IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RA'OOF MUIR : CIVIL ACTION

:

v. :

:

TIM WILSON, et al. : NO. 02-2779

MEMORANDUM

Bartle, J. February , 2003

Plaintiff Ra'oof Muir, now pro se, has brought this

civil rights action for injuries allegedly sustained from a

beating administered by several correctional officers employed by

the City of Philadelphia. He has named as defendants the City of

Philadelphia and officers Timothy Wilson, Rolando Estevez,

Esteban Padilla and Sergeant "John Doe." Plaintiff asserts that 

defendants violated his Eighth and Fourteenth Amendment rights as

secured through 42 U.S.C. § 1983. In addition, he contends that

the individual officer defendants committed a series of unlawful

batteries under Pennsylvania law. Before the court are the

unopposed motions of defendants City of Philadelphia and Timothy

Wilson, Rolando Estevez and Esteban Padilla for summary judgment.

Defendant City of Philadelphia maintains that plaintiff

has failed to establish a valid § 1983 claim against it under

Monell v. Dept. of Socials Servs. of New York, 436 U.S. 658

(1978). The defendant officers assert that the plaintiff's

claims against them are barred because he failed to exhaust the

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 1 of 8
-2-

available administrative remedies as required by the Prison

Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. 

We may grant summary judgment only if there is no

genuine issue of material fact and the moving party is entitled

to summary judgment as a matter of law. See Fed. R. Civ. P.

56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 

Although the movant has the initial burden of showing the absence

of any genuine issues of material fact, the non-movant must then

come forward with admissible evidence containing "specific facts

showing that there is a genuine issue for trial." Fed. R. Civ.

P. 56(e); see Pamintuan v. Nanticoke Mem'l Hosp., 192 F.3d 378,

387 n.13 (3d Cir. 1999); Wetzel v. Tucker, 139 F.3d 380, 383 n.2

(3d Cir. 1998). We review all evidence and make all reasonable

inferences from the evidence in the light most favorable to the

non-movant. See Wicker v. Consol. Rail Corp., 142 F.3d 690, 696

(3d Cir. 1998).

I. 

In his complaint, the plaintiff alleges the following

facts. On October 20, 2000, as he was returning to his prison

cell in one of the Philadelphia prisons known as PICC, he

exchanged words with corrections officer Timothy Wilson. Angered

by the exchange, officer Wilson punched the plaintiff, knocking

him to the ground. After being escorted back to his cell by

several other officers, plaintiff was approached by defendant

John Doe who advised plaintiff that he would be taken to a

section of the prison known as the "Hole." After handcuffing

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 2 of 8
-3-

plaintiff, Sergeant Doe, Officers Estevez and Padilla, and two

other unidentified officers escorted plaintiff to the Hole where

they subsequently beat and kicked him. After the beating,

plaintiff advised medical personnel in the prison infirmary that

he had been beaten by a group of guards. 

Plaintiff further alleges that the officers' conduct

was part of an ongoing pattern and practice of excessive use of

force and retaliatory beatings administered by prison guards

generally. He claims that in failing to properly train,

supervise, investigate and discipline its prison guards, the City

has acquiesced in and tacitly approved of this pattern and

practice of conduct.

II.

Plaintiff first contends that the defendant City of

Philadelphia is liable under § 1983 because the alleged conduct

of the correctional officers is part of a de facto policy or

custom of the City of Philadelphia. Under Monell, a municipality

such as the City of Philadelphia cannot be held liable under

§ 1983 on a respondeat superior theory for the unconstitutional

acts of its employees. Only when an official policy, decision or

custom of the municipality itself causes the plaintiff's injury

may the municipality be held responsible. Monell, 436 U.S. at

694. The act or omission can be imputed to a local government

only when it emanates from a policymaker or policymaking body.

As our Court of Appeals explained in Andrews v. City of

Philadelphia, 895 F.2d 1469, 1481 (3d Cir. 1990), "it is

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 3 of 8
-4-

incumbent upon a plaintiff to show that a policymaker is

responsible either for the policy or, through acquiescence, for

the custom." (emphasis added). 

We have reviewed the record and determined that, other

than the bald assertions in plaintiff's complaint, there is no

evidence to prove that the alleged conduct on the part of the

City and its corrections officers is part of a policy or custom

of the City of Philadelphia. The mere allegations in his

pleading are not enough. Plaintiff must come forward with some

affirmative evidence to defeat summary judgment. See Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Williams v.

Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989). Here,

the record is devoid of, among other things, any evidence of a

conscious decision or deliberate indifference of any high-level

official alleged to have the appropriate policy-making authority. 

Similarly, plaintiff has failed to adduce any evidence

that the defendant City is liable under § 1983 because it failed

to adequately train the defendant officers. A municipality's

failure to train may give rise to constitutional violations but

only when the failure to train "amounts to deliberate

indifference to the rights of persons with whom the [officers] 

come into contact." City of Canton v. Harris, 489 U.S. 378, 388

(1989); Simmons v. Philadelphia, 947 F.2d 1042, 1059 (3d Cir.

1991). There is simply no evidence of any kind in the record

that might prove the requisite level of deliberate indifference. 

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 4 of 8
-5-

Again, we are left only with the allegations in plaintiffs

complaint. These are not sufficient to defeat summary judgment. 

We will therefore grant the motion of defendant City of

Philadelphia for summary judgment as to plaintiff's claims under

§ 1983. 

III.

Plaintiff also contends that the individual corrections

officers who administered the alleged beating are liable under

§ 1983 for violating his Eighth and Fourteenth Amendment rights. 

Before a prisoner can bring suit alleging that corrections

officers violated his or her constitutional rights, he or she

must exhaust all available administrative remedies. The PLRA

specifically provides: [n]o action shall be brought with respect

to prison conditions under section 1983 ... 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. § 1997e(a). In Porter v. Nussle, 534 U.S. 516, 532

(2002), the Supreme Court concluded that the exhaustion

requirement applies broadly to include inmate suits alleging

"excessive force or some other wrong." The internal grievance

system of a prison or jail is an administrative remedy. See

generally Booth v. Churner, 532 U.S. 731 (2001); Nyhuis v. Reno,

204 F.3d 65 (3d Cir. 2000).

Defendants have submitted an affidavit for Harriet

Spencer, the Executive Assistant to the Prisons Commissioner of

the Philadelphia Prison System, who is responsible for addressing

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 5 of 8
-6-

all inmate grievances that inmates have appealed from its

facilities. Ms. Spencer attests that she has found no grievances

filed by the plaintiff, Ra'oof Muir. Other than his allegation

that he told medical personnel in the prison infirmary about the

alleged beating, plaintiff has neither alleged any facts, nor

adduced any evidence to prove that he met his obligation under

the PLRA to exhaust available administrative remedies before

filing the instant § 1983 action. We will grant summary judgment

in favor of the named defendant officers for alleged

constitutional violations under § 1983.

IV.

We will exercise our discretion and decline

jurisdiction over the remaining claims under state law against

the defendants. See 28 U.S.C. § 1367. The claims against

Sergeant John Doe will be dismissed for lack of prosecution.

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 6 of 8
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

RA'OOF MUIR : CIVIL ACTION

:

v. :

:

TIM WILSON, et al. : NO. 02-2779

ORDER

AND NOW, this day of February, 2003, for the

reasons set forth in the accompanying Memorandum, it is hereby

ORDERED that:

(1) the motion of defendant City of Philadelphia for

summary judgment on plaintiff's claims under 42 U.S.C. § 1983 is

GRANTED;

(2) judgment is entered in favor of defendant City of

Philadelphia and against plaintiff Ra'oof Muir on plaintiff's

claims under 42 U.S.C. § 1983;

(3) the motion of defendants Timothy Wilson, Rolando

Estevez and Esteban Padilla for summary judgment on plaintiff's

claims under 42 U.S.C. § 1983 is GRANTED;

(4) judgment is entered in favor of defendants Timothy

Wilson, Rolando Estevez, and Esteban Padilla and against

plaintiff Ra'oof Muir on plaintiff's claims under 42 U.S.C.

§ 1983;

(5) plaintiff's state law claims are DISMISSED without

prejudice. See 28 U.S.C. § 1367(c); and

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 7 of 8
-2-

(6) plaintiff's claims against defendant Sergeant John

Doe are DISMISSED for lack of prosecution.

BY THE COURT:

______________________________

J.

Case 2:02-cv-02779-HB Document 15 Filed 02/06/2003 Page 8 of 8