DAWSON v. COOK et al

Filing 20

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 02/24/2017. 02/24/2017 ENTERED AND COPIES MAILED TO PRO SE LITIGANT AND E-MAILED.(nds)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
GREGORY LAWRENCE DAWSON,
Plaintiff,
v.
ERIC COOK,
Defendant.

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CIVIL ACTION
NO. 14-2877

M E M O R A N D U M
EDUARDO C. ROBRENO, J.

February 24, 2017

Plaintiff Gregory Lawrence Dawson (“Plaintiff”), a
former inmate at Curran-Fromhold Correctional Facility (“the
Facility”), brings this pro se action under 42 U.S.C. § 1983
against Defendant Eric Cook (“Officer Cook” or “Defendant”), a
corrections officer at the Facility.

Plaintiff alleges that, on

September 2, 2012, during an altercation between Plaintiff and
Defendant, Defendant used excessive force against him in
violation of the Eighth Amendment, resulting in injuries to
Plaintiff’s head, requiring several stiches and causing
Plaintiff to permanently lose vision in his left eye.

Plaintiff

pleaded guilty to aggravated assault in connection with the
incident.

Following the Court’s March 29, 2016, denial of

Defendant’s first motion for summary judgment without prejudice,

Defendant filed a second motion for summary judgment.
has not responded to the motion.1

Plaintiff

For the reasons discussed

below, the Court will grant Defendant’s motion.
I.

FACTUAL BACKGROUND2
Plaintiff alleges that, on September 2, 2012, Officer

Cook entered his cell and repeatedly punched him in the face,
causing Plaintiff to fall and hit his head on a metal bunk.
Compl. at 3, ECF No. 3.

He alleges that Officer Cook then

kicked him in the face several times.

Id.

Plaintiff claims

that his two cellmates were present and witnessed the incident.
Id.

As a result of the altercation, Plaintiff alleges, he

suffered a cut to the left side of his head, which required
eight stitches, and also lost vision in his left eye.

Id.

As

of May 14, 2014, the date Plaintiff filed his complaint, he
still had no vision in his left eye.

Id.

Plaintiff admits in his complaint that the Facility
has a grievance procedure.

Id. at 4.

Plaintiff alleges that he

1

Although Plaintiff has not responded to the motion for
summary judgment, the Court has an independent obligation to
ensure that Defendant has met his burden to show that there is
no genuine dispute as to any material fact and he is entitled to
judgment as a matter of law. See Local R. Civ. P. 7.1(c); Fed.
R. Civ. P. 56(e); Watkins v. Leonard, No. 03-0109, 2005 WL
1367409, at *2 (E.D. Pa. June 7, 2005).
2

The facts are presented in the light most favorable to
Plaintiff, the nonmoving party.
2

filed a grievance regarding the incident, in which he claimed
that Officer Cook used excessive force on him.

See id.

According to Plaintiff, he never received a response to the
grievance and it was never addressed at any meetings he had with
a prison official.

Id. at 5.

At his deposition, Plaintiff

stated that he filed a grievance for the incident, but that he
does not have copies of any of the documents related to his
grievance.

See Dawson Dep. 42:6-23, Mar. 12, 2015, Def.’s Mot.

Summ. J. Ex. C, ECF No. 18-4.
Defendant disputes that Plaintiff submitted a
grievance for the September 2, 2012 incident.

See Def.’s

Statement of Undisputed Material Facts ¶ 6, Def.’s Mot. Ex. A,
ECF No. 18-1.

In support of this assertion, Defendant submits

an affidavit from Patricia Powers (“Warden Powers”), the Deputy
Warden of the Philadelphia Prison System.

See Powers Aff.,

Def.’s Mot. Ex. B, ECF No. 18-3.
Warden Powers has attached various documents to the
affidavit, including the Philadelphia Prison System’s Inmate
Grievance Procedures dated July 29, 2005 (“the Policy”).
Policy, Def.’s Mot. Ex. B, ECF No. 18-3.

See

According to the

Policy, an inmate may file a formal, written grievance within
ten days of a qualifying incident by completing and submitting
an inmate grievance form.

See id. at 5.

The inmate retains the

bottom copy of the form as his or her receipt of filing.
3

Id.

If an inmate believes that he or she is being denied access to
the grievance process - for example, because grievance forms are
not available - the inmate may forward his or her grievance
directly to the Commissioner of the Philadelphia Prison System.
Id.
When a grievance is submitted, the Deputy Warden for
Administration is responsible for reviewing the grievance and
deciding whether to (1) reject the grievance and return it to
the inmate, if the grievance concerns a non-grievable issue, is
frivolous on its face, or is otherwise inconsistent with the
inmate grievance procedures; (2) attempt to resolve the
grievance him or herself; or (3) distribute the grievance to an
appropriate staff member for resolution.

Id. at 6.

If the

Deputy Warden rejects or resolves the grievance, he or she must
do so within fourteen days of its receipt.

If the Deputy Warden

submits the grievance to a staff member to resolve, the staff
member must forward the grievance form with a proposed
resolution to the Deputy Warden within thirty days of receiving
it.

Id.

After the Deputy Warden reaches a resolution, he or

she will then draft a Finding of Inmate Grievance and forward it
to the Warden for review.

Id.

The Warden will then review the

recommended action of the Deputy Warden, and approve, deny, or
modify it within fourteen days of receipt by noting his or her

4

decision on the Finding of Inmate Grievance Form.

Id. at 7.

The Warden will then forward signed copies to the inmate.

Id.

According to the Policy, if an inmate is unsatisfied
with the Warden’s decision, the inmate has five days after
receipt of the Finding of Inmate Grievance Form to appeal the
decision to the Commissioner.

Id.

The Policy also provides

that an inmate may proceed to the next level of review if the
time limit for the instant stage of review has expired.

See id.

at 3 (“Expiration of a time limit at any stage of the process
shall entitle the grievant to move to the next level of the
process, unless the grievant has agreed in writing to an
extension of the time for a response.”).
In addition to the Policy, Warden Powers attaches
printed records from the Philadelphia Prison System’s electronic
system regarding Plaintiff’s grievances from November 10, 2009,
through November 25, 2013.

ECF No. 18-3 at 4-12.

Warden Powers

states that she has knowledge of the information contained in
the printed records, that the records were kept in the course of
regular prison system activity, and that making such records is
a regular practice of the Philadelphia Prison System.
Aff. ¶ 7.

Powers

Warden Powers further states that, based on her

review of the records, Plaintiff never filed a grievance

5

relating to his alleged interaction with Officer Cook on
September 2, 2012.3

Id. at ¶ 8.

According to Defendant, Plaintiff can no longer file a
grievance regarding his interaction with Officer Cook, as his
time limit for submitting a grievance for that incident has
expired under the Policy.

Def.’s Statement of Undisputed

Material Facts ¶ 8; see also Powers Aff. ¶ 11.

Warden Powers

bases this conclusion on the Policy itself, as well as printed
records from the Philadelphia Prison System’s electronic system
regarding Plaintiff’s changes in housing from May 26, 2009,
through April 6, 2014.

See Powers Aff. ¶ 11.

At his deposition, Plaintiff admitted that he pleaded
guilty to aggravated assault for attacking Officer Cook.
Dawson Dep. 32:16-33:24.

See

Plaintiff also agreed that he was

sentenced to eleven-and-a-half to twenty-three months on the
assault charge, followed by two years of probation.

Id. at

33:19-24.
II.

PROCEDURAL HISTORY
Plaintiff filed this action on May 19, 2014, bringing

claims under 42 U.S.C. § 1983 against Officer Cook and the

3

Instead, the documents show that Plaintiff filed a
grievance regarding his medication on September 17, 2012, as
well as three subsequent grievances regarding matters unrelated
to his interaction with Officer Cook. See id. ¶ 9; see also
Def.’s Mot. Ex. B at 4-12.
6

Philadelphia Prison System.

ECF Nos. 1, 3.

The Court granted

in forma pauperis status on May 22, 2014, and dismissed
Plaintiff’s claims against the Philadelphia Prison System as
legally frivolous in the same order.

ECF No. 2.

Plaintiff’s

complaint brings one claim of excessive force against Officer
Cook and seeks $5,000,000 in damages.

See Compl. at 4-5.

Defendant answered the complaint on October 24, 2014.
ECF No. 7.

In the answer, Defendant asserts numerous

affirmative defenses, including that Plaintiff’s claims are
barred because he failed to comply with provisions of the Prison
Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a),
requiring exhaustion of all administrative remedies before
commencing a federal suit.

Answer at 4.

Defendant deposed Plaintiff, and subsequently filed a
motion for summary judgment on July 22, 2015.

ECF No. 14.

The

Court denied Defendant’s motion for summary judgment without
prejudice on March 29, 2016, and ordered Defendant to file an
amended motion for summary judgment by April 30, 2016, attaching
thereto any administrative prison policy or other documents on
which the motion relied, including pinpoint references to
Plaintiff’s deposition.

ECF No. 17.

The Court also ordered

Plaintiff to respond to any motion for summary judgment by May
30, 2016.

Id.

7

Defendant filed a second motion for summary judgment
on April 12, 2016.

ECF No. 18.

On June 14, 2016, the Court

ordered Plaintiff to file a response, if any, to Defendants’
second motion for summary judgment by July 5, 2016.
As of today, Plaintiff has not filed a response.

ECF No. 19.

The Court is

now ready to rule on the motion.
III. LEGAL STANDARD
Summary judgment is awarded under Federal Rule of
Civil Procedure 56 when “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a); Liberty Mut. Ins. Co. v.

Sweeney, 689 F.3d 288, 292 (3d Cir. 2012).

“A motion for

summary judgment will not be defeated by ‘the mere existence’ of
some disputed facts, but will be denied when there is a genuine
issue of material fact.”

Am. Eagle Outfitters v. Lyle & Scott

Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)).

A fact is

“material” if proof of its existence or non-existence might
affect the outcome of the litigation, and a dispute is “genuine”
if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.”

Anderson, 477 U.S. at 248.

In undertaking this analysis, the court views all
facts in the light most favorable to the nonmoving party.

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“After making all reasonable inferences in the nonmoving party’s
favor, there is a genuine issue of material fact if a reasonable
jury could find for the nonmoving party.”

Pignataro v. Port

Auth. of N.Y. & N.J., 593 F.3d 265, 268 (3d Cir. 2010) (citing
Reliance Ins. Co. v. Moessner, 121 F.3d 895, 900 (3d Cir.
1997)).

While the moving party bears the initial burden of

showing the absence of a genuine issue of material fact, meeting
this obligation shifts the burden to the nonmoving party, who
must “set forth specific facts showing there is a genuine issue
for trial.”

Anderson, 477 U.S. at 250.

A document filed pro se is to be “liberally construed”
and “a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
by lawyers.”

Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

In

addition, when considering a motion in a pro se plaintiff’s
proceedings, a court must “apply the applicable law,
irrespective of whether a pro se litigant has mentioned it by
name.”

Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48

(3d Cir. 1999).

However, on a motion for summary judgment, “a

pro se plaintiff is not relieved of his obligation under Rule 56
to point to competent evidence in the record that is capable of
refuting a defendant’s motion for summary judgment.”

Ray v.

Fed. Ins. Co., No. 05-2507, 2007 WL 1377645, at *3 (E.D. Pa. May
9

10, 2007) (Robreno, J.).

“[M]erely because a non-moving party

is proceeding pro se does not relieve him of the obligation
under Rule 56(e) to produce evidence that raises a genuine issue
of material fact.”

Boykins v. Lucent Techs., Inc., 78 F. Supp.

2d 402, 408 (E.D. Pa. 2000) (Robreno, J.).
IV.

DISCUSSION
Defendant argues that Plaintiff’s excessive force

claim fails as a matter of law because (1) Plaintiff failed to
exhaust his administrative remedies; (2) Plaintiff’s claim is
barred by Heck v. Humphrey, 512 U.S. 477 (1994), due to
Plaintiff’s conviction for aggravated assault for the same
incident; and (3) Officer Cook is entitled to qualified
immunity.

See Def.’s Mem. Law Support. Mot. Summ. J., ECF No.

18 [hereinafter Def.’s Mem.].
For the reasons discussed below, the Court finds that
Defendant has demonstrated that there is no genuine issue of
material fact regarding Plaintiff’s failure to exhaust his
administrative remedies, and that Defendant’s motion for summary
judgment should be granted on that basis.

As a result, the

Court will not reach Defendant’s arguments that Plaintiff’s
claim is barred by Heck v. Humphrey and that Officer Cook is
entitled to qualified immunity.

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As amended by the Prison Litigation Reform Act
(“PLRA”), 42 U.S.C. § 1997e(a) provides that “[n]o action shall
be brought with respect to prison conditions under section 1983
of this title, or any other Federal law, by a prisoner confined
in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”

42

U.S.C. § 1997e(a) (amended by Pub. L. 104-134, Title I, S101(a),
110 Stat. 1321-71 (1996)).
covered by the PLRA.
532 (2002).

Exhaustion is mandatory in cases

See Porter v. Nussle, 534 U.S. 516, 524,

Further, a plaintiff’s “[f]ailure to exhaust

administrative remedies is an affirmative defense that must be
pled and proven by the defendant.”

Brown v. Croak, 312 F.3d

109, 111 (3d Cir. 2002).
The Third Circuit has held that excessive force is a
“prison condition” for purposes of the PLRA.
206 F.3d 289, 291 (3d Cir. 2000).

Booth v. Churner,

Therefore, a prisoner

bringing an excessive force claim under § 1983 is required to
exhaust the administrative remedies available to him prior to
filing an excessive force action in federal district court.

Id.

“[T]o properly exhaust administrative remedies prisoners must
‘complete the administrative review process in accordance with
the applicable procedural rules’ - rules that are defined not by
the PLRA, but by the prison grievance process itself.”

11

Johns v.

Bock, 549 U.S. 199, 212 (2007) (citation omitted) (quoting
Woodford v. Ngo, 548 U.S. 81, 88 (2006)).
The exhaustion requirement applies only if the
plaintiff is incarcerated at the time the action is filed in
district court.

Abdul-Akbar v. McKelvie, 239 F.3d 307, 314 (3d

Cir. 2001) (noting that the PLRA “requires that the plaintiff
exhaust administrative remedies, but only if the plaintiff is a
prisoner at the time of filing”).

Therefore, where a prisoner

is released prior to filing a lawsuit, he need not meet the
exhaustion requirement for suits based on prison conditions that
occurred prior to his release.

See Ahmed v. Dragovich, 297 F.3d

201, 210 (3d Cir. 2002).
Defendant argues that (1) Plaintiff was required to
exhaust his administrative remedies prior to filing this suit;
and (2) Plaintiff did not do so, because he never submitted a
grievance for the incident.

See Def.’s Mem. at 2.

As Plaintiff was a prisoner at the time of filing this
suit, see ECF No. 1, he was required to exhaust his
administrative remedies under the PLRA.
F.3d at 314.

See Abdul-Akbar, 239

Although Plaintiff was released shortly after the

incident, he was later re-incarcerated at the same facility.

As

Defendant correctly argues, Plaintiff’s release and subsequent
re-incarceration does not excuse his failure to exhaust his
administrative remedies.

See Halaka v. Park, No. 12-1506, 2014
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WL 2457395, at *3 (W.D. Pa. May 29, 2014) (collecting cases
holding that an intervening release from custody does not excuse
a failure to exhaust administrative remedies if the plaintiff is
imprisoned at the commencement of a lawsuit).
In support of his argument that Plaintiff never filed
a grievance, Defendant submits records from the Philadelphia
Prison System’s electronic system, together with the sworn
statements of Warden Powers that the printed records are
complete.

Based on the information Defendant has submitted,

there is no electronic record of the grievance that Plaintiff
filed, and there is no basis for the Court to conclude that
Plaintiff submitted a grievance that was not recorded.
Plaintiff alleged in his complaint and testified at
his deposition that he filed a grievance regarding the incident
with Officer Cook.

See Compl. at 4-5; Dawson Dep. 42:6-23.

However, there is no evidence in the record, aside from
Plaintiff’s unsupported assertions, that demonstrate that
Plaintiff did indeed file a grievance.

Plaintiff also has not

responded to Defendant’s submissions demonstrating that a
grievance was never filed, despite having ample time to do so.
Although Plaintiff is proceeding pro se, that status does not
excuse him from his obligation to demonstrate that a genuine
issue of material fact exists with respect to his failure to

13

exhaust his administrative remedies.

See Boykins, 78 F. Supp.

2d at 408.
“In considering a motion for summary judgment, a
district court may not make credibility determinations or engage
in any weighing of evidence.”

Marino v. Indus. Crating Co., 358

F.3d 241, 247 (3d Cir. 2004).

However, a dispute is only

“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”
at 248.

Anderson, 477 U.S.

In order for a jury to find that Plaintiff did file a

grievance and therefore properly exhausted his administrative
remedies, the jury would need to conclude that either (1)
Plaintiff filed a grievance that was never recorded,
electronically or otherwise, or (2) Plaintiff’s grievance was
recorded and prison officials deleted the information regarding
the grievance from the electronic system.

There are no facts in

the record supporting these theories of the case.

See, e.g.,

Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing
parties tell two different stories, one of which is blatantly
contradicted by the record, so that no reasonable jury could
believe it, a court should not adopt that version of the facts
for purposes of ruling on a motion for summary judgment.”).

In

addition, the Policy provides that the inmate receives a
“receipt” upon filing a grievance (the bottom copy of the inmate
grievance form), which Plaintiff has not provided to the Court.
14

See Policy at 5.

Nor has Plaintiff provided any explanation as

to why he does not have a receipt for the grievance he claims he
submitted.
Further, even if a reasonable jury could conclude that
Plaintiff did file a grievance, he has not alleged that he
appealed the lack of a response to his grievance.

According to

the Policy, Plaintiff was permitted to appeal the lack of a
response to his grievance after the time limit for a response
had expired.

See Policy at 3 (“Expiration of a time limit at

any stage of the process shall entitle the grievant to move to
the next level of the process, unless the grievant has agreed in
writing to an extension of the time for a response.”).

The

Policy provides that the Deputy Warden must either resolve the
grievance himself within fourteen days, or distribute it to a
staff member, who must resolve it within thirty days.
at 6.

See id.

Upon reaching a resolution or agreeing with a staff

member’s proposed resolution, the Deputy Warden must submit a
Finding of Inmate Grievance to the Warden for review, who must
approve, deny, or modify the Deputy Warden’s recommendation
within fourteen days.

See id. at 7.

At the latest, then,

Plaintiff should have received a response to his grievance less
than two months after submitting it.

At the time Plaintiff

filed his complaint, two years had elapsed since the incident,
and Plaintiff alleges that he had not received a response to his
15

grievance in that time.

Although the Policy clearly permitted

Plaintiff to proceed directly to review by the Commissioner
after not receiving a response to his grievance within the
required time limits, Plaintiff has not established – or even
alleged – that he did so.
A grievance is not properly exhausted if a prisoner
does not pursue it through all available appeals.
548 U.S. at 93-97.

See Woodford,

Some courts have held that “a plaintiff who

files grievances and receives no response has exhausted his or
her remedies.”

Carter v. Morrison, No. 06-3000, 2007 WL

4233500, at *7 (E.D. Pa. Nov. 28, 2007); see also Brown v.
Lewis, No. 10-2050, 2011 WL 1584059, at *3 (E.D. Pa. Apr. 27,
2011) (holding that an inmate who filed proper grievance forms
had exhausted his available administrative remedies where there
was no evidence in the record that he ever received a response).
However, the Third Circuit has held that the exhaustion
requirement contained in § 1997e(a) “includes a procedural
default component.”
Cir. 2014).

Spruill v. Gillis, 372 F.3d 218, 222 (3d

Procedural default is governed by the applicable

prison grievance system, as long as the “procedural requirements
[are not] imposed in a way that offends the Federal Constitution
or the federal policy embodied in § 1997e(a).”

Id. at 232.

Here, the Policy provided Plaintiff with the ability
to appeal the lack of a response.
16

Even if Plaintiff did submit

a grievance, therefore, his failure to appeal the lack of a
response establishes that he did not exhaust his administrative
remedies.

See, e.g., Booth v. Loreno, No. 02-6752, 2007 WL

2668898, at *12 (E.D. Pa. Sept. 6, 2007) (holding that the
plaintiff did not exhaust his administrative remedies where the
superintendent did not respond to a grievance that the prison
had no record of receiving); Rister v. Williams, No. 11-1733,
2014 WL 794590, at *5-6 (M.D. Pa. Feb. 27, 2014) (granting
summary judgment for the defendant where the plaintiff did not
appeal the lack of a response to his grievance).
In sum, there is no evidence in the record supporting
Plaintiff’s assertion that he filed a grievance.

Further, as

the Policy permitted Plaintiff to appeal the lack of a response,
and Plaintiff has not even alleged that he did so, there is no
genuine issue of material fact with respect to Plaintiff’s
failure to exhaust his administrative remedies, even if
Plaintiff did in fact file an initial grievance.
V.

CONCLUSION
For the reasons stated above, the Court will grant

Defendant’s motion for summary judgment.
An appropriate order follows.

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