Collins v. Walsh et al

Filing 68

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the Dfts' 63 Motion for Summary Judgment is deemed unopposed AND GRANTED. 2)The Clerk of Court is directed to enter jgm in favor of dfts Walsh, Beard, Salsman, Romonoski, Bath, Patterson, and Varner on all clms and against Pltf in this case; 3)The Clerk of Court is directed to CLOSE this case; 4)Any appeal from this order will be deemed frivolous and not taken in good faith. Signed by Chief Judge Yvette Kane on Aug. 15, 2012. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK COLLINS,
Plaintiff
v.
JEROME WALSH, et al.,
Defendants

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Civil Action No. 1:09-cv-1932
(Chief Judge Kane)

MEMORANDUM
Before the Court is a motion for summary judgment filed by the Defendants remaining in
this action. (Doc. No. 63.) For the reasons that follow, the Court will grant the motion as
unopposed.
I.

BACKGROUND1
On December 7, 2011, all Defendants remaining in this action filed a motion for

summary judgment with respect to all claims that the Court had not previously dismissed. (Doc.
No. 63.) Because Plaintiff failed to file any opposition to the motion, the Court issued an order
on April 5, 2012, directing him to do so within fourteen days. (Doc. No. 67.) The Court warned
Plaintiff that the failure to file a brief in opposition, statement of facts, and evidentiary materials
would result in the motion being deemed unopposed. To date, Plaintiff has failed to file any
opposition; accordingly, Defendants’ motion for summary judgment will be deemed unopposed
and addressed on the merits.
Plaintiff was confined at SCI-Dallas from the time of the events giving rise to this
complaint through October 5, 2009. (Doc. No. 65 ¶ 2.) At some time between June 8, 2009, and

Because Plaintiff has failed to file a statement of facts in response to Defendants’
submission, the Court will accept Defendants’ statement of material facts as uncontested. See
Miller v. Ashcroft, 76 F. App’x 457, 460 (3d Cir. 2003).
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June 18, 2009, he called a sexual harassment hotline alleging that Defendant Salsman, a
correctional officer at SCI-Dallas, had sexually harassed him on June 8, 2009. (Id. ¶ 3.) On or
about June 16, 2009, Plaintiff filed inmate grievance #277039 that alleged sexual harassment by
Salsman on June 8, 2009, and challenged a subsequent block transfer. (Id. ¶ 4.) In his
grievance, Plaintiff did not request monetary relief. (Id. ¶ 5.) This grievance was assigned to
Defendant Patterson for an investigation and response. (Id. ¶ 10.) Following an investigation of
Plaintiff’s claims, Patterson issued an initial review decision denying the grievance on June 19,
2009. (Id. ¶ 11.) Plaintiff appealed this decision to SCI-Dallas Superintendent Klopotoski on or
about June 26, 2009. (Id. ¶ 12.) Klopotoski upheld the initial review response on July 6, 2009.
(Id. ¶ 13.) Plaintiff then appealed Klopotoski’s decision to the Secretary’s Office for Inmate
Grievances and Appeals for final review on July 14, 2009. (Id. ¶ 14.) On August 12, 2009,
following review of the relevant documents, Defendant Varner denied the appeal. (Id. ¶ 15.)

On July 10, 2009, Plaintiff filed another grievance, #280286, wherein he alleged that
Defendant Salsman transferred him from A-block to B-block in retaliation for the sexual
harassment claims Plaintiff made against him. (Id. ¶ 16.) Because grievance #280286 was
submitted more than fifteen working days after the alleged events, the SCI-Dallas Grievance
Coordinator rejected it as untimely. (Id. ¶ 17.) Plaintiff did not appeal. (Id. ¶ 18.)
Defendant Romonoski cited Plaintiff for fighting on August 19, 2009. (Id. ¶ 22.) A
hearing regarding this citation was held on August 24, 2009. (Id. ¶ 31.) Following the hearing,
the Hearing Examiner found Plaintiff guilty of fighting and sanctioned him to thirty days of
confinement in the Restricted Housing Unit at SCI-Dallas. (Id.) Plaintiff appealed the

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misconduct hearing results to the Program Review Committee on or about August 24, 2009,
claiming that the finding of guilt was not supported by the evidence and that his confinement
was a disproportionate punishment for the alleged offense. (Id. ¶ 32.) The Program Review
Committee sustained the result, and Plaintiff appealed that decision to Superintendent
Klopotoski on or about September 3, 2009. (Id. ¶¶ 33-34.) Klopotoski upheld the misconduct
and denied the appeal in a decision dated September 8, 2009. (Id. ¶ 35.) Approximately one day
later, Plaintiff appealed to final review, and the misconduct was upheld. (Id. ¶ 36.)
In sum, Plaintiff filed four grievances and related appeals from the time of the alleged
sexual harassment incident until the date he filed his complaint: #277039, #280286, #288134,
and #290423. With the exception of grievance #277039, Plaintiff did not appeal any of the
above-mentioned grievances to final review. (Id. ¶ 21.) Although #277039 and #280286 do
address claims raised in the complaint, Defendants maintain that the undisputed record
demonstrates that all of the claims raised in this action are procedurally defaulted due to
Plaintiff’s failure to exhaust as required by the Department of Corrections Administrative
Directive 804. (Doc. No. 64 at 8.)
II.

STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure provides that summary judgment is

warranted “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.” Fed. R. Civ. P. 56(a). A factual dispute is
material if it might affect the outcome of the suit under the applicable law, and it is genuine only
if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a
verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49

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(1986). At summary judgment, the inquiry is whether the evidence presents a sufficient
disagreement to require submission to the jury or whether it is so one-sided that one party must
prevail as a matter of law. Id. at 251-52. In making this determination, the Court must “consider
all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City
Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
The moving party has the initial burden of identifying evidence that it believes shows an
absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d
135, 145-46 (3d Cir. 2004). 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.” Berckeley Inv. Grp.. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir.
2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 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 warranted.
Celotex, 477 U.S. at 322. With respect to the sufficiency of the evidence that the non-moving
party must provide, a court should grant summary judgment where the non-movant’s evidence is
merely colorable, conclusory, or speculative. Anderson, 477 U.S. at 249-50. 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. Id. at 252; see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further, a party may not defeat a motion for
summary judgment with evidence that would not be admissible at trial. Pamintuan v. Nanticoke
Mem’l Hosp., 192 F.3d 378, 387 (3d Cir. 1999).

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III.

DISCUSSION
On December 7, 2011, Defendants filed a motion for summary judgment with respect to

all claims that the Court had not previously dismissed. (Doc. No. 63.) Defendants argue that
they are entitled to summary judgment because Plaintiff has procedurally defaulted on his claims
by failing to exhaust administrative remedies as required by statute. (Doc. No. 64 at 5.) Plaintiff
failed to file any opposition to the motion. The Court will review the record to determine
whether Defendants must prevail as a matter of law.
Defendants maintain that Plaintiff has procedurally defaulted on his claims by failing to
exhaust administrative remedies as required by 42 U.S.C. § 1997e(a), which provides that:
No action shall be brought with respect to prison condi tions under
Section 1983 of this title, or any other Fede ral 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). Pursuant to 42 U.S.C. § 1997e(a), the exhaustion of administrative
remedies is mandatory. Booth v. Churner, 532 U.S. 731, 739 (2001). The “exhaustion
requirement applies to all inmate suits 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 (2002). A prisoner must “exhaust all available
administrative remedies” regardless of whether the administrative process may provide the
prisoner with the relief sought. Nyhuis v. Reno, 204 F.3d 65, 75 (3d Cir. 2000). “[I]t is beyond
the power of [any] court . . . to excuse compliance with the exhaustion requirement, whether on
the ground of futility, inadequacy or any other basis.” Id. at 73 (internal quotation marks
omitted); see also Weinberger v. Salfi, 422 U.S. 749, 766 (1975). Thus, prisoners are required to
exhaust available administrative remedies prior to seeking relief pursuant to 42 U.S.C. § 1983 or
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any other federal law. Jones v. Bock, 549 U.S. 199, 211 (2007). Nevertheless, “[f]ailure to
exhaust is an affirmative defense that must be pled and proven by the defendant.” Brown v.
Croak, 312 F.3d 109, 111 (3d Cir. 2002) (citing Ray v. Kertes, 285 F.2d 287, 295 (3d Cir.
2002)).
Based on the undisputed facts, the Court finds Plaintiff has procedurally defaulted his
claims. Plaintiff filed only two grievances regarding the claims raised in this complaint:
Grievance #277039 and #280286. Grievance #277039 was filed on or about June 16, 2009, and
alleged sexual harassment by Defendant Salsman on June 8, 2009, as well as a subsequent
retaliatory block transfer from A-block. Plaintiff appealed this grievance through final review.
In this grievance, however, he failed to request monetary relief, the only relief he seeks in his
complaint. In cases where the inmate is seeking compensation, however, he must have requested
this relief in his original grievance. DC-ADM 804 § VI (A)(7) (“If the inmate desires
compensation or other legal relief normally available from a court, the inmate shall request the
specific relief sought in his/her initial grievance.”).
In grievance #280286, Plaintiff challenged the alleged retaliatory transfer from A-block
on June 12, 2009. This grievance was filed on or about July 10, 2009, but was rejected as
untimely because it was submitted more than fifteen working days after the alleged events
transpired. Plaintiff did not appeal this rejection.
Plaintiff did not file any grievances pursuant to DC-ADM 804 with respect to the
remaining claims set forth in the complaint against Defendants Beard, Varner, Walsh, Patterson,
Bath and Romonoski. Accordingly, Plaintiff has also procedurally defaulted with respect to
these claims.

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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FREDERICK COLLINS,
Plaintiff
v.
JEROME WALSH, et al.,
Defendants

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Civil Action No. 1:09-cv-1932
(Chief Judge Kane)

ORDER
AND NOW, on this 15th day of August 2012, IT IS HEREBY ORDERED THAT:
1.

Defendants’ motion for summary judgment (Doc. No. 63) is DEEMED
UNOPPOSED AND GRANTED;

2.

The Clerk of Court is directed to enter judgment in favor of Defendants Walsh,
Beard, Salsman, Romonoski, Bath, Patterson and Varner on all claims and against
Plaintiff in this case;

3.

The Clerk of Court is directed to close this case; and

4.

Any appeal from this order will be deemed frivolous and not taken in good faith.
S/ Yvette Kane
Yvette Kane, Chief Judge
United States District Court
Middle District of Pennsylvania