1After he filed this case, Plaintiff was transferred to FMC-Butner, North Carolina. All of

Plaintiff‘s claims in this case occurred while he was confined at FCI-Allenwood. 

2As this Court noted in Oriakhi v. Wood, 2006 WL 859543, * 1, n. 1. (M.D. Pa.): 

“In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court recognized a private cause

of action to recover damages against a federal agent for violations of constitutional rights.” 

3Plaintiff also filed several other actions with this Court, namely Civil Nos. 02-0845, 06-

1665, 06-1697, 06-1698, 06-2022, 06-2051, 06-2052 and 06-2265, M.D. Pa. In total, Plaintiff

has filed eight (8) cases with this Court. 

4By separate Order, we granted Plaintiff‘s Motion for in forma pauperis. (Doc. 12). 

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 4:CV-06-1665 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

LIEUTENANT SHEPARD, et al., : 

 :

 :

Defendants :

 REPORT AND RECOMMENDATION 

I. Background. 

Plaintiff, Johnny Cyrus, formerly an inmate at the Federal Correctional Institution at

Allenwood (“FCI-Allenwood”)1, Pennsylvania, filed, pro se, this Bivens2action pursuant to 28 U.S.C.

§ 1331, on August 24, 2006. (Doc. 1).3 Plaintiff also filed a Motion to proceed in forma pauperis.

(Doc. 2).4 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 1 of 17
5

In his form Complaint, the Plaintiff indicated that he fully exhausted the grievance

procedure available at USP-Allenwood. (Doc. 1, p. 1, ¶ II. A.-C.). 

2

Attached to the Complaint was a Memorandum from the Bureau of Prisons (“BOP”) dated

February 15, 2006, indicating that Plaintiff‘s Administrative Tort Claim under the Federal Tort Claim

Act (“FTCA”) for alleged injuries from the August 15, 2005 assault at issue in the present case was

denied.

Plaintiff’s claim was set forth on a form civil rights complaint which this Court routinely

provides to pro se litigants. See Doc. 1.5 The Complaint alleged that on August 15, 2005,

Defendants Lieutenant Shepard and Correction Officers (“CO”) Ray Alexander and Dorman

assaulted Plaintiff. Specifically, Plaintiff averred that “I was choke (sic) by Officer Alexander in my

cell in special housing unit. While Lieutenant Shepard watch, I was forming (sic) at the mouth.

Officer Alexander let me go.” (Doc. 1, p. 2, ¶ IV. 1.-2.). Plaintiff stated that the Defendants made

a racially derogatory remark and said they would be back. Plaintiff stated that the Defendants then

came back later and took him to the law library, where he was beaten up again by Defendants

Shepard and Dorman. Plaintiff alleged that Defendants Shepard and Dorman punched him in the

stomach, chest and face, and that they busted his nose and mouth. Plaintiff stated that both his

nose and mouth were bleeding. (Id., ¶ IV. 2.-3.). The stated three Defendants are all employed

at USP-Allenwood. 

Plaintiff also alleged that the three Defendants left the law library, and he saw SIS Lieutenant

Feltman of USP-Allenwood. Plaintiff stated that he was “banging on the window like a mad man

trying to get help. The Lieutenant Feltman came, and stated stop banging on the fucking window.

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 2 of 17
3

was assaulted by two of your officers, he seen me bleeding. He stated, you bang on that window

again, I am going to beat your ass.” (Id. and attached handwritten page). 

Plaintiff then claimed that the medical staff did not check him for injuries and that he was

not interviewed about the assault. Plaintiff admitted that he was transferred to USMCFP in

Springfield, Missouri, fifteen (15) days after the assault incidents. Plaintiff stated that he has been

in a wheelchair for ten years and that when the Defendants beat him up, he was handcuffed. 

Finally, Plaintiff claimed that on July 7, 2006, Defendant Alexander threatened him with

bodily harm. Plaintiff averred that he told Defendant Warden Hogsten the same day of the threat

and the Warden told him “I will see if the assault is still on file. She left me in harm way.” (Id.). 

Thus, Plaintiff claimed that Defendants Shepard, Alexander and Dorman at USP-Allenwood

used excessive force on him on August 15, 2005, in both the SHU and law library. Plaintiff averred

that the stated three Defendants assaulted him while he was handcuffed in his wheelchair. 

Plaintiff asserted that he suffered a busted nose and mouth as a result of the August 15, 2005

incidents. 

The Complaint also named as Defendant SIS Lieutenant Feltman of USP-Allenwood prison

staff. Plaintiff only averred that this Defendant saw him after he was assaulted in the law library and

told him to stop banging on the window. Defendant Feltman was not alleged to have played any

role in the assaults, to have witnessed the assaults, or to have engaged in any conduct amounting

to a violation of Plaintiff‘s Constitutional rights. Plaintiff averred that almost one year after the

incident, he was threatened by Defendant Alexander and told Warden Hogsten about it. Plaintiff

averred that the Warden told him she would check if the assault was still on file. Plaintiff failed to

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 3 of 17
4

allege that Defendant Hogsten violated any of his Constitutional rights. 

Upon screening the Complaint under the PLRA, 28 U.S.C. §1915(e)(2)(B), we found that it

did not sufficiently specify any conduct, wrongful or otherwise, as to Defendants Feltman and

Hogsten. On August 31, 2006, we issued a Report and Recommendation and recommended that

this case be dismissed as to Defendants Feltman and Hogsten, since Plaintiff failed to state a claim

under the Eighth Amendment against these Defendants. We also recommended that this case

proceed as to Plaintiff‘s Eighth Amendment excessive force claims against Defendants Shepard,

Alexander and Dorman. (Doc. 6). 

On October 20, 2006, the District Court issued an Order and adopted our Report and

Recommendation. (Doc. 11). Plaintiff‘s Bivens action as against Defendants Defendants Shepard,

Alexander and Dorman was allowed to proceed with respect to his Eighth Amendment claims. 

Subsequently, we issued an Order on October 26, 2006, in which we granted Plaintiff‘s in forma

pauperis motion and directed service on Defendants Shepard, Alexander and Dorman. (Doc. 12).

Summons was issued as to Defendants Shepard, Alexander and Dorman. Defendants Shepard,

Alexander and Dorman were then served. (Doc. 15). 

On March 5, 2007, Defendants Shepard, Alexander and Dorman jointly filed a Summary

Judgment Motion pursuant to Fed.R.Civ.P. 56(b). (Doc. 22). Defendants filed their support Brief

and Statement of Material Facts (“SMF”) with exhibits on March 19, 2007. (Docs. 24 and 25,

respectively). Plaintiff filed his opposition Brief and exhibits, Exs. 1-3, on April 16, 2007. (Docs.

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 4 of 17
6Copies of Plaintiff‘s exact same opposition Brief and exhibits were captioned and filed

in this case as well as three of his other cases pending before this Court, namely 06-1698, 06-

2265 and 06-2051. We have previously issued a Report and Recommendation in case no. 06-

2051 recommending that Defendant‘s Summary Judgment Motion be granted. On June 25,

2007, the District Court granted Defendant‘s Summary Judgment Motion. We have issued 

separate Reports and Recommendations with respect to Plaintiff‘s Cases Nos. 06-2265, 2022,

and 06-1698. 

5

29 and 30, respectively).6 Defendants Shepard, Alexander and Dorman’s Summary Judgment

Motion is ripe for disposition. 

II. Section 1331 Standard. 

Under Bivens, the District Court has federal question jurisdiction pursuant to 28 U.S.C. 

§ 1331 to entertain an action brought to redress alleged federal constitutional or statutory violations

by a federal actor under Bivens, supra. Pursuant to Bivens, “a citizen suffering a compensable injury

to a constitutionally protected interest could invoke the general federal question jurisdiction of the

district court to obtain an award of monetary damages against the responsible federal official.” Butz

v. Economou, 438 U.S. 478, 504 (1978). A Bivens-style civil rights claim is the federal equivalent

of an action brought pursuant to 42 U.S.C. § 1983 and the same legal principles have been held

to apply. See, Paton v. LaPrade, 524 F.2d 862, 871 (3d Cir. 1975); Veteto v. Miller, 829 F.Supp.

1486, 1492 (M.D. Pa. 1992); Young v. Keohane, 809 F.Supp. 1185, 1200 n. 16 (M.D. Pa. 1992).

In order to state an actionable Bivens claim, a plaintiff must allege that a person has deprived him

of a federal right, and that the person who caused the deprivation acted under color of federal law.

See West v. Atkins, 487 U.S. 42, 48 (1988); Young v. Keohane, 809 F.Supp. 1185, 1199 (M.D. Pa.

1992). 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 5 of 17
6

III. Motion for Summary Judgment Standard. 

The court may grant a motion for summary judgment if the pleadings, depositions, answers

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

any material fact. Fed.R.Civ.P. 56(c). An issue of fact is "`genuine' only if a reasonable jury,

considering the evidence presented, could find for the nonmoving party." Childers v. Joseph, 842

F.2d 689, 693-694 (3d Cir. 1988) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)).

The burden of proving that there is no genuine issue of material fact is initially upon the

movant. Forms, Inc. v. American Standard, Inc., 546 F. Supp. 314, 320 (E.D. Pa. 1982), aff'd mem.

725 F.2d 667 (3d Cir. 1983). Upon such a showing, the burden shifts to the nonmoving party.

Id. The nonmoving party is required to go beyond the pleadings and by affidavits or by

"depositions, answers to interrogatories and admissions on file"designate "specific facts showing that

there is a genuine issue for trial." Fed.R.Civ.P. 56(e).

In determining whether an issue of material fact exists, the court must consider the evidence

in the light most favorable to the nonmoving party. White v. Westinghouse Electric Company, 862

F.2d 56, 59 (3d Cir. 1988). In doing so, the court must accept the nonmovant's allegations as true

and resolve any conflicts in his favor. Id., quoting Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.

1985), cert. denied, 474 U.S. 1010 (1985); Goodman v. Mead Johnson & Co., 534 F.2d 566, 573

(3d Cir. 1976) cert. denied, 429 U.S. 1038 (1977). 

 Under Rule 56 summary judgment must be entered 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 of proof at trial.” Celetox Corp. v. Catrett, 477 U.S. 317, 322 (1986). 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 6 of 17
7As discussed below, we do not find that any of Plaintiff‘s exhibits, Exs. 1-3, dispute

Defendants‘ SMF and their evidence. (Doc. 30). Rather, Plaintiff‘s exhibits are articles 

addressing alleged abuses by the BOP against other inmates in other prisons and they have

nothing to do with Plaintiff and his claims against the Defendants in this case. 

8Plaintiff is deemed as being well aware of all of the Local Rules of this Court based on

his several cases he has filed in the M.D. Pa. In fact, in his Brief (Doc. 29), Plaintiff only

responds to ¶’s 1.- 5. of Defendants‘ SMF. Indeed, his Brief does not contain any legal

argument and does not even respond to Defendants‘ remaining ¶’s of their SMF, ¶’s 6.- 23.,

Doc. 25. 

7

IV. Material Facts. 

Since, as stated, Defendants have filed their SMF in support of their Summary Judgment

Motion (Doc. 25, ¶’s 1.-23.), and all of their facts are properly supported by citation to the BOP

regulations and to evidence, we shall adopt as our own all of Defendants’ facts contained in their

SMF that are supported by citation to evidence and that are not disputed by Plaintiff in his

opposition Brief and through his evidence, i.e. his Exhibits 1-3. (Docs. 29 and 30). To the extent

that Plaintiff‘s evidence disputes Defendants’ facts detailed in their SMF (Doc. 25), we shall not

adopt Defendants’ facts as our own.7 We find that Plaintiff, in his response to Defendants’ SMF

contained in his Brief (Doc. 29), has not properly responded, paragraph by paragraph, to any of

Defendants’ SMF as required by Local Rule 56.1 of M.D. Pa. (Doc. 25).8 As stated, Defendants

have offered evidentiary support for their stated factual paragraphs contained in their SMF. (Doc.

25, pp. 1-5). Defendants have shown that Plaintiff did not fully and properly exhaust his BOP

administrative remedies with respect to the stated Eighth Amendment claims against them. Since

Defendants‘ SMF’s are supported by evidence and since Plaintiff has not properly responded to

them, we shall accept all of Defendants‘ SMF’s as undisputed. We shall incorporate them herein

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 7 of 17
9Defendants’ SMF shows that Plaintiff filed a total of nine (9) Administrative remedies

after the date in question, and that six of these remedies could not have involved Plaintiff‘s

Eighth Amendment claims made against Defendants Shepard, Alexander and Dorman. (Doc.

25, p. 3, ¶ ‘s 11.-14.). Only three of the stated Administrative remedies involved staff conduct

at FCI-Allenwood after the August 2005 incidents in question. In their SMF, Defendants note 

that the specific staff conduct which was the subject of Plaintiff’s three (3) stated Administrative

remedies is not known, since actual copies of rejected Administrative remedies are not

maintained. Defendants‘ evidence supports this claim. (Doc. 25, p. 4, n. 1 and p. 5 n. 2 and

n. 3 and Ex. 1, ¶’s 11., 13. and 15.). However, Defendants have established through their

evidence that the stated three (3) administrative remedies Plaintiff filed after the August 2005

incidents are the only possible ones that could relate to Plaintiff’s claims asserted in this case. 

Further, as discussed below, Defendants have established through their undisputed evidence

that Plaintiff did not exhaust any of the stated three (3) administrative remedies. 

8

by reference and shall not repeat them herein. (Doc. 25, pp. 1-5). 

In his Brief, as stated, Plaintiff responds only to ¶’s 1.- 5. of Defendants’ SMF regarding the

BOP Administrative Remedy process. Plaintiff does not respond to Defendants‘ SMF with respect

to its statements that he failed to properly exhaust his Administrative remedies as to his present

claims. Plaintiff simply states that the BOP administrative remedy “procedure is a joke.” (Doc. 29,

p. 1, ¶ 1.). Plaintiff does not dispute Defendants‘ SMF and its statements that all of the three (3)

Administrative remedies he filed after the August 15, 2005 incidents alleged in this case, that may

have been relevant to Defendants‘ alleged conduct, were rejected due to his improper filing of

them.9 (Doc. 25, pp. 3-5). Rather, Plaintiff questions the appropriateness of the rejections he

received from the prison and the BOP Regional Director, and the stated reason for the rejections,

i.e., the matters raised in his administrative remedies were not sensitive. Plaintiff claims that the

issues he raised involved assaults, threats and harassment by prison staff. (Doc. 29, p. 3). Thus,

Plaintiff argues that his Administrative remedies claiming threats and assaults should not have been

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 8 of 17
9

rejected by the Regional Office, as they undisputedly were rejected, since they were sensitive

issues. (Id.). Significantly, Plaintiff does not dispute Defendants‘ evidence which shows that he

never properly re-filed any of his three Administrative remedies about staff conduct at FCIAllenwood after the August 2005 incidents at issue. Nor does Plaintiff show that he was prevented

from re-filing any of his three (3) administrative remedies. 

Plaintiff also states that BOP staff members against whom he has filed Administrative

remedies and civil actions have retaliated against him. (Id., pp. 1-2). Plaintiff states that staff

members “make your Administrative remedys (sic) disappear and you hear nothing at all about it.”

Plaintiff states that he indicated on his civil actions that his Administrative remedies were never

answered because BOP staff never filed them. He states that he went “to the next level outside of

jail for help and they rejected it at that level.” He states that prison staff are “not going to let you

file on they (sic) friends” in the prison. Plaintiff states that “Administrative remedys (sic) should be

run by inmates or an outside agency so it will be filed.” (Id., p. 2). In his Brief, Plaintiff concludes

that the BOP Administrative Remedy process “is a very corrupt BOP system.” (Id., p. 4). 

Significantly, Plaintiff does not state in his Brief if any of his three (3) rejected Administrative

remedies he received from the prison and the Regional Office raised his Eighth Amendment claims

he asserts against Defendants in this case. Nor does Plaintiff state that any of his Administrative

remedies which allegedly disappeared and were not filed by staff involved his claims against our

Defendants. Further, Plaintiff does not implicate Defendants with any alleged improper handling

and failing to file his Administrative remedies. Moreover, Plaintiff does not dispute Defendants’

evidence which shows that he was instructed how to properly proceed with respect to his

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 9 of 17
10See also Paranich District Court case at 286 F. Supp. 2d at 447, n. 3. 

10

administrative remedies, and that he failed to properly re-file them. (Doc. 25, pp. 3-5). 

Consequently, we accept as undisputed Defendants‘ SMF’s and find that they are all

supported by evidence. We find that it is undisputed that, of the three (3) possible Administrative

remedies raising Plaintiff’s instant claims, which Plaintiff filed after the alleged incidents in this case,

none were properly filed and none were exhausted. Nor does Plaintiff‘s evidence, Exs. 1-3, (Doc.

30), contest Defendants‘ SMF. Plaintiff‘s exhibits are copies of three articles about other inmates

in the custody of the BOP, at other prisons, and relate to the BOP staff’s alleged poor treatment of

these other inmates. None of Plaintiff‘s exhibits deal with his alleged mistreatment by our BOP

staff Defendants, and none of his exhibits controvert our Defendants‘ SMF’s, which show that

Plaintiff did not exhaust his Administrative remedies with respect to his present Eighth Amendment

claims against Defendants. Thus, we find Plaintiff‘s exhibits to be irrelevant to this case and find

that they do not contest Defendants‘ evidence. Therefore, we accept all of the stated facts

contained in Defendants’ SMF (Doc. 25, ¶’s 1.-23.) since they are supported by evidence, and since

they are not controverted by Plaintiff‘s response to Defendants’ SMF or by his evidence (i.e., his

three (3) Exhibits), and we will adopt them as our own herein. See U.S. ex rel. Paranich v. Sorgnard,

396 F. 3d 326, 330, n. 5 (3d Cir. 2005) (under M.D. Pa. L.R. 56.1, the Third Circuit noted that the

District Court adopted all the facts of one party that were not clearly disputed by the other party

with sufficient citation to the record).10 Therefore, we adopt the following undisputed facts derived

from Defendants’ SMF (Doc. 25) as our own and incorporate them herein by reference: Paragraphs

1.- 23. 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 10 of 17
11

As stated, while Plaintiff generally argues that his Administrative remedies regarding assaults,

threats and harassment by staff should not have been rejected by the Regional Office since they

raised sensitive issues, he does not show that any of these Administrative remedies related to the

unconstitutional conduct he alleges against Defendants in this case. Nor does Plaintiff explain why

he did not properly re-file any of the stated Administrative remedies after he was undisputedly

advised and instructed as to how to properly file them. Instead of properly re-filing his

administrative remedies, Plaintiff simply began filing civil actions with this Court.

V. Discussion. 

As we have repeatedly noted in our prior Reports and Recommendations when screening

Plaintiff‘s cases, and as Defendants point our in their Brief (Doc. 24, pp. 6-7), it is well-settled that

the Plaintiff must exhaust his administrative remedies prior to filing a civil rights suit. In Porter v.

Nussle, 534 U.S. 516, 532 (2002), the Supreme Court reiterated that the exhaustion requirement

under § 1997e(a) applies to all actions regarding prisons conditions, including § 1983 actions or

actions brought pursuant to any other federal law. The Porter Court held that “the PLRA’s

exhaustion requirement applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some other

wrong.” Id.; Woodford v. Ngo, 126 S Ct. 2378 (2006); Fortune v. Bitner, 2006 WL 2769158, *7

(M.D. Pa.)(“The PLRA mandates that inmates ‘properly’ exhaust administrative remedies before

filing suit in federal court.”)(citation omitted). Further, the Defendant has the burden to plead

exhaustion as an affirmative defense. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002); Fortune

v. Bitner, 2006 WL 2769158, *7. 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 11 of 17
12

We find that Defendants have met their burden and has shown that Plaintiff‘s Eighth

Amendment claims against them which arose in August 2005 and July 2006, were not properly

exhausted. Defendants have shown that Plaintiff did not pursue all of his available BOP

administrative remedies before he filed this action. Indeed, Plaintiff is well aware of the PLRA

exhaustion requirement based on our screening of his prior cases he has filed with this Court. 

Since Defendants have correctly stated the BOP Administrative Remedy process in their

Brief (Doc. 24, pp. 2-3), and since their evidence has detailed it (Doc. 25, Ex. 1, ¶’s 6.-9.), we shall

not repeat it herein. Further, Plaintiff does not dispute the BOP Administrative Remedy process

as outlined in Defendants‘ Brief. As stated, Plaintiff only questions why his unspecified

Administrative remedies were rejected by the Regional Office as not being sensitive when he states

they involved assaults and threats by unnamed staff. While Plaintiff does not show that any of the

rejected Administrative remedies had anything to do with his claims against our Defendants, he

still had available recourse with respect to his three (3) stated Administrative remedies, according

to Defendants‘ undisputed evidence, in that he could have re-filed them properly as he was

instructed to do. Thus, we find that, to the extent that Plaintiff is construed as arguing futility with

respect to the exhaustion of his claims against Defendants, this contention should not be found to

excuse Plaintiff‘s undisputed failure to exhaust his Administrative remedies. As stated, Plaintiff has

offered no reason or evidence as to why he did not properly re-file his Administrative remedies

after he was advised and instructed how to do it. In any event, as stated below, the PLRA bars a

futility exception to the exhaustion requirement. See Fortune, supra at * 7. 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 12 of 17
13

As Defendants recognize, pursuant to Spruill, “[a] procedural default by the prisoner, either

through late or improper filings, bars the prisoner from bringing a claim in federal court unless

equitable considerations warrant review of the claim.” (Doc. 24, p. 7). As this Court stated in

Fortune v. Bitner, 2006 WL 2796158, * 7 (M.D. Pa.):

Under the Prison Litigation Reform Act (“PLRA”), exhaustion

of administrative remedies is required for all actions concerning

prison conditions brought under federal law. See 42 U.S.C. § 1997e(a);

see Woodford v Ngo, 126 S.Ct. 2378 (2006). The “exhaustion

requirement applies to all inmate suits 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 (2002). “The PLRA attempts to eliminate

unwarranted federal-court interference with the administration of

prisons, and thus seeks to afford corrections officials time and opportunity

to address complaints internally before allowing the initiation of a

federal case.” Woodford, 126 S.Ct. at 2387 (internal quotation and

citation omitted). “The benefits of exhaustion can be realized only if the

prison grievance system is given a fair opportunity to consider the

grievance.” Id. at 2388.

The PLRA mandates that inmates “properly” exhaust administrative

remedies before filing suit in federal court. Id. at 2387. “Proper

exhaustion demands compliance with an agency’s deadlines and

other critical procedural rules because no adjudicative system can

function effectively without imposing some orderly structure on the

course of its proceedings.” Id. at 2386. Failure to substantially comply

with the procedural requirements of the applicable prison’s grievance

system will result in a procedural default of the claim. Spruill v. Gillis,

372 F.3d 218, 227-32 (3d Cir. 2004). The PLRA “completely precludes

a futility exception to its mandatory exhaustion requirement.” Nyhuis v.

Reno, 204 F.3d 65, 71 (3d Cir. 2002).

The Fortune Court also stated:

The PLRA’s exhaustion requirement was designed to reduce the quantity

and improve the quality of prisoner lawsuits, as well as afford

corrections officials an opportunity to address complaints internally

before allowing the initiation of a federal suit. Woodford, 126 S.Ct.

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 13 of 17
14

at 2387-88 (“The benefits of exhaustion can be realized only if the

prison grievance system is given a fair opportunity to consider the

grievance.”). The PLRA exhaustion requirement is satisfied if the

Plaintiff files a grievance and appeals the denial of the grievance to 

the highest level possible, giving the prison “fair notice” of the

claim and an opportunity to remedy it. To provide fair notice of a

claim, the plaintiff must allege specific acts of mistreatment or

misconduct and identify the responsible party or parties. See Pack v.

Martin, 174 Fed. Appx. 256 (6th Cir. 2006); Johnson v. Johnson, 385 F.3d

503, 516 (5th Cir. 2004); Burton v. Jones, 321 F.3d 569, 575 (6th Cir.

2003). Although neither the Third Circuit Court of Appeals nor the

Supreme Court has defined how specific an inmate’s administrative

grievance must be to place the prison on “fair notice” of a claim

prior to pursuing it in federal court, the Supreme Court has held that

the prisoner’s compliance with the agency’s applicable administrative

remedy process should be the yardstick for making such an assessment.

Woodford, 126 S.Ct. at 2386; Spruill, 372 F.3d at 227-32.

Id., * 9. 

We agree with Defendants (Doc. 24, pp. 8-9) and find that, based on the undisputed

evidence, Plaintiff did not exhaust his Eighth Amendment claims he asserts in this case. Defendants

have established, through their uncontested evidence, that Plaintiff has failed to exhaust any of the

three (3) possible administrative remedies he filed regarding his claims in this case. Thus, we shall

recommend that Defendants‘ Summary Judgment Motion be granted. 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 14 of 17
15

VI. Recommendation. 

Based on the above, it is respectfully recommended that Defendants’ Summary Judgment

Motion (Doc. 22) be granted since Plaintiff has failed to exhaust his claims under the Eighth

Amendment against all three Defendants. It is further recommended that Judgment be entered in

favor of Defendants Shepard, Alexander and Dorman, and against Plaintiff. 

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT

United States Magistrate Judge

Dated: July 6, 2007 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 15 of 17
16

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JOHNNY CYRUS, : CIVIL ACTION NO. 4:CV-06-1665 

:

Plaintiff : (Judge McClure) 

:

v. : (Magistrate Judge Blewitt)

:

LIEUTENANT SHEPARD, et al., : 

 :

 :

Defendants :

 NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing

Report and Recommendation dated July 6, 2007. 

Any party may obtain a review of the Report and Recommendation pursuant to 

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 ten (10)

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

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 16 of 17
17

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.

s/ Thomas M. Blewitt 

THOMAS M. BLEWITT 

United States Magistrate Judge 

Dated: July 6, 2007 

Case 4:06-cv-01665-JFM Document 31 Filed 07/06/07 Page 17 of 17