Opinion
CIVIL 4:20-CV-00652
12-15-2023
LUIS NIEVES, Plaintiff v. DEPARTMENT OF CORRECTIONS, et al., Defendants
MANNION, D.J.
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge
(On Defendants' Motion for Summary Judgment (Doc. 173))
I. INTRODUCTION
Luis Nieves (“Plaintiff”) brings this civil rights lawsuit pursuant to 42 U.S.C. § 1983 for an alleged violation of his Eighth Amendment rights while incarcerated. Plaintiff sues the Department of Corrections, State Correctional Institution Camp Hill and two Corrections Officers, seeking monetary relief. Defendants have filed a Motion for Summary Judgment. (Doc. 173). After reviewing the Motion, the parties' Briefs, and the parties' Statements of Facts, we find that the Defendants' Motion for Summary Judgment should be granted. This report and recommendation explains that result. Before reaching the merits, it will be helpful to review the legal standard to be applied to this motion for summary judgment.
II. LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT UNDER FEDERAL RULE OF CIVIL PROCEDURE 56
Defendants request summary judgment under Rule 56 of the Federal Rules of Civil Procedure. Pursuant to this rule:
A party may move for summary judgment, identifying each claim or defense-or the part of each claim or defense-on which summary judgment is sought. The court shall grant 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 of law. The court should state on the record the reasons for granting or denying the motion.
Through summary adjudication, a court is empowered to dispose of those claims that do not present “a genuine dispute as to any material fact,” and for which trial would be “an empty and unnecessary formality.” A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. For a dispute to be genuine, “all that is required is that sufficient evidence supporting the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial.”
Id. (emphasis added).
Univac Dental Co. v. Dentsply Int'l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 2010).
Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
Id. (quoting Anderson, 477 U.S. at 248-49).
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial,” summary judgment is appropriate. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.”
Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004).
Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Celotex, 477 U.S. at 322.
Anderson, 477 U.S. at 249.
Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 794 (3d Cir. 2007).
A party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that there is a genuine dispute of material fact. “[O]nly evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials. ” Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Furthermore, an adverse party “cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.”
Countryside Oil Co. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995).
Thimons v. PNC Bank, N.A., 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted).
Fireman's Ins. Co. of Newark N.J. v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir. 1982).
Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969).
Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, when ruling on a motion for summary judgment, it is not the province of the court to weigh evidence or assess credibility. The court must view the evidence presented in the light most favorable to the non-moving party, and draw all reasonable inferences in the light most favorable to the non-moving party. Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the non-movant on the evidence presented. In reaching this determination, the Third Circuit has instructed that:
Anderson, 477 U.S. at 255.
Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Id.
Anderson, 477 U.S. at 252; see also_____.
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.
Big Apple BMW, 974 F.2d at 1363.
In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.”
Matsushita Elec. Indus. Co., 475 U.S. at 587.
With this legal standard in mind we now turn to the relevant factual background.
III. BACKGROUND & PROCEDURAL HISTORY
For the sake of clarity and conciseness we will only discuss the background and procedural history relevant to Defendants' Motion for Summary Judgment.
This case began on April 21, 2020 when Plaintiff lodged a complaint. (Doc. 1). On July 23, 2020, the Court screened Plaintiff's complaint pursuant to 28 U.S.C. § 1915(e) and granted Plaintiff leave to amend his complaint. (Doc. 29). On March 30, 2021, Plaintiff filed an amended complaint. (Doc. 61). That amended complaint is the operative complaint in this case.
As Defendants, Plaintiff names:
1. The Pennsylvania Department of Corrections (“DOC”);
2. State Correctional Institution Camp Hill (“SCI Camp Hill”);
3. Corrections Officer Parry; and
4. Corrections Officer Lugo.(Doc. 1, p. 1).
Plaintiff alleges that on March 30, 2020, while incarcerated at SCI Camp Hill, he was being escorted to a cell by Defendants Parry and Lugo when he informed them that he had the right to be placed in a cell without another inmate. (Doc. 61, p. 4). Both officers became upset with Plaintiff over this and upon arrival to the cell they pushed Plaintiff inside and immediately slammed the door. Id. Plaintiff had a leash attached to the handcuffs on his wrist and was yanked back by it and his arms, wrists and hands were pulled through the wicket. Id. Defendants Parry and Lugo aggressively removed the right handcuff but were unsuccessful in their attempts to remove the left. Id. They became frustrated by this and began using the wicket's metal covering as a “weapon,” repeatedly slamming Plaintiff's arm and hand against it. Id. A “white shirt” witnessed this behavior and stopped Defendants Parry and Lugo, telling Plaintiff he would not let them hurt him again and instructing Plaintiff to let them re-cuff his right hand so that he could be placed in another cell. Id. Plaintiff complied. (Doc. 61, p. 5).
Plaintiff's amended complaint alleges the incident at issue took place on March 30, 2023, however it appears from the various attachments to Defendants' Statement of Material Facts, including a copy of the grievance filed by Plaintiff, that the incident took place on March 31, 2020. (Doc. 174, ¶ 3; Doc. 174-1, p. 2; Doc. 174-4, p. 5).
After this, Plaintiff was taken to the “strip cage” and the medical department came to take photos of his injuries. (Doc. 61, p. 5). Plaintiff requested pain medication from medical officials but was informed they did not carry it with them. Id. Plaintiff was then escorted to a single cell. Id. Sometime later Plaintiff showed a doctor who had stopped by his cell the lacerations and bruises and asked for pain medication again. Id. The doctor told Plaintiff he would prescribe it and pain medication was then delivered to Plaintiff's cell. Id.
Plaintiff brings claims against Defendants Parry and Lugo for violations of his Eighth Amendment rights to be free from cruel and unusual punishment and to be free from excessive force. (Doc. 61, p. 6). Against Defendants DOC and SCI Camp Hill, Plaintiff brings claims under 42 U.S.C. § 1983 for their failure to properly train Defendants Parry and Lugo, failure to hold Defendants Parry and Lugo accountable and failure to prevent his injuries from occurring. Id. Plaintiff alleges he suffered lacerations, abrasions, bruises, mental duress and PTSD. Id. As relief Plaintiff requests a jury trial to determine monetary damages not to exceed $800,000. Id.
On January 3, 2022, Defendants filed an answer to the amended complaint. (Doc. 87). On May 26, 2023, Defendants filed a Motion for Summary Judgment, (Doc. 173), a Statement of Facts, (Doc. 174) and a Brief in Support, (Doc. 175). In their Brief in Support and Statement of Facts, Defendants contend that on March 31, 2020, Plaintiff became aggressive while being moved to a new cell, forcing staff to hold Plaintiff's arm in the food aperture until he complied with their orders. (Doc. 174, ¶ 3; Doc. 174-1, pp. 2-4; Doc. 175, pp. 6-7).
On June 12, 2023, Plaintiff filed a Brief in Opposition to Defendants' Motion for Summary Judgment. (Doc. 182). On July 17, 2023, Plaintiff filed a response to Defendants' Statement of Facts. (Doc. 191). On August 10, 2023, Plaintiff filed a second response to Defendants' Statement of Facts, (Doc. 202), and a Supplement to his Brief in Opposition, (Doc. 203). On August 22, 2023, Plaintiff filed “Amended [] Undisputed Facts.” (Doc. 206). On October 26, 2023, Plaintiff filed a “Notice to the Court” regarding documents 202, 203, and 206, indicating he would like the Court to accept those documents as his Responsive Statement of Facts and Brief in Opposition. (Doc. 221). The Court will therefore only consider documents 202, 203, and 206 as Plaintiff's Brief in Opposition and Responsive Statements of Facts when deciding this Motion.
With this background in mind we now turn to our analysis of these facts.
IV. ANALYSIS
We will begin our analysis with Plaintiff's claims against Defendants DOC and SCI Camp Hill before turning to Plaintiff's claims against Defendants Parry and Lugo.
A. Plaintiff's Claims Against Defendants DOC and SCI Camp Hill Should be Dismissed with Prejudice
Plaintiff attempts to bring claims under 42 U.S.C. § 1983 against Defendants DOC and SCI Camp Hill for failure to properly train Defendants Parry and Lugo, failure to hold them accountable, and failure to “impede” his injuries from occurring. (Doc. 61, p. 6). Defendants DOC and SCI Camp Hill argue that “[t]he Commonwealth of Pennsylvania, all Commonwealth agencies, and all individuals acting in their official capacities are not “persons” as defined by 42 U.S.C. § 1983.” (Doc. 175, p. 5). Plaintiff does not present a rebuttal argument in his Brief in Support or Statements of Facts.
“Section 1983 imposes civil liability upon any person who, acting under the color of state law, deprives another individual of any rights, privileges, or immunities secured by the Constitution or laws of the United States.” To establish a claim under § 1983, a plaintiff must establish two things: (1) a deprivation of a federally protected right; and (2) that the deprivation was committed by a person or persons acting under color of state law. “States and their derivative governmental institutions, including the Department of Corrections (DOC), prisons, and prison medical departments, are not ‘persons' for purposes of a civil rights action,” nor are state officials acting in their official capacity. Thus, Plaintiff's claims against Defendants DOC and SCI Camp Hill must be dismissed. Additionally, the Eleventh Amendment requires the dismissal of [Plaintiff's] claims. The Eleventh Amendment protects a state or state agency from a § 1983 suit, unless Congress has specifically abrogated the state's immunity or the state has waived its own immunity. See MCI Telecomm. Corp. v. Bell Atl.-Pa., 271 F.3d 491, 503-04 (3d Cir. 2001). Section 1983 does not abrogate Pennsylvania's immunity, and Pennsylvania has specifically withheld consent to being sued. See Quern v. Jordan, 440 U.S. 332, 340-41, 99 S.Ct. 1139, 59 L.Ed.2d 358 (1979); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir.1981).
Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citing Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000)).
Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quoting Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997)).
Godfrey v. Little, No. CV 3:22-0885, 2023 WL 6276702, at *2 (M.D. Pa. Sept. 26, 2023) (citing 1 Will v. Michigan Dep't of State Police, 491 U.S. 58, 64, 70 (1989) (states and their derivative entities); Phippen v. Nish, 223 F.App'x. 191, 192 (3d Cir. 2007) (nonprecedential opinion) (upholding decision from the Middle District of Pennsylvania that “SCI Waymart is not a ‘person' within § 1983”).
Ellington v. Cortes, 532 Fed.Appx. 53, 56.
Id.
For these reasons it will be recommended that Plaintiff's claims against Defendants DOC and SCI Camp Hill be dismissed with prejudice as any amendment would be futile.
Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002).
B. PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES AND THE MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED
Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for violation of his Eighth Amendment rights “to be free from cruel and unusual punishment and . . . to be free from excessive force.” (Doc. 61, p. 6). Defendants Parry and Lugo argue that Plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), and thus his claims are barred. (Doc. 175, pp. 712).
The 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 are exhausted.
Put simply, the PLRA requires prisoners to pursue their claims through an administrative grievance process before seeking redress in federal court. Exhaustion is mandatory, and applies to all inmate lawsuits “about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2003).
The failure to exhaust administrative remedies under the PLRA is an affirmative defense. Accordingly, “[t]he burden to plead and prove failure to exhaust as an affirmative defense rests on the defendant.” Then, “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.”
Id.
Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002)).
Rinaldi, 904 F.3d at 268 (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 (10th Cir. 2011)).
In Pennsylvania the DOC has established a three-tiered grievance system that serves as an inmate's administrative remedy. This system is explained in Administrative Directive 804 (“DC-ADM 804”). First, there is an initial review of a grievance filed by a prisoner by a Grievance Officer. Second, a prisoner appeals that decision to the Facility Manager or other designee. Finally, a prisoner appeals to the Secretary's Office of Inmate Grievance and Appeals for final review.
See DC-ADM 804, “Inmate Grievance System.” Available at https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmat e%20Grievances.pdf (last visited Dec. 15, 2023).
Defendants Parry and Lugo assert three separate ways Plaintiff has failed to exhaust his administrative remedies. To decide this Motion, we need only evaluate their first assertion, that “Plaintiff did not properly appeal the grievance related to this incident to final review, instead attempting to skip the intermediate level and then taking no further action once he was informed that this was improper.” (Doc. 175, p. 9). In support of this assertion Defendants Parry and Lugo assert in their statement of facts that Plaintiff filed a grievance based on the incident at issue and provide a copy of that grievance. (Doc. 174, ¶ 5; Doc. 174-4, p. 5). Defendants Parry and Lugo also attach a copy of the initial review response denying Plaintiff's grievance and a copy of a receipt from the Secretary's Office of Inmate Grievance and Appeals informing Plaintiff that his grievance was not entitled to formal review because the initial review response was pending and there was no appeal to the Facility Manager as required under DC-ADM 804, and thus no further action would be taken by their office. (Doc. 174-4, pp. 2, 3). Finally, Defendants Parry and Lugo attach an affidavit from Grievance Officer Amanda West dated May 24, 2023, swearing under penalty of perjury that she reviewed and searched the Automated Inmate Grievance Tracking System (“AIGTS”) which revealed that Plaintiff failed to appeal the initial response to the Facility Manager as required, and therefore failed to comply with the three-tiered system and exhaust his administrative remedies. (Doc. 174, ¶ 16; Doc. 174-4, ¶¶ 9, 11-13).
In his response to Defendants Parry and Lugo's Statement of Material Facts, Plaintiff flatly denies each statement in the Statement of Material Facts. (Doc. 202- 2, p. 1). This does not suffice to call the facts in Defendants Parry and Lugo's Statement of Material Facts into dispute. Federal Rule of Civil Procedure 56 provides in pertinent part:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
As relevant to the question of exhaustion, Plaintiff does neither of these.
Plaintiff does not dispute Defendant Parry and Lugo's statement that he failed to appeal his grievance to final review and therefore failed to exhaust the grievance procedure as required by the PLRA. Instead, in his responses to the Statement of Material Facts, as in his Brief in Opposition and Supplements, Plaintiff argues an issue of law. Plaintiff asserts that he did exhaust his administrative remedies because a prisoner cannot file a grievance for an Administrative Directive 001 (“DC-ADM 001”) abuse allegation under DC-ADM 804, and he reported the abuse in accordance with DC-ADM 001 with an investigation being completed. (Doc. 202, p. 3; Doc. 203, p. 3; Doc. 203-1, p. 1; Doc. 206, p. 1). Plaintiff is incorrect.
See DC-ADM 001, “Inmate Abuse.” Available at: https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/001%20Inmat e%20Abuse.pdf (last visited Dec. 15, 2023).
As recently explained by the Third Circuit in a case where inmate plaintiffs claimed they exhausted their administrative remedies under DC-ADM 001,
Under the PLRA, prisoners who seek to challenge their conditions of confinement must exhaust all available administrative remedies. 42 U.S.C. § 1997e(a). We determine “whether a prisoner has ‘properly' exhausted a claim” by “evaluating the prisoner's compliance with the prison's administrative regulations governing inmate grievances.” Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004). At issue here are two procedures. The first, ADM 804, sets out the default procedure for the inmate grievance process. The second, ADM 001, relates to reporting and investigating inmate abuse by staff. Amicus concedes Isaac and Aaron did not exhaust their remedies under ADM 804. Nevertheless, it argues Isaac and Aaron exhausted their claims because they reported to prison staff the details of their abuse allegations in accordance with ADM 001. For Amicus to be right, ADM 804 and ADM 001 must provide alternative paths for exhaustion. They do not.
ADM 804 creates the three-step Inmate Grievance System. First, an inmate must submit a grievance to the Facility Grievance Coordinator. The grievance must include the relevant facts, individuals involved, claims alleged, and relief sought. A different official-the Grievance Officer-reviews the grievance and submits an initial response. The inmate may appeal the initial response to the Facility Manager, who reviews it and issues a decision. The inmate may file a final appeal to the Secretary of Corrections' Office of Inmate Grievances and Appeals. ADM 804 clearly states when it does not apply-for example, when an inmate alleges sexual abuse, or his claim concerns an “incident[ ] of an urgent or emergency nature” or misconduct charges. ADM 804 § 1(A)(2), (7). When one of those exceptions applies, a plaintiff is excused from satisfying ADM 804's exhaustion requirement. See
Downey v. Pa. Dep't of Corr., 968 F.3d 299, 307 (3d Cir. 2020). But Isaac and Aaron do not argue that they satisfy an existing exception; rather, they ask that we read into the text of DOC policy a new exception-exhaustion under ADM 001. Just as we refrain from rewriting statutes, we will not amend DOC policy from the bench and add a new avenue for administrative exhaustion. See id. at 306 (applying principles of statutory interpretation to DOC policy).
While ADM 804 creates a formal procedure to resolve problems or other issues of concern arising during confinement, ADM 001 aims to ensure that staff do not subject an inmate to corporal or unusual punishment, or personal abuse or injury. ADM 001 speaks to all who may be privy to inmate abuse-inmates, employees, and all persons and entities who maintain contact with inmates. The policy permits an inmate who is the victim of abuse to report it verbally or in writing to a staff member, complain directly to DOC's Central Office, or file a formal grievance pursuant to ADM 804. The fact that ADM 001 does not require a formal grievance to trigger an investigation shows the policy mitigates and provides relief for alleged abuse even when it does not violate legal rights. By contrast, ADM 804 requires an inmate to specify in his grievance any alleged violation of department regulations or other law as well as specify the compensation or legal relief the inmate desires. ADM 001 contains no similar requirements, all of which would be necessary to afford an inmate meaningful relief in court.
The interrelatedness of the policies does not suggest the two are interchangeable. ADM 804's cross reference to ADM 001 reveals that the two policies work in tandem, not in place of one another. When an inmate brings an abuse grievance, the normal ADM 804 review does not proceed until an investigation occurs in accordance with ADM 001. The Grievance Officer does not provide an initial response to an abuse-related grievance until he receives and reviews the documentation from the ADM 001 investigation. But that does not change the fact that ADM 804 is the sole procedure for obtaining an adjudicatory decision subject to appeal. A different conclusion would nullify the grievance review process outlined by ADM 804. While ADM 001 produces investigative reports that may help the ADM 804 process along, among other purposes, it does not replace ADM 804.
We conclude that ADM 804 is the exclusive means of exhaustion. And, having failed to follow the full administrative review process under ADM 804, Isaac and Aaron necessarily failed to properly exhaust their claims under the PLRA.
Prater v. Dep't of Corr., 76 F.4th 184, 203-04 (3d Cir. 2023).
Third Circuit precedent is thus very clear that an inmate can only exhaust by following the grievance procedure under DC-ADM 804 and cannot exhaust under DC-ADM 001.
Id.
Plaintiff does not dispute Defendants Parry and Lugo's assertion that he failed to exhaust under the DC-ADM 804 procedures. We will therefore consider that fact as undisputed for purposes of this motion. Thus, there is no genuine dispute that Plaintiff failed to exhaust his administrative remedies as required by the PLRA and Defendants Parry and Lugo are entitled to summary judgment. Accordingly, it will be recommended the Motion for Summary Judgment be granted.
As Plaintiff has not exhausted his administrative remedies the Court need not address Defendants' argument that Plaintiff has failed to show any Eighth Amendment violation. (Doc. 175, p. 5-7).
V. RECOMMENDATION
For the reasons explained above, it is RECOMMENDED that:
(1) Plaintiff's claims against Defendants DOC and SCI Camp Hill be dismissed with prejudice.
(2) The two Individual Defendants' Motion for Summary Judgment (Doc. 173) be granted.
(3) The Clerk of Court be DIRECTED to CLOSE this case.
NOTICE OF LOCAL RULE 72.3
NOTICE IS HEREBY GIVEN that any party may obtain a review of the Report and Recommendation pursuant to Local Rule 72.3, which provides:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses, or recommit the matter to the magistrate judge with instructions.