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UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

LUIS NIEVES, 

 Plaintiff 

 

 v. 

 

DEPARTMENT OF CORRECTIONS, 

et al., 

 Defendants 

) CIVIL NO. 4:20-CV-00652 

) 

) (MANNION, D.J.) 

) 

) (ARBUCKLE, M.J.) 

) 

) 

) 

REPORT & RECOMMENDATION 

(On Defendants’ Motion for Summary Judgment (Doc. 173)) 

I. INTRODUCTION 

Luis Nieves (“Plaintiff”) brings this civil rights lawsuit pursuant to 42 U.S.C. 

§ 1983 for an alleged violation of his Eighth Amendment rights while incarcerated. 

Plaintiff sues the Department of Corrections, State Correctional Institution Camp 

Hill and two Corrections Officers, seeking monetary relief. Defendants have filed a 

Motion for Summary Judgment. (Doc. 173). After reviewing the Motion, the parties’ 

Briefs, and the parties’ Statements of Facts, we find that the Defendants’ Motion for 

Summary Judgment should be granted. This report and recommendation explains 

that result. Before reaching the merits, it will be helpful to review the legal standard 

to be applied to this motion for summary judgment. 

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II. LEGAL STANDARD FOR MOTIONS FOR SUMMARY JUDGMENT 

UNDER FEDERAL RULE OF CIVIL PROCEDURE 56 

Defendants request summary judgment under Rule 56 of the Federal Rules of 

Civil Procedure. Pursuant to this rule: 

A party may move for summary judgment, identifying each claim or 

defense—or the part of each claim or defense—on which summary 

judgment is sought. The court shall grant summary judgment if the 

movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law. The court 

should state on the record the reasons for granting or denying the 

motion.1

 

Through summary adjudication, a court is empowered to dispose of those 

claims that do not present “a genuine dispute as to any material fact,”2

 and for which 

trial would be “an empty and unnecessary formality.”3

 A fact is material if proof of 

its existence or nonexistence might affect the outcome of the suit under the 

applicable substantive law.4

 For a dispute to be genuine, “all that is required is that 

sufficient evidence supporting the claimed factual dispute be shown to require a jury 

or judge to resolve the parties’ differing versions of the truth at trial.”5

 

1

 Fed. R. Civ. P. 56(a). 

2 Id. (emphasis added). 

3 Univac Dental Co. v. Dentsply Int’l, Inc., 702 F.Supp.2d 465, 468 (M.D. Pa. 

2010). 

4 Haybarger v. Laurence Cnty. Adult Prob. & Parole, 667 F.3d 408, 412 (3d 

Cir. 2012) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). 

5 Id. (quoting Anderson, 477 U.S. at 248-49). 

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The moving party has the initial burden of identifying evidence that it believes 

shows an absence of a genuine issue of material fact.6 Once the moving party has 

shown that there is an absence of evidence to support the non-moving party’s claims, 

“the non-moving party must rebut the motion with facts in the record and cannot rest 

solely on assertions made in the pleadings, legal memoranda, or oral argument.”7 If 

the non-moving party “fails to make a showing sufficient to establish the existence 

of an element essential to that party’s case, and on which that party will bear the 

burden at trial,” summary judgment is appropriate.8 Summary judgment is also 

appropriate if the non-moving party provides merely colorable, conclusory, or 

speculative evidence.9 There must be more than a scintilla of evidence supporting 

the non-moving party and more than some metaphysical doubt as to the material 

facts.10 In making this determination, the Court must “consider all evidence in the 

light most favorable to the party opposing the motion.”11 

A party who seeks to resist a summary judgment motion by citing to disputed 

material issues of fact must show by competent evidence that there is a genuine 

6 Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 

2004). 

7 Berckeley Inv. Grp. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006); Celotex 

Corp. v. Catrett, 477 U.S. 317, 324 (1986). 

8 Celotex, 477 U.S. at 322. 

9 Anderson, 477 U.S. at 249. 

10 Id. at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 

U.S. 574, 586 (1986). 

11 A.W. v. Jersey City Pub. Sch., 486 F.3d 791, 794 (3d Cir. 2007). 

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dispute of material fact. “[O]nly evidence which is admissible at trial may be 

considered in ruling on a motion for summary judgment.”12 Similarly, it is wellsettled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . 

. . without producing any supporting evidence of the denials.”13 Thus, “[w]hen a 

motion for summary judgment is made and supported . . ., an adverse party may not 

rest upon mere allegations or denial.”14 “[A] mere denial is insufficient to raise a 

disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing 

affidavit is also not sufficient.”15 Furthermore, an adverse party “cannot expect to 

rely merely upon bare assertions, conclusory allegations or suspicions.”16 

Finally, when ruling on a motion for summary judgment, it is not the province 

of the court to weigh evidence or assess credibility. The court must view the evidence 

presented in the light most favorable to the non-moving party,17 and draw all 

reasonable inferences in the light most favorable to the non-moving party.18 Where 

12 Countryside Oil Co. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 

1995). 

13 Thimons v. PNC Bank, N.A., 254 F.App’x 896, 899 (3d Cir. 2007) (citation 

omitted). 

14 Fireman’s Ins. Co. of Newark N.J. v. DuFresne, 676 F.2d 965, 968 (3d Cir. 

1982); see Sunshine Books, Ltd. v. Temple Univ., 697 F.2d 90, 96 (3d Cir. 1982). 

15 Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969). 

16 Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 

660 F.2d 517, 519 (3d Cir. 1981)). 

17 Anderson, 477 U.S. at 255. 

18 Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 

1992). 

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the non-moving party’s evidence contradicts the movant’s, then the non-movant’s 

must be taken as true.19 Additionally, the court is not to decide whether the evidence 

unquestionably favors one side or the other, or to make credibility determinations, 

but instead must decide whether a fair-minded jury could return a verdict for the 

non-movant on the evidence presented.20 In reaching this determination, the Third 

Circuit has instructed that: 

To raise a genuine issue of material fact . . . the opponent need not 

match, item for item, each piece of evidence proffered by the movant. 

In practical terms, if the opponent has exceeded the “mere scintilla” 

threshold and has offered a genuine issue of material fact, then the court 

cannot credit the movant’s version of events against the opponent, even 

if the quantity of the movant’s evidence far outweighs that of its 

opponent. It thus remains the province of the fact finder to ascertain the 

believability and weight of the evidence.21

In contrast, “[w]here the record taken as a whole could not lead a rational trier of 

fact to find for the non-moving party, there is no genuine issue for trial.”22 

With this legal standard in mind we now turn to the relevant factual 

background. 

III. BACKGROUND & PROCEDURAL HISTORY 

For the sake of clarity and conciseness we will only discuss the background 

and procedural history relevant to Defendants’ Motion for Summary Judgment. 

19 Id. 20 Anderson, 477 U.S. at 252; see also 

21 Big Apple BMW, 974 F.2d at 1363. 

22 Matsushita Elec. Indus. Co., 475 U.S. at 587. 

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This case began on April 21, 2020 when Plaintiff lodged a complaint. (Doc. 

1). On July 23, 2020, the Court screened Plaintiff’s complaint pursuant to 28 U.S.C. 

§ 1915(e) and granted Plaintiff leave to amend his complaint. (Doc. 29). On March 

30, 2021, Plaintiff filed an amended complaint. (Doc. 61). That amended complaint 

is the operative complaint in this case. 

As Defendants, Plaintiff names: 

1. The Pennsylvania Department of Corrections (“DOC”); 

2. State Correctional Institution Camp Hill (“SCI Camp Hill”); 

3. Corrections Officer Parry; and 

4. Corrections Officer Lugo. 

(Doc. 1, p. 1). 

 Plaintiff alleges that on March 30, 2020, while incarcerated at SCI Camp Hill, 

he was being escorted to a cell by Defendants Parry and Lugo when he informed 

them that he had the right to be placed in a cell without another inmate.23 (Doc. 61, 

p. 4). Both officers became upset with Plaintiff over this and upon arrival to the cell 

they pushed Plaintiff inside and immediately slammed the door. Id. Plaintiff had a 

leash attached to the handcuffs on his wrist and was yanked back by it and his arms, 

23 Plaintiff’s amended complaint alleges the incident at issue took place on 

March 30, 2023, however it appears from the various attachments to Defendants’ 

Statement of Material Facts, including a copy of the grievance filed by Plaintiff, that 

the incident took place on March 31, 2020. (Doc. 174, ¶ 3; Doc. 174-1, p. 2; Doc. 

174-4, p. 5). 

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wrists and hands were pulled through the wicket. Id. Defendants Parry and Lugo 

aggressively removed the right handcuff but were unsuccessful in their attempts to 

remove the left. Id. They became frustrated by this and began using the wicket’s 

metal covering as a “weapon,” repeatedly slamming Plaintiff’s arm and hand against 

it. Id. A “white shirt” witnessed this behavior and stopped Defendants Parry and 

Lugo, telling Plaintiff he would not let them hurt him again and instructing Plaintiff 

to let them re-cuff his right hand so that he could be placed in another cell. Id. 

Plaintiff complied. (Doc. 61, p. 5). 

 After this, Plaintiff was taken to the “strip cage” and the medical department 

came to take photos of his injuries. (Doc. 61, p. 5). Plaintiff requested pain 

medication from medical officials but was informed they did not carry it with them. 

Id. Plaintiff was then escorted to a single cell. Id. Sometime later Plaintiff showed a 

doctor who had stopped by his cell the lacerations and bruises and asked for pain 

medication again. Id. The doctor told Plaintiff he would prescribe it and pain 

medication was then delivered to Plaintiff’s cell. Id. 

 Plaintiff brings claims against Defendants Parry and Lugo for violations of his 

Eighth Amendment rights to be free from cruel and unusual punishment and to be 

free from excessive force. (Doc. 61, p. 6). Against Defendants DOC and SCI Camp 

Hill, Plaintiff brings claims under 42 U.S.C. § 1983 for their failure to properly train 

Defendants Parry and Lugo, failure to hold Defendants Parry and Lugo accountable 

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and failure to prevent his injuries from occurring. Id. Plaintiff alleges he suffered 

lacerations, abrasions, bruises, mental duress and PTSD. Id. As relief Plaintiff 

requests a jury trial to determine monetary damages not to exceed $800,000. Id. 

 On January 3, 2022, Defendants filed an answer to the amended complaint. 

(Doc. 87). On May 26, 2023, Defendants filed a Motion for Summary Judgment, 

(Doc. 173), a Statement of Facts, (Doc. 174) and a Brief in Support, (Doc. 175). In 

their Brief in Support and Statement of Facts, Defendants contend that on March 31, 

2020, Plaintiff became aggressive while being moved to a new cell, forcing staff to 

hold Plaintiff’s arm in the food aperture until he complied with their orders. (Doc. 

174, ¶ 3; Doc. 174-1, pp. 2-4; Doc. 175, pp. 6-7). 

 On June 12, 2023, Plaintiff filed a Brief in Opposition to Defendants’ Motion 

for Summary Judgment. (Doc. 182). On July 17, 2023, Plaintiff filed a response to 

Defendants’ Statement of Facts. (Doc. 191). On August 10, 2023, Plaintiff filed a 

second response to Defendants’ Statement of Facts, (Doc. 202), and a Supplement 

to his Brief in Opposition, (Doc. 203). On August 22, 2023, Plaintiff filed “Amended 

[] Undisputed Facts.” (Doc. 206). On October 26, 2023, Plaintiff filed a “Notice to 

the Court” regarding documents 202, 203, and 206, indicating he would like the 

Court to accept those documents as his Responsive Statement of Facts and Brief in 

Opposition. (Doc. 221). The Court will therefore only consider documents 202, 203, 

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and 206 as Plaintiff’s Brief in Opposition and Responsive Statements of Facts when 

deciding this Motion. 

With this background in mind we now turn to our analysis of these facts. 

IV. ANALYSIS 

We will begin our analysis with Plaintiff’s claims against Defendants DOC 

and SCI Camp Hill before turning to Plaintiff’s claims against Defendants Parry and 

Lugo. 

A. PLAINTIFF’S CLAIMS AGAINST DEFENDANTS DOC AND SCI CAMP 

HILL SHOULD BE DISMISSED WITH PREJUDICE

Plaintiff attempts to bring claims under 42 U.S.C. § 1983 against Defendants 

DOC and SCI Camp Hill for failure to properly train Defendants Parry and Lugo, 

failure to hold them accountable, and failure to “impede” his injuries from occurring. 

(Doc. 61, p. 6). Defendants DOC and SCI Camp Hill argue that “[t]he 

Commonwealth of Pennsylvania, all Commonwealth agencies, and all individuals 

acting in their official capacities are not “persons” as defined by 42 U.S.C. § 1983.” 

(Doc. 175, p. 5). Plaintiff does not present a rebuttal argument in his Brief in Support 

or Statements of Facts. 

 “Section 1983 imposes civil liability upon any person who, acting under the 

color of state law, deprives another individual of any rights, privileges, or 

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immunities secured by the Constitution or laws of the United States.”24 To establish 

a claim under § 1983, a plaintiff must establish two things: (1) a deprivation of a 

federally protected right; and (2) that the deprivation was committed by a person or 

persons acting under color of state law.25 “States and their derivative governmental 

institutions, including the Department of Corrections (DOC), prisons, and prison 

medical departments, are not ‘persons’ for purposes of a civil rights action,”26 nor 

are state officials acting in their official capacity.27 Thus, Plaintiff’s claims against 

Defendants DOC and SCI Camp Hill must be dismissed. Additionally, 

the Eleventh Amendment requires the dismissal of [Plaintiff’s] claims. 

The Eleventh Amendment protects a state or state agency from 

a § 1983 suit, unless Congress has specifically abrogated the state’s 

immunity or the state has waived its own immunity. See MCI 

Telecomm. Corp. v. Bell Atl.–Pa., 271 F.3d 491, 503–04 (3d Cir. 

2001). Section 1983 does not abrogate Pennsylvania's immunity, and 

Pennsylvania has specifically withheld consent to being 

sued. See Quern v. Jordan, 440 U.S. 332, 340–41, 99 S.Ct. 1139, 59 

L.Ed.2d 358 (1979); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d 

Cir.1981).28 

24 Shuman v. Penn Manor Sch. Dist., 422 F.3d 141, 146 (3d Cir. 2005) (citing 

Gruenke v. Seip, 225 F.3d 290, 298 (3d Cir. 2000)). 

25 Woloszyn v. Cnty. of Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quoting 

Lake v. Arnold, 112 F.3d 682, 689 (3d Cir. 1997)). 

26 Godfrey v. Little, No. CV 3:22-0885, 2023 WL 6276702, at *2 (M.D. Pa. 

Sept. 26, 2023) (citing Will v. Michigan Dep’t of State Police, 491 U.S. 58, 64, 70 

(1989) (states and their derivative entities); Phippen v. Nish, 223 F.App’x. 191, 192 

(3d Cir. 2007) (nonprecedential opinion) (upholding decision from the Middle 

District of Pennsylvania that “SCI Waymart is not a ‘person’ within § 1983”). 

27 Ellington v. Cortes, 532 F.App’x 53, 56. 

28 Id. 

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For these reasons it will be recommended that Plaintiff’s claims against Defendants 

DOC and SCI Camp Hill be dismissed with prejudice as any amendment would be 

futile.29

B. PLAINTIFF HAS FAILED TO EXHAUST HIS ADMINISTRATIVE REMEDIES 

AND THE MOTION FOR SUMMARY JUDGMENT SHOULD BE GRANTED

Plaintiff asserts claims pursuant to 42 U.S.C. § 1983 for violation of his Eighth 

Amendment rights “to be free from cruel and unusual punishment and . . . to be free 

from excessive force.” (Doc. 61, p. 6). Defendants Parry and Lugo argue that 

Plaintiff has failed to exhaust his administrative remedies as required by the Prison 

Litigation Reform Act (“PLRA”), and thus his claims are barred. (Doc. 175, pp. 7-

12). 

The PLRA provides that: 

No action shall be brought with respect to prison conditions under 

section 1983 of this title, or any other federal law, by a prisoner 

confined in any jail, prison, or other correctional facility until such 

administrative remedies are exhausted.30

Put simply, the PLRA requires prisoners to pursue their claims through an 

administrative grievance process before seeking redress in federal court. Exhaustion 

is mandatory, and applies to all inmate lawsuits “about prison life, whether they 

29 Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000); Grayson v. Mayview 

State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). 

30 42 U.S.C. § 1997e(a). 

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involve general circumstances or particular episodes, and whether they allege 

excessive force or some other wrong.”31 

The failure to exhaust administrative remedies under the PLRA is an 

affirmative defense.32 Accordingly, “[t]he burden to plead and prove failure to 

exhaust as an affirmative defense rests on the defendant.”33 Then, “once the 

defendant has established that the inmate failed to resort to administrative remedies, 

the onus falls on the inmate to show that such remedies were unavailable to him.”34

In Pennsylvania the DOC has established a three-tiered grievance system that 

serves as an inmate’s administrative remedy.35 This system is explained in 

Administrative Directive 804 (“DC-ADM 804”). First, there is an initial review of a 

grievance filed by a prisoner by a Grievance Officer. Second, a prisoner appeals that 

decision to the Facility Manager or other designee. Finally, a prisoner appeals to the 

Secretary’s Office of Inmate Grievance and Appeals for final review. 

Defendants Parry and Lugo assert three separate ways Plaintiff has failed to 

exhaust his administrative remedies. To decide this Motion, we need only evaluate 

31 Porter v. Nussle, 534 U.S. 516, 532 (2003). 

32 Id.

33 Rinaldi v. United States, 904 F.3d 257, 268 (3d Cir. 2018) (citing Ray v. 

Kertes, 285 F.3d 287, 295 (3d Cir. 2002)). 

34 Rinaldi, 904 F.3d at 268 (citing Tuckel v. Grover, 660 F.3d 1249, 1253-54 

(10th Cir. 2011)). 

35 See DC-ADM 804, “Inmate Grievance System.” Available at 

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/804%20Inmat

e%20Grievances.pdf (last visited Dec. 15, 2023). 

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their first assertion, that “Plaintiff did not properly appeal the grievance related to 

this incident to final review, instead attempting to skip the intermediate level and 

then taking no further action once he was informed that this was improper.” (Doc. 

175, p. 9). In support of this assertion Defendants Parry and Lugo assert in their 

statement of facts that Plaintiff filed a grievance based on the incident at issue and 

provide a copy of that grievance. (Doc. 174, ¶ 5; Doc. 174-4, p. 5). Defendants Parry 

and Lugo also attach a copy of the initial review response denying Plaintiff’s 

grievance and a copy of a receipt from the Secretary’s Office of Inmate Grievance 

and Appeals informing Plaintiff that his grievance was not entitled to formal review 

because the initial review response was pending and there was no appeal to the 

Facility Manager as required under DC-ADM 804, and thus no further action would 

be taken by their office. (Doc. 174-4, pp. 2, 3). Finally, Defendants Parry and Lugo 

attach an affidavit from Grievance Officer Amanda West dated May 24, 2023, 

swearing under penalty of perjury that she reviewed and searched the Automated 

Inmate Grievance Tracking System (“AIGTS”) which revealed that Plaintiff failed 

to appeal the initial response to the Facility Manager as required, and therefore failed 

to comply with the three-tiered system and exhaust his administrative remedies. 

(Doc. 174, ¶ 16; Doc. 174-4, ¶¶ 9, 11-13). 

In his response to Defendants Parry and Lugo’s Statement of Material Facts, 

Plaintiff flatly denies each statement in the Statement of Material Facts. (Doc. 202-

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2, p. 1). This does not suffice to call the facts in Defendants Parry and Lugo’s 

Statement of Material Facts into dispute. Federal Rule of Civil Procedure 56 

provides in pertinent part: 

(1) Supporting Factual Positions. A party asserting that a fact cannot be 

or is genuinely disputed must support the assertion by: 

(A) citing to particular parts of materials in the record, including 

depositions, documents, electronically stored information, 

affidavits or declarations, stipulations (including those made for 

purposes of the motion only), admissions, interrogatory answers, 

or other materials; or 

(B) showing that the materials cited do not establish the absence 

or presence of a genuine dispute, or that an adverse party cannot 

produce admissible evidence to support the fact. 

As relevant to the question of exhaustion, Plaintiff does neither of these. 

Plaintiff does not dispute Defendant Parry and Lugo’s statement that he failed 

to appeal his grievance to final review and therefore failed to exhaust the grievance 

procedure as required by the PLRA. Instead, in his responses to the Statement of 

Material Facts, as in his Brief in Opposition and Supplements, Plaintiff argues an 

issue of law. Plaintiff asserts that he did exhaust his administrative remedies because 

a prisoner cannot file a grievance for an Administrative Directive 001 (“DC-ADM 

001”) abuse allegation under DC-ADM 804, and he reported the abuse in accordance 

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with DC-ADM 001 with an investigation being completed.36 (Doc. 202, p. 3; Doc. 

203, p. 3; Doc. 203-1, p. 1; Doc. 206, p. 1). Plaintiff is incorrect. 

As recently explained by the Third Circuit in a case where inmate plaintiffs 

claimed they exhausted their administrative remedies under DC-ADM 001, 

Under the PLRA, prisoners who seek to challenge their conditions of 

confinement must exhaust all available administrative remedies. 42 

U.S.C. § 1997e(a). We determine “whether a prisoner has ‘properly’ 

exhausted a claim” by “evaluating the prisoner's compliance with the 

prison’s administrative regulations governing inmate grievances.” 

Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004). At issue here are two 

procedures. The first, ADM 804, sets out the default procedure for the 

inmate grievance process. The second, ADM 001, relates to reporting 

and investigating inmate abuse by staff. Amicus concedes Isaac and 

Aaron did not exhaust their remedies under ADM 804. Nevertheless, it 

argues Isaac and Aaron exhausted their claims because they reported to 

prison staff the details of their abuse allegations in accordance with 

ADM 001. For Amicus to be right, ADM 804 and ADM 001 must 

provide alternative paths for exhaustion. They do not. 

ADM 804 creates the three-step Inmate Grievance System. First, an 

inmate must submit a grievance to the Facility Grievance Coordinator. 

The grievance must include the relevant facts, individuals involved, 

claims alleged, and relief sought. A different official—the Grievance 

Officer—reviews the grievance and submits an initial response. The 

inmate may appeal the initial response to the Facility Manager, who 

reviews it and issues a decision. The inmate may file a final appeal to 

the Secretary of Corrections’ Office of Inmate Grievances and Appeals. 

ADM 804 clearly states when it does not apply—for example, when an 

inmate alleges sexual abuse, or his claim concerns an “incident[ ] of an 

urgent or emergency nature” or misconduct charges. ADM 804 

§ 1(A)(2), (7). When one of those exceptions applies, a plaintiff is 

excused from satisfying ADM 804’s exhaustion requirement. See 

36 See DC-ADM 001, “Inmate Abuse.” Available at: 

https://www.cor.pa.gov/About%20Us/Documents/DOC%20Policies/001%20Inmat

e%20Abuse.pdf (last visited Dec. 15, 2023). 

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Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 307 (3d Cir. 2020). But 

Isaac and Aaron do not argue that they satisfy an existing exception; 

rather, they ask that we read into the text of DOC policy a new 

exception—exhaustion under ADM 001. Just as we refrain from 

rewriting statutes, we will not amend DOC policy from the bench and 

add a new avenue for administrative exhaustion. See id. at 306 

(applying principles of statutory interpretation to DOC policy). 

While ADM 804 creates a formal procedure to resolve problems or 

other issues of concern arising during confinement, ADM 001 aims to 

ensure that staff do not subject an inmate to corporal or unusual 

punishment, or personal abuse or injury. ADM 001 speaks to all who 

may be privy to inmate abuse—inmates, employees, and all persons and 

entities who maintain contact with inmates. The policy permits an 

inmate who is the victim of abuse to report it verbally or in writing to a 

staff member, complain directly to DOC’s Central Office, or file a 

formal grievance pursuant to ADM 804. The fact that ADM 001 does 

not require a formal grievance to trigger an investigation shows the 

policy mitigates and provides relief for alleged abuse even when it does 

not violate legal rights. By contrast, ADM 804 requires an inmate to 

specify in his grievance any alleged violation of department regulations 

or other law as well as specify the compensation or legal relief the 

inmate desires. ADM 001 contains no similar requirements, all of 

which would be necessary to afford an inmate meaningful relief in 

court. 

The interrelatedness of the policies does not suggest the two are 

interchangeable. ADM 804’s cross reference to ADM 001 reveals that 

the two policies work in tandem, not in place of one another. When an 

inmate brings an abuse grievance, the normal ADM 804 review does 

not proceed until an investigation occurs in accordance with ADM 001. 

The Grievance Officer does not provide an initial response to an abuserelated grievance until he receives and reviews the documentation from 

the ADM 001 investigation. But that does not change the fact that ADM 

804 is the sole procedure for obtaining an adjudicatory decision subject 

to appeal. A different conclusion would nullify the grievance review 

process outlined by ADM 804. While ADM 001 produces investigative 

reports that may help the ADM 804 process along, among other 

purposes, it does not replace ADM 804. 

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We conclude that ADM 804 is the exclusive means of exhaustion. And, 

having failed to follow the full administrative review process under 

ADM 804, Isaac and Aaron necessarily failed to properly exhaust their 

claims under the PLRA.37

Third Circuit precedent is thus very clear that an inmate can only exhaust by 

following the grievance procedure under DC-ADM 804 and cannot exhaust under 

DC-ADM 001.38 

Plaintiff does not dispute Defendants Parry and Lugo’s assertion that he failed 

to exhaust under the DC-ADM 804 procedures. We will therefore consider that fact 

as undisputed for purposes of this motion.39 Thus, there is no genuine dispute that 

Plaintiff failed to exhaust his administrative remedies as required by the PLRA and 

Defendants Parry and Lugo are entitled to summary judgment. Accordingly, it will 

be recommended the Motion for Summary Judgment be granted. 

As Plaintiff has not exhausted his administrative remedies the Court need not 

address Defendants’ argument that Plaintiff has failed to show any Eighth 

Amendment violation. (Doc. 175, p. 5-7). 

37 Prater v. Dep’t of Corr., 76 F.4th 184, 203-04 (3d Cir. 2023). 

38 Id. 39 Fed. R. Civ. P. 56(e)(2). 

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V. RECOMMENDATION 

For the reasons explained above, it is RECOMMENDED that: 

(1) Plaintiff’s claims against Defendants DOC and SCI Camp Hill be 

dismissed with prejudice. 

(2) The two Individual Defendants’ Motion for Summary Judgment (Doc. 

173) be granted. 

(3) The Clerk of Court be DIRECTED to CLOSE this case. 

Date: December 15, 2023 BY THE COURT 

 s/William I. Arbuckle 

 William I. Arbuckle 

 U.S. Magistrate Judge 

 

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UNITED STATES DISTRICT COURT 

MIDDLE DISTRICT OF PENNSYLVANIA 

LUIS NIEVES, 

 Plaintiff 

 

 v. 

 

DEPARTMENT OF CORRECTIONS, 

et al., 

 Defendants 

) CIVIL NO. 4:20-CV-00652 

) 

) (MANNION, D.J.) 

) 

) (ARBUCKLE, M.J.) 

) 

) 

) 

NOTICE OF LOCAL RULE 72.3 

NOTICE IS HEREBY GIVEN that any party may obtain a review of the 

Report and Recommendation pursuant to Local Rule 72.3, which provides: 

Any party may object to a magistrate judge’s proposed findings, 

recommendations or report addressing a motion or matter described in 28 

U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a 

prisoner case or a habeas corpus petition within fourteen (14) days after being 

served with a copy thereof. Such party shall file with the clerk of court, and 

serve on the magistrate judge and all parties, written objections which shall 

specifically identify the portions of the proposed findings, recommendations 

or report to which objection is made and the basis for such objections. The 

briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall 

make a de novo determination of those portions of the report or specified 

proposed findings or recommendations to which objection is made and may 

accept, reject, or modify, in whole or in part, the findings or recommendations 

made by the magistrate judge. The judge, however, need conduct a new 

hearing only in his or her discretion or where required by law, and may 

consider the record developed before the magistrate judge, making his or her 

own determination on the basis of that record. The judge may also receive 

further evidence, recall witnesses, or recommit the matter to the magistrate 

judge with instructions. 

Date: December 15, 2023 BY THE COURT 

 s/William I. Arbuckle 

 William I. Arbuckle 

 U.S. Magistrate Judge 

Case 4:20-cv-00652-MEM Document 226 Filed 12/15/23 Page 19 of 19