LYONS v. ICKES et al

Filing 77

MEMORANDUM ORDER - it is hereby Ordered that the Motion for Summary Judgment filed by Defendants (ECF No. 57 ) is GRANTED as to all federal claims on the ground that Plaintiff did not properly exhaust his administrative remedies pursuant to the PLRA . It is Ordered that Plaintiff's state law negligence claims are DISMISSED without prejudice forthwith; It is further Ordered that the Report and Recommendation (ECF No. 73 ) dated 11/19/2013, is ADOPTED as the Opinion of the Court. It is fur ther Ordered that the Clerk of Court mark this case CLOSED. And it is further Ordered that pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure, Plaintiff has 30 days to file a notice of appeal as provided by Rule 3 of the Federal Rules of Appellate Procedure, and as more fully stated in said Memorandum Order. Signed by Judge Kim R. Gibson on 1/16/2014. (dlg)

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

DAVID LYONS,
Plaintiff,
V.

CAROL ICKES; et al,
Defendants.

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Civil Action No.3: 12-cv-00182
United States Judge Kim R. Gibson
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM ORDER

The above captioned case was initiated by the filing of a motion to proceed in forma
pauperis (ECF No. 1) on August 29, 2012, and was referred to a United States Magistrate Judge

for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l),
and the local rules of court.
On November 19, 2013, the Magistrate Judge filed a Report and Recommendation (ECF
No. 73) recommending that the Motion for Summary Judgment filed by Defendants (ECF No.
57) be granted as to all federal claims on the ground that Plaintiff did not properly exhaust his
administrative remedies pursuant to the PLRA. Plaintiff, through counsel, filed Objections to the
Report and Recommendation on December 4, 2013 (ECF No. 74).

The Court finds that

Plaintiffs Objections do not undermine the recommendation ofthe Magistrate Judge.
The DOC's grievance policy is set forth in DC-ADM- 804. See Mack v. Klopotoski, --F. App'x ---,2013 WL 5070524 (3d Cir. 2013); Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003).
The record before the Court demonstrates that Plaintiff received an initial response to his
grievance. While Plaintiff may have made verbal requests to prison staff, and apparently wrote
the PRC about obtaining an appeal, the undeniable fact remains that Plaintiff did not grieve the
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initial response to the Facility Manager, or notify the Facility Manager of the reason for the delay
as required in Step 2 ofthe DOC's grievance process. Accordingly, the Court finds that
Defendants have affirmatively demonstrated that Plaintiff did not properly comply with the
requirements of DC-ADM 804 as he failed to appeal the denial of his grievance to the second or
third level of review. Likewise, the Court finds that Plaintiff has not demonstrated that prison
officials interfered with his ability to exhaust his available administrative remedies or that the
DOC's administrative remedy process was unknown or unavailable to him.
After de novo review of the pleadings and documents in the case, together with the
Report and Recommendation, and the Objections thereto, the following Order is entered:

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AND NOW, this ' ' day of January, 2014;

IT IS HEREBY ORDERED that the Motion for Summary Judgment filed by
Defendants (ECF No. 57) is GRANTED as to all federal claims on the ground that Plaintiff did
not properly exhaust his administrative remedies pursuant to the PLRA.
IT IS ORDERED that Plaintiffs state law negligence claims are DISMISSED without
prejudice forthwith;
IT IS FURTHER ORDERED that the Report and Recommendation (ECF. No. 73)
dated November 19,2013, is ADOPTED as the Opinion ofthe Court.
IT IS FURTHER ORDERED that the Clerk of Court mark this case CLOSED.

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AND IT IS FURTHER ORDERED that pursuant to Rule 4(a)(l) ofthe Federal Rules
of Appellate Procedure, Plaintiff has thirty (30) days to file a notice of appeal as provided by
Rule 3 of the Federal Rules of Appellate Procedure.

Kim R. Gibson
United States District Judge
cc:

Carlyle J. Engel, Esquire
Swensen, Perer & Kontos
Email: [e-mail]
Yana L. Chudnovsky
Office of Attorney General
Email: ychudnovsky@attomeygeneral. gov

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