Rister v. Lamas et al

Filing 61

MEMORANDUM AND ORDER # 5,: Defendants' motion to dismiss (doc 22), plaintiff's claims of excessive use of force by defendants Taylor, Best, Watson and Detwiler, and the conspiracy of defendants Nixon, Tischler, Craig, Angelo, Heredia and Th ompson for witnessing this restraint without invervening, is denied. These are the only claims that will proceed. Defendants' motion to disiss plaintiff's remaining claims is granted. Plaintiff's motions for clarification (docs. 31,42,45 and 56) and motion to schedule oral hearing (doc. 46) are dismissed as moot.Signed by Honorable Malcolm Muir on 6/21/11. (bw, )

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
TARRELL RISTER,

:
:
: No. 4:CV-10-1574
:
: (Complaint Filed 07/29/10)
:
: (Judge Muir)
:
:
:

Plaintiff
vs.
MARIOSA LAMAS, et al.,
Defendants

MEMORANDUM AND ORDER #5 of
June 21, 2011
Background
Plaintiff,
Correctional

an

inmate

Institution

confined

in

the

Rockview

(“SCI-Rockview”),

State

Bellefonte,

Pennsylvania, filed this civil rights action pursuant to 42
U.S.C. § 1983. Moving defendants are the following SCI-Rockview
employees: Superintendent Lamas; Corrections Superintendent
Assistant Rackovan; Unit Manager Granlund; Deputy Thompson;
Sergeant Best; Lieutenant Nixon; and Correctional Officers
(“CO”) Angelo, Craig, Detwiler, Heredia, Tischler and Watson.
Presently before the Court is defendants’ motion to dismiss the
plaintiff’s complaint.

(Doc. 22).

The parties have fully

briefed the issues and the motion is

now ripe for disposition.

For the reasons that follow, defendants’ motion to dismiss will
be granted, in part, and denied, in part.
I.

Motion to Dismiss
Fed.R.Civ.P. 12(b)(6) authorizes dismissal of a complaint

for

“failure

granted.”

to

state

a

claim

upon

which

relief

can

be

Under Rule 12(b)(6), we must “accept all factual

allegations as true, construe the complaint in the light most
favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.”

Fowler v. UPMC Shadyside, 578 F.3d 203,

210 (3d Cir.2009) (quoting Phillips v. County of Allegheny, 515
F.3d 224, 231 (3d Cir.2008)). While a complaint need only
contain

“a

short

and

plain

statement

of

the

claim,”

Fed.R.Civ.P. 8(a)(2), and detailed factual allegations are not
required, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555,
127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007), a complaint must
plead

“enough

facts

to

plausible on its face.”

state

a

claim

to

relief

that

is

Id. at 570, 550 U.S. 544, 127 S.Ct.

1955 at 1974, 167 L.Ed.2d 929.

“The plausibility standard is

not akin to a ‘probability requirement,’ but it asks for more
than

a

sheer

possibility

that
2

a

defendant

has

acted

unlawfully.”

Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937,

1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 556,
127 S.Ct. at 1965.) “[L]abels and conclusions” are not enough,
Twombly, 550 U.S. at 555, 127 S.Ct. at 1964-65, and a court
“‘is not bound to accept as true a legal conclusion couched as
a factual allegation.’” Id., 127 S.Ct. at 1965 (quoted case
omitted).

Thus, “a judicial conspiracy claim must include at

least a discernible factual basis to survive a Rule 12(b)(6)
dismissal.” Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 184 (3d Cir.2009) (per curiam).
In resolving the motion to dismiss, we thus “conduct a twopart analysis.” Fowler, supra, 578 F.3d at 210. First, we
separate the factual elements from the legal elements and
disregard the legal conclusions. Id. at 210-11.

Second, we

“determine whether the facts alleged in the complaint are
sufficient to show that the plaintiff has a “ ‘plausible claim
for relief.’ ” Id. at 211 (quoted case omitted).
II. Allegations in Complaint
The

plaintiff’s

complaint,

which

is

one

continual

narrative, states the following:
On May 19, 2010, at approximately 7:00 - 8:00 pm,
3

during RHU general cell search and strip search, C.O.
Taylor yells after [plaintiff] was clear of [his]
strip search “Rister has a razor in is hand!”, which
Sgt. Best yells “throw his ass down” which [plaintiff]
was thrown down on [his] face which have slap the
unsanitary floor first in front of [his] cell B-24
camera view, which left abrasions on [his] right side
of [his] face and swelling (sic) forehead on [his]
left side after C.O. Taylor and Sgt. Best squash[ed]
[his] head down on the unsanitary floor, which C.O.
Taylor states “your not so big and bad now are you,
nigga (sic)”, while C.O. Detwiler and C.O. Watson were
squashing [his] legs that left deeply abrasions on
[his] right knee from the unsanitary floor, after
minutes past of being restraint without [plaintiff]
fighting back at all, the guards then force pulled
[plaintiff] behind [his] back and forc[ed] [him] in
[his] cell and began forcing [his] arms through the
small pot slot as the door pot slot and handcuffs
deeply cutted (sic) abrasions on both of [his] arms,
wrists and hands while John Doe force the handcuffs
off [his] writs. [Plaintiff] could not see who was the
C.O. because the guards had [his] arms forced all the
way through the small door pot slot which it feeled
(sic) like [his] arms [were] coming off [his] upper
body, the above guards used excessive force against
[him] that was not in good faith, which is a violation
of [his] Eighth Amendment prohibition of “Cruel and
Unusual Punishment” which [he is] protected under the
Constitutional Rights.
(Doc. 1, complaint at 2).
On July 29, 2010, plaintiff filed the instant action
seeking

compensatory

and

punitive

damages,

as

well

as

a

transfer, for defendants’ use of excessive force, retaliation
and “conspiracy to do nothing to stop the wrong.”

4

Id.

Specifically, plaintiff’s claim for relief states the
following:
The above guards used excessive force against me that
was not in good faith, which is in violation of my
Eighth Amendment prohibition of Cruel and Unusual
Punishment,
which
I
am
protected
under
the
Constitutional rights and L.T. Nixon, C.O. Tischler,
C.O. Craig, C.O. Angelo, C.O. Heredia and C.O.
Thompson are in “Conspiracy” do(sic) to just standing
there and done (sic) nothing to try to stop the wrong,
and Facility Manager Lamas and Deputy Thompson
retaliated against me for my excessive force complaint
that’s filed with OPR and for Misconduct No. B205393
and B205394, Inmate Parker JA 3190 told security the
truth that I did not stab him and this is nothing but
retaliation, personal torture and kidnapping and this
is why I am placed on Administrative Custody and can’t
call my family and can’t have my personal property,
which is nothing but retaliation and cruel and unusual
punishment, that’s why I have not been transferred nor
released to population or given my personal property
and the right to call my loved ones and Grievance
Coordinator Rackovan is in “Conspiracy” for rejection
of grievances but still given them file numbers, and
Unit Manager Granlund is in “Conspiracy” for not
responding to my grievance of C.O. Taylor harassing
me, I have been seen my medical and pictures have been
taken of my injuries, I pray that my complaint is
granted.
Id.
Defendants move to dismiss the plaintiff’s complaint on the
basis that plaintiff failed to exhaust his administrative
remedies, prior to filing the instant action in federal court.
(Doc. 24, brief in support of defendants’ motion to dismiss).
5

III.

Discussion

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a),1 prohibits an inmate from bringing a civil rights suit
alleging specific acts of unconstitutional conduct by prison
officials, including the use of excessive force, until the
inmate has exhausted available state remedies.
1997e(a)

(2003).

A

prisoner

must

exhaust

42 U.S.C. §
administrative

remedies or risk procedural default. Spruill v. Gillis, 372
F.3d 218 (3d Cir.2004). The PLRA requires “proper exhaustion,”
meaning

that

the

prisoner

must

complete

the

available

administrative review process in accordance with the applicable
procedural rules, including deadlines. Woodford v. Ngo, 548
U.S. 81, 90-91(2006) (“Proper exhaustion demands compliance
with an agency's deadlines and other critical procedural rules
....”); see also Wright v. State Corr. Inst. at Greene, No.
CIV.A.06-865, 2009 WL 2581665, at *2 (W.D.Pa. Aug.20, 2009). If

1. This section states as follows:

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.A. § 1997e(a).
6

a prisoner does not exhaust available administrative remedies,
his claims should be dismissed. Booth v. Churner, 532 U.S. 731,
740-41,(2001) (affirming the holding of the Third Circuit which
upheld the district court's decision to dismiss Plaintiff's
complaint

without

prejudice

for

failure

to

exhaust

administrative remedies).
Because an inmate's failure to exhaust under the PLRA is
an

affirmative

defendant.

defense,

it

must

be

pled

and

proven

by

Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.2002).

Consequently,

a

prisoner

does

not

have

to

allege

in

his

complaint that he has exhausted administrative remedies. Id.
When raised as an affirmative defense, however, exhaustion of
all administrative remedies is mandatory. Spruill, 372 F.3d at
227. Thus, it is irrelevant whether the inmate believes that
such administrative remedies would be effective or whether the
available

administrative

processes

can

grant

the

desired

remedy. Booth, 532 U.S. at 740-41. The exhaustion requirement
applies to grievance procedures “regardless of the relief
offered by the administrative procedures.” Id. at 741; Nyhuis
v. Reno, 204 F.3d 65, 76 (3d Cir.2000). In other words, there
is no futility exception to the PLRA's exhaustion requirement.
7

Nyhuis, 204 F.3d at 71. Thus, the exhaustion requirement is not
waived even in cases where the relief sought in the federal
action cannot be provided by the administrative process in the
prison.

Porter v. Nussle, 534 U.S. 516, 524 (2002); Booth, 532

U.S. at 741.
Nonetheless, “compliance with the administrative remedy
scheme will be satisfactory if it is substantial.” Nyhuis, 204
F.3d at 77-78 (3d Cir.2000). The Third Circuit has repeatedly
noted that administrative remedies are not readily available,
as required by § 1997e, where prison officials mislead or
otherwise preclude an inmate from exhausting prison grievances.
In such cases, the exhaustion requirement is excused.2
e.g.,

Mitchell

(holding

that

v.

Horn,

district

318

F.3d

court

523,

529

incorrectly

(3d

See,

Cir.2003)

dismissed

claim

because it did not consider prisoner's allegations that he had
been denied grievance forms by prison officials); Brown v.
Croak, 312 F.3d 109, 112 (3d Cir.2002) (finding that prisoner's
claim

that

he

was

misled

by

prison

officials

precluded

2. Notably, “[t]he availability of administrative remedies to a

prisoner is a question of law.” Brown, 312 F.3d at 111.
8

dismissal based on exhaustion requirement); Camp v. Brennan,
219 F.3d 279, 281 (3d Cir.2000) (noting that prisoner who was
misled by prison officials regarding grievance procedure faced
a

Catch-22

situation

which

could

preclude

finding

of

non-exhaustion); see also Oliver v. Moore, No. CIV.A.04-1540,
2005 WL 1988996, at *3-4 (3d Cir. Aug. 18, 2005) (holding that
while administrative remedy may be deemed unavailable where
prison officials prevented pursuit of prison grievance process,
where no evidence of such interference is found, exhaustion is
not excused).
Several other circuits have faced the precise question at
issue in this case and expressly held that the exhaustion
requirement is satisfied where prison officials fail to timely
respond or to respond at all to an inmate's written grievance.
In such cases, the grievance procedure is deemed “unavailable”
and the exhaustion requirement is excused. See, e.g., Boyd v.
Corr.

Corp.

of

Am.,

380

F.3d

989,

996-97

(6th

Cir.2004)

(declining to dismiss complaint for failure to exhaust where
plaintiff alleged that he did not receive a response to his
grievance); Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir.2004)
(concluding that the affirmative defense of exhaustion is
9

subject to estoppel if prison officials preclude the inmate
from exhausting administrative remedies); Jernigan v. Stuchell,
304 F.3d 1030, 1032 (10th Cir.2002) (“[W]e agree that the
failure to respond to a grievance within the time limits
contained in the grievance policy renders an administrative
remedy unavailable ....”); Lewis v. Washington, 300 F.3d 829,
833 (7th Cir.2002) ( “We join the Eighth and Fifth circuits on
this issue because we refuse to interpret the PLRA so narrowly
as to ... permit [prison officials] to exploit the exhaustion
requirement

through

indefinite

delay

in

responding

to

grievances.” (internal quotation marks omitted)); Foulk v.
Charrier,
prison]

262

F.3d

failed

grievance],
‘available’

to

no
to

687,

698

respond

further
him.”);

(8th
to

Cir.2001)
[the

prisoner's

administrative
see

also

(“[O]nce

Gellock

written

proceedings
v.

[the

Prison

were
Health

Servs., Inc., No. CIV.A.07-8, 2009 WL 2038235, at *7 (W.D.Pa.
Jul. 8, 2009) (finding that where plaintiff claimed that he
never received responses regarding his grievances, where he
submitted

copies

of

request

slips

sent

to

the

grievance

coordinator stating that he had not received responses, and
where the record was otherwise devoid of any evidence that
10

responses were ever provided by the prison, the court found
that the administrative remedies were rendered unavailable and
the grievances must be deemed exhausted).
The question now pending before the Court is whether
plaintiff

has

administrative
responsive

exhausted
process

actions

his

claims

and,

if

rendered

through

not,
the

the

whether

requisite

the

prison's

administrative

process

unavailable.
A.

Excessive Force and Conspiracy Claim

The defendants argue that Rister failed to exhaust his
administrative remedies because he filed the instant action
prior to the completion of the investigation into plaintiff’s
Grievance No. 319257, concerning the excessive use of force by
defendants

Taylor,

conspiracy

of

Best,

defendants

Watson
Nixon,

and

Detwiler,

Tischler,

Craig,

and

the

Angelo,

Heredia and Thompson for witnessing this restraint without
intervening.
support

of

(Doc. 24, brief in support of complaint).
this

contention,

defendants

submit

a

copy

In
of

Grievance No. 319257, which was filed on May 20, 2010, (doc.
24-3, Ex. B, Official Inmate Grievance), as well as Grievance
Officer Rackovan’s response, dated June 8, 2010, which states
11

the following:
The investigation of your grievance is continuing.
Due to the need for additional information, I cannot
provide a response within the original time frame.
DC-ADM 804 provides for an extension in situations
such as this.
I will provide a response upon
completion of the investigation.
Your patience is
appreciated.
(Doc. 24-3, Ex. B, Official Inmate Grievance).
On June 22, 2010, another response was issued which stated
the following:
As this is a grievance alleging excessive force, your
claims are being investigated by the Security Office
in accordance with DC-ADM 001. The results of the
Security Office investigation will be sent to the
D.O.C. Office of Professional Responsibility (OPR) for
their review. OPR will then forward a response to
you.
Id.
On June 24, 2010, the OPR responded to an inquiry by the
plaintiff, with the following:
The Office of Professional Responsibility recently
reviewed your correspondence on June 4, 2010.
Please be advised that your allegations are currently
being investigated. The investigation is not complete
at this time. Once completed, you will be notified in
writing of the findings by the security office at the
State Correctional Institution Rockview.
Your
correspondence
will
be
Superintendent Lamas for her review.
12

forwarded

to

Id.

Thus, defendants conclude that plaintiff failed to wait

for the completion of the investigation and instead filed the
instant action on July 29, 2010, without first exhausting his
administrative remedies with respect to Grievance No. 319257.
Pursuant to the Inmate Grievance Policy, DC-ADM 804:
The Grievance Officer shall provide a written response
to the inmate within 15 working days from the date the
grievance was entered into the Automated Inmate
Grievance
Tracking
System.
The
Facility
Manager/designee may authorize an extension of up to
10 additional working days if the investigation of the
grievance is ongoing. If an extension is necessary,
the inmate shall be advised in writing using the
Extension Form (Attachment 1-E).
See Pa. Dept. of Corr. Policies; http://www.portal.state.pa.us.
Plaintiff argues that defendants failed to comply with DCADM

804,

in

that

there

last

communication

to

plaintiff

concerning an extension of time was on June 24, 2010, and at
that time defendants were well beyond the 10 additional working
days

provided

for

by

DC-AMD

804,

and

failed

to

provide

plaintiff with any further notification of extensions.
Prior to filing his complaint on July 29, 2010, plaintiff
twice wrote to Superintendent Lamas inquiring as to the status
of Grievance No. 319257.

(See Doc. 26, Ex. A, Inmate’s Request

to Staff Member dated July 7, 2010 and July 15, 2010).
13

Both

Inmate’s Requests went unanswered.

Id.

Moreover, plaintiff

submits two additional informal requests to staff member, dated
September 18, 2010 and September 24, 2010, inquiring as to the
outcome of the investigation into Grievance No. 319257.
Doc.

26,

Ex.

A,

Inmate’s

September

18,

2010

September

24,

and

2010,

Request

September

inquiry

to
24,

was

Staff

Member

2010).

responded

(See
dated

Plaintiff’s
to

with

the

following: By means of this response I am informing the CSA of
your concerns.

Thus, as of September 24, 2010, some four

Id.

months after the filing of Grievance No. 319257, there was
still

no

notice

to

plaintiff

that

the

investigation

was

completed.
As is apparent from the parties’ submissions, plaintiff was
told

to

wait

for

the

termination

of

the

investigation.

However, as plaintiff’s exhibits demonstrate, defendants never
informed plaintiff that the investigation was completed.

As

such, the Court finds that the formal grievance proceeding
required by DC-ADM 804 was never “available” to plaintiff
within the meaning of 42 U.S.C. § 1997e. Camp v. Brennan,
supra.

Cf. Miller v. Norris, 247 F.3d 736, 740 (8th Cir.2001)

(holding

that

“a

remedy

that
14

prison

officials

prevent

a

prisoner from ‘utilizing’ is not an ‘available’ remedy under §
1997e”). Consequently, defendants have not met their burden of
proving the affirmative defense of failure to exhaust remedies
and their motion to dismiss plaintiff’s Eighth Amendment and
Conspiracy claim will be denied.
B.

Harassment Claim

On June 11, 2010, plaintiff filed Grievance No. 322455,
claiming that C.O. Taylor is harassing him by saying “sexual
things” to him and calling him “a snitch and bitch” and making
comments about his food.

(Doc. 24-3, Ex. D, Official Inmate

Grievance No. 322455).
On July 3, 2010, plaintiff addressed an Inmate’s Request
to Staff Member to defendant Granlund, asking why he had not
received a response to his June 11, 2010 grievance.

(Doc. 26,

Ex. C, Inmate’s Request to Staff Member).
On

July

plaintiff

4,

filed

Superintendent

2010,
an

Lamas.

after

appeal

not
of

(Doc.

26,

receiving
Grievance
Ex.

C,

any
No.

response,
32245

Official

to

Inmate

Grievance Appeal).
On July 14, 2010, plaintiff submitted an Inmate’s Request
to Staff member to Superintendent Lamas, inquiring as to why he
15

had not received a response to his July 4, 2010 appeal.

(Doc.

26, Ex. C, Inmate’s Request to Staff Member).
On July 16, 2010, plaintiff filed a final appeal to Chief
Hearing Examiner Varner, appealing Grievance No. 322455 and the
lack of response thereto.

(Doc. 26, Ex. C., Official Inmate

Grievance Appeal).
Although defendant, Corrections Superintendent Assistant
Jeffery Rackovan states in his declaration that plaintiff’s
Grievance No. 322455 was denied and deemed frivolous on August
3,

2010,

(see

Doc.

24-5,

Ex.

H,

Declaration

of

Jeffrey

Rackovan, Corrections Superintendent Assistant at ¶ 7), the
exhibit

submitted

in

support

of

this

contention

fails

contain a date or signature of the reviewing official.

to

(See

Doc. 24-3, Ex. D, Official Inmate Grievance Initial Review
Response).

Thus, plaintiff challenges the validity of this

document, stating that Grievance Officer Granlund “tried to
cover up an Initial Review Response to Grievance No. 322455 by
submitting a false Initial Review Response that defendant
didn’t even stamp date, nor sign the initial review response,
which

shows

grievance.”

defendants

never

responded

(Doc. 26, brief in opposition).
16

to

plaintiff’s

While the Court recognizes that a material issue of fact
has been created surrounding the question of whether defendants
properly and timely responded to plaintiff’s Grievance No.
322455, resolution of such claim is unnecessary, as it is well
settled that plaintiff’s underlying claim of verbal harassment,
although deplorable, does not, standing alone, violate the
Eighth Amendment. See Robinson v. Taylor, 204 Fed. Appx. 155,
156 (3d Cir.2006); McBride v. Deer, 240 F.3d 1287, 1291 n. 3
(10th Cir.2001);, 224 F.3d 607, 612 (7th Cir.2000); see also
Boddie v. Schnieder, 105 F.3d 857, 861 (2d Cir.1997) (rejecting
the Eighth Amendment claim of a prisoner who alleged that he
“was verbally harassed, touched, and pressed against without
his consent” because “[n]o single incident that he described
was severe enough to be ‘objectively, sufficiently serious.’
”).

See

also

Freeman

v.

Arpaio,

125

F.3d

732,

738

(9th

Cir.1997), abrogated on other grounds by Shakur v. Schriro, 514
F.3d 878 (9th Cir.2008) (“As for being subjected to abusive
language directed at [one's] religious and ethnic background,
verbal harassment or abuse ... is not sufficient to state a
constitutional deprivation under 42 U.S.C. § 1983.”) (internal
quotation marks omitted).
17

Indeed,

allegations

of

verbal

abuse

or

threats,

unaccompanied by injury or damage, are not cognizable under §
1983, regardless of whether the inmate is a pretrial detainee
or sentenced prisoner. See Jean–Laurent v. Wilkerson, 438
F.Supp.2d 318, 324–25 (S.D.N.Y.2006) (pretrial detainee's claim
of verbal abuse not cognizable under § 1983 because verbal
intimidation did not rise to the level of a constitutional
violation);

Ramirez

v.

Holmes,

921

F.Supp.

204,

210

(S.D.N.Y.1996) (threats and verbal harassment without physical
injury or damage not cognizable in claim filed by sentenced
inmate under § 1983). See also Price v. Lighthart, 2010 WL
1741385 (W.D.Mich. Apr. 28, 2010); Glenn v. Hayman, 2007 WL
894213, *10 (D.N.J. Mar. 21, 2007); Stepney v. Gilliard, 2005
WL 3338370 (D.N.J. Dec. 8, 2005) (“[V]erbal harassment and
taunting is neither ‘sufficiently serious' nor ‘an unnecessary
and wanton infliction of pain’ under the common meaning of
those terms. ‘Verbal harassment or profanity alone ... no
matter how inappropriate, unprofessional, or reprehensible it
might seem,’ does not constitute the violation of any federally
protected right and therefore is not actionable under [Section]
1983”) (quoting Aziz Zarif Shabazz v. Pico, 994 F.Supp. 460,
18

474 (S.D.N.Y.1998), and citing Collins v. Graham, 377 F.Supp.2d
241, 244 (D.Me.2005)). See also Moore v. Morris, 116 Fed. Appx.
203, 205 (10th Cir.2004) (mere verbal harassment does not give
rise to a constitutional violation, even if it is inexcusable
and offensive, it does not establish liability under section
1983), cert. denied, 544 U.S. 925 (2005); Collins v. Cundy, 603
F.2d 825, 827 (10th Cir.1979) (dismissing prisoner's claim that
defendant laughed at prisoner and threatened to hang him);
Prisoners' Legal Ass'n v. Roberson, 822 F.Supp. 185, 187–89
(D.N.J.1993)); Abuhouran v. Acker, 2005 WL 1532496 (E.D. Pa.
June 29, 2005) (“It is well established ... that ... verbal
harassment,

...

standing

alone,

do[es]

not

state

a

constitutional claim”) (citing Dewalt v. Carter, 224 F.3d 607,
612 (7th Cir.1999); Williams v. Bramer, 180 F.3d 699, 706 (5th
Cir.1999);

Maclean

v.

Secor,

876

F.Supp.

695,

698

(E.D.Pa.1995)). See also Oltarzewski v. Ruggiero, 830 F.2d 136,
139 (9th Cir.1987) (holding that verbal harassment and abuse
are not recoverable under § 1983); Patton v. Przybylski, 822
F.2d 697, 700 (7th Cir.1987) (holding that racially derogatory
remarks, although “unprofessional and inexcusable,” are not “a
deprivation of liberty within the meaning of the due process
19

clause”).
Here, plaintiff does not allege an accompanying violation
that might allow the verbal harassment to state a separate
claim in violation of his constitutional rights. Furthermore,
at

most,

plaintiff

alleges

that

he

was

offended

by

the

discriminatory remarks. Indeed, the general allegations of
“injury” in the complaint are nothing more than the mere
recitation of a legal conclusion without factual allegations
sufficient at this time to support a claim that the defendants
were verbally harassing plaintiff as a form of punishment, as
generally asserted. Consequently, because the alleged verbal
harassment of plaintiff was not accompanied by any injurious
actions—or physical actions of any kind—by the defendants,
plaintiff fails to state a cognizable § 1983 claim for a
violation of his Eighth Amendment right to be free from cruel
or unusual punishment. Thus, this claim will be dismissed.
C.

Administrative Custody
Defendants argue that plaintiff has failed to exhaust his

administrative remedies with respect to his challenge to his
placement in Administrative Custody.
opposition at 7).

(Doc. (Doc. 24, brief in

In support of this proposition, defendants
20

submit a copy of plaintiff’s August 22, 2010 Grievance No.
332053, challenging his placement in Administrative Custody,
(see

doc.

24-4,

Official

Inmate

Grievance)

and

returned

unprocessed on August 24, 2010 because grievances related to an
inmate’s

placement

in

administrative

custody

are

handled

pursuant to the Administrative Custody Procedure, and not the
Inmate Grievance Procedure. (See Doc. 24-4, Grievance Rejection
Form).

Thus, defendants conclude that plaintiff has failed to

exhaust his administrative remedies because he not only failed
to follow the proper channels in addressing a challenge to
Administrative Custody, but failed to file and exhaust his
grievance prior to filing his July 29, 2010 action in federal
court.
In opposition to defendants’ argument, plaintiff submits
a

copy

of

his

Notice

of

Appeal

of

the

Program

Review

Committee’s decision to continue plaintiff on Administrative
Custody, dated July 9, 2010 and received by SCI-Rockview on
July 12, 2010.

(Doc. 26, Ex. B, Notice of Appeal).

On July 21, 2010, Superintendent Lamas denied plaintiff’s
appeal, stating the following:
You were placed in A.C. under DC-ADM 802, Section
21

V1.A.1C. in that you are considered a danger to
yourself or others. Reports from the Security Office
and PRC indicate your placement in General Population
would potentially result in problems between you and
other inmates.
Your placement in A.C. pending the Security Office and
PRC determine the best course of action for your
housing, is sustained.
Your appeal is denied.
(Doc. 26, Ex. B, July 21, 2010 Memorandum).
On July 26, 2010, plaintiff filed a final appeal of
Superintendent Lamas’ denial.

(Doc. 26, Ex. B, Final Notice of

Appeal). Three days later, plaintiff filed the instant action.
Thus, it is apparent from plaintiff’s own submissions that he
did, in fact attempt to follow the appropriate channels in
challenging his placement in administrative custody.

However,

it is also readily apparent that he failed to exhaust his
administrative remedies prior to filing his federal civil
rights action.
The Third Circuit has held that prisoner-plaintiffs may not
file a federal civil rights action before exhausting their
administrative remedies. Nyhuis v. Reno, 204 F.3d 65, 78 (3d
Cir.2000). And more specifically, the PLRA rule requiring
exhaustion would be circumvented by allowing prisoners to file
22

a federal claim while simultaneously continuing through the
administrative grievance process. Nyhuis, 204 F.3d 65, 67 n. 12
(3d Cir.2000) (finding that the PLRA requires that “inmates
first test and exhaust the administrative [grievance] process,
and then, if dissatisfied, take the time necessary to file a
timely federal action.”); see also Ahmed v. Dragovich, 297 F.3d
201

(3d

Cir.2002).

Accordingly,

pursuant

to

the

Prison

Litigation Reform Act, and the rule articulated by the Third
Circuit in Nyhuis,3 plaintiff's challenge to his placement in
Administrative Custody must be dismissed without prejudice for
his failure to properly exhaust his administrative remedies
before filing a federal civil rights action.
D.

Remaining Claims
Plaintiff’s remaining claims are that defendants Thompson

and

Lamas

retaliated

Administrative
defendant

Custody

Rackovan

against
and

him

by

placing

revoking

his

privileges,

conspired

against

him

by

him

in
that

rejecting

3. “[W]e are not prepared to read the amended language in §

1997e(a) as meaning anything other than what it says-i.e.,
that no action shall be brought in federal court until such
administrative remedies as are available have been exhausted.”
Nyhuis, 204 F.3d at 78.
23

plaintiff’s grievances, and that defendant Granlund conspired
against him by not responding to plaintiff’s grievances. (See
Doc. 1, complaint at 2).
Defendants contend that there are no grievances of record
pertaining to these claims.

(See Doc. 24-5, Ex. H, Declaration

of Jeffrey Rackovan, Corrections Superintendent Assistant at ¶
12).

Plaintiff does not refute this contention.

(See Doc. 26,

brief in opposition). As such, these claims remain unexhausted
and will be dismissed.

An appropriate Order accompanies this

Memorandum Opinion.

Dated: June 21, 2011

s/Malcolm Muir
MUIR
United States District Judge

UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF PENNSYLVANIA
TARRELL RISTER,

:
:
: No. 4:CV-10-1574
:
: (Complaint Filed 07/29/10)
:
: (Judge Muir)
:
:
:

Plaintiff
vs.
MARIOSA LAMAS, et al.,
Defendants

ORDER
June 21, 2011
For the reasons set forth in the accompanying Memorandum,
IT IS HEREBY ORDERED THAT:
1.

Defendants’ motion to dismiss (Doc. 22),
plaintiff’s claims of excessive use of force
by defendants Taylor, Best, Watson and
Detwiler, and the conspiracy of defendants
Nixon, Tischler, Craig, Angelo, Heredia and
Thompson for witnessing this restraint
without intervening, is DENIED. These are
the only claims that will proceed.

2.

Defendants’ motion to dismiss plaintiff’s
remaining claims (Doc. 22)is GRANTED.

3.

Plaintiff’s motions for clarification
(Docs. 31, 42, 45, and 56) and motion to
schedule
oral
hearing
(Doc.
46)
are
DISMISSED as moot.
s/Malcolm Muir
MUIR
United States District Judge