MEMORANDUM

THOMAS O'NEILL, Senior District Judge

I. INTRODUCTION

Plaintiff Kevin Wright, a.k.a. Kevin Dwight, is an inmate in the Pennsylvania State Correctional system. He was incarcerated at the State Correctional Institution (SCI) at Graterford when the incidents at issue in this action occurred. He is currently incarcerated at SCI-Somerset. On March 17, 1999, plaintiff filed a pro se complaint pursuant to 42 U.S.C. Section 1983 alleging, in part, an Eighth Amendment claim against defendant Corrections Officer Joseph Jamison for harassment, threats and sexual assault and an Eighth Amendment claim against defendant Clifford O'Hara, Director of the Office of Professional Responsibility for the Department of Corrections (DOC), and defendant Donald Vaughn, former superintendent of Graterford. Plaintiff's claims are against defendants in their individual capacity. He seeks compensatory and punitive damages. Defendants Jamison, O'Hara and Vaughn now move for summary judgment. For the reasons stated below, I will grant defendants' motion for summary judgment.

II. BACKGROUND

On November 20, 1997, at approximately 12:30 p.m., defendant Jamison stopped plaintiff in a hallway of SCI Graterford and asked plaintiff where he was going. Plaintiff responded by pointing in the direction of an area where medications were dispensed and proceeded to get into the medication line. In a sworn witness statement detailing the November 20 incident, Jamison stated that plaintiff had been standing outside a cell talking to the inmate inside when Jamison asked plaintiff where he was going. (D's Mot. for S.J. Ex. 4). Jamison said plaintiff refused to answer his question even though he asked him the question several times. (Id.). Plaintiff asserts that Jamison followed him to the medication line and, in an abusive and threatening tone of voice, reprimanded him for responding with a gesture rather than telling Jamison where he was going. Plaintiff further alleges that Jamison called him "bitches, niggas, little girl, pussy's [sic], nothing and shit." (D's Mot. for S.J. Ex. 2). In response to the alleged threats, plaintiff asserts he returned to his cell without his medication and that because of Jamison's "abusive tone of voice he was denied his medication." (Id.). Plaintiff alleges Jamison continued to berate him as he returned to his cell and that Captain Moore had to intervene. Captain Moore ordered Jamison to be quiet and asked both parties what was going on. Plaintiff asserts that when he tried to explain to Moore that Jamison had been verbally abusing him, Jamison lunged toward him with a clenched fist and threatened to hit him. Moore then restrained Jamison and escorted him off the block. (Id.).

On the afternoon of November 23, 1997 plaintiff asserts he felt "someone brushing up against [his] back and buttox [sic] area" while he waited for the door to the exercise yard to open. (D's Mot. for S.J. Ex. 2). After this alleged contact, which lasted about "a second and a half" (Pl's. Dep. at 6), he turned around and saw Jamison standing behind him allegedly looking at him in a threatening manner. Both plaintiff and Jamison were fully clothed during the incident. (Id. at 5). In a June 6, 1999 letter to defendant Vaughn, plaintiff referred to this incident as a sexual assault. (D's Mot. for S.J. Ex. 1). At his deposition, plaintiff clarified his assessment of the incident, explaining it was "not necessarily sexual assault as opposed to indecent contact." (Pl's. Dep. at 6). Plaintiff was not physically injured by the contact, although he "felt violated" by the incident. (Id. at 6).

Plaintiff contacted his family on the evening of November 23 and discussed the touching incident with his mother. She subsequently contacted SCI Graterford to discuss plaintiff's concerns about the incident. Plaintiff alleges that Jamison learned his mother had called the prison to report the incident and that this information prompted Jamison to begin "a campaign of further threats and verbal harassment." (Pl.'s Resp. to Mot. for S.J. at 8).

Plaintiff submitted a formal grievance against Jamison on November 24, 1997 detailing the events on November 20 and briefly discussing the incident on November 23. In his response to the November 24 grievance issued on December 24, 1997 Moore acknowledged that he instructed Jamison that he should have issued plaintiff a misconduct for refusing to answer his question rather than engaging in a "word for word" exchange with him. (D's Mot. for S.J. Ex. 3). Moore further explained that plaintiff's assertion that Jamison had to be escorted off the cell-block was incorrect. Moore also wrote that plaintiff had to answer staff members when asked a question and that when he was out of his cell on a cell block other than blockout he had to move directly to his destination. Moore did not mention plaintiff's allegations regarding the November 23 touching incident in his response to plaintiff's grievance. Plaintiff appealed Moore's decision on the grievance to Vaughn, who sustained Moore's findings. (D's Mot. for S.J. Exhs. 5-6). The computer records of the Chief Grievance Coordinator for the Pennsylvania Department of Corrections show that plaintiff submitted an appeal of the November 24 grievance to her office for final review in February 1998. (Sharon Burks Decl. ¶ 5).

Approximately three weeks after filing the November 24 grievance, plaintiff tried to file another grievance with SCI Graterford's grievance coordinator. Plaintiff has not provided a copy of this grievance. It is unclear whether this grievance applied to the November incidents covered in his prior grievance, as the grievance coordinator seemed to believe, or to a different incident. Plaintiff references an incident on December 12, 1997 in his June 6, 1999 letter to defendant Vaughan, stating that "[o]n Dec. 12, 1997, an unrelated incident occurred and I again filed another grievance against C/O Jamison." However he includes no other information about what happened in the alleged incident. At deposition, Jamison noted that on one occasion he "recalled that [plaintiff] came from the mental health unit at SCI-Graterford [and] that he would often wear his garments untucked" and he told "him that this was a violation of DOC regulations and" he directed "him to the section of the inmate handbook which outlines the regulations for wearing the DOC garments." (Jamison Dep. at 15). There is no evidence that the grievance returned to plaintiff on December 18, 1997 was in reference to this incident however. The grievance coordinator explained that grievance was returned to plaintiff without action because plaintiff's allegations against Jamison were being addressed under the November 24 grievance. (Pl.'s Resp. to Mot. for S.J. Ex. C).

On December 30, 1997, plaintiff alleges that Jamison threatened to kill him while he was standing in line waiting to exchange his bed linens. (D's Mot. for S.J. Exhs.1, 5). In a letter to Vaughn appealing Moore's decision about his grievance written on December 31, 1997, plaintiff wrote that

I was standing in line for linen exchange and C/O Jamision began harassing and threatening my safety. I attempted to talk to him and he refused and stated something to the affect [sic] that nothing I do will stop him from getting me. Afterwards, he started bragging about my previous grievances (the one filed and returned) and how he has captain moore's [sic] support in nullifying my grievances and then out of nowhere said that I wasn't in line and to get back in line and thats [sic] a direct order. He then began telling inmates that I'm a snitch and that he was going to get me.

(Id. Ex. 5). There is no evidence that Wright submitted a separate grievance for this incident.

Plaintiff asserted he was subjected to further harm on a list of dates after December 30, 1997, although he did not elaborate as to what happened on these occasions. Plaintiff's amended complaint, filed on August 20, 2001, failed to incorporate by reference the original complaint but included several attachments to support his claims including a June 6, 1999 letter to defendant Vaughn stating only that the "abuse continued" after the close of 1997.

On July 11, 1999, plaintiff wrote a letter to defendant O'Hara, the Director of the Office of Professional Responsibility for the Pennsylvania Department of Corrections to which he attached his June 6, 1999 letter to defendant Vaughn. (D's Mot. for S.J. Ex. 11). Both letters expressed plaintiff's dissatisfaction with the handling of his complaints concerning Jamison. O'Hara then wrote a letter to Vaughn and assigned plaintiff's complaint to the SCI Graterford security office for an investigation. (D's Mot. for S.J. Ex. 8). Lieutenant Ismael Soler was assigned to conduct the investigation into plaintiff's allegations of harassment and abuse. Soler reviewed relevant documents, interviewed Jamison and Moore, and attempted to interview plaintiff. (Id. Ex. 9). When Soler interviewed Jamison, Jamison stated that the only incident he could remember involving plaintiff was the November 20, 1997 incident. When questioned about the alleged sexual assault/harassment, Jamison did not answer Soler's question directly but implied that he denied plaintiff's allegations. (Jamison Dep. at 25-26.). At deposition, Jamison explicitly denied any sexual assault or indecent contact with plaintiff. (Jamison Dep. at 60.).

Plaintiff had to endure a lengthy wait when he was called to his first and second meetings with Soler, in part because Soler had to address more urgent business. Plaintiff was frustrated by the delays and left before he could be interviewed. When summoned to return for a third occasion, plaintiff failed to appear. Soler ultimately closed his investigation and concluded that he could not substantiate plaintiff's allegations because he was not cooperating with the investigation, perhaps as result of mental health issues. (D's Mot. for S.J. Ex. 9). O'Hara's office reviewed Soler's investigation, found it was satisfactory and thanked Vaughn for his assistance and cooperation. (D's Mot. for S.J. Ex. 10).

On August 14, 2002, I granted defendants' motion to dismiss in this matter in part and denied their motion to dismiss as to plaintiff's claim for an Eighth Amendment violation against defendant Jamison and his claims of non-intervention against defendants Vaughan and O'Hara. Defendants now move for summary judgment on those claims.

III. STANDARD FOR SUMMARY JUDGMENT

Summary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56. The Supreme Court has recognized that the moving party "bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions . . . which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party has filed a properly supported motion, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party may not rest upon the mere allegations or denials of the party's pleading. See Celotex, 477 U.S. at 324.

I must determine whether any genuine issue of material fact exists. An issue is "material" only if the dispute over facts "might affect the outcome of the suit under the governing law."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). If the record taken as a whole in a light most favorable to the nonmoving party, "could not lead a rational trier of fact to find for the nonmoving party, there is no `genuine issue for trial.'"Matsushita Elec. Co. v. Zenith Radio, 475 U.S. 574, 587 (1986) (citation omitted). If the evidence for the nonmoving party is merely colorable, or is not significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249-50 (citations omitted).

IV. DISCUSSION A. Exhaustion of Administrative Remedies

To exhaust his administrative remedies here, plaintiff must have complied with the requirements of the Consolidated Inmate Review System, a three part process triggered by the filing of an initial grievance followed by an intermediate level of appeal and a final appeal to the Central Office. See Booth v. Churner 206 F.3d 289, 293 n. 2 (3d Cir. 2000) (outlining the grievance review process). Although plaintiff may have attempted to file an initial grievance regarding the alleged December 12 incident, plaintiff has not presented evidence that he attempted to resubmit the grievance about this incident after it was returned to him on December 18, 1997 or that he pursued an appeal of the decision to reject the grievance regarding the incident on December 12.

Plaintiff has also presented no evidence of a grievance filed regarding the December 30 incident. This incident occurred after Moore had issued his initial review response to plaintiff's grievance regarding the November 20 and 23 incidents on December 24, 1997. Therefore plaintiff cannot argue that his December 30 claim fell under the first grievance he filed as any investigation pertaining to the first grievance must have concluded prior to Moore's decision and could not have included the December 30 allegations. Section 1997e(a) requires that prisoners exhaust such administrative remedies "as are available." Plaintiff did not use the available grievance procedure to register his complaint regarding the December 30 incident against Jamison. Further, plaintiff cannot argue that filing a grievance against Jamison regarding this incident would have been futile due to the outcome of his prior grievances. Section "1997e(a), as amended by the PLRA, completely precludes a futility exception to its mandatory exhaustion requirement." Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).See also, Casey v. Smith, 71 Fed. Appx. 916, 918 (3d Cir. 2003). In accordance with Section 1997e(a), plaintiff's Section 1983 claim as to the incidents on December 12 and December 30 must therefore be dismissed for his failure to exhaust his available administrative remedies because he has not presented evidence that he exhausted his administrative remedies as to these incidents.

Plaintiff did, however, exhaust his administrative remedies as to the incidents on November 20 and November 23. Although plaintiff did not file two separate grievances for these incidents, he discussed both incidents in the grievance that he filed on November 24 and that he subsequently appealed to both Vaughn and to the Central Office. Because plaintiff exhausted his administrative remedies as to the November 20 and 23 incidents, I must further consider his claims pertaining to these dates.

B. Statute of Limitations

Plaintiff submitted his appeal of the grievance regarding the November 20 and 23 incidents to the Central Office for final review in February 1998 (Sharon Burks Decl. ¶ 5). Under the Consolidated Inmate Grievance Review System, the Central Office review committee "must issue its decision within twenty-one days after receipt of an appeal." Booth v. Churner 206 F.3d 289, 293 n. 2 (3d Cir. 2000). Because the PLRA makes the exhaustion of administrative remedies mandatory, the statute of limitations only began to run once plaintiff had exhausted his administrative remedies as to the November 24 grievance. Plaintiff could not have brought suit before a final decision on his appeal from the central office. See, e.g., Burgh v. Borough Council of Montrose, 251 F.3d 465, 470-71 (3d Cir. 2001) (holding that exhaustion of administrative remedies is required before limitations period begins to run in Title VII context);Howard v. Snyder, No. 01-376-SLR, 2002 U.S. Dist. LEXIS 9084, at *4 (D. Del. May 14, 2002) (holding that "the time during which plaintiff pursued administrative remedies tolls the statute of limitations" because of Section 1997e(a)'s exhaustion requirement).

Assuming plaintiff's appeal was not received until February 28, 1998 and that the decision from the Central Office was not handed down for 21 days, plaintiff did not exhaust his administrative remedies until March 21, 1998. The statute of limitations for plaintiff's claims regarding the incidents on November 20 and 23, 1997 therefore expired on March 21, 2000. Plaintiff filed his original complaint in this case on March 17, 2000, just before the expiration of the limitations period. Because plaintiff filed his claims within the limitations period, I must consider the merits of his claims.

C. Eighth Amendment Claims

The Eighth Amendment prohibits any punishment which violates civilized standards of decency. Griffin v. Vaughn, 112 F.3d 703, 709 (3d Cir. 1997), citing Young v. Quinlan, 960 F.2d 351, 359 (3d Cir. 1992). To constitute an Eighth Amendment violation, the alleged conduct "must be, objectively, `sufficiently serious,' [and] a prison official's act or omission must result in the denial of `the minimal civilized measure of life's necessities'. . . ." Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted).

1. Claims Against Jamison a. November 20 Incident

While Jamison's alleged verbal exchange with plaintiff on November 20 was undoubtedly inappropriate, it does not rise to the level of a constitutional violation. "Mean harassment . . . is insufficient to state a constitutional deprivation." Murray v. Woodburn, 809 F. Supp. 383, 384 (E.D. Pa. 1993). Verbal abuse or threats alone do not state a constitutional claim. See Maclean v. Secor, 876 F. Supp. 695, 698 (E.D. Pa. 1995). "This is so because `[n]ot every unpleasant experience a prisoner might endure while incarcerated constitutes cruel and unusual punishment.'" Ramos v. Vaughn, No. 94-2596,1995 U.S. Dist. LEXIS 2164 at *12 (E.D. Pa. June 27, 1995), quoting Ivey v. Wilson, 832 F.2d 950, 954 (6th Cir. 1987). Plaintiff does not allege that Jamison's language on November 20 was accompanied by reinforcing acts which would make his actions sufficient to state a constitutional claim.

Although plaintiff also alleges that Jamison lunged toward him with a clenched fist and threatened to hit him, he does not assert that he was physically harmed by Jamison during this incident. "Where plaintiff has not been physically assaulted, defendant's words and gestures alone are not of constitutional merit." Longendorfer v. Camacho, 1991 U.S. Dist. LEXIS 15863, No. 91-6603, at *1 (E.D. Pa. Oct. 31, 1991), cited in Longendorfer v. Roth, No. 04-0228, 2004 U.S. Dist. LEXIS 8709 at *6 (E.D. Pa. April 30, 2004).

Conduct which has been held to be insufficient to violate the Eighth Amendment includes: "(1) a prison guard slamming an inmate into a wall for no reason, . . . (2) a prison guard punching an inmate in the face and tackling him, . . . (3) a prison guard slamming a cell door into an inmate's chest, . . . and (4) a prison guard pulling a chair out from under inmate, causing him to fall and suffer bruises and loose teeth." Longendorfer v. Roth, 2004 U.S. Dist. LEXIS 8709, at *6, citing Acosta v. McGrady, 1999 U.S. Dist. LEXIS 3191, No. 96-2874, 1999 WL 15841, at *8-9 (E.D. Pa. March 22, 1999); Smith v. Hulick, 1998 U.S. Dist. LEXIS 2006, No. 97-801, 1998 WL 84019, at *3-4 (E.D. Pa. Feb. 25, 1998); Colon v. Wert, 1997 U.S. Dist. LEXIS 3413, 1997 WL 137172, at *2 (E.D. Pa. March 21, 1997); and Barber v. Grow, 929 F. Supp. 820, 822-23 (E.D. Pa. 1996). Accordingly, Jamison's alleged conduct, while inappropriate, does not give rise to an Eighth Amendment violation as it was not "sufficiently serious." Farmer 511 U.S. at 834.

b. November 23 Incident

Plaintiff's claim that he was sexually assaulted or subjected to indecent contact when Jamison brushed up behind him on November 23, 1997 is not sufficient to support a finding of an Eighth Amendment violation. Plaintiff argues that sexual assault, coercion and harassment are "simply `not part of the penalty that criminal offenders pay for their offenses against society.'"Farmer, 511 U.S. at 834, quoting Rhodes v. Chapman, 452 U.S. 337, 357 (1981). While this is true, the alleged contact here which, according to plaintiff, lasted about "a second and a half" and which he concedes was an indecent contact and not a sexual assault is not sufficient to amount to an Eighth Amendment violation.

To be actionable under the Eighth Amendment, alleged sexual contact must be incompatible with "contemporary standards of decency." Helling v. McKinney, 509 U.S. 25, 32 (1993), citing Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). Incidents of fondling, touching, or suggestive sexual commentary have been held to be insufficient to state an Eighth Amendment claim. See, e.g., Berryhill v. Schriro, 137 F.3d 1073 (8th Cir. 1998) (holding that inmate failed to state an Eighth Amendment claim against prison maintenance employee where "the brief touch to his buttocks lasted mere seconds, [and] it was not accompanied by any sexual comments or banter"). Boddie v. Schnieder, 105 F.3d 857, 859-61 (2d Cir. 1997) (holding allegations that a female correction officer "made a pass" at an inmate, squeezed his hand, touched his penis and pressed up against him "so hard that he could feel the points of her nipples against [his] chest" were not egregious enough, either singly or cumulatively, to state an Eighth Amendment claim); Harris v. Zappan, No. 97-4597, 1999 U.S. Dist. LEXIS 8404 at *9-10 (E.D. Pa. May 28, 1999) (holding no Eighth Amendment violation where defendant made sexually explicit comments to plaintiff, fondled her, and rubbed her thighs and breasts); Jones v. Culinary Manager II, 30 F. Supp. 2d 491, 497 (E.D. Pa. 1998) (holding that single incident in which guard pinned plaintiff to a box and ground his pelvis against plaintiff's buttocks while threatening sex was not sufficiently serious to state an eighth amendment claim). Because the alleged November 23 incident involved contact which, if anything, was less outrageous than similar claims which have previously been dismissed as not sufficient to state an Eighth Amendment violation, I will grant summary judgment in favor of defendants.

2. Claims Against O'Hara and Vaughn

Because plaintiff's Eighth Amendment claims against Jamison fail, his Eighth Amendment claims against the supervisory defendants must also fail. A plaintiff may establish Section 1983 supervisory liability by showing that a supervisor tolerated past or ongoing misbehavior that violates the Constitution. Baker v. Monroe Twp., 50 F.3d 1186, 1191 n. 3 (3d Cir. 1995). See also Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) ("A defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior. . . . Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. . . ."). Because the underlying allegations do state a claim as a matter of law, it is not possible for the supervisory defendants to be liable for having tolerated a constitutional violation.

Further, plaintiff has not shown that O'Hara or Vaughn were personally involved in the events plaintiff complains of. Plaintiff does not have a constitutional right to require prison officials to investigate his grievances." Davage v. United States, No. 97-1002, 1997 U.S. Dist. LEXIS 4844, at *9 (E.D. Pa. Apr. 11, 1997) (citations omitted). Vaughn considered and sustained Officer Moore's decision regarding plaintiff's grievance regarding the November 20 and 23 incident based on the record before him. He was not required to further investigate plaintiff's claims. Upon learning of plaintiff's allegations, O'Hara ordered Vaughn to institute the investigation conducted by Soler. O'Hara was satisfied with Soler's conclusion that plaintiff's allegations could not be substantiated. Neither Vaughn nor O'Hara's conduct had the requisite close causal connection to plaintiff's alleged injuries for liability to attach under Section 1983. See Martinez v. California, 444 U.S. 277, 285 (1980) ("Although a § 1983 claim has been described as `a species of tort liability,' . . . it is perfectly clear that not every injury in which a state official has played some part is actionable under that statute.") (citation omitted). See also Bey v. Pennsylvania Dep't. of Corr., 98 F. Supp. 2d 650, 654 (E.D. Pa. 2000) (dismissing plaintiff's claim against prison officials because there was no evidence they "took affirmative steps to violate his constitutional rights, that they directed others to violate his rights, or that they acquiesced in violations of those rights by their subordinates").

D. Compensatory Damages

Because plaintiff has not shown that he suffered any physical injury as a result of defendants conduct, he has not established a claim for compensatory damages under Section 1983. "An inmate may not bring a federal cause of action for mental or emotional injury absent a prior showing of physical injury." McGrath v. Johnson, 67 F. Supp. 2d 499, 508 (E.D. Pa. 1999), citing 42 U.S.C. § 1997e(e).

ORDER