UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

THOMAS J. BEATON, SR., :

: NO.: 4:07-CV-1526

Plaintiffs :

: (JUDGE CONNER)

v. : (MAGISTRATE JUDGE PRINCE)

:

FRANKLIN J. TENNIS, ET AL., :

:

Defendants :

:

REPORT AND RECOMMENDATION

Pursuant to an Order entered on April 5, 2010 (Doc. 102), Honorable

Christopher C. Conner referred the pending Motion for Summary Judgment to the

undersigned for the purpose of preparing a Report and Recommendation. 

I. Background

Plaintiff, Thomas J. Beaton, Sr., commenced this action on August 20, 2007

(Doc.1) and thereafter filed an amended complaint on October 16, 2007 (Doc. 12)

and a second amended complaint on July 17, 2008 (Doc. 41). Named as 1

Defendants to this lawsuit are Officer A. Porter, Sergeant Confer, Officer Rebar,

Franklin J. Tennis, Joel Dickson, Jeffrey Rackovan, Gerald McMahon, Major

 Although initially proceeding pro se, Plaintiff was appointed counsel by 1

the court by Order dated October 17, 2007 (Doc. 15). 

Case 4:07-cv-01526-CCC Document 111 Filed 05/10/10 Page 1 of 18
Morris and Robert Patishnock (“Correctional Defendants”). The second amended

2

complaint avers that on August 28, 2006, while incarcerated at SCI-Rockview,

Plaintiff was attacked by another inmate with a padlock. It contends further, inter

alia, that the Correctional Defendants knew or should have known of this risk of

attack to Plaintiff. Accordingly, this action can be categorized as a failure to

protect claim. 

On January 29, 2010, Correctional Defendants filed a Motion for Summary

Judgment (Doc. 83) and thereafter filed a Brief in Support (Doc. 90) and

Statement of Material Facts (Doc. 91) on February 12, 2010. Plaintiff filed his

Brief in Opposition to the Motion for Summary Judgment on April 6, 2010. (Doc.

103). The moving Defendants filed a Reply Brief and an additional Statement of

Facts on April 16, 2010. (Docs.104-105). The matter is now ripe for disposition. 3

For the reasons stated below, the court will recommend that the motion be granted. 

 Also named as Defendants were John Symons, M.D. and Valerie Senko,

2

PA-C (“Medical Defendants”), in whose favor summary judgment was entered by

Order dated February 23, 2010 (Doc. 98). 

Plaintiff filed a Motion for Leave to File a Counterstatement of Facts Out 3

of Time (Doc. 106) which was denied (Doc. 110). In the absence of a 

Counterstatement of Facts by Plaintiff, Defendants Statements of Facts (Docs.

91,105) are deemed unopposed and adopted pursuant to Local Rules 7.8(a) and

56.1. 

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II. Standard of Review

Federal Rule of Civil Procedure 56(c) requires the court to render summary

judgment " . . . forthwith if the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law." Fed.R.Civ.P. 56(c). "[T]his standard provides that

the mere existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). 

A disputed fact is "material" if proof of its existence or nonexistence would

affect the outcome of the case under applicable substantive law. Anderson, 477

U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir. 1992). 

An issue of material fact is "genuine" if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257;

Brenner v. Local 514, United Brotherhood of Carpenters and Joiners of America,

927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact, the

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court must view the facts and all reasonable inferences in favor of the nonmoving

party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement v. Consolidated

Rail Corporation, 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse

Electric Company, 862 F.2d 56, 59 (3d Cir. 1988). In order to avoid summary

judgment, however, the nonmoving party may not rest on the unsubstantiated

allegations of his or her pleadings. When the party seeking summary judgment

satisfies its burden under Rule 56(c) of identifying evidence which demonstrates

the absence of a genuine issue of material fact, the nonmoving party is required by

Rule 56(e) to go beyond the pleadings with affidavits, depositions, answers to

interrogatories or the like in order to demonstrate specific material facts which

give rise to a genuine issue. Celotex Corporation v. Catrett, 477 U.S. 317, 324

(1986). The party opposing the motion "must do more than simply show that there

is some metaphysical doubt as to the material facts." Matsushita Electric

Industrial Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56(e) shifts

the burden of production to the nonmoving party, that party must produce

evidence to show the existence of every element essential to its case which it bears

the burden of proving at trial, for "a complete failure of proof concerning an

essential element of the nonmoving party's case necessarily renders all other facts

immaterial." Celotex, 477 U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846,

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851 (3d Cir. 1992).

III. Factual History

Viewing the facts in a light most favorable to the Plaintiff indicates the

following background to this action: While incarcerated at SCI-Rockview,

Plaintiff contends that he was verbally threatened by another inmate, Sharif. (Doc.

41, ¶ 13). Defendants were never informed of these threats. (Doc. 91, ¶¶ 35-38,

49, 50, 71, 85-86, 88). On August 28, 2006, Sharif assaulted Plaintiff with a

padlock. (Doc. 41,¶¶ 8-9). Plaintiff asserts that assaults by inmates using

padlocks had occurred previously at the institution. However, Defendants

Patishnock, McMahon, Morris, Dickson, Rebar, Confer and Porter were unaware

of previous attacks utilizing padlocks. (Doc. 91, ¶¶ 39, 54, 79). As a result of this

attack, Plaintiff states that he was rendered unconscious for approximately 10-15

minutes. (Doc. 41, ¶ 15). During this time, he maintains that no prison officials

responded to the assault or attended to Plaintiff’s medical needs. (Id. at ¶ 16). 

Defendants claim that they were neither aware that Plaintiff had been attacked nor

were they informed of the attack. (Doc. 91, ¶¶48, 68-69, 84-85). Plaintiff

contends he was not taken to be examined by prison medical staff until the next

day. (Doc. 41, ¶ 21).

Following the incident, Plaintiff filed a grievance, No. 165488, on October

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1, 2006, asserting that prison correctional officers failed to adequately provide for

his safety when he was assaulted by the other inmate. (Doc. 103-2, Ex. A)4

Defendant Rackovan returned the grievance to Plaintiff, stating that it was

untimely. On October 3, 2006, Plaintiff sent an appeal of this grievance to

Defendant Tennis, who informed Plaintiff on October 4, 2006 that the matter

would be investigated. (Doc. 105, Ex. J, K). Plaintiff met with Defendant

Patishnock on October 16, 2006 to discuss the grievance. At that time Plaintiff

signed a form withdrawing the grievance. (Doc. 105, Ex. L). Plaintiff

subsequently wrote to Defendant Tennis on October 31, 2006, indicating his wish

to refile the grievance. (Doc 103-2, Ex. B). Noting that the ramifications of

withdrawing the grievance were fully known to Plaintiff, the request to refile was

denied by Defendant Tennis. (Doc. 103-2, Ex. C). Plaintiff attempted to appeal

this denial with the Secretary’s Office of Inmate Grievances and Appeals

(“SOIGA”) on November 6, 2006, which ultimately informed him that his appeal

was dismissed. (Doc. 103-2, Ex. D-E)

III. Discussion

In their Motion for Summary Judgment, Defendants maintain that Plaintiff

 The Automated Inmate Grievance Tracking System indicates that Plaintiff 4

attempted to filed four (4) grievances to final review. Only No. 165488 is

presently at issue. 

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has failed to exhaust his administrative remedies with respect to his failure to

protect claim. They contend further that Plaintiff has failed to establish a failure

to protect claim by demonstrating that the Correctional Defendants disregarded a

known risk to his health and safety. 

(A) Exhaustion

The Prison Litigation Reform Act of 1995 declares that “[n]o 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 as are available are exhausted.” 42

U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006). A prisoner must

comply with the PLRA exhaustion requirement as to any claim that arises in the

prison setting, regardless of the nature of the claim or of the relief sought. See

Porter v. Nussle, 534 U.S. 516, 532 (2002) (“[T]he 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.”); Booth v. Churner, 532 U.S. 731, 741 n.6 (2001)

(“[A]n inmate must exhaust irrespective of the forms of relief sought and offered

through administrative avenues.”). “[I]t is beyond the power of [any] court ... to

excuse compliance with the exhaustion requirement.” Nyhuis v. Reno, 204 F.3d

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65, 73 (3d Cir. 2000).

“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.” Woodford, supra, at 90. Such requirements “eliminate

unwarranted federal-court interference with the administration of prisons, and thus

seek[] to ‘affor[d] corrections officials time and opportunity to address complaints

internally before allowing the initiation of a federal case.’” Id. at 93 (quoting

Porter at 525). 

The available remedies are found in the state's prison grievance procedures,

and “compliance with prison grievance procedures ... is all that is required by the

PLRA to ‘properly exhaust.’” Jones v. Bock, 549 U.S. 199, 218 (2007). The

Pennsylvania DOC has a three-stage grievance process which includes the initial

review, the appeal to a facility manager, and the appeal to the Secretary's Office of

Inmate Grievances and Appeals. See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir.

2004). Failure to comply with procedural requirements of the applicable prison's

grievance system will result in a procedural default of the claim. Spruill at 227-32

(3d Cir.2004). A procedural default, “either through late or improper filings, bars

the prisoner from bringing a claim in federal court unless equitable considerations

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warrant review of the claim.” Gallego v. United States, No. 02-1157, 2005 WL

1653166, at *2 (M.D. Pa. July 8, 2005).

Defendants assert that Plaintiff’s claim must fail because he failed to

exhaust his administrative remedies on this matter. As stated in his pleadings,

Plaintiff contends that although he initially filed a grievance on this claim, he

thereafter withdrew it and later attempted to refile it. With respect to the

withdrawl, Plaintiff states that he was pressured by prison officials to rescind the

grievance. He further claims he did not fully understand or comprehend his

decision due to his confusion resulting from the head trauma he allegedly

sustained in the underlying assault. The first issue to be resolved, therefore, is

whether a grievance filed and subsequently withdrawn will satisfy the exhaustion

requirement when the claimant attempts to refile it by seeking further review.

Plaintiff contends that Defendant Patishnock “tricked” him into

withdrawing grievance No. 165488 by putting the paperwork to withdraw it

underneath a different grievance form. (Doc. 103, Ex. B). Plaintiff claims he

believed that he was withdrawing a grievance relating to his housing request to be

moved from one cell block to another. (Doc. 103, p.3). Affirmative misconduct

by prison officials designed to impede or prevent an inmate's attempts to exhaust

may render administrative remedies unavailable. See Todd v. Benning, 173 F.

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App'x 980, 982-83 (3d Cir. 2006) (expressing approval of Eighth Circuit's holding

in Miller v. Norris, 247 F.3d 736 (8th Cir.2001) that administrative remedies were

not available where prison officials “purportedly prevented prisoner from

employing the prison's grievance system”). Affirmative misconduct on the part of

prison officials include, for example:

(1) threatening a prisoner in an attempt to thwart the prisoner's

attempts to exhaust, see, e.g., Harcum v. Shaffer, No. 06-5326, 2007

WL 4167161, at *5 (E.D. Pa. Nov. 21, 2007) (finding administrative

remedies unavailable where prison officials threatened plaintiff with

“opposition to his future prerelease application, parole, or outside

work detail if he did not withdraw his grievance”), (2) refusing to

provide appropriate grievance forms in response to inmate inquiries,

see, e.g., Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003); (3)

advising an inmate that his or her situation does not require a

grievance, see, e.g., Brown v. Croak, 312 F.3d 109, 111 (3d Cir.

2002) (finding that administrative remedies were unavailable to

plaintiff who had been advised by prison official that he must wait

until the end of the prison's investigation before filing a grievance),

and (4) failing to file or respond to a prisoner's grievances, see, e.g.,

Camp v. Brennan, 219 F.3d 279, 280-81 (3d Cir. 2000) (finding that

administrative remedies were unavailable where prison officials

refused to file plaintiff's grievances regarding their coworkers). 

Knauss v. Shannon, No. 08-1698, 2010 WL 569829, at *9 (M.D. Pa. February 12,

2010). 

In the instant matter, Plaintiff does not assert he was pressured or threatened

by Defendants or that any prison officials failed to act on or respond to the

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grievance. He claims, rather, that he was “tricked” as a result of his alleged

weakened mental condition. However, Defendants’ submissions, uncontested by

Plaintiff, include a declaration by Defendant Patishnock stating that Plaintiff

indicated he did not wish to discuss the grievance but instead wanted to withdraw

it. (Doc. 91, Ex. 2). Although Plaintiff argues he was attempting to withdraw a

grievance regarding housing, the response to his appeal noted that the Plaintiff had

already withdrawn his appeal on the housing grievance on October 10, 2006, prior

to meeting with Defendant Patishnock on this grievance on October 16, 2006. 

Moreover, Plaintiff does not contest Defendants’ assertion that he had the

opportunity to review the grievance packet prior to signing the form withdrawing

grievance No. 165488. Based on these facts, the court concludes that any

confusion Plaintiff may have had at the time he withdrew the grievance cannot be

attributed to the actions of the Defendants. Consequently, Plaintiff’s withdrawl of

the grievance is not a result of misconduct on the part of the Defendants. Having

procedurally defaulted the issues raised in grievance No. 165488, the court

concludes it is without authority to adjudicate the claims raised therein.5

 Further, assuming, arguendo that Plaintiff had not withdrawn the

5

grievance and/or that he had pursued the matter to full exhaustion, it appears that

the matter has been procedurally defaulted by Plaintiff’s failure to file the

grievance within 15 days of the alleged assault as required under the regulations

(continued...)

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Nonetheless, the court will address the merits of his claim by conducting an

analysis under the failure to protect doctrine. 

(B) Failure to Protect

It is well-settled that prison officials have a duty under the Eighth

Amendment to “take reasonable measures to guarantee the safety of inmates.”

Farmer v. Brennan, 511 U.S. 825, 832 (1994) (internal quotations omitted). 

Reasonable measures must be taken “to protect prisoners from violence at the

hands of other prisoners.” Farmer, at 833 (1994). “Being violently assaulted in

prison is simply ‘not part of the penalty that criminal offenders pay for their

offenses against society.’” Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337,

347 (1981)). In order to establish a claim under § 1983 based on the Eighth

Amendment, an inmate must allege acts or omissions by prison officials

sufficiently harmful to evidence deliberate indifference to a serious medical need. 

See Spruill, supra. In this context, a failure to protect claim must demonstrate that

an inmate is “incarcerated under conditions posing a substantial risk of harm,” and

that prison officials knew of and disregarded the excessive risk to inmate safety. 

Farmer, at 833, 837. Deliberate indifference is more than a mere lack of ordinary

(...continued) 5

governing inmate grievances.

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due care, however; it is a state of mind equivalent to a reckless disregard of a

known risk of harm. Id. at 834. To constitute deliberate indifference as defined in

Farmer, “the official must both be aware of facts from which the inference could

be drawn that a substantial risk of serious harm exists, and he must also draw the

inference.” Farmer, 511 U.S. at 837. “The deliberate indifference standard set out

in Farmer is a high one[.]” Beers-Capitol v. Whetzel, 256 F.3d, 120 137 (3d Cir.

2001). 

The instant failure to protect claim contains two separate issues: the failure

to protect the Plaintiff from an assault by a fellow inmate, and the failure to protect

Plaintiff, and inmates generally, from assaults with padlocks. Each of these

matters will be addressed separately. 

1. Assault by an Inmate

When an inmate seeks protection in the absence of an attack, he must

demonstrate a “pervasive risk of harm” to his safety. “A pervasive risk of harm

may not ordinarily be shown by pointing to a single incident or isolated incidents,

but it may be established by much less than proof of a reign of violence and

terror.” Riley v. Jeffes, 777 F.2d 143, 147 (3d Cir. 1985).

In his complaint, Plaintiff contends that he was threatened twice by an

inmate identified as Sharif. Plaintiff alleges he was first threatened by Sharif

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approximately two (2) months prior to the August 28, 2006 assault. (Doc. 87, Ex.

8, p. 32-33). At the time, Plaintiff was in the shower when Sharif approached him

and stated “[y]ou’re shower’s up.” Id. Following this incident, approximately one

to one and one-half (1-1 1⁄2 ) months before the alleged assault, Plaintiff alleges

Sharif approached him on the block and stated “I’m going to fuck you up.” Id. at

35. As a result of this second threat, Plaintiff maintains that he verbally requested

a transfer within the prison from Defendant Patishnock. Id. 

The court concludes that this factual scenario is insufficient to establish

deliberate indifference on the part of the Defendants. Without more, these two

statements alone do not establish a risk of pervasive harm. See Jones v. Beard,

145 Fed. Appx. 743 (3d Cir. 2005) (isolated comments were insufficient to show

that the guards knew that inmate faced a substantial risk such that they could be

considered deliberately indifferent to that risk.). As stated above, Defendants were

not informed of these threats. Additionally, these two threats occurred well before

the alleged assault, rendering them too attenuated from the incident to have put

Defendants, had they been informed, on notice of a real and proximate threat to

Plaintiff’s safety. Further, the vague nature of these statements raises the question

of whether they can even be characterized as menacing or intimidating. Plaintiff

himself took little action with respect to the alleged threats. He did not file

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institutional grievances complaining about Sharif’s remarks prior to the attack. 

Moreover, although he maintains that he wanted to be transferred to other housing

following the second threat, he made no written request to that effect. 

If a threat is made from one inmate to another, Pennsylvania DOC policy

states that both inmates are to be placed in administrative custody. (See Doc. 91, ¶

51). This suggests that even if Defendants had been informed of the threats, they

did not draw the inference that the threats posed a serious risk to Plaintiff

necessitating transfer of both him and Sharif to administrative custody. See, e.g.,

Jackson v. Everett, 140 F.3d 1149, 1152 (8th Cir. 1998) (noting that “threats

between inmates are common” and do not, in every circumstance “serve to impute

actual knowledge of a substantial risk of harm”) (citations and internal quotations

omitted). Thus, if they had been informed, Defendants’ actions would not be

classified as anything more that negligence in failing to take measures to guard

against a potential assault. Such facts do not establish a claim under the Eighth

Amendment. See Davidson v. Cannon, 474 U.S. 344, 345-48 (1986) (finding

prison officials' negligent failure to heed prisoner's notification of threats from

another inmate, followed by assault, is not deprivation of right); Schwartz v.

County of Montgomery, 843 F. Supp. 962 (E.D. Pa. 1994), aff'd, 37 F.3d 1488 (3d

Cir. 1994) (stating corrections officers' failure to observe institutional policies

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regarding supervision of dangerous inmates constitutes negligence, which cannot

support § 1983 action for violation of the Eighth or Fourteenth Amendments). 

Even when taken in a light most favorable to the Plaintiff, the court concludes that

he has failed to raise a genuine issue of fact that he faced an excessive risk of

attack by inmate Sharif to which Correctional Defendants responded with

deliberate indifference.

2. Padlocks

The next issue to be resolved is whether the availability of padlocks to

inmates constitutes a serious threat to the health and safety of other prisoners. The

parties do not dispute that padlocks are available to inmates in Pennsylvania

correctional facilities through the prison commissaries. 

Defendants note that Defendants Patishnock, McMahon, Morris, Dickson,

Confer, Porter, Rebar and Rackovan lack the authority to implement policies

regarding padlocks in the prison. (Doc. 91, ¶¶ 40, 54, 61, 89). While Defendant

Tennis, as Superintendent, was aware that padlocks had been used in assaults,

occurring approximately 1-2 times per year, he found the issue never rose to the

level to warrant the removal of padlocks from the prison. (Id. at ¶ 56). Defendant

Tennis believed the history of assaults by inmates with padlocks was not of a level

of frequency and/or severity to warrant their removal from the institution. 

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Defendant Tennis further observed that the use and availability of padlocks serves

a legitimate purpose within the prison–to allow inmates to secure their possession,

which in turn increases the safety and security of the inmates and the facility by

decreasing the instances of theft and violent behavior. (Id. at ¶¶ 57-58). He

opined that the misuse of padlocks was negligible compared to their valuable

purpose and correct use enjoyed by a majority of the prison population. Defendant

Tennis remarked further that inmates assaults utilizing bars of soap are much more

common occurrences than the similar use of padlocks. (Id. at 59). 

In light of the evidence, Plaintiff's submissions are inadequate to raise a

genuine issue of fact that institution’s policies, or those of the Pennsylvania

Department of Corrections, were constitutionally inadequate. In considering

whether an Eighth Amendment violation has occurred, the facts must establish a

“substantial” or “pervasive” risk of harm. While recognizing that padlocks are

available in the prison, their use in assaults by inmates, estimated by Defendant

Tennis to be 1-2 times per year, which is consistent with Plaintiff’s allegation as to

the frequency of such attacks, does not represent a “pervasive” risk of harm. 

Moreover, an argument that the continued availability of padlocks despite

knowledge of previous, albeit isolated, assaults does not constitute deliberate

indifference and it fails to consider that the padlock serves a legitimate penal

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function of securing inmates' private property while deterring theft. See Francisco

v. Hebert, No. 05-1850, 2007 WL 1805772 (W.D. La., June 21, 2007). 

Consequently, Plaintiff has failed to establish a cognizable claim on this issue. 

V. Recommendation

Based on the foregoing, it is respectfully recommended that Defendants’

Motion for Summary Judgment (Doc. 83) be granted. 

Date: May 10, 2010 s/ William T. Prince

William T. Prince

United States Magistrate Judge

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