WASHINGTON v. GILMORE et al
ORDER notifying parties that the Motion to Dismiss 92 filed by Defendants Gindin and Pillia will be treated as a Motion for Summary Judgment on the issue of exhaustion of Plaintiff's administrative remedies. No later than June 8, 2017, Defenda nts Gindin and Pillia shall provide Plaintiff with all grievances and appeals or other similar documents in its possession concerning the alleged incident(s). Plaintiff may not submit requests for discovery without leave of court. Plaintiff shall have until June 22, 2017 to respond to Defendants Gindin and Pillia's Motion. Signed by Magistrate Judge Lisa Pupo Lenihan on May 25, 2017. (kcc)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEROME JUNIOR WASHINGTON,
MRS. PILLIA, et al.,
Civil Action No. 16-1714
Magistrate Judge Lisa Pupo Lenihan
Defendants Gindin and Pillia have filed a Motion to Dismiss arguing, inter alia, that
Plaintiff failed to exhaust his administrative remedies as required by the Prison Litigation Reform
Act (“PLRA”), 42 U.S.C. § 1997e(a).
THE PARTIES ARE HEREBY NOTIFIED THAT THE PENDING MOTION TO
DISMISS WILL BE TREATED AS A MOTION FOR SUMMARY JUDGMENT UNDER
FEDERAL RULE OF CIVIL PROCEDURE 56 WITH RESPECT TO THE ISSUE OF
PLAINTIFF’S EXHAUSTION OF ADMINISTRATIVE REMEDIES. See Renchenski v.
Williams, 622 F.3d 315 (3d Cir. 2010). Plaintiff is advised that in treating the motion to dismiss
as a motion for summary judgment on this issue, the motion will be evaluated under the standard
set forth in Rule 56 of the Federal Rules of Civil Procedure. Plaintiff is on notice that failure to
respond to the pending motion may result in the entry of judgment against him.
AND NOW, this 25th day of May, 2017:
IT IS HEREBY ORDERED that no formal discovery, such as interrogatories, requests
for production or requests for admission will be allowed in this case without leave of court.
However, no later than June 8, 2017, Defendants Gindin and Pillia shall provide Plaintiff with
all grievances and appeals or other similar documents in its possession concerning the alleged
incident or incidents at issue in the Complaint. Plaintiff may not submit requests for discovery
to Defendants without leave of court.
IT IS FURTHER ORDERED that Plaintiff shall have until June 22, 2017, to respond
to Defendants’ motion.
IT IS FURTHER ORDERED that no extensions will be granted without just cause.
IT IS FURTHER ORDERED that Plaintiff is advised that his response to the motion
may include opposing or counteraffidavits (executed by the plaintiff or other persons) which have
either been sworn to under oath (notarized) or include at the end of the document, immediately
before Plaintiff’s signature, the following in accordance with 28 U.S.C. § 1746: “I declare under
penalty of perjury that the foregoing is true and correct.
Executed this __ day of ____ , 2013.”
IT IS FURTHER ORDERED that all affidavits, opposing or counteraffidavits must be
based upon the personal knowledge of the person executing the affidavit; that no affidavit,
amended complaint, pretrial narrative or other document containing Plaintiff’s allegations will be
considered when determining the motion for summary judgment unless it has been notarized
before a notary public or unless it contains a declaration under penalty of perjury as set forth
above; that Plaintiff may attach to his affidavits copies of any depositions, answers to
interrogatories, institutional records or other documents they wish this court to consider when
addressing the summary judgment motion; and that the motion for summary judgment will be
evaluated under the procedure standard set forth in Rule 56 of the Federal Rules of Civil
Procedure; and that failure to respond may result in entry of judgment against him.
IT IS FURTHER ORDERED that Plaintiff shall serve on counsel for Defendant a copy
of each pleading or other document submitted for consideration by the court and shall include
with each document filed a certificate stating the date a true and correct copy of the pleading or
document was mailed to each attorney. Any pleading or other document received by a district
judge or magistrate judge which has not been filed with the Clerk or which fails to include a
certificate of service shall be returned to Plaintiff by the Clerk.
IT IS FURTHER ORDERED that should Plaintiff fail to comply with this order, the
motion will be decided without the benefit of Plaintiff’s response and the Court will consider
dismissal of this action for failure to prosecute.
IT IS FURTHER ORDERED that, in accordance with the Magistrate Judges Act, 28
U.S.C. § 636(b)(1)(A), and the Local Rules of Court, the parties are allowed fourteen (14) days
from the date of issuance of this Order to file an appeal to the District Judge, which includes the
basis for objection to this Order. Any party opposing the appeal shall have fourteen (14) days
from the date of service of the notice of appeal to respond thereto.
Failure to file a timely notice
of appeal will constitute a waiver of any appellate rights.
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge
Cc: Jerome Junior Washington
175 Progress Drive
Waynesburg, PA 15370
Counsel of record
(Via CM/ECF electronic mail)
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