UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LUIS NIEVES, : CIVIL ACTION NO. 4:20-CV-652

 Plaintiff, :

 v. : (JUDGE MANNION)

DEPARTMENT OF 

CORRECTIONS, et al.,

:

 Defendants. :

ORDER

Presently before the court in this pro se civil rights lawsuit is the report 

and recommendation of Magistrate Judge William I. Arbuckle, (Doc. 226), 

and Plaintiff’s Motion for Jury Trial, (Doc. 227). Judge Arbuckle recommends 

that Defendants’ motion for summary judgment, (Doc. 173), be granted. In 

lieu of a timely objection Plaintiff filed a self-styled Motion for Jury Trial that 

does not dispute or even question Judge Arbuckle’s findings. 

Where no objection is made to a report and recommendation, the court 

should, as a matter of good practice, “satisfy itself that there is no clear error 

on the face of the record in order to accept the recommendation.” Fed. R. 

Civ. P. 72(b), advisory committee notes; see also Univac Dental Co. v. 

Dentsply Intern., Inc. 702 F. Supp.2d 465, 469 (M.D. Pa. 2010) (citing 

Henderson v. Carlson, 812 F. 2d 874, 878 (3d Cir. 1987)(explaining judges 

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should give some review to every report and recommendation)). In any 

event, whether timely objections are made or not, the district court may 

accept, not accept, or modify, in whole or in part, the findings or 

recommendations made by the magistrate judge. 28 U.S.C. '636(b)(1); 

Local Rule 72.31.1

Defendants move for summary judgment under Rule 56 of the Federal 

Rules of Civil Procedure, which empowers courts to dispose of those claims 

that do not present “a genuine dispute as to any material fact.” Fed. R. Civ. 

P. 56(a). 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.”

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)).

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

believes shows an absence of a genuine issue of material fact. Conoshenti 

1 To the extent Plaintiff’s Motion for Jury Trial could be construed as a 

timely objection to Judge Arbuckle’s report the district court would need to 

review de novo those portions of the report to which objections are made. 28 

U.S.C. 636(b)(1); Brown v. Astrue, 649 F. 3d 193, 195 (3d Cir. 2011)

However, Plaintiff’s motion does not object to, let alone mention, any aspect 

of the report. Thus, even when viewed as an objection, Plaintiff’s Motion for 

Jury Trial does not require the court review any aspect of the report de novo. 

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v. Pub. Serv. Elec. & Gas Co., 364 F. 3d 135, 145-46 (3d Cir. 2004). 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.” Berckeley Inv. Grp. Ltd. v. 

Colkitt, 455 F. 3d 195, 201 (3d Cir. 2006); Celotex Corp v. Catrett, 477 U.S. 

317, 324 (1986). 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 judgement is 

appropriate. Celotex, 477 U.S. at 322. 

Since the report correctly states the procedural and factual background 

of this case, (Doc. 226, at 5-8), it will not be repeated herein. In short Plaintiff 

alleges that his Eighth Amendment Rights were violated during his 

incarceration in a Pennsylvania state prison. Specifically, Plaintiff alleges 

that on March 30, 2020, he sustained injuries to his arms and wrist as a result 

of excessive force by correction officers. Conversely Defendants assert that 

on March 30, 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. Regardless Judge Arbuckle found, and this court agrees, 

that Plaintiff cannot bring a claim against Defendants Department of 

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Corrections (“DOC”) or SCI Camp Hill and has failed to exhaust his 

administrative remedies as to Defendant Corrections Officers Parry and 

Lugo.

Plaintiff attempts to bring a claim 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. “Section 1983 imposes civil liability upon any person 

who, acting under the color of state law, deprives another individual of any 

rights, privileges, or immunities secured by the constitution or laws of the 

United States.” 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)). 

However, states, state agencies, and state officials acting in their official 

capacities are not persons within the meaning of 42 U.S.C. '1983. See Will 

v. Michigan Dept. of State Police, 491 U.S. 8, 71 (1989); see also Godfrey v. 

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

(“States and their derivative governmental institutions, including the 

Department of Corrections (DOC), prisons, and prison medical departments, 

are not ‘persons’ for purposes of civil rights action.”) Thus, Plaintiff’s claims 

against Defendants DOC and SCI Camp Hill will be dismissed with prejudice 

since any amendment as to these Defendants would be futile. 

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Additionally, 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 against them are barred. The 

PLRA requires prisoners to first 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 

involve general circumstances or particular episodes, and whether they 

allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 

532 (2003). 

Here Plaintiff does not factually dispute Defendants Parry and Lugo’s 

statement that he failed to appeal his grievance to final review under DCADM 804, and therefore failed to exhaust the grievance procedure as 

required by the PLRA. Plaintiff makes only the legal argument that he 

exhausted his administrative remedies by reporting his alleged abuse in 

accordance with DC-ADM 001. However, Third Circuit precedent is clear that 

an inmate can only exhaust by following the grievance procedure under DCADM 804 and cannot exhaust under DC-ADM 001. See Prater v. Dep’t of 

Corr., 76 F. 4h 184, 203-04 (3d Cir. 2023). Thus, there is no genuine dispute 

of material fact that Plaintiff failed to exhaust his administrative remedies and 

Defendants Parry and Lugo motion for summary judgment will be granted. 

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Plaintiff does not object to any of these findings and instead filed a selfstyled Motion for Jury Trial in which he baldly request inter alia the court “stop 

covering the constitution with bias law favers (sic.) and please grant trial.”

(Doc. 227 at 2.) However, this request does not change the fact that Plaintiff 

has failed to defeat Defendant’s motion for summary judgment. Since that 

motion will be granted Plaintiff’s motion for jury trial will also be dismissed as 

moot. 

NOW THEREFORE IT IS HEREBY ORDERED THAT: 

(1)The report and recommendation of Judge Arbuckle, (Doc. 226), is 

ADOPTED IN ITS ENTIRETY as the decision of the court.

(2) Plaintiff’s claims against Defendants DOC and SCI Camp Hill are 

DISMISSED with prejudice. 

(3) Defendants Parry and Lugo’s Motion for Summary Judgment, (Doc. 

173), is GRANTED. 

(4) Plaintiff’s motion for jury trial, (Doc. 227), is DENIED as moot.

(5) The Clerk of Court is directed to CLOSE this case. 

s/ Malachy E. Mannion__ MALACHY E. MANNION

 United States District Judge

DATE: January 5, 2024

20-652-01

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