Beckton v. Francis et al

Filing 28

MEMORANDUM (Order to follow as separate docket entry) re 12 MOTION to Dismiss and, or in the alternative MOTION for Summary Judgment filed by Steve Brown, Fasciana Francis Signed by Honorable Malachy E Mannion on 3/21/17. (Attachments: # 1 Unpublished Opinion(s), # 2 Unpublished Opinion(s), # 3 Unpublished Opinion(s))(bs)

2004 WL 2075472
Only the Westlaw citation is currently available.
United States District Court,
D. Delaware.
Melvin PUSEY, Plaintiff,
v.
Joseph H. BELANGER, James Gardels, C/O
Holcomb, Lawrence McGuigan, Charles Cunningham,
Michael Welcome, Defendants.
No. Civ.02–351–SLR.
|
Sept. 14, 2004.

not file a grievance pertaining to defendants' conduct;
however, he did appeal the disciplinary decisions made on
October 16 to the disciplinary appeals board. (D.I. 1 at 1, 6)

In his complaint, plaintiff alleges that on October 16, 2001, he
was refused commissary because defendant Holcomb
believed he was on “sanction status.” (Id. at 4–5) Plaintiff
advised defendant Gardel that he was able to receive
commissary because he was not on “sanction status.” (Id.)
Officer Gardel asked plaintiff to return to his cell, but plaintiff
refused and asked to speak with a lieutenant. (Id.) The
lieutenant, not a defendant in this case, told plaintiff to return
to his cell, despite plaintiff's argument that he was not on
“sanction status.” (Id.) Defendants Holcomb and Gardel
escorted him back to his cell.

Attorneys and Law Firms
Melvin Pusey, Smyrna, Delaware, pro se.
Susan D. Mack, Deputy Attorney General, Wilmington,
Delaware, for Defendants.

MEMORANDUM OPINION

ROBINSON, Chief J.

I. INTRODUCTION
*1 Plaintiff Melvin Pusey filed a complaint on May 9, 2002,
charging several correctional officers with various
constitutional violations arising out of the alleged use of
excessive force on October 16, 2001. On May 28, 2002,
plaintiff amended his complaint to include another defendant.
(D.I.7) On January 7, 2003, this court dismissed as frivolous
plaintiff's Fourteenth Amendment retaliation claims. (D .I. 15)
The court found that the Eighth Amendment claims of
excessive force, denial of medical care and conditions of
confinement were not frivolous. (Id.) Before this court is
defendants' motion for summary judgment. 1 (D.I.41) For the
reasons stated, defendants' motion is granted.

II. BACKGROUND
The defendants were all employees of the Delaware
Department of Correction at all relevant times. (D.I. 42 at 1)
Plaintiff is an inmate at the Delaware Correctional Center
(“DCC”) in Smyrna, Delaware. (Id.) Plaintiff's claims center
around defendants' actions on October 16, 2001. Plaintiff did

Upon reaching the cell, plaintiff further alleges that he was
“roughly pushed inside.” (Id. at 6) As the plaintiff fell forward
into the cell, Gardel shut the cell door, which caught
plaintiff's leg. (Id.) Plaintiff turned and reached for his leg and
one defendant sprayed mace on him while the other officers
pushed him into the cell. (Id.) On his way into the cell,
plaintiff tripped and fell. (Id.) The officers turned him on his
stomach grabbing him by the hair and slamming his face into
the concrete several times. (Id.) At this point, another officer
kicked plaintiff in the ribs several times. (Id.)

In his complaint, plaintiff alleges that he was escorted from
his cell to see defendants Belanger, McGuigan and
Cunningham. (Id. at 7) Plaintiff informed the escorting officer
that he needed medical attention for a broken rib and facial
injuries. (Id.) Before being placed in a Segregation
Behavioral Unit (“SBU”), plaintiff informed defendant
Belanger that he needed medical attention. (Id.) Once in the
SBU, plaintiff was told to strip and was placed in a cell with
feces on the door and window. Plaintiff never received
medical attention. (Id.) For eight days during his stay in the
SBU, he was naked and was refused a clean cell, a mattress to
sleep on, sheets, blanket, toilet paper, soap, toothpaste and a
toothbrush. In addition, the cell was so cold that he had to jog
to stay warm. (Id. at 9)

*2 Defendants argue that they are entitled to summary
judgment because the plaintiff failed to exhaust his
administrative remedies, namely the DCC's grievance
procedure, and because they are entitled to 11th Amendment
immunity.

III. STANDARD OF REVIEW
A court shall grant summary judgment only if “the pleadings,

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depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(c). The moving party bears the burden of proving that no
genuine issue of material fact exists. See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 10
(1986). “Facts that could alter the outcome are ‘material,’ and
disputes are ‘genuine’ if evidence exists from which a rational
person could conclude that the position of the person with the
burden of proof on the disputed issue is correct.” Horowitz v.
Fed. Kemper Life Assurance Co., 57 F.3d 300, 302 n. 1 (3d
Cir.1995) (internal citations omitted). If the moving party has
demonstrated an absence of material fact, the nonmoving
party then “must come forward with ‘specific facts showing
that there is a genuine issue for trial.” ’ Matsushita, 475 U.S.
at 587 (quoting Fed.R.Civ.P. 56(e)). The court will “view the
underlying facts and all reasonable inferences therefrom in the
light most favorable to the party opposing the motion.” Pa.
Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir.1995). The
mere existence of some evidence in support of the nonmoving
party, however, will not be sufficient for denial of a motion
for summary judgment; there must be enough evidence to
enable a jury reasonably to find for the nonmoving party on
that issue. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249 (1986). If the nonmoving party fails to make a sufficient
showing on an essential element of its case with respect to
which it has the burden of proof, the moving party is entitled
to judgment as a matter of law. See Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).

a grievance within seven days of an event. (D.I. 42 at Ex. 1)
If a prisoner at DCC failed to bring a claim within seven days,
he would be precluded from bringing a federal claim because
he had failed to exhaust his administrative remedies. See
Spruill, 372 F.3d at 230.

*3 In his complaint, plaintiff conceded that he did not file a
grievance, based on his understanding that the “DCC
Grievance Committee does not review ‘custody’ matters....”
(D.I. 1 at 2) The DCC grievance procedure manual provides
to the contrary, that the committee can review anything
affecting an inmate, except policies that have another appeal
process. (D.I. 42 at Ex. 1) There is no evidence that plaintiff
filed a grievance with any committee after the alleged incident
on October 16, 2001, or thereafter concerning the correctional
officers' conduct, his medical treatment, or the conditions of
his cell. Consequently, the court cannot entertain plaintiff's
action due to plaintiff's failure to exhaust his administrative
remedies.

V. CONCLUSION
For the reasons stated above, defendants' motion for summary
judgment is granted. An order consistent with this
memorandum opinion shall issue.

All Citations
Not Reported in F.Supp.2d, 2004 WL 2075472

IV. DISCUSSION
Defendants argue that plaintiff did not exhaust his
administrative remedies prior to filing this action pursuant to
the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a).2 Before filing a civil action, a plaintiff-inmate must
exhaust his administrative remedies, even if the ultimate relief
sought is not available through the administrative process. See
Booth v. Churner, 206 F.3d 289, 300 (3d Cir.2000), cert.
granted, 531 U.S. 956 (2000), aff'd, 121 S.Ct. 1819 (2001).
See also Ahmed v. Sromovski, 103 F.Supp.2d 838, 843
(E.D.Pa.2000) (quoting Nyhuis v. Reno, 204 F.3d 65, 73 (3d
Cir.2000) (stating that § 1997e(a) “specifically mandates that
inmate-plaintiffs exhaust their available administrative
remedies”).

Recently, the Third Circuit adopted a procedural default
interpretation of § 1997e(a). In Spruill v. Gillis, 372 F.3d 218
(3d Cir.2004), the court decided that a prisoner's failure to
exhaust any administrative remedies could bar a suit in
federal court. This includes instances where a prisoner's
opportunity to file a grievance has expired. For example, the
DCC grievance procedure at issue requires that a prisoner file
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Footnotes

1

Plaintiff did not respond to defendants' motion.

2

The PLRA provides, in pertinent part:
No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner
confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a).

End of Document

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