Panton v. Everette et al

Filing 56

MEMORANDUM AND ORDER - It is hereby ORDERED that: 1. Defts' MTD 18 GRANTED w/ re: claims that pltf was denied adequate med car when he did not receive shower prior to being transported..; 2. Defts' MSJ 18 GRANTED w/ re: pltf's cla ims that he was forced to walk to his housing unit in rain... & that black box over handcuffs interfered w/ admin of IV med - Clrk of Ct directed to ENTER jdgmt in favor of defts & against pltf on these claims.; 3. Pltf MSJ 33 DENIED.; 4. Clrk of Ct directed to CLOSE case.; 5. Any appeal from this order deemed frivolous & not in good faith. (See memo & order for complete details.) Signed by Honorable Christopher C. Conner on 3/27/13.(ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT PANTON,
Plaintiff
v.
CAPTAIN BRECKON, RONNIE
HOLT,
Defendants

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CIVIL ACTION NO. 1:11-CV-1845
(Judge Conner)

MEMORANDUM
Robert Panton (“Panton” or “plaintiff”), an inmate formerly housed at the
United States Penitentiary at Canaan (“USP Canaan”), Waymart, Pennsylvania,
filed a complaint alleging Bivens1 claims, 28 U.S.C. § 1331. (Doc. 1.) He is presently
proceeding via an amended complaint. (Doc. 9). Named as defendants are Captain
Breckon and Ronnie Holt, former Warden of USP Canaan. (Id. at 1.)
Presently ripe for disposition is defendants’ motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) and for summary judgment pursuant to
Rule 56 of the Federal Rules of Civil Procedure (Doc. 18), and plaintiff’s motion for
summary judgment pursuant to Federal Rule of Civil Procedure 56. (Doc. 33.) For
the reasons set forth below defendants’ motion to dismiss will be granted in part,

Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics,
403 U.S. 388 (1971). Bivens stands for the proposition that “a citizen suffering a
compensable injury to a constitutionally protected interest could invoke the general
federal-question jurisdiction of the district courts to obtain an award of monetary
damages against the responsible federal official.” Butz v. Economou, 438 U.S. 478,
504 (1978).
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and the motion for summary judgment will be granted in part. Plaintiff’s motion for
summary judgment will be denied.
I.

Motion to Dismiss
A.

Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for the
dismissal of complaints that fail to state a claim upon which relief can be granted.
FED . R. CIV . P. 12(b)(6). When ruling on a motion to dismiss under Rule 12(b)(6), the
court must “accept as true all [factual] allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them in the light most
favorable to the plaintiff.” Kanter v. Barella, 489 F.3d 170, 177 (3d Cir. 2007)
(quoting Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005)). Although the court is
generally limited in its review to the facts contained in the complaint, it “may also
consider matters of public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver v. Levin, Fishbein, Sedran &
Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
Federal notice and pleading rules require the complaint to provide “the
defendant notice of what the . . . claim is and the grounds upon which it rests.”
Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To test the sufficiency of the complaint in the
face of a Rule 12(b)(6) motion, the court must conduct a three-step inquiry. See
Santiago v. Warminster Twp., 629 F.3d 121, 130-31 (3d Cir. 2010). In the first step,
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“the court must ‘tak[e] note of the elements a plaintiff must plead to state a claim.’”
Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Next, the factual and legal
elements of a claim should be separated; well-pleaded facts must be accepted as
true, while mere legal conclusions may be disregarded. Id.; see also Fowler v.
UPMC Shadyside, 578 F.3d 203, 210–11 (3d Cir. 2009). Once the well-pleaded factual
allegations have been isolated, the court must determine whether they are
sufficient to show a “plausible claim for relief.” Iqbal, 556U.S. at 679 (citing
Twombly, 550 U.S. at 556); Twombly, 550 U.S. at 555 (requiring plaintiffs to allege
facts sufficient to “raise a right to relief above the speculative level”). A claim “has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
When the complaint fails to present a prima facie case of liability, however,
courts should generally grant leave to amend before dismissing a complaint. See
Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver,
213 F.3d 113, 116–17 (3d Cir. 2000). “[I]f a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment unless such an
amendment would be inequitable or futile.” Phillips, 515 F.3d at 245 (citation
omitted). The federal rules allow for liberal amendments in light of the “principle
that the purpose of pleading is to facilitate a proper decision on the merits.” Foman
v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted).

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B.

Allegations of the Complaint

Panton alleges that “Warden Holt is responsible for the procedures and
policy implimentation [sic] and to assure they are being carried out, to make sure
there is no deliberate indifference to serious medical needs. Captain Breckon is in
charge fo security staff that secure prisoners and carry out policies to ensure
enforcement that there is no deliberate indifference to medical needs.” (Doc. 9, at
2.) He specifically raises the following four claims in his amended complaint: (1)
“Warden Holt failed to assure policy or enforcement (Captain) that surgeon’s #1
medical requirement stated was bath before eye surgery (contamination concerns)
be followed”; (2) “on 2/22/11 Warden had policy that had Panton suffering with
Pneumonia, secured in shackles and handcuffs already; reenforced with black box
on handcuffs interfering with IV medication being administered for hours, due to
captains [sic] memo in ambulance and emergency room that cut circulation causing
pain and suffering unnecessarily”; (3) on February 25, 2011, after returning from a
four day hospital stay due to pneumonia, Panton was forced to walk outside in the
rain to reach his housing unit rather than being permitted to take an indoor
corridor; (4) “On 6/25/11 Warden’s policy and Captain’s enforcement, obstructed
medical staff from examing [sic] Panton for four days while poisoned by Salmonella
from food ate in the chow hall, suffering fever, vomitting [sic], diarrhea, dehidration
[sic], and headachs [sic] while locked in a cell for 24 hours a day, with no medical
attention. . . .” (Doc. 9, at 3.)

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C.

Discussion

A Bivens action is the federal counterpart to an action filed under 42 U.S.C. §
1983. See Paton v. LaPrade, 524 F.2d 82 (3d Cir.1975); Farmer v. Carlson, 685 F.
Supp. 1335, 1338 (M.D.Pa. 1988). Section 1983 of Title 42 of the United States Code
offers private citizens a cause of action for violations of federal law by state officials.
See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege
“the violation of a right secured by the Constitution and laws of the United States,
and must show that the alleged deprivation was committed by a person acting
under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
There is no doubt that the Eighth Amendment proscription against cruel and
unusual punishment requires that prison officials provide inmates with adequate
medical care. Estelle v. Gamble, 429 U.S. 97, 103–105 (1976). In order to set forth a
cognizable claim, plaintiff must allege (i) a serious medical need and (ii) acts or
omissions by prison officials that indicate deliberate indifference to that need.
Estelle, 429 U.S. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1 999). A prison
official is deliberately indifferent if he knows that a prisoner faces a substantial risk
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of serious harm and fails to take reasonable steps to avoid the harm. Farmer v.
Brennan, 511 U.S. 825, 837 (1994). A prison official may manifest deliberate
indifference by “intentionally denying or delaying access to medical care.” Estelle,
429 U.S. at 104–05.
Defendants argue that two of Panton’s denial of adequate medical care
claims, that defendants denied him a shower or bath prior to being transported out
of the facility for eye surgery, and delayed his access to medical care for food
poisoning, are subject to dismissal on the grounds that defendants lack personal
involvement.2 Individual liability can be imposed under Section 1983 only if the
state actor played an “affirmative part” in the alleged misconduct and “cannot be
predicated solely on the operation of respondeat superior.” Evancho v. Fisher, 423
F.3d 347, 353 (3d Cir. 2005) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1998)). “A defendant in a civil rights action must have personal involvement in
the alleged wrongs. . . . Personal involvement can be shown through allegations of
personal direction or of actual knowledge and acquiescence.” Rode v.
Dellarciprete, 845 F.2d 1195, 1207-08 (3d Cir. 1988); see also, Rizzo v. Goode, 423
U.S. 362 (1976); Atkinson v. Taylor, 316 F.3d 257 (3d Cir. 2003). Such allegations,
however, must be made with appropriate particularity in that a complaint must
allege the particulars of conduct, time, place, and person responsible. Evancho, 423
F.3d at 354; Rode, 845 F.2d at 1207-08. Alleging a mere hypothesis that an

Defendants concede that Panton exhausted the administrative review
process with respect to these claims. (Doc. 24, at 10-11.)
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individual defendant had personal knowledge or involvement in depriving the
plaintiff of his rights is insufficient to establish personal involvement. Rode, 845
F.2d at 1208.
Panton describes Warden Holt’s role as responsible for the “procedures and
policy implimentation [sic] and to assure they are being carried out, to make sure
there is no deliberate indifference to serious medical needs.” (Doc. 9, at 2.) Captain
Breckon’s role is identified as “in charge of security staff that secure prisoners and
carry out policies to ensure enforcement that there is no deliberate indifference to
medical needs.” (Id.) It is clear that Panton is seeking to impose liability on the
defendants in their roles as supervisors and as policy makers. He fails to set forth
specific instances of constitutional misconduct, and he does not allege that either
defendant knew of, and acquiesced in, or played an affirmative part in the denial of
medical care or directed that he be denied or delayed medical attention.
Moreover, prison administrators cannot be deliberately indifferent “simply
because they failed to respond directly to the medical complaints of a prisoner who
was already being treated by the prison doctor.” Durmer v. O’Carroll, 991 F .2d 64,
69 (3d Cir. 1993). “If a prisoner is under the care of medical experts . . . a
non-medical prison official will generally be justified in believing that the prisoner
is in capable hands.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.2004) (discussing
Durmer, 991 F.2d at 69). “[A]bsent a reason to believe (or actual knowledge) that
prison doctors or their assistants are mistreating (or not treating) a prisoner, a
non-medical prison official . . . will not be chargeable with the Eighth Amendment
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scienter requirement of deliberate indifference.” Id. at 236. There is no doubt that
Panton was under the care of a medical expert during both incidents. These claims
are therefore subject to dismissal.
II.

Motions for Summary Judgment
Defendants seek an entry of summary judgment on the remaining claims,

that Panton was forced to walk to his housing unit in the rain following
hospitalization for pneumonia, and that the black box over the handcuffs interfered
with the administration of IV medication, on the ground that he failed to properly
exhaust the administrative review process with respect to both claims. (Doc. 24, at
11.)
A.

Standard of Review

Through summary adjudication the court may dispose of those claims that do
not present a “genuine issue as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. See FED . R. CIV . P. 56(c). The
burden of proof is upon the non-moving party to come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED . R. CIV . P.
56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence
must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,

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587-89 (1986); see also FED . R. CIV . P. 56(c), (e). Only if this threshold is met may the
cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
B.

Statement of Material Facts

Defendants concede that Panton properly exhausted with respect to the
alleged failure to provide him with a shower prior to eye surgery as well as his
alleged delayed access to medical care while suffering from food poisoning. (Doc.
24, at 10-11.) Conversely, they contend that he failed to properly exhaust the claim
that he was forced to walk in the rain to his housing unit following hospitalization
for pneumonia and the claim that the black box on handcuffs interfered with
administration of IV medication. (Id. at 11.)
The Federal Bureau of Prisons (“BOP”) has an administrative remedy
procedure through which inmates can seek formal review of an issue relating to any
aspect of his or her confinement. (Doc. 25, ¶ 84 citing 28 C.F.R. §§ 542.10-542.19;
Doc. 29, ¶ 84.) In order to exhaust appeals under the administrative review
procedure, an inmate must first informally present his complaint to staff, and staff
is to attempt to resolve the matter. (Doc. 25, ¶ 85, citing 28 C.F.R. § 542.13; Doc. 29,
¶ 85.) If the informal resolution is unsuccessful, then the inmate must execute the
appropriate form to bring the matter to the attention of the warden, within twenty
calendar days of the date of the incident. (Doc. 25, ¶ 86; Doc. 29, ¶ 86.) If the inmate
is dissatisfied with the warden’s response, he may then appeal to the Regional
Director within twenty calendar days. (Doc. 25, ¶ 87, citing 28 C.F.R. § 542.15; Doc.
29, ¶ 87.) If the response of the Regional Director is not satisfactory, the inmate may
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then appeal to the General Counsel of the BOP within thirty calendar days, which
office is the final administrative appeal level in the BOP. (Doc. 25, ¶ 89; Doc. 29, ¶
89.) No administrative appeal is considered to have been fully exhausted until
considered by the BOP’s General Counsel. (Id.)
In the ordinary course of business, computerized indices are kept of requests
for administrative review filed by inmates. (Doc. 25, ¶ 90.) On or about February 6,
2012, a search of BOP records was conducted to determine whether Panton
exhausted the administrative process as to each of his claims. (Id. at ¶ 92.) This
review revealed that “from February 22, 2011 (the date of the earliest incident
alleged in the Complaint) to February 6, 2012 (the date of the search), he had filed
nineteen 19 administrative remedy requests and/or appeals.” (Id. at ¶ 93.) Of the
nineteen administrative requests for relief, four were related to the failure to
provide him with a shower prior to his eye surgery. (Id. at ¶ 94.) Of the remaining
fifteen filings, four concerned the food poisoning incident. (Id. at ¶ 96.)
Defendants contend that he filed “no administrative remedy requests and/or
appeals regarding the policies and/or practices which allegedly resulted in
interference with intravenous medication at an outside hospital caused by using
handcuffs.” (Id. at ¶ 97.) Panton states that the “[a]dministrative remedy
procedure was exhausted fully.” (Doc. 28, at 2.) Panton made an attempt at
informal resolution regarding these issues. (Doc. 28-1, at 18-22.) He chose not to
informally resolve the matter. (Id. at 22.) He filed a “Request for Administrative
Remedy” on March 9, 2011. (Id. at 11; Doc. 34, at ¶¶ 14-15.) The request was
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rejected on March 14, 2011, because he included too many continuation pages and
failed to clearly state the remedy he was seeking. (Doc. 28-1, at 10.) He resubmitted
the request on March 17, 2011, and it was rejected because he failed to state the
remedy he was seeking. (Id. at 9, 11.) He submitted the request a third time on
March 22, 2011. (Id. at 11.) His request was again rejected with the remarks that
“The remedy you request my [sic] be a remedy that the institution can consider;
compensatory damages can only be asked for in a civil suit.” (Id. at 8.)
Panton appealed the third denial to the Northeast Regional Office, which
directed him to resubmit his BP-9 at the institution level for consideration on the
merits as it was erroneously rejected. (Doc. 28-1, at 13-15; Doc. 34, at ¶¶ 16-17.)
Rather than resubmit his BP-9 at the institution level, he appealed to the Central
Office. (Doc. 28-1, at 17.) The Central Office rejected the appeal stating “You
submitted your request or appeal to the wrong level.” (Doc. 28-1, at 16; Doc. 34, at
¶¶ 16, 18.) “You must complete the appeal process at the institution and regional
levels before appealing to the central office.” (Id.)
C.

Discussion

Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is
required to pursue all avenues of relief available within the prison’s grievance
system before bringing a federal civil rights action concerning prison conditions.
See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). It has
been made clear that the exhaustion requirement is mandatory. See Williams v.
Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. at 741 (holding that
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the exhaustion requirement of the PLRA applies to grievance procedures
“regardless of the relief offered through administrative procedures”); Nyhuis v.
Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). This “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).
In an attempt to excuse the exhaustion requirement, he argues that
defendants were attempting to sabotage and frustrate his efforts to utilized the
administrative review process. (Doc. 28, at 3; Doc. 35, at 2.) Courts have invariably
held that affirmative misconduct by prison officials, designed to impede or prevent
an inmate’s attempts to exhaust, may render administrative remedies unavailable.
See Todd v. Benning, 173 F. App’x 980, 982-83 (3d Cir.2006) (expressing approval of
Eighth Circuit’s holding in Miller v. Norris, 247 F.3d 736 (8th Cir. 2001)) that
administrative remedies were not available where prison officials “purportedly
prevented prisoner from employing the prison’s grievance system”). Examples of
affirmative misconduct on the part of prison officials include: (1) threatening a
prisoner in an attempt to thwart the prisoner’s attempts to exhaust, see Harcum v.
Shaffer, No. 06-5326, 2007 WL 4167161, at *5 (E.D.Pa. Nov.21, 2007) (finding
administrative remedies unavailable where prison officials threatened plaintiff with
“opposition to his future prerelease application, parole, or outside work detail if he
did not withdraw his grievance”), (2) refusing to provide appropriate grievance
forms in response to inmate inquiries, see Mitchell v. Horn, 318 F3d 523, 529 (3d Cir.
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2003), (3) advising an inmate that his or her situation does not require a grievance,
see Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002) (finding that administrative
remedies were unavailable to plaintiff who had been advised by prison official that
he must wait until the end of the prison’s investigation before filing a grievance),
and (4) failing to file or respond to a prisoner’s grievances, see Camp v. Brennan,
219 F.3d 279, 280-81 (3d Cir. 2000) (finding that administrative remedies were
unavailable where prison officials refused to file plaintiff’s grievances regarding
their coworkers).
While it is true that, according to defendants, the third rejection of Panton’s
request for administrative review was erroneous, this rejection did not render the
administrative review process unavailable. In fact, the regional level recognized
that the request was erroneously rejected, contacted the institution concerning the
error and directed Panton to re-file the request for consideration on the merits.
Instead, he chose to appeal to the Central Office, which rejected the appeal on the
basis that the request must first be considered at the institution and regional levels
of review. Based on the provision submitted by Panton, 28 C.F.R. § 542.17,
“Resubmission,” the only time the rejection of a request or appeal may be appealed
is when the prisoner is not given the opportunity to correct the defect and resubmit
it. (Doc. 36, at 2.) Panton was clearly afforded the opportunity to resubmit his
request. While the erroneous rejection of his request for review at the institution
level is unfortunate, there is no indication or suggestion that prison officials
engaged in any affirmative misconduct such that they obstructed, hindered,
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delayed or prevented plaintiff from pursuing administrative relief. Banks v.
Roberts, No. 1:06-CV-1232, 2007 WL 1574771, at *5 (M.D. Pa. May, 31, 2007) (holding
that while the plaintiff alleged that the defendants “obstructed” his efforts to
pursue administrative remedies by refusing to provide proper forms and instructing
others not to provide the necessary forms, the grievance process was available to
him, and therefore, plaintiff's claim was procedurally defaulted for failure to comply
with the process); Nyhuis, 204 F.3d at 71 (stating that there is no futility exception
to the exhaustion requirement under any circumstances).
Nor is there any merit to plaintiff’s contention that the procedures were
inconsistent with BOP guide “An Inmate’s Guide to Administrative Remedy
Requests at Federal Prisons.” (Doc. 28, at 3-4; Doc. 28-1, at 25-32.)

Where a

grievance procedure is set forth in an inmate handbook, as is the case here (Doc. 281, at 25-32), a prisoner is required to avail himself of those administrative remedies
in order to satisfy the mandatory exhaustion requirement of the PLRA.
Concepcion v. Morton, 306 F.3d 1347, 1354-55 (3rd Cir. 2002) (reversing the district
court’s decision and directing dismissal of state court prisoner’s complaint for
failure to exhaust administrative remedies pursuant to § 1997e(a) despite the fact
that inmate handbook had not been formerly adopted by New Jersey Department
of Corrections).
A party opposing summary judgment must come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas, 331 F. Supp. 2d at 315; FED . R. CIV . P. 56(e). This evidence must be
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adequate, as a matter of law, to sustain a judgment in favor of the non-moving party
on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986);
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see
also FED . R. CIV . P. 56(c), (e). Panton has failed to meet his burden with respect to
the administrative exhaustion of his Bivens claim that he was forced to walk to his
housing unit in the rain following hospitalization for pneumonia and the claim that
the black box over the handcuffs interfered with administration of IV medication
failure to protect claim. Defendants are therefore entitled to an entry of summary
judgment on these claims. Plaintiff’s motion for summary judgment will be denied.
III.

Conclusion
For the foregoing reasons, defendants’ motion to dismiss (Doc. 18) will be

granted in part, and the motion for summary judgment (Doc. 18) will be granted in
part. Plaintiff’s motion for summary judgment (Doc. 33) will be denied.
An appropriate order follows.

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge

Dated:

March 27, 2013

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT PANTON,
Plaintiff
v.
CAPTAIN BRECKON, RONNIE
HOLT,
Defendants

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CIVIL ACTION NO. 1:11-CV-1845
(Judge Conner)

ORDER
AND NOW, this 27th day of March, 2013, upon consideration of defendants’
motion to dismiss and for summary judgment (Doc. 18), and plaintiff’s motion for
summary judgment (Doc. 33), and in accordance with the foregoing memorandum,
it is hereby ORDERED that:
1.

Defendants’ motion to dismiss (Doc. 18) is GRANTED with respect to
the claims that plaintiff was denied adequate medical care when he did
not receive a shower prior to being transported out of the facility for
eye surgery, and that he was delayed access to medical care for food
poisoning

2.

Defendants’ motion for summary judgment is GRANTED with respect
to plaintiff’s claims that he was forced to walk to his housing unit in
the rain following hospitalization for pneumonia, and that the black
box over the handcuffs interfered with the administration of IV
medication. The Clerk of Court is directed to ENTER judgment in
favor of defendants and against plaintiff on these claims.

3.

Plaintiff’s motion for summary judgment (Doc. ) is DENIED.

4.

The Clerk of Court is directed to CLOSE this case.

5.

Any appeal from this order is DEEMED frivolous and not in good faith.
See 28 U.S.C. § 1915(a)(3).

S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge