IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

RA’OOF MUIR : CIVIL ACTION

:

V. :

:

CITY OF PHILADELPHIA, ET AL. :

:

: NO. 02-CV-2779

__________________________________________

DEFENDANTS’, TIMOTHY WILSON, ROLANDO ESTEVEZ, AND ESTEBAN

PADILLA, MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY

JUDGMENT

I. Background

Defendants, Timothy Wilson, Rolando Estevez, and Esteban Padilla, incorporate by

reference the facts and arguments raised in Defendant City of Philadelphia’s motion for

summary judgment that was filed January 7, 2003. In sum, Plaintiff alleges that Defendants

applied excessive force to Plaintiff while he was a prisoner in the Philadelphia Prison System.

II. Summary Judgment Standard

The court shall render summary judgment “if the pleadings, 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 a judgment as a

matter of law.” F.R.Civ.P. 56(c). 

In reviewing a motion for summary judgment, the court must view all facts in the light

most favorable to the party opposing the motion. Betz Laboratories Inc. v. Hines, 647 F.2d 402

(3rd Cir. 1981). If there is a genuine issue as to any material fact, summary judgment must be

denied. Fed. R. Civ. P. 56(c). A fact is material if the fact might affect the outcome of the

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 1 of 8
lawsuit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.

2505 (1986). All inferences must be drawn and all doubts resolved in favor of the non-moving

party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy, 762 F.2d 338,

341 (3rd Cir. 1985), cert. denied, 474 U.S. 1010 (1985). Summary judgment will not lie if the

dispute about a material fact is “genuine” that is, “if a reasonable jury could return a verdict for

the non-moving party.” Id.

On motions for summary judgment, the moving party bears the initial burden of

identifying for the court those portions of the record that it believes demonstrate the absence of

material fact disputes. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary

judgment, the non-moving party must respond with facts of record that contradict the facts

identified by the movant, and may not rest on mere denials. Id. at 321 n.3 (quoting F.R.Civ.P.

56(e)). See also First National Bank of Pennsylvania v. Lincoln National Life Insurance Co.,

824 F.2d 277, 282 (3rd Cir. 1987). In a case where the non-moving party is the plaintiff and

therefore bears the burden of proof, it must, by affidavits or by the depositions and admissions on

file, “make a showing sufficient to establish the existence of [every] element essential to that

party’s case.” Celotex Corp. v. Catrett, 477 U.S. at 322-4; Anderson, 106 S.Ct. 2514; Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986); F.R.Civ.P. 56(e).

Although the movant in a motion for summary judgment has the initial burden of

demonstrating the absence of genuine issues of material fact, the non-movant must then establish

the existence of each element on which it bears the burden of proof. J.F. Feeser, Inc. v. Serv-APortion, Inc., 909 F.2d. 1524, 1531 (3rd Cir. 1990) (citing Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986)), cert. denied, 499 U.S. 921 (1991). The non-moving party may not rest on his

pleading, but must come forward with evidence from which a reasonable jury could return a

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 2 of 8
verdict in his favor. Id. (See Anderson, 479 U.S. at 248; Williams v. Borough of West Chester,

891 F. 2d 458, 460 (3rd Cir. 1989); Woods v. Bentsen, 889 F. Supp. 179, 184 (E.D. Pa. 1995).

III. ARGUMENT

A. Plaintiff Failed To Complied With The Requirement Of The Prison Litigation

Reform Act And Therefore The Court Should Dismiss the Matter.

Before a person can bring a suit alleging that correctional officers violated his

constitutional violations while he was incarcerated, the person must exhaust the available

administrative remedies. The Prison Litigation Reform Act (PLRA) requires a person to exhaust

administrative remedies before he brings an action in federal court with respect to prison or jail

conditions. 42 U.S.C. §1997(e) (2001). A failure to do deprives the court of subject matter

jurisdiction. Id. See also Nyhuis v. Reno, 204 F.3d 65 (3rd Cir. 1998).

An action pleading that correctional officers used excessive force is an action pleading

prison or jail conditions. Porter v. Nussle, 122 S.Ct. 983, 990 (2002). See Booth v. Churner,

2000 U.S. App. LEXIS 3486, *3 (3rd Cir, March 7, 2000.). An action alleging use of excessive

use of force in violation of the Eighth or Fourteenth Amendments is considered an action that

challenges prison or jail conditions. Id. The internal grievance system of a prison or jail is an

administrative remedy. Nyhuis v. Reno, 204 F.3d 65 (3rd Cir. 1998); Booth v. Churner, 2000

U.S. App. LEXIS 3486 (3rd Cir, March 7, 2000.) The Philadelphia Prison System has a

grievance system. (Exhibit A – Affidavit of Harriet Spencer, Executive Assistant to the Prisons

Commissioner.)

In the instant action, Plaintiff never filed a grievance regarding the alleged excessive

force by any correctional officer. (Exhibit A – Affidavit of Harriet Spencer, Executive Assistant

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 3 of 8
to the Prisons Commissioner.) Therefore, Plaintiff’s claims should be dismissed because

Plaintiff has failed to comply with the requirement of the PLRA.

IV. Conclusion

Consequently, summary judgment should be granted as a matter of law in favor of the

Defendants Timothy Wilson, Rolando Estevez, and Esteban Padilla. For the foregoing reasons,

the Defendants aver that the plaintiff cannot, as a matter of law, establish the existence of

genuine issues of material facts with respect to the federal claims alleged against the Defendants

in the Plaintiff’s Complaint.

WHEREFORE, Defendants are entitled to judgment in its favor as a matter of law and

request that this Honorable Court grants Defendant’s Motion for Summary Judgment.

Respectfully Submitted,

BY:____________________

JAMES M. DUCKWORTH

Assistant City Solicitor

1515 ARCH STREET, 14TH FLOOR

PHILADELPHIA, PA 19102

DATE: 

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 4 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

RA’OOF MUIR : CIVIL ACTION

:

V. :

:

CITY OF PHILADELPHIA, ET AL. :

:

: NO. 02-CV-2779

__________________________________________

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

PURSUANT TO F.R.Civ.P. 56(b) and (c)

Defendants, Timothy Wilson, Rolando Estevez, and Esteban Padilla, through the

undersigned attorney, moves this Honorable Court for the entry of Summary Judgment in their

favor pursuant to Rule 56(b) and (c) of the Federal Rules of Civil Procedure. In support of its

motion, Defendants refer the Court to its Memorandum of Law, dated January 8, 2003, and

submitted herein.

WHEREFORE, Defendants are entitled to judgment in their favor as a matter of law and

reasonable costs expended in defense thereof.

Respectfully Submitted,

BY:____________________

JAMES M. DUCKWORTH

Assistant City Solicitor

1515 ARCH STREET, 14TH FLOOR

PHILADELPHIA, PA 19102

DATE: 

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 5 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

RA’OOF MUIR : CIVIL ACTION

:

V. :

:

CITY OF PHILADELPHIA, ET AL. :

:

: NO. 02-CV-2779

__________________________________________

ORDER

AND NOW, this day of , 2003, upon consideration of

Defendant’s Motion for Summary Judgment and Plaintiff’s response thereto, it is hereby

ORDERED AND DECREED that Defendants’ Motion is GRANTED. Judgment is entered in

favor of the Defendants Timothy Wilson, Rolando Estevez, and Esteban Padilla pursuant to Rule

56(b) and (c) of the Federal Rules of Civil Procedure. Furthermore, all “John Doe” Defendants

are DISMISSED WITH PREJUDICE.

BY THE COURT:

__________________________

HARVEY BARTLE III, J.

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 6 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

RA’OOF MUIR : CIVIL ACTION

:

V. :

:

CITY OF PHILADELPHIA, ET AL. :

:

: NO. 02-CV-2779

__________________________________________

CERTIFICATE OF SERVICE

I, James Duckworth, Assistant City Solicitor, hereby certify that a true and correct copy

of Defendants’ Motion for Summary Judgment was delivered to the following via Regular

United States Mail:

TO: Ra’oof Muir

49 East Herman Street

Philadelphia, PA 19144

Date: 

BY:__________________________

JAMES DUCKWORTH

Assistant City Solicitor

City of Philadelphia

1515 Arch Street, 14th Floor

Philadelphia, Pennsylvania 19102

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 7 of 8
EXHIBIT A

Case 2:02-cv-02779-HB Document 14 Filed 01/08/2003 Page 8 of 8