Victor, et al. v. Lawler et al

Filing 377

MEMORANDUM Finally, the Court has been informed that a volunteer attorney has agreed to represent Plaintiff at trial. Once the attorney enters his appearance, the Court will hold a scheduling conference to set adate for jury selection and trial.Signed by Honorable Robert D. Mariani on 5/15/12. (jfg)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DEMETRIUS BAILEY

Plaintiff

v.

3:CV·07·2058
(JUDGE MARIANI)

R.M. LAWLER, J. OAKES, et al.,
Defendants
MEMORANDUM OPINION
Plaintiff submitted a Motion to Intervene Based on New Evidence (Doc. 374), which
Defendants construe as a Motion for Reconsideration of Judge Nealon's Order on Plaintiffs
Motion to Alter or Amend the Judgment (Doc. 355).
One of Plaintiffs claims initial claims in this case was an alleged assault by
corrections officers on October 4,2007. He filed a grievance in connection with the incident
(grievance 203323) under DC-ADM 804. (Doc. 263, at 224). On October 18, Plaintiff
complained that his grievance had not yet been addressed. {ld. at 227}. Connie Green, the
Acting CSA, responded on October 31, saying that the grievance officer assigned to the
case required additional time to resolve the matter. {ld. at 225}. She then granted the
officer an additional ten days to research and respond to Plaintiff and informed Plaintiff that
this delay would not "affect [Plaintiffs] ability to appeal this matter to the Superintendent."
(ld.). That day, the grievance officer filed the Initial Review Response saying he had

reviewed the grievance and the allegations were being investigated. {Doc. 374, Ex. A}.

Meanwhile, Plaintiff had attempted to appeal the grievance to the Secretary's Office

of Inmate Grievances &Appeals ("SOIGA"). On November 6,2007, Cindy Watson, Chief
Grievance Officer, responded to Plaintiff stating that the record reflected he had already
filed a grievance and he needed to "await the initial review response" before the SOIGA
would act. (Id. at 228).
On November 8,2007, Superintendent Lawler addressed Plaintiffs appeal of his
grievance. (/d. at 226). In Superintendent Lawler's letter, he stated he had reviewed
Plaintiffs original complaint, the appeal, and the response from the grievance officer.
Lawler stated that the grievance was "found to be without merit," but that an "ongoing
investigation into your allegations is in progress." (Id.).
Plaintiff then filed this federal action on November 13, 2007. (Doc. 1). Meanwhile,
Plaintiff again attempted to appeal to the SOIGA. On December 7,2007, Cindy Watson
again denied the appeal, this time for failure to attach the Initial Review Response/Rejection
by Grievance Officer, as required under DC-ADM 804. (Id. at 229).
Judge Nealon dismissed all but one of Plaintiffs claims on motions for summary
judgment in May 2010 and December 2010, respectively. (Docs. 332, 342). In the motions,
both Magistrate Judge Carlson and Judge Nealon addressed only those grievances that
had been fully exhausted by Plaintiff, meaning they did not discuss grievance 203323.
Plaintiff argued that he had fully exhausted his administrative remedies for grievance
203323 in a Motion to Alter or Amend the Judgment (Doc. 353) in May 2011. Judge Nealon

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denied the motion because Plaintiff was untimely with his motion under Rules 59(e), and

under Rule 60(b), there were no exceptional circumstances warranting extraordinary relief
because though Plaintiff appealed Judge Nealon's grant of summary judgment to
Defendants (Doc. 332) to the Third Circuit (Doc. 333), his appeal was dismissed for failure
to timely prosecute. (Doc. 335).
Plaintiff filed this current motion on March 19, 2012, allegedly because new evidence
had come to light that warranted revisiting the issue of whether he had exhausted his
administrative remedies for grievance 203323. His new evidence consists of an excerpt
from a Judge Nealon opinion issued in August 2011 in Victor v. SCI-Smithfield, 3:08-CV­
1374. In that opinion, Judge Nealon excused the plaintiff from the exhaustion requirement
because OPR took five months to decide on the grievance after he directly notified OPR of
inmate abuse. The delay violated DC-ADM 001, which states that "an investigation
assigned to the OPR shall be completed within 30 working days of receipt of the
investigative order."1 Plaintiff argues his assault claim should have been considered in the
summary judgment decisions. He further contends that if it had been considered, it would
have survived the motions for summary judgment, and he would have another claim at trial.
In their Brief in Opposition to Plaintiff's motion (Doc. 375), Defendants state that
SOIGA timely completed its investigative report on November 20, 2007 and that OPR timely
completed its investigation on December 12, 2007. Defendants claim that Plaintiff 'filed this
1 The Court notes that Victor filed his claim with OPR under DC-ADM 001, whereas Plaintiff Bailey filed his
grievances with the prison under DC-ADM 804. The two procedures follow different timetables, and neither party
has submitted relevant rules in force in 2007 to the Court in connection with this motion.

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action before exhausting his administrative remedies and had ample opportunity to raise
this matter pending the two motions for summary judgment. He was allowed to review all
documents related to grievance 203323, including the investigative report prepared by
SOIGA and OPR, so Judge Nealon properly excluded that grievance when deciding the
motions for summary judgment. Furthermore, in his motion, Plaintiff does not disclose when
or how he received this "new" evidence, which was issued in August 2011.
Plaintiff has not introduced new factual evidence in support of his motion. As such,
Defendants have correctly construed the motion as one for reconsideration. Had Plaintiff
produced new factual evidence, the Court may have found otherwise. 2 Judge Nealon's
previous Order denying the Motion to Alter or Amend the Judgment on this specific issue
weighs heavily against re-opening the issue, and the undersigned will not disturb Judge
Nealon's previous ruling which is directly on point.
Finally, the Court has been informed that a volunteer attorney has agreed to
represent Plaintiff at trial. Once the attorney enters his appearance, the Court will hold a
scheduling conference to set a date for jury selection and trial. Aseparate Order follows.

Robert D. Mariani
United States District Judge
The Court sympathizes with Plaintiff's situation in light of the procedural maze he must navigate as a pro
Nevertheless, according to the rules governing grievances within the Bureau of Prisons and the
Federal Rules of Civil Procedure, Judge Nealon was within his discretion to deny granting relief to Plaintiff on his
Motion to Alter or Amend the Judgment.
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se prisoner litigant.

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