IN THE UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANTHONY BALLARD, :

:

Plaintiff :

:

v. : CIVIL NO. 4:CV-14-1015

:

KATHY GALLE, ET AL., : (Judge Brann)

:

Defendants :

MEMORANDUM

August 25, 2015

Background

Anthony Ballard filed this pro se civil rights action pursuant to 42 U.S.C. §

1983 regarding his confinement at the Schuylkill County Prison, Pottsville,

Pennsylvania. By Memorandum and Order dated May 1, 2015, Defendants

Catherine Becker, LPN and Elaina Galle-Harris, LPN’s joint unopposed motion

to dismiss the Complaint was granted.

Remaining Defendants are Schuylkill County, and the following employees

of the Schuylkill County Prison: Warden Gene Berdanier, Deputy Warden Dave

Wapinsky, and Captain William Flannery. Remaining Defendants have filed a

motion to dismiss or in the alternative for summary judgment. See Doc. 17. The

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motion is unopposed.

According to the Complaint, Plaintiff was forced to sleep on a mattress on

the floor of his cell near the toilet from June 12, 2013 until July 14, 2013. Ballard

states that this requests to be moved were denied despite his complaints of

suffering neck and back pain. Plaintiff, an African American, also concludes that

his two white cell mates were given preferential treatment because he was the one

required to sleep on the floor. 

The Complaint further alleges that between February 20-25, 2014, Plaintiff

was denied proper medical care after becoming ill with the flu.1

 See Doc. 1, ¶

IV(2). Plaintiff asserts that he became sick because his cell window wouldn’t

close. Ballard indicates that his temperature reached as high as 103 degrees and

required him to be quarantined. He seeks injunctive relief and monetary damages.

Discussion

Remaining Defendants claim entitlement to relief on the grounds that: (1)

the Complaint fails to sufficiently allege that he was subjected to unconstitutional

conditions of confinement; (2) there are no assertions that Remaining Defendants

were personally involved in the alleged constitutional violations; (3) Remaining

1

 Plaintiff also indicates that he caught the flu because his cell window

wouldn’t close.

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Defendants are entitled to qualified immunity; (4) there is no basis for liability

against Defendant Schuylkill County; and (5) Plaintiff failed to exhaust his

available administrative remedies.

Motion to Dismiss

Remaining Defendants’ pending dispositive motion is supported by

evidentiary materials outside the pleadings. Federal Rule of Civil Procedure 12(d)

provides in part as follows:

If, on a motion under Rule 12(b)(6) or 12(c), matters

outside the pleading are presented to and not excluded

by the court, the motion must be treated as one for

summary judgment under Rule 56. All parties must be

given reasonable opportunity to present all the material

that is pertinent to the motion.

Fed. R. Civ. P. 12(b)(d).

This Court will not exclude the evidentiary materials accompanying the

Remaining Defendants' motion. Thus, their motion will be treated as solely

seeking summary judgment. See Latham v. United States, 306 Fed. Appx. 716,

718 (3d Cir. 2009)(when a motion to dismiss has been framed alternatively as a

motion for summary judgment such as in the present case, the alternative filing “is

sufficient to place the parties on notice that summary judgment might be

entered.”) 

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Summary Judgment

Summary judgment is proper if “the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to a judgment as a matter of law.” 

Fed. R. Civ. P. 56(c); See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d

Cir. 2001). A factual dispute is “material” if it might affect the outcome of the

suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). A factual dispute is “genuine” only if there is a sufficient evidentiary

basis that would allow a reasonable fact-finder to return a verdict for the nonmoving party. Id. at 248. The court must resolve all doubts as to the existence of

a genuine issue of material fact in favor of the non-moving party. Saldana, 260

F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609

(M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered

evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370

(3d Cir. 1993).

Once the moving party has shown that there is an absence of evidence to

support the claims of the non-moving party, the non-moving party may not simply

sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986). Instead, it must “go beyond the pleadings and by [its]

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own affidavits, or by the depositions, answers to interrogatories, and admissions

on file, designate specific facts showing that there is a genuine issue for trial.” Id.

(internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). 

Summary judgment should be granted where a 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.” Celotex, 477 U.S. at 322-23. 

“‘Such affirmative evidence – regardless of whether it is direct or circumstantial –

must amount to more than a scintilla, but may amount to less (in the evaluation of

the court) than a preponderance.’” Saldana, 260 F.3d at 232 (quoting Williams v.

Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).

Monell

Remaining Defendants assert that Plaintiff fails to allege any facts which

would satisfy the requirements of Monell v. Department of Social Servs., 436 U.S.

658, 690-91 (1978) and therefore a viable claim has not been raised against

Defendant Schuylkill County. See Doc. 18, p. 17. The argument is unopposed.

A municipal body or other local governmental unit, not part of a state for

Eleventh Amendment purposes, may be a "person" subject to suit under 42 U.S.C.

§ 1983 Monel, 436 U.S. at 690-91 (“Congress did intend municipalities and other

local government units to be included among those persons to whom § 1983

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applies.”) “Local governing bodies, like every other § 1983 'person,' by the very

terms of the statute, may be sued for constitutional deprivations visited pursuant to

governmental 'custom' even though such a custom has not received formal

approval through the body's official decisionmaking channels.” Id. See also

Board of County Comm'rs of Bryan County, OK v. Brown, 520 U.S. 398, 403-07

(1997); Roman v. Jeffes, 904 F.2d 192, 196-97 (3d Cir. 1990); Illiano v. Clay

Township, 892 F. Supp. 117, 121 (E.D. Pa. 1995). 

However, it has been repeatedly held that a local government unit may not

be subjected to § 1983 liability on a theory of respondeat superior. Bryan County,

520 U.S. at 403; City of Canton v. Harris, 489 U.S. 378, 392 (1989); Pembaur v.

Cincinnati, 475 U.S. 469, 478-79 (1986); Monell, 436 U.S. at 691; Beck v. City of

Pittsburgh, 89 F.3d 966, 971 (3d Cir. 1996); Andrews v. City of Philadelphia, 895

F.2d 1469, 1480 (3d Cir. 1990). Rather, "... a plaintiff seeking to impose liability

on a municipality under § 1983 [is required] to identify a municipal 'policy' or

'custom' that caused the plaintiff's injury." Bryan County, 520 U.S. at 403; Beck,

89 F.3d at 971. In Bryan County, the United States Supreme Court elaborated on

the showing required for municipal liability under § 1983, stating:

. . . [I]t is not enough for a § 1983 plaintiff merely to

identify conduct properly attributable to the

municipality. The plaintiff must also demonstrate that

through its deliberate conduct, the municipality was the

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'moving force' behind the injury alleged. That is, a

plaintiff must show that the municipal action was taken

with the requisite degree of culpability and must

demonstrate a direct causal link between the municipal

action and the deprivation of federal rights.

Id. at 404; see Kneipp v. Tedder, 95 F.3d 1199, 1213 (3d Cir. 1996). 

The United States Court of Appeals for the Third Circuit has held that a

local government unit can be held liable under § 1983 "only when 'execution of a

government's policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy, inflicts the injury.'" 

Andrews, 895 F.2d at 1480 (citing Monell, 436 U.S. at 694). Custom can be

established by proof of knowledge and acquiescence. Fletcher v. O’Donnell, 867

F. 2d 791, 793-4 (3d Cir. 1989). 

With respect to Schuylkill County, Remaining Defendants argue that “the

Complaint fails to make any allegations whatsoever to give rise to municipal

liability under Monell.” Doc. 18, p. 19. Based upon a review of the Complaint,

this Court agrees that there is no discernible contention that Plaintiff’s

constitutional rights were violated as the result of any existing formal county

policy. Additionally, there are no facts alleged which would show that the

challenged conditions of the prison (broken window, having to sleep on a mattress

on the floor for a month) existed on a systematic basis. As such, this is not a case

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where liability is being asserted based upon wide spread conditions or customs so

common as to infer official knowledge and adoption of the violation. Based upon

those considerations, this Court agrees with the unopposed argument that a viable

claim has not been set forth against Defendant Schuylkill County.

Personal Involvement

Remaining Defendants next assert that the Complaint fails to allege

personal involvement “in the cell assignment or in the maintenance of the prison “

or state that they engaged in any unconstitutional conduct. Doc. 18, p. 13. It is

again noted that this argument is unopposed.

 A plaintiff, in order to state an actionable civil rights claim, must plead two

essential elements: (1) that the conduct complained of was committed by a person

acting under color of law, and (2) that said conduct deprived the plaintiff of a

right, privilege, or immunity secured by the Constitution or laws of the United

States. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995);

Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). 

Civil rights claims brought cannot be premised on a theory of respondeat

superior. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each

named defendant must be shown, via the complaint's allegations, to have been

personally involved in the events or occurrences which underlie a claim. See

Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,

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546 F.2d 1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs. . . . [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity. 

Rode, 845 F.2d at 1207.

Warden Berdanier, Deputy Warden Wapinsky and Captain Flannery are

each clearly employed in supervisory capacities within the prison. There is no

assertion that any of those officials directed that Ballard be required to sleep on a

mattress on the floor of his cell. However, the Complaint does clearly contend

that Captain Flannery became aware of Plaintiff’s sleeping assignment and

allowed that condition to continue. See Doc. 1, ¶IV(1). As such, the Rode

personal involvement requirement has been satisfied with respect to Flannery.

With respect to Plaintiff’s remaining contention that he became ill with the

flu for a five day period in February 2014 because his cell window wouldn’t close,

there are no factual allegations set forth in the Complaint which could support a

claim that any of the Remaining Defendants were aware that Ballard was being

housed in a cell with a malfunctioning window. Since the only contention by

Plaintiff is that he informed a maintenance person about the broken window, entry

of dismissal in favor of the Remaining Defendants on the grounds of lack of

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personal involvement with respect to this portion of the Complaint is appropriate. 

 It is also possible that Plaintiff may be attempting to establish liability

against Berdanier and Wapinsky due to their responses or non-response to his

administrative grievances or complaints. Prisoners have no constitutionally

protected right to a grievance procedure. See Jones v. North Carolina Prisoners’

Labor Union, Inc., 433 U.S. 119, 137-38 (1977)(Burger, C.J., concurring) (“I do

not suggest that the [grievance] procedures are constitutionally mandated.”);

Speight v. Sims, No. 08-2038, 2008 WL 2600723 at *1 (3d. Cir. Jun 30,

2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001)(“[T]he

existence of a prison grievance procedure confers no liberty interest on a

prisoner.”) 

 While prisoners do have a constitutional right to seek redress of their

grievances from the government, that right is the right of access to the courts

which is not compromised by the failure of prison officials to address an inmate’s

grievance. See Flick v. Alba, 932 F.2d 728, 729 (8th Cir. 1991) (federal grievance

regulations providing for administrative remedy procedure do not create liberty

interest in access to that procedure). Pursuant to those decisions, any attempt by

Plaintiff to establish liability against Remaining Defendants based upon their

handling of his administrative grievances or complaints does not support a

constitutional claim. See also Alexander v. Gennarini, 144 Fed. Appx. 924, 925

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(3d Cir. 2005)(involvement in post-incident grievance process not a basis for §

1983 liability); Pryor-El v. Kelly, 892 F. Supp. 261, 275 (D. D.C. 1995) (because

prison grievance procedure does not confer any substantive constitutional rights

upon prison inmates, the prison officials' failure to comply with grievance

procedure is not actionable). 

Pursuant to the above discussion the request for entry of dismissal on the

basis of lack of personal involvement will be granted in favor of Warden

Berdanier and Deputy Warden Wapinsky. Dismissal will also be granted in part

with respect to Captain Flannery. However, the claim that Defendant Flannery

directed the prisoner to remain sleeping on the floor of his cell despite the

prisoner’s complaints of back and neck pain sufficiently satisfies the requirements

of Rode and is not subject to dismissal on that basis. 

Administrative Exhaustion

Remaining Defendants next contend that Plaintiff “failed to initiate and

exhaust the grievance procedure.” Doc. 18, p. 20. As previously discussed, this

argument is unopposed. Section 1997e(a) of title 42 U.S.C. provides:

No action shall be brought with respect to prison

conditions under Section 1979 of the Revised Statutes of

the United States (42 U.S.C. 1983), or any other federal

law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies

as are available are exhausted. 

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Section 1997e(a) requires administrative exhaustion “irrespective of the

forms of relief sought and offered through administrative avenues.” Porter v.

Nussle, 122 S.Ct. 983, 992 (2002); Booth v. Churner, 532 U.S. 731, 741 n. 6

(2001). Claims for monetary relief are not excused from the exhaustion

requirement. Nyhuis v. Reno, 204 F.3d 65, 74 (3d Cir. 2000). Dismissal of an

inmate’s claim is appropriate when a prisoner has failed to exhaust his available

administrative remedies before bringing a civil rights action. Ahmed v.

Sromovski, 103 F. Supp. 2d 838, 843 (E.D. Pa. 2000). “[E]xhaustion must occur

prior to filing suit, not while the suit is pending.” Tribe v. Harvey, 248 F.3d 1152,

2000 WL 167468, *2 (6th Cir. 2000)(citing Freeman v. Francis, 196 F.3d 641, 645

(6th Cir. 1999)); Oriakhi v. United States, 165 Fed. Appx. 991, 993 (3d Cir. 2006).

The United States Supreme Court in Jones v. Bock, 127 S.Ct. 910, 923

(2007), stated that the primary purpose of the exhaustion requirement is to allow

“a prison to address complaints about the program it administers before being

subjected to suit, reducing litigation to the extent complaints are satisfactorily

resolved, and improving litigation that does occur by leading to the preparation of

a useful record.” Id. The administrative exhaustion mandate also implies a

procedural default component. Spruill v. Gillis 372 F.3d 218, 222 (3d Cir. 2004).

As explained by the Third Circuit, a procedural default rule “prevents an

end-run around the exhaustion requirement.” Id. at 230. It also ensures “prisoner

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compliance with the specific requirements of the grievance system” and

encourages inmates to pursue their administrative grievances “to the fullest.” Id. 

Similarly, the Supreme Court has observed that proper exhaustion of available

administrative remedies is mandatory, meaning that prisoners must comply with

the grievance system’s procedural rules, including time limitations. Woodford v.

Ngo, 548 U.S. 81 (2006).

Remaining Defendants state that the Schuylkill County Prison has “a

comprehensive administrative procedure which provides for review of

administrative grievances.” Doc. 18, p. 22. A written grievance may be

submitted to the Grievance Coordinator within thirty (30) working days after the

events upon which the claims are based. The Deputy Warden serves as the

prison’s Grievance Coordinator and provides the initial response to the grievance. 

If dissatisfied with the initial response, an inmate may file an appeal with the

Warden within ten (10) days after issuance the Deputy Warden’s response. The

Warden’s decision is not administratively appealable. Remaining Defendants

have also submitted for consideration a copy of the prison’s written grievance

policy. See Doc. 19-1, Exhibit A. 

They also point out that Plaintiff was aware of the grievance procedure. In

fact, the summary judgment request notes that during the course of his

confinement in the Schuylkill County Prison Plaintiff filed a grievance on June 17,

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2014 which related to a 24 hour lock up he received. Since that grievance was

unrelated to the claims pending before this Court, Remaining Defendants conclude

that this matter should be dismissed on the basis of non-exhaustion. A copy of the

grievance filed by Plaintiff has been submitted for review. See Doc. 19-2

In support of their non-exhaustion argument, Remaining Defendants have

also submitted an affidavit from Deputy Warden David Wapinsky who acted as

the prison’s Grievance Coordinator during the relevant time period. See Doc. 19. 

Wapinsky clearly states that Plaintiff “failed to exhaust the grievance procedure

with regard to the claims asserted in his Complaint.” Id. at ¶ 10. The affidavit

states that no grievance was initiated by Ballared regarding having to sleep on the

floor on a mattress from June 12, 2013 to July 14, 2013 or with respect to a

malfunctioning window in February 2014.

The undisputed record establishes that the Schulkill County had an

established grievance procedure in place during the relevant time period. In

addition, Plaintiff was aware of the procedure and pursued an unrelated grievance. 

Third, Ballard failed to file a grievance relating to any of his pending claims

against the Remaining Defendants. Based upon those factors as well as Plaintiff’s

failure to oppose the request for summary judgment, a finding of non-exhaustion

and entry of summary judgment in favor of the Remaining Defendants under the

well settled Spruill and Woodford standards is appropriate.

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Conclusion

Pursuant to the above discussion, Remaining Defendants’ unopposed

request for of summary judgment should be granted. In light of that conclusion a

discussion of the Remaining Defendants’ additional arguments of qualified

immunity and failure to set forth a viable unconstitutional conditions of

confinement claim is not required. An appropriate Order will enter. 

BY THE COURT:

 s/ Matthew W. Brann 

Matthew W. Brann

United States District Judge

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