Peraza v. Cain et al

Filing 259

MEMORANDUM (Order to follow as separate docket entry)Pursuant to the above discussion, Plaintiff failed to exhaust his available administrative remedies with respect to any of his pending claims and he has not adequately demonstrated a reason to be e xcused from requirement. Second, the favorable termination rule bars consideration of any claims related to the issuance of misconduct charges on May 11, 2011 and July 4, 2011. Third, based on the Remaining Defendants factual submissions Plaintiff has not alleged viable claims of failure to protect and retaliation. Remaining Defendants motion for summary judgment will be granted. An appropriate Order will enter.Signed by Honorable Richard P. Conaboy on 3/13/17. (cc)

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

PAUL PERAZA,
Plaintiff
v.
THOMAS R. CAIN, ET AL.,
Defendants

:
:
:
:
:
:
:
:
:

CIVIL NO. 3:CV-12-376
(Judge Conaboy)

_________________________________________________________________
MEMORANDUM
Background
Paul Peraza, an inmate presently confined at the United
States Penitentiary, Beaumont, Texas initiated this pro se civil
rights action.

An Amended Complaint was thereafter filed.

See

Doc. 6.
By Memorandum and Order dated September 17, 2014,
Defendants’ motion for partial dismissal was granted in part.
Dismissal was granted with respect to: (1) the claims against
Defendants Kane, Watts, Norwood, Breckton, and Holt;1 (2) all
claims associated with the handling of grievances and the
allegations of conspiracy; and (3) Counts Two and Four of the
Amended Complaint.

The motion to dismiss was denied with respect

to the allegations of retaliation.

Those claims, along with the

unaddressed failure to protect and excessive force allegations,
were allowed to proceed.
1. Captain Breckon is not identified by name in the Amended
Complaint.
1

Remaining Defendants are the following officials at
Plaintiff’s prior place of confinement the Canaan United States
Penitentiary, Waymart, Pennsylvania (USP-Canaan):

Physician’s

Assistant (PA) Kenneth Kaiser; Lieutenant Jamie Burning; Lieutenant
Brian Sudul; Unit Manager Kyle Lindsay; Case Manager Kylie Bigart;
Disciplinary Hearing Officer (DHO) Marc Renda; as well as
Correctional Officers (CO) Jeremy Dominick, Ryan Burns, John
Schwartz, Michael Moran, Jessie Seana, Jenkens, and Joseph
Pellicano.
The Amended Complaint asserts claims based on events which
purportedly transpired between May 11, 2011 and July 4, 2011.
Plaintiff first states that on May 11, 2011 his cell mate Inmate
Burke signed up for outdoor recreation in order to inform prison
staff that he could no longer live with Peraza.2

See Doc. 6, ¶ 28.

A few minutes later, Defendants Schwartz, Burning, Dominick, and
Moran allegedly brought Burke back to the cell he shared with the
Plaintiff.

Those officers then asked Plaintiff to submit to

handcuffs.

After receiving a second command, Peraza eventually

agreed and while still handcuffed Burke was placed in the cell.
Peraza admits that after the cell door was closed and his
handcuffs were removed first, he struck Burke on the side of his
head.

See Doc. 252, ¶ 11.

uncuffed.

Schwartz then directed that Burke be

Plaintiff responded by striking his cell mate an

additional 3 or 4 more times.

Peraza was again handcuffed and

2.
Some portions of the Amended Complaint were illegible.
However, a declaration provided by Plaintiff (Doc. 252) adds
clarity to his allegations.
2

taken from the cell. It is next asserted that Correctional Officer
Schwartz verbally abused Plaintiff and identified him as being a
child molester as the inmate was being removed from his cell to the
prison’s Special Housing Unit (SHU).

Peraza acknowledges that he

responded to those remarks with an obscenity.

See id. at ¶ 50.

The escorting correctional officers allegedly physically and
excessively assaulted Peraza after escorting him from his cell to a
security camera blind spot.

It is alleged that the officers

attempted to make it appear that they were responding to resistance
from the Plaintiff.

This attack purportedly included a sexual

battery in that Schwartz ran his hand over the inmate’s buttocks
and subjected the prisoner to additional verbal sexual harassment.
Peraza claims that he lost consciousness and suffered loss of vison
in his left eye for approximately five (5) minutes; dizziness;
nausea; a sprained left ankle; knee and wrist pain; and a forehead
laceration that caused nerve damage.
After the incident, Plaintiff was shackled in leg irons and
placed in a nearby holding cell.

He was then taken to a medical

examination room where his injuries were assessed and initially
treated by Defendant PA Kaiser.3

See id. at ¶ 65.

Peraza was

later transported to an outside hospital for further treatment of
his forehead laceration and closer examination of his ankle and
wrists.

See id. at ¶ 70.

It is alleged that Kaiser refused to

report the incident allegedly informing Peraza that the prisoner
could personally report any claim to the Captain.

3. In response to a question, Kaiser allegedly told Plaintiff that
the inmate would have to be the one to report the incident.
3

The Amended Complaint next asserts that one day later,
Plaintiff discovered that his newly assigned SHU cell mate, Inmate
Rodriguez, had been classified as being a protective custody
inmate.

In light of that development, Peraza asserts that the

prisoners agreed that they should no longer be housed together.
However, Defendants Pelicano and Sudul denied their mutual request
for a cell change.

The Plaintiff then admittedly struck Rodriguez

on the side of the head in order to have that prisoner moved from
the cell. See id. at ¶ 83.
On or about May 17, 2011, Plaintiff states that he was
handcuffed and brought to the Lieutenants’ office where he met with
a member of the prison’s Psychology staff with respect to a sexual
assault claim which the inmate filed against Officer Schwartz.
Defendants Schwartz and Burning were initially present during this
meeting, however, Schwartz was later directed to leave the room.
The psychology staff member told Plaintiff that allegations of
sexual abuse by staff should be reported to Special Investigative
Services (SIS).

Thereafter, Plaintiff tiled an internal complaint

with SIS via Case Manager Smith which allegedly went unanswered.
On May 21, 2011 Plaintiff had a disciplinary hearing
regarding misconduct charges he was issued for the May 11 & 12,
2011 incidents.

He was found guilty of the charges and received

sanctions which included loss of good time credits.
The Amended Complaint next asserts that during the week of
May 23, 2011 Plaintiff and his latest cell mate, Inmate Anderson,
were put in an outdoor recreation cage.

A Mexican gang member in

an adjoining cage had a private conversation with Anderson and
subsequently told Plaintiff that Defendants Schwartz and Jenks were
4

telling prisoners that Peraza was a child molester.

On or about

June 7, 2011, Defendant Schwartz assigned Inmate Salmoran to be
Peraza’s new cellmate after Salmoran had been in a fight with his
former cellmate.

See id. at ¶ 115.

When Plaintiff discovered that

Salmoran was a protective custody inmate, the prisoners agreed to
request a cell change.

However, Defendant Schwartz refused

Salmoran’s request to be moved.
Peraza admits that he proceeded to physically assault Inmate
Salmoran in order to obtain the cell change.

See id. at ¶¶ 127-

132. During a resulting medical assessment, PA Kaiser refused to
report the incident although Plaintiff had stated that SHU officers
were forcing inmates to fight one another like gladiators.

See id.

at ¶ 143. Peraza was then left in the handicapped shower area for
two hours with his hands handcuffed behind his back.
On July 4, 2011, Correctional Officer Schwartz allegedly
placed two inmates in a recreation cage with Plaintiff for the
purpose of having those prisoners attack Peraza.

The two inmates

proceeded to assault Plaintiff based upon their belief that he was
a child molester.

Peraza suffered lacerations and bruising to the

face and neck which required treatment at an outside hospital.
Following the incident, Defendant Jenkens/Jenks purportedly planted
and then confiscated a homemade weapon from Peraza during a pat
down search.

See id. at ¶¶ 162-63.

Peraza concludes that he was subjected to excessive use of
force and improperly labeled as being a child molester in an
effort to place him at risk of assault by other prisoners.

The

Amended Complaint also asserts that many of the above actions were
taken in retaliation for his initiation of administrative
5

grievances.

Plaintiff seeks compensatory and punitive damages as

well as injunctive relief, namely, a transfer to a medium security
correctional facility.
Presently pending is Remaining Defendants’ motion for
summary judgment.

See Doc. 219.

The motion argues that entry of

summary judgment is appropriate because: (1) the naming of
Defendant Jenkens is improper; (2) Plaintiff failed to exhaust his
available administrative remedies regarding any of the claims in
his Amended Complaint; (3) his allegations which imply the
invalidity of

disciplinary findings rendered against Peraza are

barred by the favorable termination rule; (4) the undisputed record
shows that a viable excessive force claim has not been stated; (5)
the record fails to support Peraza’s deliberate indifference
claims; (6) Plaintiff’s allegations do not support actionable
claims of retaliation; and (7) Defendants are entitled to qualified
immunity.
Discussion
Standard of Review
Summary judgment is proper if “the pleadings, the discovery
and disclosure materials on file, and any affidavits show that
there is no genuine issue as to any material fact and that the
movant is entitled to a judgment as a matter of law.”

Fed. R. Civ.

P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d
Cir. 2001).

A factual dispute is “material” if it might affect the

outcome of the suit under the applicable law.
Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

A factual dispute is

“genuine” only if there is a sufficient evidentiary basis that

6

would allow a reasonable fact-finder to return a verdict for the
non-moving party.

Id. at 248.

The court must resolve all doubts

as to the existence of a genuine issue of material fact in favor of
the non-moving party.

Saldana, 260 F.3d at 232; see also Reeder v.

Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered
evidence of asserted facts.

Versarge v. Township of Clinton, 984

F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of
evidence to support the claims of the non-moving party, the nonmoving party may not simply sit back and rest on the allegations in
its complaint.
(1986).

See Celotex Corp. v. Catrett, 477 U.S. 317, 324

Instead, it must “go beyond the pleadings and by [its] own

affidavits, or by the depositions, answers to interrogatories, and
admissions on file, designate specific facts showing that there is
a genuine issue for trial.”

Id. (internal quotations omitted); see

also Saldana, 260 F.3d at 232 (citations omitted).

Summary

judgment should be granted where a 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.”

Celotex, 477 U.S. at 322-23.

“‘Such affirmative evidence

– regardless of whether it is direct or circumstantial – must
amount to more than a scintilla, but may amount to less (in the
evaluation of the court) than a preponderance.’”

Saldana, 260 F.3d

at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458,
460-61 (3d Cir. 1989)).

7

Defendant Jenkens
The Amended Complaint names Correctional Officer Jenkens as
a defendant.

See Doc. 6, ¶ 24.

Remaining Defendants contend that

there no correctional officer named Jenkens or Jenkins was employed
at USP-Canaan during the relevant time period.
n. 1.

See Doc. 230, p. 8,

As such they assert that this improperly named defendant

should be dismissed.
A review of the record shows that Correctional Officer Shawn
Jenks, Sr. previously executed a waiver of service of the summons.
See Doc. 30, p. 14.

Since Jenks has previously indicated that he

is the Defendant named Jenkens in the pro se Amended Complaint this
argument will be dismissed as meritless.
Excessive Force
Remaining Defendants maintain that the assertion that Peraza
was subjected to excessive force on May 11, 2011 should not proceed
because the undisputed record, including videotape footage, shows
that the actions of the escorting officers “were necessary to bring
Peraza under control.”

Doc. 230, p. 20.

A correctional officer's use of force in order to constitute
cruel and unusual punishment, must involve the "unnecessary and
wanton infliction of pain."
(1986).

Whitley v. Albers, 475 U.S. 312, 319

“It is obduracy and wantonness, not inadvertence or error

in good faith, that characterize[s] that conduct prohibited by the
Cruel and Unusual Punishment Clause, whether the conduct occurs in
connection with establishing conditions of confinement, supplying
medical needs, or restoring official control over a tumultuous
cellblock.”

Id.

8

In a later ruling, the United States Supreme Court
recognized that the use of force may constitute cruel and unusual
punishment even if the prisoner does not sustain "significant"
injuries.

Hudson v. McMillian, 503 U.S. 1, 9 (1992).

The core

judicial inquiry is “whether force was applied in a good faith
effort to maintain or restore discipline or maliciously and
sadistically to cause harm.”

Fuentes v. Wagner, 206 F.3d 335, 345

(3d Cir.), cert. denied, 531 U.S. 821(2000); Brooks v. Kyler, 204
F.3d 102, 106 (3d Cir. 2000)(even a de minimis use of force, if
repugnant to the conscience of mankind, may be constitutionally
significant).

As explained in Fuentes:

Resolution of an Eighth Amendment claim
therefore ‘mandate[s] an inquiry into a
prison official’s state of mind.’ Two
considerations define that inquiry. We
must first determine if the deprivation
was sufficiently serious to fall within
the Eighth Amendment’s zone of
protections. If not, our inquiry is at an
end. In other words, we must determine if
they were motivated by a desire to inflict
unnecessary and wanton pain. ‘What is
necessary to establish an “unnecessary and
wanton infliction of pain. . .” varies
according to the nature of the alleged
constitutional violation.’However, if the
deprivation is sufficiently serious, we
must determine if the officials acted with
a sufficiently culpable state of mind.
Fuentes, 206 F.3d at 344.
It is undisputed that on May 11, 2011, Peraza physically
assaulted his cell mate.

Following this incident, Plaintiff

permitted himself to be handcuffed and was removed from his cell.
The escorting officers were Schwartz, Burning, Dominick, and Moran
with Schwatrz being on one side of Peraza and Moran on the other
side.
9

According to the Amended Complaint, Schwartz became verbally
abusive, Plaintiff admittedly responded to that officer with an
obscenity.

See Doc. 6, ¶ 50.

Upon reaching a security camera

blind spot, Schwartz purportedly pulled on Plaintiff’s handcuffs
and falsely stated that the inmate was resisting.4

It is next

asserted that Schwartz pushed Peraza forward slamming him to his
knees and with the assistance of the other escorting officers
eventually to the floor.

Plaintiff states that he suffered a

laceration when his head hit the floor.

See Doc. 252, ¶ 26.

Peraza maintains that Defendant Moran then punched him 5 or 6 times
and Schwartz ran his hand over his buttocks.
Defendant Dominick allegedly

In addition,

twisted Plaintiff’s left foot in a

painful manner.
In support of their summary judgment argument, Remaining
Defendants have submitted declarations under penalty of perjury by
Correctional officers Moran, Dominick, and Schwartz.

Although

Dominick admits being involved in the incident, the officer denies
that he twisted Plaintiff’s ankle.

Correctional Officer Moran

avers that he was involved in the May 11, 2011 escort of Peraza and
contends that it was Peraza not Schwartz who became verbally
abusive and physically resistant in that he attempted to pull away
from Moran.
the floor.

As a result of that conduct, the inmate was taken to
Moran adds that although Peraza attempted to spit blood

and kick staff while on the floor, Moran did not punch or kick the
inmate.

See Doc. 229-4, ¶ 5.

4. Peraza indicates that correctional officers often use a stop
resisting command as a ploy to justify use of force. See at ¶ 53.
10

A declaration by Senior Officer Specialist Schwartz (Doc.
229-5) similarly admits that he and Moran escorted Plaintiff from
his cell on May 11, 2011.

Schwartz specifically denies making any

statements describing the inmate as being a child molester and
indicates that it was Peraza who became verbally and physically
aggressive.

According to the declaration, Moran and Schwartz along

with other officers regained control over the Plaintiff by placing
him on the ground and applying leg restraints.

Schwartz denies

that the Plaintiff was intentionally slammed to the floor and adds
that he did not see Moran punch or kick the prisoner. Furthermore,
the correctional officer denies touching the inmate in a sexual
manner stating that if he touch the prisoner’s buttocks during the
take down it was neither intentional nor sexual.
A declaration by Lieutenant Burning provides that while
being escorted Peraza “spun away and broke the two points of
contact from escorting staff.”

Doc. 229-10 ¶ 5.

As a result,

correctional staff took the prisoner to the ground and leg
restraints were applied.

In addition to their declarations

Domminick, Buning, Schwartz and Moran have provided copies of
written memorandums they prepared following the incident.
Also submitted for consideration is video footage from a
fixed USP-Canaan surveillance camera.

See Tindell v. Beard, 351

Fed. Appx. 591, 596 (3d Cir. 2009)(consideration of video footage
when considering summary judgment argument is appropriate). The
video footage lacks audio and is approximately a minute and a half
long.

It does not show the initiation of the incident but rather

begins with a shot of a group of officers forcing the Plaintiff to
the floor.
11

Based upon a review of the video evidence in a light most
favorable to the Plaintiff, it cannot be determined that Peraza
attempted to spit blood on or kick the escorting officers while on
the floor.

However, there is also no indication that any of the

escorting officers attempted to punch, kick or maliciously twist
the ankle of the inmate.

Rather, the admittedly limited video

footage supports the contention that Plaintiff was forced to the
floor by a group of officers with other non-participating officers
present in the same vicinity.

It also appears that the Plaintiff

and escorting officers first brushed against a wall before going to
the ground.

For most of the video Plaintiff’s body is covered by

the bodies of the correctional officers.

After being released,

Peraza was clearly able to walk from the area on his own
undermining any claim of a serious leg injury.
indication that he was nauseous.

There is also

A separate videotaped medical

assessment clearly shows that Peraza suffered a facial laceration
and recorded statements by the examining medical staff person add
that the prisoner also incurred bruising of his knees and hand and
perhaps ankle.
The videotape does not show that the Plaintiff was punched
or kicked in the manner alleged in the Amended Complaint.

Rather,

it only shows being forced to the ground for a brief period
(approximately 1 minute).

There is no evidence that he was

intentionally struck by any of the involved officers.

Unlike the

scenario in Smith v. Price, 610 Fed. Appx. 113 (3d Cir. 2015) there
is no evidence that Plaintiff’s face is being forcefully pushed to
the ground or does it depict any upper body movements by the
officers which could be deemed punches.
12

However, given the belated starting point of the video,
there are still issues of disputed material facts as to whether it
was necessary for the Plaintiff to be taken to the ground.

Thus,

the record does not blatantly contradict Peraza’s allegation that
there was no need to exercise force as contemplated by Smith.
Although the video evidence does not substantiate Peraza’s version
of the amount of force used against him, based upon an application
of the standards announced by the Court of Appeals in Smith, this
Court still cannot find that Remaining Defendants are entitled to
entry of summary judgment with respect to this argument.
In conclusion, there are still issues of material facts as
to whether the decision to take the Plaintiff to the ground was a
good faith effort to bring him under control or a malicious or
sadistic attempt to inflict harm by the escorting correctional
officers which cannot be resolved by viewing the videotape. Since
there are issues of genuine material fact, Remaining Defendants are
not entitled to entry of summary judgment with respect to this
argument.
Administrative Exhaustion
Remaining Defendants next contend that Peraza failed to
properly exhaust his administrative remedies with respect to any
claim asserted in the Amended Complaint.

See Doc. 230, p. 12.

Specifically, they state that although Plaintiff filed two
grievances regarding alleged staff misconduct the denials of those
grievances (nos. 664227 & 664228) were not administratively
appealed in a timely manner to the Bureau of Prisons (BOP) Regional
Office.

Plaintiff counters that Defendant Unit Manager Lindsay

13

frustrated his attempts to pursue a Regional Office appeal of a
grievance pertaining to the July 4, 2011 incident.
Section 1997e(a) of title 42 U.S.C. provides:
No action shall be brought with respect to
prison conditions under Section 1979 of
the Revised Statutes of the United States
(42 U.S.C. 1983), 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.
Section 1997e(a) requires administrative exhaustion
“irrespective of the forms of relief sought and offered through
administrative avenues.”

Porter v. Nussle, 122 S.Ct. 983, 992

(2002); Booth v. Churner, 532 U.S. 731, 741 n. 6 (2001).

Claims

for monetary relief are not excused from the exhaustion
requirement.

Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000).

Dismissal of an inmate’s claim is appropriate when a prisoner has
failed to exhaust his available administrative remedies before
bringing a civil rights action.
2d 838, 843 (E.D. Pa. 2000).

Ahmed v. Sromovski, 103 F. Supp.

“[E]xhaustion must occur prior to

filing suit, not while the suit is pending.”

Tribe v. Harvey, 248

F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v.
Francis, 196 F.3d 641, 645 (6th Cir. 1999)); Oriakhi v. United
States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).
The United States Supreme Court in Jones v. Bock, 127 S.Ct.
910, 923 (2007), stated that the primary purpose of the exhaustion
requirement is to allow “a prison to address complaints about the
program it administers before being subjected to suit, reducing
litigation to the extent complaints are satisfactorily resolved,
and improving litigation that does occur by leading to the
14

preparation of a useful record.”

Id.

The administrative

exhaustion mandate also implies a procedural default component.
Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004).
As explained by the Third Circuit Court of Appeals, a
procedural default rule “prevents an end-run around the exhaustion
requirement.”

Id. at 230.

It also ensures “prisoner compliance

with the specific requirements of the grievance system” and
encourages inmates to pursue their administrative grievances “to
the fullest.”

Id.

Similarly, the Supreme Court has observed that

proper exhaustion of available administrative remedies is
mandatory, meaning that prisoners must comply with the grievance
system’s procedural rules, including time limitations.

Woodford v.

Ngo, 548 U.S. 81 (2006).
The BOP has a well established three (3) step Administrative
Remedy Program whereby a federal prisoner may seek review of any
aspect of his imprisonment.

See 28 C.F.R. §§ 542.10-542.19.

After

attempting to informally resolve the issue, a BOP inmate can
initiate the first step of the grievance process by submitting

“a

formal written Administrative Remedy Request, on the appropriate
form (BP-9),” within twenty (20)

calendar days “following the date

on which the basis for the Request occurred.”
542.14(a).

The Warden has twenty (20)

See

28 C.F.R. §

calendar days from the date

the Request or Appeal is filed in which to respond.”
C.F.R. § 542.18.

See

28

If not satisfied with the Warden's response, an

inmate may appeal (step two) on the appropriate form (BP-10) to the
Regional Director within twenty (20) calendar days of the date the
Warden signed the response.

See

28 C.F.R. § 542.15.

Finally, if

the inmate is dissatisfied with the Regional Director's response,
15

that decision may then be appealed (step three) on the appropriate
form (BP-11) to the General Counsel within thirty (30) calendar
days from the date the Regional Director signed the response.

Id.

Additionally, “[i]f the inmate does not receive a response within
the time allotted for reply, including extension, the inmate may
consider the absence of a response to be a denial at that level.”
Id.
The Court of Appeals for the Third Circuit has recognized
that “[t]here is no futility exception” to the exhaustion
requirement.

Brown v. Croak, 312 F.3d 109, 112 (3d cir. 2002)

(citing Nyhuis, 204 F.3d at 75.

A more recent decision by the

Third Circuit Court of Appeals reiterated its no futility exception
by rejecting an inmate’s argument that exhaustion should be excused
because prisoner grievances were regularly rejected.
Smith, 186 Fed.

Appx. 271, 274 (3d Cir.

Hill v.

2006).

An inmate is not required to specifically plead or
demonstrate exhaustion in his or her complaint.
549 U.S. 199, 216 (2007);

See Jones v. Bock,

see also Ray v. Kertes, 285 F.3d 287 (3d

Cir. 2002)(a prisoner does not have to allege in his complaint that
he has exhausted administrative remedies).

Rather, pursuant to the

standards announced in Williams v. Runyon, 130 F.3d

568, 573 (3d

Cir. 1997), it is the burden of a defendant asserting the defense
of non-exhaustion to plead and prove it.5

Consequently, any

failure by Plaintiff to allege or establish compliance with the
exhaustion requirement is not by itself a sufficient basis for
5.
In Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003), the
United States Court of Appeals for the Third Circuit similarly
stated that “[f]ailure to exhaust administrative remedies is an
affirmative defense for the defendant to plead.”
16

entry of dismissal under the criteria established in Jones and
Williams.
Remaining Defendants point out that Plaintiff successfully
filed and administratively exhausted multiple grievances while in
federal custody.

Moreover, even if Defendant Lindsay did prevent

the initiation of a grievance regarding the July 4, 2011 incident,
Plaintiff has still not provided any explanation as to why
grievances were not initiated for the incidents of May 11-12, 2011
or June 7, 2011.

See Doc. 230, p. 14.

In support of their non-exhaustion argument, a declaration
under penalty of perjury by BOP Regional Office Legal Assistant
Donna Broome has been submitted.

See Doc. 229-2.

Broome states

that based upon her review of the BOP’s computerized index of
administrative remedy requests, Peraza “has not exhausted his
available Administrative Remedies with respect to any allegation
raised in the Amended Complaint.”

Id. at ¶ 6.

Broome notes that

while incarcerated Plaintiff filed or attempted to file 80
administrative grievances, 64 of which were rejected for technical
reasons, such as being untimely.

Also submitted are copies of

Plaintiff’s relevant BOP administrative remedy records.
The Amended Complaint alleges that Plaintiff submitted a
sensitive grievance regarding the July 4, 2011 incident to Unit
Manager Lindsay.

See Doc. 6, ¶ 182.

It is alleged that Lindsay

did not process or forward that grievance.

In his opposing brief

Peraza contends that he allegedly gave the sensitive grievance to

17

Lindsey

between July 11-23, 2011 and it included claims pertaining

May 11, 2011; May 12, 20 11; or June 7, 2011 incidents.6
Based on a review of the Amended Complaint, Plaintiff’s
administrative remedy records and Broome’s declaration, as well as
recognizing Plaintiff’s established familiarity with the BOP
administrative remedy procedures, this Court agrees that the
undisputed record shows no indication that Peraza ever properly
filed and exhausted grievances regarding the May 11, 2011; May 12,
20 11; or June 7, 2011 incidents.

It is apparent that Plaintiff

filed grievances on June 16, 2011 including one regarding the May
11, 2011 incident(Doc. 251, pp. 9, 25).

An appeal of the grievance

regarding the May 11 incident was rejected as being untimely by the
Regional Office and General Counsel’s Office

(Id. at p. 42 & 46).

It is specifically noted that the record which includes
voluminous documentary filings by the parties at best shows that
Plaintiff pursued an administrative appeal of a grievance
pertaining to the May 11, 2011 allegations which was properly
rejected without a merits review by the BOP.

Based upon a review

of the record, it is the conclusion of this Court that Remaining
Defendants have satisfied their burden of establishing nonexhaustion with respect the allegations relating to the May 11,
2011; May 12, 2011; or June 7, 2011 events three, the request by
Remaining Defendants for entry of summary judgment on the basis of
failure to exhaust administrative remedies will be granted with

6. Plaintiff waited until July 11, 2011 to initiate grievances
concerning the May 11, 2011; May 12, 20111; or June 7, 2011 events
any such alleged initial filing would be untimely under the BOP’s
well established administrative procedures.
18

respect to Plaintiff’s claims relating to May 11, 2011; May 12,
2011; or June 7, 2011.
With respect to the July 4, 2011 allegations, Plaintiff
generally contends that Defendant Lindsey threw away a sensitive
grievance addressed to the BOP Regional Office.

This bald

assertion lacks credibility given that Plaintiff first claimed that
the allegedly discarded grievance concerned only the July 4, 2011
based allegations but later indicated that the grievance addressed
all of the claims asserted in his pending action.

Adding to the

confusion, are separate documents showing that Plaintiff had
already filed a grievance regarding the May 11, 2011 events and the
inmate’s failure to offer an explanation as to why he waited a
substantial amount of time before initiating a further inquiry as
to the status of the purportedly discarded grievance.

In

conclusion, Plaintiff has not presented any credible facts showing
that he should be excused from compliance with the exhaustion
requirement with respect to his July 4, 2011 based claims.

The

Court finds that Remaining Defendants have fulfilled their burden
of establishing that none of Peraza’s pending contentions were
properly exhausted prior to the filing of this action.
Favorable Termination
Remaining Defendants’ next argument contends that Peraza’s
claims are barred by the favorable termination rule.
p. 14.

See Doc. 230,

On May 11, 2011, Plaintiff was issued a misconduct

asserting that he attempted to assault correctional officers while
being escorted from his cell after the assault on Inmate Burke.
was found guilty of the charge and received sanctions which
included a loss of good conduct time.
19

He

On July 4, 2011, Plaintiff was issued a misconduct charging
with possession of a homemade weapon.

He was also found guilty of

that charge following a disciplinary proceeding and received in
part a sanction of a loss of good conduct time.
Remaining Defendants argue that until the results of those
two disciplinary proceedings have been invalidated or overturned
via a grant of federal habeas corpus relief, his claims for
monetary damages with respect to his allegations relating to those
incidents are barred under Heck v. Humphrey, 512 U.S. 477 (1994).
Inmates challenging the duration of their confinement or
seeking earlier or speedier release must assert such claims in a
properly filed habeas corpus petition.
U.S. 475 (1975).

Preiser v. Rodriguez, 411

The United States Supreme Court in Edwards v.

Balisok, 520 U.S. 641, 646 (1997), concluded that a civil rights
claim for declaratory relief “based on allegations ... that
necessarily imply the invalidity of the punishment imposed, is not
cognizable” in a civil rights action.

Id. at 646.

In Heck, the Supreme Court ruled that a cause of action for
damages does not accrue "for allegedly unconstitutional conviction
or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid", until
the Plaintiff proves that the "conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared
invalid by a state tribunal authorized to make such determination,
or called into question by a federal court's issuance of a writ of
habeas corpus."

Id. at 486-87.

This Court agrees that Plaintiff’s claims that he was
subjected to an excessive use of force on May 11, 2011 and that a
20

weapon was planted on him by a correctional officer on July 4, 2011
which led to the filing of two institutional disciplinary charges
and resulted in a loss of good time credits clearly attack the
length of his federal sentence.
The claims directly related to the alleged May 11, 2011 use
of excessive force and the alleged July 4, 2011 planting of a
weapon of Peraza, if proven, would undermine the validity of the
two disciplinary proceedings.

Under Heck those pending claims must

be initially raised via properly filed habeas corpus petitions.
Consequently, those pending claims are clearly premature because
Peraza cannot maintain a cause of action for damages until the
related misconduct charges have been rendered invalid via federal
habeas corpus proceedings.

In accordance with the mandates of

Heck, entry of summary judgment in favor of the Remaining
Defendants is also appropriate with respect to the May 11, 2011
allegations of excessive force and the July 4, 2011 claim that
Peraza was improperly charged with possession of a planted weapon.
Failure to Protect
Plaintiff contends that Remaining Defendants failed to
protect his safety in that they: (1) failed to prevent and/or
report the use of excessive force and the labeling of Peraza as
being a child molester on May 11, 2011; (2) assigning Plaintiff
cell mates when they knew he would fight with those inmates; (3)
failure to allow Plaintiff to report the July 4, 2011 event; (5)
spreading rumors that Peraza was a child molester and placing him
in a recreation cage with prisoners who they knew would carry out
an assault.

21

Prison officials violate an inmate's right to be free from
cruel and unusual punishment when, through intentional conduct or
deliberate indifference, they subject the inmate to violence at the
hands of another prisoner.

Young v. Quinlan, 960 F.2d 351, 361 (3d

Cir. 1992); Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985).

A

plaintiff must prove more than that he had a fight with another
inmate, see Beard v. Lockhart, 716 F.2d 544, 545 (8th Cir. 1983),
and mere negligent conduct that leads to serious injury of a
prisoner by a prisoner does not expose a prison official to
liability under § 1983.
(1986).

Davidson v. Cannon, 474 U.S. 344, 347-48

Therefore, when one inmate assaults another, the victim's

custodian is exposed to civil rights liability only when "he knows
or should have known of a sufficiently serious danger to [the]
inmate."

Young, 960 F.2d at 361; see also Martin v. White, 742

F.2d 469, 474 (8th Cir. 1984); Mosby v. Mabry, 697 F.2d 213, 215
(8th Cir. 1982).
The Court of Appeals "stress[ed], however, that in
constitutional context 'should have known' is a phrase of art with
a meaning distinct from its usual meaning in the context of the law
of torts."

Young, 960 F.2d at 361.

As our Court of Appeals

explained the phrase, “does not refer to a failure to note a risk
that would be perceived with the use of ordinary prudence."
Colburn v. Upper Darby Township, 946 F.2d 1017, 1025 (3d Cir.
1991).

Instead, "[i]t connotes something more than a negligent

failure to appreciate the risk . . ., though something less than
subjective appreciation of that risk."

Id.

Moreover, "the risk of

. . . injury must be not only great, but also sufficiently apparent
that a lay custodian's failure to appreciate it evidences an
22

absence of any concern for the welfare of his or her charges." Id.
Consequently, liability only attaches when there is aas there are
no facts alleged showing that Lindsey was aware of the existenmce
of a pervasive risk of harm to Peraza.

"pervasive risk of harm to

inmates from other prisoners,7 . . . and that the prison officials
have displayed 'deliberate indifference' to the danger."

Riley,

777 F.2d at 147.
Plaintiff acknowledges that he assaulted three prisoners who
were assigned to be cell mates.

The Amended Complaint asserts that

he attacked those prisoners not because they posed a direct threat
to his safety but rather because they were designated as being
protective custody prisoners.

Given Plaintiff’s admissions, there

is no basis for a claim that he was assigned cell mates who posed a
direct threat to his safety.
Bigart, Renda, and Kaiser
Plaintiff contends that Defendants Case Manager Bigart, DHO
Renda and PA Kaiser failed to protect Peraza’s safety by not
reporting staff misconduct.

There is no assertion by Peraza that

any of those officials actually witnessed the alleged events of May
11-12, 2011, June 7, 2011 and July 4, 2011 or personally overheard
any prison staff member make remarks indicating that Plaintiff was
a child molester.

As such, those three officials were clearly

under no obligation to report conduct they did not actually
witness.

Moreover, Plaintiff readily admits that he was advised

7. The Court of Appeals for the Third Circuit has
noted that "prison officials should, at a minimum, investigate
each allegation of violence or threat of violence." Young, 960
F.2d at 363 n.23.
23

that he needed to personally report any violations of his rights to
the appropriate prison officials.
Pursuant to the well established standards listed above a
viable claim of failure to protect has not been raised against
those three officials simply because they did not report conduct
which they did not personally see and or accept the veracity of
Plaintiff’s allegations over contrary statements offered by the
involved correctional staff members.
Sena
This Court agrees that there is no basis for a failure to
protect claim against Defendant Sena because she was the camera
operator who videotaped the medical assessment and staff debriefing
following the May 11, 2011 incident.

However, a review of the

Amended Complaint (Doc 6 ¶ 67) shows that Plaintiff contends that
Sena was present during the May 11, 2016 and failed to intervene.
The videotape of the event does show the presence of a female
officer who was present but not actively involved in the restraint
of Peraza.

As such, Plaintiff’s failure to intervene claim against

Sena is not subject to dismissal as being factually insufficient.
However, it is not apparent from the videotape that Sena witnessed
any conduct which posed an obivous threat to Plaintiff’s safety and
required her intervention.
Lindsay
The Amended Complaint maintains that Unit Manager Lindsay
threw away a sensitive grievance which Plaintiff attempted to file
with the BOP’s Regional Office (Doc. 6 at ¶ 182) following the July
4, 2011 incident.

This Court previously concluded that the claim

24

that Lindsey failed to protect Plaintiff from a known safety risk
could proceed.
Unlike some of Plaintiff’s other allegations there is no
contention that Lindsay deliberately placed the prisoner in harm’s
way.

Based upon an application of the above standards the failure

to protect claim against Lindsay is insufficient since there are no
factual allegations showing that Lindsay was aware of the existence
a pervasive risk of harm to the Plaintiff and that the Unit
Manager’s alleged discarding of a grievance constituted deliberate
indifference to that risk.

This conclusion is bolstered by the

fact that prison officials did investigate Plaintiff’s contentions
that prison staff were spreading false child molester rumors about
him.
July 4, 2011
It is asserted that the some Remaining Defendants told
Mexican gang members that Plaintiff was a child molester.
Thereafter, on July 4, 2011 Plaintiff was intentionally placed in a
recreation cage with two inmate4s immediately assaulted him.
Plaintiff voluntarily entered the recreation cage on July 4,
2011.

There are no facts alleged indicating that the two inmates

who assaulted Peraza had previously been determined to pose a
threat to the Plaintiff or that a pnding threat was obivious.
Third, a review of the videotape evidence shows that the prisoners
who assaulted Peraza were not of Mexican descent. Finally,
Plaintiff has clearly admitted that prior to that date he had
assaulted three other prisoners.
A supporting declaration by Moran states that when he
arrived at the July 4, 2011 scene Plaintiff and already been placed
25

in the recreation cage and the altercation had already started.
See Doc. 229-4, ¶ 7.

Defendant Schwartz‘s declaration denies that

the officer told either of the two inmate assailants or any other
prisoner that Peraza was a child molester.

See Doc. 229-5, ¶ 8.

Based upon an application of the above well settled failure
to protect standards to the factual evidence presented by the
parties, a viable civil rights claim has not been stated.

There

are simply no facts showing that the involved correctional staff
knew or should have known that the inmates in the recreation cage
posed a threat to Plaintiff’s safety.

There are also no facts

alleged which could support a claim that any of the Remaining
Defendants told those two assailants that Plaintiff was a child
molester on or before the July 4, 2011 incident.

This

determination is bolstered by the undisputed fact that Plaintiff
did not even hesitate before entering the recreation cage.

Summary

judgment will be granted with the failure to protect claims
stemming from the July 4, 2011 incident.
Cell Assignments
Plaintiff’s final failure to protect allegation claims that
prison officials intentionally assigned him cell mates because they
knew that he would assault those prisoners.

Peraza repeatedly

admits that he assaulted three prisoners assigned to be his cell
mates because those prisoners were designated as protective custody
prisoners.
There is no assertion by Peraza that he had any pre-existing
animosity towards those inmates and he acknowledges that he was not
provoked by those prisoners in any way.

Likewise, Plaintiff

provides no reason as to why he should not have been assigned
26

protective custody inmates other then his own personal feelings.8
It is also noted that Plaintiff was confined in the prison’s SHU
which is used to house inmates who require greater supervision.
Given those undisputed circumstances, entry of summary judgment is
appropriate.
Retaliation
Plaintiff states that Defendants Schwartz and Jenks
retaliated against the Plaintiff or pursuing administrative relief
with respect to the May 11, 2011 incident.

Specifically, it is

alleged that those two Remaining Defendants spread false rumors
that the inmate was a child molester which resulted in the July 4,
2011 assault.

Other Remaining Defendants also allegedly retaliated

against him by assigning him a cell mates they knew the Plaintiff
would fight with.
Remaining Defendants’ final argument asserts that
Plaintiff’s claim that Schwartz and Jenks retaliated against him
for filing a grievance by spreading false rumors that the inmate
was a child molester is insufficient because it is “based on pure
conjecture.”

Doc. 230, p. 33.

They also argue the retaliation

claim against Sudul and Schwartz because the housing assignment
decisions would have been made regardless of any action taken by
Plaintiff in response to the May 11, 2011 incident.
To establish a Section 1983 retaliation claim, a plaintiff
bears the burden of satisfying three (3) elements.

First, a

plaintiff must prove that he was engaged in a constitutionally

8. As discussed below, Remaining Defendants assert that none of
the three assigned cell mates were verified protective custody
prisoners.
27

protected activity.

Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001). Second, a prisoner must demonstrate that he “suffered some
‘adverse action’ at the hands of prison officials.”

(Id.)(quoting

Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).

This

requirement is satisfied by showing adverse action “sufficient ‘to
deter a person of ordinary firmness’ from exercising his First
Amendment rights.”
235 (3d Cir. 2000)).

(Id.)(quoting Suppon v. Dadonna, 203 F.3d 228,
Third, a prisoner must prove that “his

constitutionally protected conduct was ‘a substantial or motivating
factor’ in the decision to discipline him.”

Rauser, 241 F.3d at

333-34(quoting Mount Health Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977)).

The mere fact that an adverse action occurs after a

complaint or grievance is filed is relevant, but not dispositive,
for the purpose of establishing a causal link between the two
events.9

See Lape v. Pennsylvania, 157 Fed. App’x. 491, 498 (3d

Cir. 2005).
Once Plaintiff has made a prima facie case, the burden
shifts to the Defendants to prove by a preponderance of the
evidence that they “would have made the same decision absent the
protected conduct for reasons reasonably related to penological
interest.”

Carter v. McGrady, 292 F.3d 152, 158 (3d. Cir.

2002)(internal quotation and citation omitted).

When analyzing a

retaliation claim, it must be recognized that the task of prison
administrators and staff is difficult, and the decisions of prison

9.
Only where the facts of a particular case are “unusually
suggestive” of a retaliatory motive will temporal proximity,
standing alone, support an inference of causation. Krouse v.
American Sterlizer Co., 126 F.3d 494, 503 (3d Cir. 1997).
28

officials require deference, particularly where prison security is
concerned.

Rauser, 241 F.3d at 334.

The Amended Complaint clearly alleges that Plaintiff accused
multiple officers of physically assaulting him and Schwartz of
sexual assault on May 11, 2011.

Thereafter, Plaintiff asserts that

as a result of raising that complaint retaliatory actions were
undertaken against him by the Remaining Defendants.

The submission

of grievances is a constitutionally protected conduct.

See

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). Remaining
Defendants do not dispute and this Court will accept that the first
prong of Rauser, i.e., that the Plaintiff be engaged in a
constitutionally protected activity, has been satisfied.
The second prong of Rauser adverse action requires that
Peraza allege that he suffered adverse action sufficient to deter a
person of ordinary firmness from exercising his First Amendment
rights.

Third, he must show that his pursuit of grievances was a

substantial or motivating factor behind the alleged abuse by
correctional staff as required under Rauser.
A supporting declaration (Doc. 229-230 under penalty of
perjury by Lieutenant Sudul who states that during the relevant
time period Plaintiff was housed in the SHU.

Sudul acknowledges

that cell assignments are made by the SHU Lieutenant and that SHU
inmates are double celled and that inmates who are known risks to
each other are not celled together.

See id. at ¶ 10.

Sudul adds that at USP-Canaan during 2011, inmates who were
verified protective custody inmates would not be assigned a cell
mate who was not a verified protective custody prisoner.
During the relevant time period Peraza was not a verified
29

See id.

protective custody inmate and he was not assigned a verified
protective custody inmate as his SHU cell mate on May 12, 2011 and
June 7, 2011.

Moreover, the cell mates assigned to Peraza on those

dates had not been listed as prisoners whom needed to be kept
separated from the Plaintiff..
Based upon a review of the undisputed record, there are
simply no facts set forth by Peraza which could arguably support a
claim under Rauser that any of the Remaining Defendants
intentionally subjected him to a retaliatory assignment of
inappropriate cell mates or intentionally placed him in a
recreation cage where he would be assaulted as a consequence for
pursuing a constitutionally protected activity.

Remaining

Defendants’ request for entry of summary judgment with respect to
the assertion of retaliation will be granted.
Conclusion
Pursuant to the above discussion, Plaintiff failed to
exhaust his available administrative remedies with respect to any
of his pending claims and he has not adequately demonstrated a
reason to be excused from requirement.

Second, the favorable

termination rule bars consideration of any claims related to the
issuance of misconduct charges on May 11, 2011 and July 4, 2011.
Third, based on the Remaining Defendants’ factual submissions
Plaintiff has not alleged viable claims of failure to protect and

30

retaliation.

Remaining Defendants’ motion for summary judgment

will be granted.

An appropriate Order will enter.10

S/Richard P. Conaboy
Richard P. Conaboy
United States District Judge
DATED: March 13, 2017

10. Based upon the Court’s determination herein a discussion as to
the merits of the qualified immunity argument is not warranted.
31