Id.

The same conclusion is required here. Neither Talbert’s pleading nor his

summary judgment response includes any facts suggesting that he was deprived of

access to a service, program, or activity because of his ability. Rather, he simply

argues that the DOC “failed to reasonably accommodate [him] by subjecting him to

OC spray.” ECF No. 70 § 33. This conclusory averment does not cure the deficiencies

outlined above and, as such, cannot salvage his claim.

3. Supervisory lability

Talbert’s final federal ground for relief, titled “supervisory liability,” accuses

DOC Secretary Harry of generally “permitting reckless staff violence with OC spray

and failing to reasonably accommodate disabled inmates with asthma.” ECF No. 70

44. Talbert maintains that Harry’s failure to curtail the use of OC spray led to him

being “maliciously and sadistically OC sprayed without any justification.” Id.

Talbert has failed to allege the degree of personal involvement necessary to

hold Harry liable for any injuries stemming from the May 29, 2024 incident. To

prevail on a § 1983 claim, a plaintiff “must show that each and every defendant was

‘personal[ly] involve[d] in depriving him of his rights.” Kirk v. Roan, 2006 WL

2645154, at *3 (M.D. Pa. 2006) (quoting Evancho v. Fischer, 423 F.3d 347, 353 (3d

Cir. 2006)). This means that each defendant must have played an “affirmative part”

in the complained-of misconduct. Iqbal, 556 U.S. at 677 (“In a § 1983 suit ... [a]bsent

vicarious liability, each Government official, his or her title notwithstanding, is only

liable for his or her own misconduct.”); Oliver v. Beard, 358 Fed. Appx. 297, 300 (8d

Cir. 2009). 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.,

Mearin v. Swartz, 951 F.Supp.2d 776, 781-82 (W.D. Pa. 2013) (dismissing claims

pursuant to Rule 12(b)(6) because the plaintiffs had failed to set forth sufficient facts

to establish that certain defendants had played an affirmative part in the alleged

Kighth Amendment violation).

These principles apply with equal force where the defendants are supervising

prison officials. See, e.g., Rode v. Dellarciprete, 845 F.2d 1195, 1207 (8d Cir. 1998)

(noting that liability for supervisory officials must still be based on “personal .

involvement in the alleged wrongs”); Evancho v. Fisher, 423 F.3d 347, 353 (8d Cir.

2005) (“[L]iability cannot be predicated solely on the operation of respondeat

superior.”). Although a supervisor cannot encourage constitutional violations, “a

supervising public official has [no] affirmative constitutional duty to supervise and

discipline so as to prevent violations of constitutional rights by his or her

subordinates.” Chinchello v. Fenton, 805 F.2d 126, 133 (8d Cir. 1986); Brown v.

Grabowski, 922 F.2d 1097, 1120 (3d Cir. 1990). Rather, a supervisor-defendant may

only be liable for unconstitutional acts undertaken by subordinates if the supervisor

either: (1) with deliberate indifference to the consequences, established and

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

harm; or (2) participated in violating the plaintiffs rights, directed others to violate

them, or, as the person in charge, had knowledge of and acquiesced in the

subordinate’s unconstitutional conduct. A.M. ex rel. J.M_K. v. Luzerne Cty. Juvenile

Det. Ctr., 372 F.3d 572, 586 (8d Cir. 2004).

In the instant case, Talbert alleges only that Harry permitted DOC staff to

“recklessly” use OC spray on asthmatic inmates “without any legal justification.”

This conclusory averment is unsupported by any evidence in the record suggesting

that Harry played any role in the use of OC spray against Talbert or any injury that

might have ensued. Because Talbert’s § 1983 claim against Harry is based entirely

upon her supervisory role DOC, it is no more than an assertion of respondeat

superior. As such, it is insufficient under § 1983 to establish personal involvement

in the deprivation of a constitutional right. See, e.g., Rode, 845 F.2d at 1207. Harry

is entitled to summary judgment.

4. State law claims

Talbert also asserts state law claims for assault and battery and conspiracy to

commit libel. Having dismissed all claims over which the Court has original

jurisdiction, the Court will decline to exercise supplemental jurisdiction over those

claims. “Federal courts are of limited jurisdiction, and may only decide cases

consistent with the authority afforded by the Constitution or statutes of the United

States.” Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 378 (1994).

Thus, “[w]hen the claims over which a district court has original jurisdiction are

resolved before trial, the district court must decline to decide the pendent state claims

unless considerations of judicial economy, convenience, and fairness to the parties

provide an affirmative justification for doing so.” Neelu Pal v. Jersey City Med. Ctr.,

658 Fed. Appx. 68, 74 n. 6 (8d Cir. 2016) (emphasis in original) Gnternal quotation

marks and citations omitted); see also Yue Yu v. McGrath, 597 Fed. Appx, 62, 68 (3d

Cir. 2014) (affirming the district court’s decision to dismiss “all of the remaining state

and common law claims after awarding summary judgment to [d]efendants on all of

the federal claims over which it had original jurisdiction’). “Importantly, pendent

jurisdiction is a doctrine of discretion, not a plaintiffs right.” Yue Yu, 597 Fed. Appx.

at 68.

As each of Plaintiffs remaining claims are entirely grounded in state law, the

Court will decline to exercise supplemental jurisdiction over those claims. Id. at 68;

see also 28 U.S.C. § 1367(c)(3) (permitting a district court to decline to exercise

supplemental jurisdiction where it has “dismissed all claims over which it has

original jurisdiction”). Consequently, Plaintiffs assault and battery and conspiracy

to commit libel claims will be remanded to the Forest County Court of Common Pleas

for further proceedings.

V. Conclusion

Consistent with the foregoing, the Court concludes that Defendants are

entitled to summary judgment on the ADA, RA, Eighth Amendment, and supervisory

liability claims set forth in Counts 1, 2, 3, and 6 of the Second Amended Complaint.

As to each of those claims, Defendants’ motion for summary judgment will be granted

and Talbert’s motion for summary judgment will be denied.

Having resolved all claims over which the Court has original jurisdiction, the

Court declines to exercise supplemental jurisdiction over the state law claims set

forth at Counts 5 and 6. Those claims will be remanded to the Forest County Court

of Common Pleas for further proceedings pursuant to 28 U.S.C. § 1367(c)(8).

Finally, the parties’ cross-motions for judgment on the pleadings will be denied

as moot.

An appropriate order will follow.

DATED this 23"4 day of March, 2026.

SUBMITTED BY:

Chief United States Magistrate Judge