IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

GREGORY GARRETT BROWN, )

Plaintiff )

) C.A. No. 04-95 Erie

vs. ) District Judge McLaughlin

) Magistrate Judge Baxter

SUE HERBSTRITT, )

Defendant. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION 

I. REPORT

It is respectfully recommended that Defendant’s motion for summary judgment

[Document # 23] be granted.

II. RECOMMENDATION

A. Introduction

Plaintiff Gregory Garrett Brown, presently incarcerated at the Warren State Hospital,

brings this action pro se pursuant to 42 U.S.C. § 1983. Plaintiff claims that while he was

incarcerated at the Erie County Prison Defendant Nurse Herbstritt denied him his prescribed

medication thereby violating his Eighth and Fourteenth Amendment rights. As relief, Plaintiff

requests monetary compensation.

In his complaint, Plaintiff alleges, in entirety:

1) In October of 2003, Nurse Sue Herbstritt deprived me of my prescribed

medication that was ordered by the doctor in October of 2003.

2) I was receiving one multi-vitamin a day for my weakness and tiredness.

3) On that day in October, 2003, I informed Nurse Sue that the official

(unintelligible) told me to tell the nurse that comes at night that I didn’t

get my vitamin in the morning due to the fact that I was away from the

pod at the time medication came in the morning.

4) When I informed Nurse Sue that I never got my meds, and, that the officer

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1 During a telephonic hearing on a motion for temporary restraining order held on

August 25, 2004, Plaintiff’s allegations became much more clear. All of the “medication”

which Plaintiff avers is being withheld from him as the basis of this complaint is a multivitamin, an ibuprofen and an “Ensure” milkshake. During the hearing, Plaintiff acknowledged

that he is receiving these things. Instead, Plaintiff bases his claim against Defendant on the fact

that he is receiving these medications from the hands of a correctional officer instead of from the

hands of Defendant Herbstritt herself. This Court notes that at the time of the hearing, Plaintiff

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on first shift told me to let the nurse know, Nurse Sue said, “It’s only a

vitamin, you can wait until tomorrow to get it, missing one day isn’t

going to kill you.”

5) I told Nurse Sue that I needed the vitamin because I feel weak and tired

and, she said, “I’m not giving it to you, wait until tomorrow like I said.”

6) I was weak and tired all night and, I had trouble sleeping that night.

7) In the months of January 2004, the 15th day, Nurse Sue Herbstritt deprived

me of my prescribed medication that the doctor ordered in January of

2004.

8) I was receiving 600 mg of Motrin for pain.

9) On that day in January of 2004, Nurse Sue gave me 400 milligrams of

Motrin.

10) I informed Nurse Sue that I get 600 milligrams of Motrin and, she said “I

know but, I’m giving you 400 milligrams and, if you don’t like it, don’t

take it.”

11) I told Nurse Sue that I got 600 milligrams in the morning from the nurse

and, that’s what I am suppose to get at night according to doctor’s orders.

12) Nurse Sue said, “If you keep arguing with me, I’m going to have the

officer write up a misconduct report against you.”

13) To avoid any further incident, I walked away and, I filed a grievance

about the matter.

14) According to the Erie County Inmate Handbook, page 32 and 33, rights,

you have a right to: “Be treated impartially and justly.” and, you have the

right to: “Have access to health care.”

15) Nurse Sue Herbstritt has violated my rights under both the United States

and PA. Constitutions.

16) The case is eminent [sic] due to the fact that the nurse is still depriving

me of my meds from time to time out of retaliation. 

Document # 3.1

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had been charged with the crime of Terroristic Threats against Multiple sclerosis. Herbstritt and

was awaiting trial in Court of Common Pleas of Erie County.

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Presently before this Court is Defendant’s motion for summary judgment. Plaintiff has

not filed an Opposition Brief.

B. The Standards of Review

1. Pro Se Pleadings

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972) quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should be done so despite failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared

by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith

v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections,

949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe

all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d

Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same).

2. Motion for summary judgment pursuant to Fed.R.Civ.P. 56

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted

if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with

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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.” Rule 56(e) further provides that when

a motion for summary judgment is made and supported, “an adverse party may not rest upon the

mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by

affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is

a genuine issue for trial. If the adverse party does not so respond, summary judgment, if

appropriate, shall be entered against the adverse party.” Id. 

A district court may grant summary judgment for the defendant when the plaintiff has

failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial

burden of proving to the district court the absence of evidence supporting the non-moving

party’s claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v.

Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further,

“[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential

fact <to demand at least one sworn averment of that fact before the lengthy process of litigation

continues.’” Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting

Lujan v. National Wildlife Federation, 497 U.S. 871 (1990). 

The burden then shifts to the non-movant to come forward with specific facts showing a

genuine issue for trial. Matsushita Elec. Indus. Co. v Zenith Radio Corp., 475 U.S. 574 (1986);

Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the nonmovant must present affirmative evidence - more than a scintilla but less than a preponderance -

which supports each element of his claim to defeat a properly presented motion for summary

judgment). The non-moving party must go beyond the pleadings and show specific facts by

affidavit or by information contained in the filed documents (i.e., depositions, answers to

interrogatories and admissions) to meet his burden of proving elements essential to his claim. 

Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under

applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court

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2 Importantly, a plaintiff’s failure to exhaust his administrative remedies does not

deprive the district court of subject matter jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d

Cir. 2000) (“...[W]e agree with the clear majority of courts that § 1997e(a) is not a jurisdictional

requirement, such that failure to comply with the section would deprive federal courts of subject

matter jurisdiction.”). 

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must resolve any doubts as to the existence of genuine issues of fact against the party moving for

summary judgment, Rule 56 “does not allow a party resisting the motion to rely merely upon

bare assertions, conclusory allegation or suspicions.” Firemen’s Ins. Co. of Newark, N.J. v.

DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the

dispute about a material fact is “genuine,” i.e., if the evidence is such that a reasonable jury

could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249. 

C. The Exhaustion Requirement of the Prison Litigation Reform Act

Defendant argues that the case should be dismissed because Plaintiff has failed to

exhaust his administrative remedies in accordance with the Prison Litigation Reform Act.

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides: 

no action shall be brought with respect to prison conditions under section 1983 of

this title ... by a prisoner confined in any jail, prisons, or other correctional

facility until such administrative remedies as are available are exhausted.

Id. 

The requirements that an inmate exhaust administrative remedies applies to all inmate

suits regarding prison life, including those that involve general circumstances as well as

particular episodes. Porter v. Nussle, 534 U.S. 516 (2002). See also Concepcion v. Morton, 306

F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative exhaustion

must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S. 140, 144

(1992). Thus, federal courts are barred from hearing a claim if a plaintiff has failed to exhaust

all the available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL 2356136

(Unpublished Opinion) (10th Cir. May 8, 1997).2 A plaintiff need not affirmatively plead

exhaustion, but exhaustion is an affirmative defense which is waived if not properly presented

by a defendant. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002) (holding that “no provision of the

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3 There is an emerging split of authority among the Circuits on this issue. Compare

Ross v. County of Bernalillo, 365 F.3d 1181 (10th Cir. 2004), and Pozo v. McCaughtry, 286

F.3d 1022 (7th Cir. 2002), with Thomas v. Woolum, 337 F.3d 720 (6th Cir. 2003).

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PLRA requires pleading exhaustion with particularity,” while construing the PLRA

requirements in light of the recent Supreme Court decision in Swierkiewicz v. Sorema, N.A.,

534 U.S. 506 (2002)). 

The exhaustion requirement is not a technicality, rather it is federal law which federal

district courts are required to follow. Nyhuis, 204 F.3d at 73 (by using language “no action shall

be brought,” Congress has “clearly required exhaustion”). There is no “futility” exception to the

administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002)

citing Nyhuis, 204 F.3d at 78.

D. The Procedural Default Component

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

exhaustion requirement of the PLRA includes a procedural default component, by analogizing it

to the exhaustion doctrine (with its corollary procedural default component) in the habeas

context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir. June 18, 2004).3 The Circuit

explained:

We believe that Congress's policy objectives will be served by interpreting §

1997e(a)'s exhaustion requirement to include a procedural default component.

Based on our earlier discussion of the PLRA's legislative history, [...] Congress

seems to have had three interrelated objectives relevant to our inquiry here: (1) to

return control of the inmate grievance process to prison administrators; (2) to

encourage development of an administrative record, and perhaps settlements,

within the inmate grievance process; and (3) to reduce the burden on the federal

courts by erecting barriers to frivolous prisoner lawsuits. Each of these goals is

better served by interpreting § 1997e(a)'s exhaustion language to include a

procedural default component than by interpreting it merely to require

termination of all administrative grievance proceedings.

Id. Having concluded that the PLRA includes a procedural default component, the Court then

indicated that “prison grievance procedures supply the yardstick for measuring procedural

default.” Id. at 231.

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E. Exhaustion and Procedural Default applied

 No analysis of exhaustion may be made absent an understanding of the administrative

process available to inmates at the Erie County Prison. The applicable grievance procedures are

set out in the Erie County Department of Corrections Inmate Grievance Procedure Policy

510.01. Prior to utilizing the grievance system, inmates are required to attempt to resolve issues

on an informal basis with their housing unit staff. If the issue is not resolved with fifteen days

after the event, the inmate may file a written grievance. The grievance will be answered within

twenty days of its filing. If the inmate is not satisfied with the resolution, he may appeal to the

Warden within five days. The Warden must reply in writing within ten days and the Warden’s

decision is the final level of review. Document # 23, Exhibit C.

Defendant has provided evidence that Plaintiff did not file any grievance regarding his

claim that Defendant withheld his prescribed multivitamin in October of 2003. Document # 23,

Exhibit C, Affidavit of Major Alan Copeland, Deputy Warden of Security. Plaintiff has not

responded with evidence to the contrary. Therefore, this Court finds that Plaintiff has failed to

exhaust his administrative remedies with regard to this claim.

Defendant has provided further evidence that Plaintiff did not fully exhaust his

administrative remedies as to his claim that Defendant denied him the prescribed dosage of

Motrin in January 2004. The evidence demonstrates that Plaintiff filed an initial grievance, but

did not appeal it to the final level of review. Id. Again, Plaintiff has not responded with

evidence to the contrary. Therefore, this Court finds that Plaintiff has not exhausted his

administrative remedies as to this claim.

Plaintiff has failed to exhaust his administrative remedies with regard to either of his two

claims and he is now procedurally barred by the policy from doing so. Under the Prison

Litigation Reform Act, Plaintiff must fully exhaust his administrative remedies before a federal

court can hear his claim; this he has not done. Therefore, the motion for summary judgment

should be granted and this case should be dismissed.

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III. CONCLUSION

For the foregoing reasons, this Court respectfully recommends that Defendant’s motion

for summary judgment [Document # 23] be granted.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local

Rule 72.1.4 B, the parties are allowed ten (10) days from the date of service to file written

objections to this report. Any party opposing the objections shall have seven (7) days from the

date of service of objections to respond thereto. Failure to timely file objections may constitute a

waiver of any appellate rights. 

S/ Susan Paradise Baxter

SUSAN PARADISE BAXTER

Chief United States Magistrate Judge

Dated: September 12, 2005

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