STORY v. WETZEL et al

Filing 159

OPINION AND ORDER denying 133 Motion for Partial Summary Judgment; granting 142 Motion for Summary Judgment as to Plaintiff's Eighth Amendment claim; granting 147 Motion for Summary Judgment. Remaining state law claims dismissed without prejudice. The Clerk of Court is directed to mark this case closed. Signed by Chief Magistrate Judge Maureen P. Kelly on 2/22/18. A copy of this opinion and order will be mailed this day, 2/22/18, to Plaintiff at his address of record. (ard)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
STANTON STORY,

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Plaintiff,

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Civil Action No. 15-1241
Chief Magistrate Judge Maureen P. Kelly

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V.

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JOHN E. WETZEL, DORINA VARNER,
KERRI MOORE, ROBIN M. LEWIS, L.S.
KERNS, BARR, ROBERT GILMORE,
TRACEY SHAWLEY, IRMA VIHLIDAL,
DR. BYUNGHAK JIN, CAPTAIN
ARMSTRONG, CAPTAIN MITCHELL, LT.
KELLY, LT. SILBAUGH, LT. HOWELLS,
LT. A.J. MORRIS, LT. GREGO, C.O.
JOHNSON, C.O. BARNHART, C.O.
SCHIRRA, SARGENT PLUMLEY,
SARGENT TROUT, and NURSE V.
GRABOWSKI,

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Re: ECF Nos. 133, 142, and 147

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Defendants.

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OPINION AND ORDER
KELLY, Chief Magistrate Judge
Plaintiff Stanton Story ("Plaintiff'), proceedingpra se, is an inmate in the custody of the
Pennsylvania Department of Corrections ("DOC") at the State Correctional Institution at Greene
("SCI-Greene"). Pending before the Court are Plaintiffs Motion for Partial Summary Judgment,
ECF No. 133; as well as Motions for Summary Judgment filed on behalf of Defendants Nurse V.
Grabowski, Corrections Officers Barnhart, Johnson-I

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Johnson-II, Kelly, Plumley, Schirra, and

Trout, ECF No. 142; and Defendant Dr. B. Jin, ECF No. 147. For the reasons that follow, the

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Plaintiff has sued two SCI-Greene Corrections Officers who share the Johnson surname. For ease ofreference,
and to reduce confusion as to the claims asserted against them, the officers are identified as "CO Johnson-I" and
"CO Johnson-II".

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Court grants the Motions for Summary Judgment filed on behalf of all Defendants, ECF Nos.
142 and 147, and denies the Plaintiff's Motion for Partial Summary Judgment, ECF No. 133.

I.

RELEVANT FACTUAL BACKGROUND
Plaintiff initiated this civil action against various DOC officials and employees at

SCI-Greene ("the DOC Defendants"), alleging that they violated his rights under the United
States Constitution by shackling him to the wall of a dry cell for twenty-six hours and by
confiscating his legal and personal property. Plaintiff also has named Byunghak Jin, MD ("Dr.
Jin") as a defendant, contending that Dr. Jin violated his constitutional rights when he performed
an anal probe on Plaintiff and by failing to treat him for a skin condition and facial and nose pain
that Plaintiff was experiencing. ECF No. 12.
Plaintiff's claims arise out of an incident that occurred in a Visitor Room at SCI-Greene
on September 21, 2014, during Plaintiff's visit with Edgar Williams. Defendants present video
evidence of the visit which plainly depicts the transfer of contraband from Mr. Williams to
Plaintiff, and Plaintiff's attempt to conceal items received in his rectal area. ECF No. 144-3.
Specifically, Mr. Williams is seen retrieving items from his pants pocket and placing them in
Plaintiff's hand. Id. Plaintiff casually slips the items from his left hand to his right hand and
then places his right arm through the sleeve of his prison jumpsuit to reach inside. With his
entire arm inside the jumpsuit, Plaintiff reaches his hand to his backside and manipulates his
hand in the vicinity of his buttocks. After several abrupt movements shifting his body from left
to right and back again, Plaintiff observes Defendant Corrections Officer ("CO") Plumley enter
the Visitor Room and approach from his right. Plaintiff pulls his hand out of the jumper and after
a few seconds, rises to a standing position and walks out of camera range with CO Plumley. Id.

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Based upon the incident reports and statements prepared later that day, it appears CO
Plumley escorted Plaintiff to a Visiting Strip Room with Defendants CO Johnson-I and CO
Barnhart so that any contraband concealed by Plaintiff could be retrieved. ECF No. 144-2. As
they walked past Defendant CO Schirra's desk, a black ball fell out of Plaintiff's pant leg. Id. at
17, 24-27. The ball was recovered by the search team, and Plaintiff was secured with handcuffs
and placed into a secure holding room. The ball was examined and testing revealed that it
contained 18.9 grams of marijuana. CO Johnson-I asked Plaintiff if he was in possession of any
other contraband, and Plaintiff denied having more. This response was belied immediately by
the presence of a second ball rolling out of Plaintiff's pant leg. Id. at 13. This ball was also
examined and tested, and was revealed to contain an additional 19. 7 grams of marijuana. At this
point, COs Plumley, Barnhart and Johnson-I escorted Plaintiff to an observation cell, and secured
Plaintiff under "dry cell procedures" with no access to a sink or toilet to prevent disposal of any
additional contraband. Id. at 21. Plaintiff was permitted to sit or lie on a bunk, with one hand
handcuffed to the wall. ECF No. 144-5 at 1. Pennsylvania State Police were contacted and
Mr. Williams was placed under arrest. ECF No. 144-2 at 9, 15
Plaintiff's medical records show that over the course of the next 26 hours, Plaintiff was
examined by medical staff, including Defendant Nurse Grabowski ("Nurse Grabowski"),
approximately every two hours. Nurse Grabowski switched Plaintiff's handcuff to his free hand
at each check to alleviate any discomfort. ECF No. 144-5 at 1-4. Once re-cuffed, Nurse
Grabowksi checked Plaintiff's restrained hand to ensure adequate circulation and pulse. She
also assisted Plaintiff with a bedside commode, and his urine was strained and monitored for
possible drug residue. The next morning, at approximately 8: 15 am, Plaintiff complained of pain
in his right wrist. Both hands were examined, no edema or discoloration was noted, and normal

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pulses were identified. Id. at 3. Plaintiff was examined by Dr. Jin at approximately 11 :00 a.m.,
and x-rays revealed a "few round ... opaque masses" of different sizes, and round shadows at
mid-pelvis. Because the x-ray was inconclusive as to the presence of additional contraband in
Plaintiffs rectum, Plaintiff was offered and consented to a rectal exam and enema. No
additional contraband was located, and Plaintiff was transferred to the Restricted Housing Unit
("RHU"). Id. at 4. On September 24, 2014, Dr. Jin received a second x-ray report indicating that
there was no evidence of irregularities in Plaintiffs pelvis. Id. Two days later, Plaintiff was
examined at sick call, complaining of pain and nerve damage to both hands, stating that it was
difficult to hold a pen. Id. Plaintiff was assessed as suffering with degenerative joints, wrist and
fingers, and provided Tylenol and an analgesic. Id.
Plaintiff was charged with misconduct related to the incident, and subsequently found
guilty of possession of a controlled substance; possession of contraband; lying to an employee;
and failure to report the presence of contraband. ECF No. 12-1 at 22-24. In reaching a decision,
the Hearing Examiner determined that the overwhelming evidence, including the Visitor Room
video and Defendant Plumley's written report, establish that Plaintiff was guilty of the offenses
and that he lied when he denied receiving contraband from Mr. Williams. 2 The Hearing
Examiner sanctioned Plaintiff with confinement to disciplinary custody in the Restricted
Housing Unit ("RHU") for a total of 270 days. Id.

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Plaintiff repeatedly argues that he was found not guilty of any offense related to the receipt of contraband in the
Visitor Room. See~ ECF No. 154 ~ 1. However, Plaintiff misrepresents or, at best, ignores the clear finding of
the Hearing Examiner: "HEX believes the written report of COi Plumley and the overwhelming evidence of the
video footage over Story's denial that Story was in possession of contraband, possession of a controlled substance,
did lie to an employee and did fail to report the presence of contraband .... " ECF No. 154-19. Accordingly,
Plaintiff was found guilty of four of the most serious charges related to possession of a controlled substance and
contraband. A lesser charge, No. 37, "Violating of visiting regulations" was dismissed without prejudice, as was a
similarly redundant charge of violating the Pennsylvania Criminal Code. Id.

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In the course of Plaintiffs confinement in the RHU, his property was removed from his
former cell and placed into storage. Plaintiff alleges a state law claim for conversion arising out
of the failure of Defendants Trout and Johnson-II to return or account for some of the property
displaced during Plaintiffs move to the RHU, including legal materials, religious and personal
property.
Through this action, Plaintiff also seeks recovery of damages against Defendant Dr. Jin
for the alleged failure to treat facial pain experienced by Plaintiff beginning in December 2014.
Plaintiff alleges that suffered an infectious oral abscess, which ultimately required Plaintiff to
undergo root canal surgery. ECF No. 71at4-7. Plaintiff alleges that over the next ten months,
Dr. Jin refused to provide medical care despite Plaintiffs suffering and pain. Plaintiff states that
once he was released from the RHU, a second physician immediately referred Plaintiff to a
dentist and Plaintiff was able to receive necessary treatment. Id.
Defendants have produced Plaintiffs medical records which, contrary to Plaintiffs
assertions, show that Dr. Jin examined Plaintiff on December 16, 2014, for a "sinus problem"
and determined that Plaintiff had tenderness in his upper right lip area. An oral examination
found additional tenderness, but no swelling of gums. Dr. Jin referred Plaintiff to the dentist for
an evaluation. ECF No. 150-2 at 2-3. Plaintiffs dental records have also been provided, and
confirm that he was referred for a dental examination after his medical examination. On
December 19, 2014, Plaintiff was provided amoxicillin pending a full dental exam on the next
available workday. Id. at 6. Robert Krak, D.M.D., performed a dental exam on December 22,
2014, and identified an early abscess. Plaintiffs antibiotics were continued and he was
scheduled for additional treatment "in next few weeks." Id. Plaintiff was seen next on January
20, 2015, and again on March 13, 2015. He refused a root canal procedure for a chronic abscess

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on June 2, 2015, but underwent the procedure on August 26, 2015, when he complained of
persistent pain. Plaintiff received follow-up dental care in September 2015. Id. at 4-6.
Plaintiff contends these medical and dental records have been fabricated, ECF No. 156,
but presents no evidence in support of his assertion, beyond his own speculation based upon the
reverse chronological order of medical and dental progress notes. Id. at 2.

II.

PROCEDURALBACKGROUND
Following the adjudication of Motions to Dismiss filed by the DOC Defendants and Dr.

Jin as to Plaintiffs original Complaint, ECF Nos. 49 and 57, all of Plaintiffs claims were
dismissed with the exception of his Eighth Amendment claim brought at Count II against
Defendants Kelly, Johnson-I, Barnhart, Schirra, Plumley and Grabowski (as Nurse I) stemming
from being shackled to the wall of a dry cell and his state law claim for conversion brought at
Count VII against Defendants Trout and Johnson-11. 3 ECF No. 70. Plaintiff was granted leave
to file an Amended Complaint with respect to two claims: his Eighth Amendment deliberate
indifference claim brought against Dr. Jin at Count IV of the Complaint and his First
Amendment access to the court claims brought at Count VI against Defendants Trout and
Barnhart. Plaintiff filed an Amended Complaint on December 9, 2016. ECF No. 71.
The remaining DOC Defendants and Dr. Jin filed renewed Motions to Dismiss, ECF Nos.
72 and 87, and upon disposition by the Court, ECF No. 115, the only claims remaining for
adjudication are Plaintiffs Eighth Amendment cruel and unusual punishment claims brought at
Count II of the Complaint against Defendants Kelly, Johnson-I, Barnhart, Grabowski, Schirra
and Plumley relative to Plaintiff being handcuffed to a wall for twenty-six hours; Plaintiffs

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In addition, Defendants DOC officials John E. Wetzel, Dorina Varner, Kerri Moore, Robin M. Lewis, L.S. Kerns
Barr, Robert Gilmore, Tracey Shawley, Irma Vihlidal, Captain Armstrong, Captain Mitchell, Lt. Silbaugh, Lt.
Howells, Lt. A.J. Morris, and Lt. Grego were dismissed from the action. ECF No. 70.

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Eighth Amendment deliberate indifference claim brought at Count IV against Dr. Jin relative to
his alleged failure to treat Plaintiffs facial pain; and Plaintiffs state law claim for conversion
brought at Count VII against Defendants Trout and Johnson-II.
Discovery is complete and the parties have filed Motions for Summary Judgment, briefs
and exhibits in support and opposition thereto. ECF Nos. 133, 134, 139, 140, 142, 143, 144,
145, 147, 148, 149, 150, 152, 153, 154, 155, 156, 157, 158. As more fully explained below, the
evidence adduced to date establishes that there are no genuine issues of material fact and
Defendants are entitled to the entry of judgment in their favor as a matter of law.

II.

STANDARD OF REVIEW
Summary judgment may only be granted where the moving party shows that there is no

genuine dispute as to any material fact, and that judgment as a matter oflaw is warranted. Fed.
R. Civ. P. 56(a). The burden on a motion for summary judgment is initially on the moving party
to demonstrate that the evidence contained in the record does not create a genuine issue of
material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004); Aman
v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir. 1996). A dispute is "genuine" ifthe
evidence is such that a reasonable trier of fact could render a finding in favor of the nonmoving
party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir. 2005). Where the nonmoving party will
bear the burden of proof at trial, the moving party may meet its burden by showing that the
admissible evidence contained in the record would be insufficient to carry the nonmoving party's
burden of proof or that there is an absence of evidence to support the nonmoving party's case.
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Marten v. Godwin, 499 F.3d 290, 295 (3d
Cir. 2007).

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Once the movant meets its burden, the burden shifts to the nonmoving party to "set forth
specific facts showing that there is a genuine issue for trial" and to present sufficient evidence

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demonstrating that there is indeed a genuine and material factual dispute for a jury to decide.
Fed. R. Civ. P. 56(e); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986);
Celotex, 477 U.S. at 323-25. The nonmoving party cannot defeat a well-supported motion for
summary judgment by simply reasserting unsupported factual allegations contained in pleadings.
Williams v. Borough of West Chester, 891F.2d458, 460 (3d Cir. 1989).
In ruling on a motion for summary judgment, the court's function is not to weigh the
evidence, make credibility determinations or to determine the truth of the matter, but only to
determine whether the evidence of record is such that a reasonable jury could return a verdict for
the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51 (2000)
(citing decisions); Anderson v. Liberty Lobby, 477 U.S. at 248-49; Simpson v. Kay Jewelers,
Div. of Sterling, Inc., 142 F.3d 639, 643 n. 3 (3d Cir. 1998). In evaluating the evidence, the court
must interpret the facts in the light most favorable to the nonmoving party, drawing all
reasonable inferences in his or her favor. Watson v. Abington Twp., 478 F.3d 144, 147 (3d Cir.
2007). Inferences based upon speculation or conjecture, however, do not create a material factual
dispute sufficient to defeat a motion for summary judgment. Robertson v. Allied Signal, Inc.,
914 F.2d 360, 382 n.12 (3d Cir. 1990).
As indicated, each party has moved for the entry of judgment as a matter of law.
However, the standards under which a court grants or denies each party summary judgment do
not change by virtue of cross-motions being presented. Home for Crippled Children v. Prudential
Insurance Co., 590 F. Supp. 1490, 1495 (W.D. Pa. 1984). "On cross-motions for summary
judgment, the law in our Circuit is clear-the Court considers each Motion on its own merits,

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tested against the standards of[Federal Rule of Civil Procedure 56]." U.S. Equal Employment
Opportunity Comm'n v. Bob Evans Farms, LLC, _F. Supp.3d_, 2017 WL 3531562, at *2
(W.D. Pa. Aug. 17, 2017) (internal citations omitted).
The Court is also mindful of Plaintiff's pro se status. Pro se pleadings and filings,
"however inartfully pleaded," must be held to "less stringent standards than formal pleadings
drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably
read pleadings to state a valid claim on which the litigant could prevail, it should do so despite
failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence
construction, or litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454

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U.S. 364 (1982); United States ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969)
(A petition prepared by a prisoner ... may be inartfully drawn and should be read "with a measure
of tolerance"); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our
liberal pleading rules, a district court should construe all allegations in a complaint in favor of
the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds). See,
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Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed. R. Civ. P. 12(b)(6)

standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
When considering a motion for summary judgment, however, the traditional flexibility
toward pro se pleadings does not require the Court to indulge evidentiary deficiencies. See Mala
v. Crown Bay Marina, Inc., 704 F.3d 239, 249 (3d Cir. 2013), citing Brooks v. Kyler, 204 F.3d
102, 108 n. 7 (3d Cir. 2000). Accordingly, because Plaintiff is a pro se litigant, this Court will
consider the facts and make inferences where it is appropriate.

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III.

DISCUSSION
A.

Eighth Amendment Excessive Force Claim

Plaintiff brings an Eighth Amendment claim against Defendants Kelly, Johnson-I,
Barnhart, Schirra, Plumley and Grabowski, relative to Plaintiff being handcuffed to a wall for
twenty-six hours. The Eighth Amendment prohibits prison officials from unnecessarily and
wantonly inflicting pain in a manner that offends contemporary standards of decency. See
Hudson v. McMillian, 503 U.S. 1, 8 (1992). '"Application of force by prison guards exceeding
that which is reasonable and necessary under the circumstances' may be actionable." Young v.
Martin, 801F.3d172, 180 (3d Cir. 2015) (alterations omitted) (quoting Davidson v. O'Lone, 752

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F.2d 817, 827 (3d Cir. 1984)). When assessing claims to determine whether a correctional
officer has used excessive force in violation of the Eighth Amendment, courts look to several
factors including: "( 1) 'the need for the application of force;' (2) 'the relationship between the
need and the amount of force that was used;' (3) 'the extent of injury inflicted;' (4) 'the extent of
the threat to the safety of staff and inmates, as reasonably perceived by responsible officials on
the basis of the facts known to them;' and (5) 'any efforts made to temper the severity of a
forceful response."' Brooks v. Kyler, 204 F.3d at 106, quoting Whitley v. Albers, 475 U.S. 312,
321 (1986). The central question is "whether force was applied in a good-faith effort to maintain
or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503
U.S. at 7. Moreover, as correctly noted by Plaintiff "a showing of 'significant' or 'serious' injury
is not necessary to make an Eighth Amendment claim." Brooks, 204 F.3d at 107, quoting
Hudson, 503 U.S. at 8.
The undisputed evidence presented here reveals that following the video recorded
exchange of contraband in the Visitor Room, Plaintiffs placement of the contraband in his rectal

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area, and two black balls of marijuana rolling out of his pant leg, the Defendants placed Plaintiff
in a dry cell, with one hand restrained to the wall adjacent to his bunk. Plaintiff was restrained
under observation for approximately 26 hours to ensure his rectum and colon were cleared of any

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additional contraband and, if any passed, that it was taken out of Plaintiffs possession before he
was released to the RHU. ECF No. 133-3 at 2. During this period, he was checked every two
hours by medical personnel and during these checks, Plaintiffs restrained hand was switched to
permit exercise and rest. In addition, medical records indicate that staff ensured adequate
circulation, pulse and movement, and no edema or other injuries were noted.
Under these circumstances, a reasonable jury could not find that the Defendants used
force "maliciously and sadistically for the very purpose of causing harm." Young, 801 F.3d at
180 (quoting Whitley v. Albers, 475 U.S. at 320-21). Moreover, while Plaintiff has made
various allegations regarding resulting harm, he has not produced evidence of any so as to
survive summary judgment. See, ECF No. 152, 153 at 3. Rather, Plaintiff complained two days
after his release of numbness and pain, but was provided Tylenol. No further complaints are

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noted. Accordingly, the Motion for Summary Judgment as to Plaintiffs Eighth Amendment
excessive force claim, filed on behalf of Defendants Kelly, Johnson-I, Barnhart, Schirra, Plumley
and Grabowski is granted.

B.

Plaintifrs Eighth Amendment Medical Care Claim

Plaintiff also claims that Dr. Jin was deliberately indifferent to his serious medical needs
in violation of his Eighth Amendment rights. Dr. Jin moves for summary judgment on the
grounds that Plaintiff failed to exhaust available administrative remedies before bringing suit
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against him and, further, because Plaintiff cannot show that Dr. Jin was deliberately indifferent
to his serious medical needs. 4
The Prison Litigation Reform Act ("PLRA"), requires a prisoner filing a Section 1983
action to exhaust all administrative remedies before filing a claim in federal court. 42 U.S.C. §
1997(e)(a). See Spruill v. Gillis, 372 F.3d 218, 228 (3d Cir. 2004). See also Nyhuis v. Reno, 204
F.3d 65, 73, (3d Cir. 2000) ("it is beyond the power of the court to excuse compliance with the
exhaustion requirement"). In order to properly exhaust his or her administrative remedies, a
plaintiff must be in "compliance with an agency's deadlines and other critical procedural rules."
Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). The DOC's Grievance System Policy, DC-ADM
804, sets out a three-step grievance and appeals process. First, an inmate is required to legibly set
forth all facts and identify all persons relevant to his claim in a grievance which will then be
subject to "initial review." Spruill v. Gillis, 372 F.3d at 232, 233. Second, after the initial review
by a grievance officer, the inmate must file an appeal to the Facility Administrator for a second
level ofreview. Id. at 232. Finally, the inmate is required to file an appeal to the Secretary's
Office of Inmate Grievances and Appeals ("SOI GA"). Id.
The United States Court of Appeals for the Third Circuit has found that the PLRA's
exhaustion requirement includes a procedural default component which requires more than

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Dr. Jin presents additional but unpersuasive arguments in support of summary judgment. First, Dr. Jin contends
that Plaintiff has not presented sufficient evidence that he suffered a "serious medical condition" as required to
present an Eighth Amendment claim. Simply, a tooth abscess accompanied by severe pain as alleged presents a
"serious medical condition." See~ Consonery v. Pelzer, 2013 WL 593982, at *5 (W.D. Pa. Feb. 15, 2013), affd
in part, dismissed in part, 558 F. App'x 271 (3d Cir. 2014). Second, Dr. Jin contends that in the absence of expert
testimony or evidence detailing the alleged inadequacy of treatment, Plaintiff cannot maintain a claim. However,
Plaintiffs claim against Dr. Jin is with regard to a complete lack of medical treatment, not the adequacy of treatment
actually provided. ECF No. 71 at 4, I 0, 15, 24, 25 ("Plaintiff avers that if Discovery was allowed and conducted it
would clearly show defendant Jin consistent denial and refusal of medical assistance when Plaintiff was clearly
suffering and in pain."). Where "common knowledge" makes Plaintiffs claim apparent, expert testimony is not
required, especially where Plaintiff is not challenging the proper course of treatment, but whether treatment was
provided at all. Natale v. Camden County Correctional Facility, 318 F.3d 575, 580 (3d Cir. 2003).

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"simple" exhaustion; it requires "proper" exhaustion. Id. at 228, 230. Thus, where the inmate
fails to specifically name the individual in the grievance or where the grievance is untimely or

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Woodford v. Ngo, 548 U.S. at 90-91 (exhaustion of administrative remedies under the PLRA

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requires "using all steps that the agency holds out," and "demands compliance with an agency's

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otherwise defective, claims against an accused individual are procedurally defaulted. Id. at 234;

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deadlines and other critical procedural rules") (internal quotations and citations omitted).
Dr. Jin presents the Verification of Keri Moore, an employee assigned to the SOI GA,
ECF No. 150-3, who states that she reviews all grievance appeals by inmates to the Secretary's
Office, and maintains records of all grievances filed by inmates at SCI-Greene. In this capacity,
she did not receive or review any grievances appeals from Plaintiff regarding Dr. Jin or his

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alleged failure to treat facial pain. Accordingly, Dr. Jin contends that Plaintiff has procedurally

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defaulted on his claim and so is precluded from obtaining review or relief in this Court pursuant

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to the PLRA.
In response, Plaintiff points to an initial grievance submitted to the SCI-Greene grievance
coordinator, which complains that he was forced to sign a cash slip to pay for an examination by
Dr. Jin, despite not receiving treatment for his facial pain. ECF No. 133-4 at 3. 5 Plaintiff states

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A legible copy of Exhibit 4c was submitted to the Court in the form of an original golden rod "Inmate Copy." In
this document, Plaintiff states:
On 12-16-14 I saw Dr. Jin concerning continuing and extreme pain that I'm having on the side of
my nose around the nostril area and on the right side. This is the second time I've seen Dr. Jin
concerning a medical issue in the past two (2) months and on both these occasions I was asked to
sign the medical cash slip for money to be taken off my account and on both occasions Dr. Jin
didn't do anything for me yet on both occasions he extracted money from my account. I'm
literally being refused medical attention. I don't know if Dr. Jins actions is in retaliation for a
grievance I filed concerning some vile and painful things he done to me in medical back in
September and is currently under investigation or what. What I do know is that he consistently is
refusing me medical treatment and is consistently taking money off my account. I seriously need
medical treatment for my conditions and I want my money back that Dr. Jin keep taking.

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that he did not receive a response to his initial grievance and, citing Robinson v. Superintendent
Rockview SCI, 831 F.3d 148, 155 (3d Cir. 2016), contends that in the absence of a response, he
is excused from filing an appeal. ECF No. 156 at 3. In Robinson, the plaintiff "pursued his claim
correctly at every step," including submitting his grievance to the proper prison staff member
within the filing deadline, and submitting multiple follow-up requests after the institution's

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failure to respond. Id. at 153-54. The United States Court of Appeals for the Third Circuit held
that under these circumstances, the prisoner's failure to timely appeal did not preclude judicial
review, because the grievance process was rendered unavailable to him. Here, in contrast,
Plaintiff does not present any evidence that he pursued a response to his grievance after it was
submitted through any available inmate request process or through a follow-up grievance.
Further, Plaintiff does not account for or explain his grievance record as supplied by the DOC
Defendants, which shows that a grievance regarding health care was submitted on December 17,
2014, denied on January 7, 2015, and no appeal was taken, but, with regard to other grievances,
Plaintiff received timely responses, and timely appealed through all required levels of review.
ECF No. 144-9. The evidence of Plaintiffs appeal of grievances demonstrates his knowledge of
the prison grievance process through each required step.
Certainly, failure to exhaust administrative remedies is an affirmative defense and, hence,
the burden lies with party asserting it. Kamiel v. Ogg. Cordes, Murphy & Ignelzi, LLP, 297 F.
App. 192, 193 (3d Cir. 2008). In this instance, however, the evidence adduced establishes that a
grievance procedure was available to Plaintiff, but he failed to comply with it. The Court has no
discretion to excuse his failure under these circumstances.
Absent evidence of Plaintiffs procedural default, Plaintiffs claim also fails on the
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merits. The United States Supreme Court has held that "deliberate indifference to serious

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medical needs of prisoners constitutes the 'unnecessary and wanton infliction of pain' ...
proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976). "In order to
state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to
evidence deliberate indifference to serious medical needs." Id. at 106. Establishing a claim
requires proving both an objective component -

"a serious medical need"- and a subjective

component - "acts or omissions by prison officials that indicate deliberate indifference to that
need." Natale v. Camden Cty. Corr. Facility, 318 F.3d at 582. A plaintiff may show deliberate
indifference by demonstrating that "there was objective evidence that [the] plaintiff had serious
need for medical care ... and prison officials ignored that evidence" or where "necessary medical
treatment is delayed for non-medical reasons." Id. (internal quotation marks omitted).
Plaintiffs only evidence in support of his deliberate indifference claim against Dr. Jin is
his assertion that he received no dental care during the ten months he was confined in the RHU.
However, Dr. Jin has produced not only Plaintiff's medical records, but also Plaintiffs dental
records, maintained by a separate provider. These records establish that Dr. Jin examined
Plaintiff for facial pain on December 16, 201 7, and referred him for a dental exam, which
occurred on December 22, 2014. In the interim, on December 17, 2014, the dental provider
acknowledged the referral and prescribed antibiotics to treat a possible infection. ECF No. 150-2
at 2-3. Plaintiff was seen again by the dentist in January, March and June of 2015, at which time
Plaintiff refused a recommended root canal procedure to treat his recurring abscess. Id. at 4-6.
Plaintiff consented to the procedure in late August 2015, and underwent treatment in August and
September 2015. Id. With no evidence to the contrary, and no basis to ignore the plain import of
Plaintiffs dental records, Plaintiff cannot establish that Dr. Jin acted with deliberate indifference
to his medical needs. Accordingly, taking the evidence presented in a light most favorable to

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Plaintiff, no reasonable jury could find in his favor, and the Motion for Summary Judgment filed
by Dr. Jin is granted.
C. State Law Conversion Claim
Plaintiff's remaining state law claim seeks recovery of damages for property that Plaintiff
claims was taken into custody by Defendants Trout and Johnson-II, but never returned. While
the Court is vested with supplemental jurisdiction over Plaintiff's state law claim, a district court
may decline to exercise supplemental jurisdiction if "the district court has dismissed all claims
over which it has original jurisdiction." 28 U.S.C. § 1367(c)(3). Since the claims that form the
basis of this Court's jurisdiction under 42 U.S.C. § 1983 will be dismissed through the entry of
summary judgment, the Court declines to exercise supplemental jurisdiction and will dismiss
Plaintiff's state law conversion claim without prejudice.
IV.

CONCLUSION
For the foregoing reasons, the Motions for Summary Judgment filed on behalf of

Defendants Kelly, Johnson-I, Barnhart, Schirra, Plumley, Grabowski, and Dr. Jin, ECF Nos. 142
and 147, are properly granted and the Motion for Summary Judgment filed on behalf of Plaintiff,
ECF No. 133, is denied. Accordingly, the following Order is entered:

~
AND NOW, this

ORDER

1/1. day of February, 2018, in accordance with the foregoing

Memorandum Opinion, it is hereby ORDERED as follows:
1. The Motion for Summary Judgment filed on behalf of Defendants Kelly, Johnson-I,
Barnhart, Schirra, Plumley and Grabowski, ECF No. 142, is GRANTED as to Plaintiff's
Eighth Amendment claim regarding his confinement in a dry cell.

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2. The Motion for Summary Judgment filed on behalf of Defendant Dr. Jin, ECF No. 147,
as to Plaintiffs Eighth Amendment medical deliberate indifference claim is GRANTED.
3. Plaintiffs Motion for Summary Judgment, ECF No. 133, is DENIED
4. Under 28 U.S.C. § 1367(c)(3), the Court declines to exercise supplemental jurisdiction
over Plaintiffs remaining state law negligence claims against Defendants Trout and
Johnson-II, and said claims are dismissed without prejudice.
5. The Clerk of Court is directed to mark this CASE CLOSED.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, if the Plaintiff wishes to appeal from this Order he or she must do so within
thirty (30) days by filing a notice of appeal as provided in Rule 3, Fed. R. App. P., with the Clerk
of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219.

cc:

All counsel of record via CM/ECF
Stanton Story
AP-3330
SCI-Greene
175 Progress Drive
Waynesburg, PA 15370

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