NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 13-4276

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ROBERT FENNELL,

Appellant

v.

CAMBRIA COUNTY PRISON; CORRECTIONAL OFFICER HALE; 

CORRECTIONAL OFFICER CASHOFF; CORRECTIONAL OFFICER 

LEVERKNIGHT; CORRECTIONAL OFFICER JOHN DOE #1; CORRECTIONAL 

OFFICER JOHN DOE #2; CORRECTIONAL OFFICER JOHN DOE 

#3;CORRECTIONAL OFFICER JOHN DOE #4; CORRECTIONAL OFFICER LT. 

JOHN DOE #5; CITY OF EBENSBURG

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 12-cv-00021)

District Judge: Honorable Kim R. Gibson

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 6, 2015

Before: FISHER, KRAUSE and VAN ANTWERPEN, Circuit Judges

(Opinion filed: April 7, 2015 )

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OPINION*

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* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
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PER CURIAM

Robert Fennell, proceeding pro se and in forma pauperis, appeals from a District 

Court order granting the Appellees’ motion for summary judgment. For the following 

reasons, we will affirm in part, vacate in part, and remand to the District Court for further 

proceedings.

As we write only for the parties, who are familiar with the facts and procedural 

history, we will set forth only those facts necessary to our conclusions. On October 29, 

2010, Fennell, a state prisoner serving a 20 to 40 year sentence, was temporarily housed 

at the Cambria County Prison in Ebensburg, Pennsylvania. At approximately 8:30 a.m., 

Corrections Officers Hale and Leverknight were in a dayroom preparing to transport 

Fennell to the prison yard. Officer Hale noticed that Fennell’s restraint belt, which 

secures an inmate’s hands to his waist, was unfastened. Officer Hale tackled Fennell to 

the ground. Officer Leverknight and other officers, whose names Fennell did not know, 

arrived to help restrain him. Fennell claimed that he was then taken to a cell, where he 

was placed on the floor, assaulted further, stripped of his clothes, and then “[f]elt hands 

rubbing his butt and he jumped.” In an affidavit, Fennell explained that during this 

incident someone “place[d] I believe a finger in my butt.” Fennell also asserted that he 

was denied medical care after the incidents. Later that day, Fennell was transferred back 

to SCI–Houtzdale. 

In February 2012, Fennell filed a civil rights complaint under 42 U.S.C. § 1983, 

alleging, inter alia, that corrections officers used excessive force against him and were 
3

deliberately indifferent to his serious medical needs.1 The defendants moved for 

summary judgment, arguing that Fennell failed to exhaust his administrative remedies 

and that there were no genuine issues of material fact. The matter was referred to a 

Magistrate Judge, who recommended denying as unexhausted Fennell’s claims pertaining 

to the assault that occurred when he was taken to a cell and his allegations regarding the 

denial of medical care. In a supplemental Report and Recommendation, the Magistrate 

Judge recommended denying the remaining claims concerning the initial assault in the 

dayroom. After viewing a video of that incident, the Magistrate Judge concluded that 

excessive force was not used. Over Fennell’s objections, the District Court adopted the 

Reports and Recommendations, and granted the motion for summary judgment. Fennell 

filed a timely notice of appeal.2

We have jurisdiction under 28 U.S.C. § 1291, and exercise plenary review of a 

District Court’s order granting or denying summary judgment, applying the same 

 

1 Fennell also raised claims of false arrest, false imprisonment, and malicious 

prosecution, and he named as defendants Corrections Officer Cashoff, several other 

unnamed corrections officers, the Borough of Ebensburg, the City of Philadelphia, and 

Cambria County Prison. The Magistrate Judge recommended the dismissal of these 

claims and defendants. Fennell did not object, and the District Court adopted the 

Magistrate Judge’s recommendation. Fennell does not challenge these conclusions in his 

brief. See Laborers’ Int’l Union of N. Am., AFLCIO v. Foster Wheeler Energy Corp., 26 

F.3d 375, 398 (3d Cir. 1994).

2 Fennell also filed a motion for reconsideration, which the District Court denied. We 

lack jurisdiction to review the denial of Fennell’s motion for reconsideration because he 

did not file a separate notice of appeal, or an amended notice of appeal, from the order 

denying that motion. See Fed. R. App. P. 4(a)(4)(B)(ii); United States v. McGlory, 202 

F.3d 664, 668 (3d Cir. 2000).
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standard as the District Court. See Tri-M Grp., LLC v. Sharp, 638 F.3d 406, 415 (3d Cir. 

2011). Summary judgment is proper where, viewing the evidence in the light most 

favorable to the nonmoving party and drawing all inferences in favor of that party, there 

is no genuine dispute as to any material fact and the moving party is entitled to judgment 

as a matter of law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-

23 (3d Cir. 2006). 

The core inquiry of an excessive-force claim is ‘“whether force was applied in a 

good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause 

harm.”’ Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (per curiam) (quoting Hudson v. 

McMillian, 503 U.S. 1, 7 (1992)). In conducting that inquiry, we examine the need for 

the application of force, the relationship between the need and the amount of force used, 

the extent of injury inflicted, the extent of the threat to the safety of staff and inmates, and 

any efforts to temper the severity of a forceful response. See Brooks v. Kyler, 204 F.3d 

102, 106 (3d Cir. 2000). Fennell argues that the Magistrate Judge “ignored the fact that 

[he] was already cuffed before the first assault.” Even if Fennell were handcuffed, 

however, it does not automatically follow that the use of force on him was excessive. 

The Magistrate Judge concluded, based in part on a review of a videotape of the incident 

in the dayroom, that Fennell’s hands were not secured to his restraint belt, that he is a 

large person (6’5” and 285 lbs.) with a violent history, that he “crouche[d] lower and 

widen[ed] his stance” when Office Hale approached him, that the officers did not strike 

Fennell, and that, other than favoring his right leg as he walked out of the camera’s view, 
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Fennell appeared to be in no stress after he was restrained. Although Fennell offered 

affidavits from other prisoners in support of his account of what happened in the 

dayroom, the District Court properly relied on the videotape of the incident to resolve any 

factual disputes. See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties 

tell two different stories, one of which is blatantly contradicted by the record, so that no 

reasonable jury could believe it, a court should not adopt that version of the facts for 

purposes of ruling on a motion for summary judgment.”); see also Shreve v. Franklin 

Cnty., Ohio, 743 F.3d 126, 132 (6th Cir. 2014) (stating “that witness accounts seeking to 

contradict an unambiguous video recording do not create a triable issue.”). Fennell also 

claims that the videotape of the dayroom incident was “altered,” but he does not 

specifically describe how the events depicted on the videotape differ from what actually 

occurred. See Scott, 550 U.S. at 378-81. Therefore, the District Court properly denied 

Fennell’s claim that Officers Hale and Leverknight used excessive force in the dayroom. 

Fennell also claims that the District Court erred in concluding that he failed to 

exhaust his remaining claims.3 The Prison Litigation Reform Act (“PLRA”) prohibits an 

 

3 The Appellees claim that Fennell did not raise in his Informal Brief a challenge to the 

District Court’s conclusion that he failed to exhaust prison administrative remedies. See

Appellees’ Br., 19. Although “an appellant’s failure to identify or argue an issue in his 

opening brief constitutes waiver of that issue on appeal[,]” United States v. Pelullo, 399 

F.3d 197, 222 (3d Cir. 2005), we must liberally construe Fennell’s filings. See, e.g., 

Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Here, we conclude that Fennell’s 

Informal Brief, liberally construed, fairly raises a challenge the District Court’s 

exhaustion determination. See Appellant’s Informal Brief, 1, 5 (alleging error with 

Magistrate Judge's June 28, 2013 report and recommendation, which itself held that his 

cell assault claim was unexhausted; requesting that we reverse and remand the case back 
6

inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct 

by prison officials “until such administrative remedies as are available are exhausted.” 

42 U.S.C. § 1997e(a). “Proper exhaustion” is required to satisfy the PLRA’s exhaustion 

requirement, see Woodford v. Ngo, 548 U.S. 81, 84 (2006), and a procedurally defective 

administrative grievance precludes action in federal court. See id. at 90-91; Spruill v. 

Gillis, 372 F.3d 218, 230 (3d Cir. 2008). The PLRA’s exhaustion requirement was 

intended to allow “corrections officials time and opportunity to address complaints 

internally before allowing the initiation of a federal case.” Porter v. Nussle, 534 U.S. 

516, 525 (2002). 

Fennell submitted two grievance forms.4 On the first form, Fennell stated that 

“[on] [October 29, 2010] [w]hile at your Jail the [correctional officers] assaulted me and 

others helped later.” On the second form, Fennell wrote that “I was assaulted by several 

Correctional Officer’s [sic] at Cambria County Jail and now I want to file charge’s [sic] 

on them.” Although neither grievance is detailed, Cambria County Prison’s Grievance 

 

to the lower court).

4 Fennell used forms supplied by the Pennsylvania Department of Corrections (DOC) 

because he was incarcerated at SCI–Houtzdale when he filed the grievance. Cambria 

County Prison did not reply directly to Fennell, but he was advised that the DOC’s Office 

of Special Investigations and Intelligence had reviewed his grievance, concluded it lacked 

merit, and stated that no action would be taken. Fennell received another response 

indicating that his grievance had been forwarded to the Cambria County Prison. Based 

on this record, the District Court essentially concluded that Fennell substantially 

complied with Cambria County Prison’s Grievance Procedures. See Nyhuis v. Reno, 204 

F.3d 65, 77-78 (3d Cir. 2000).
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Procedures provide only a general requirement that a grievance “detail[] the problem, the 

informal process used and the remedy being sought.” See Jones v. Bock, 549 U.S. 199, 

218 (2007) (“The level of detail necessary in a grievance to comply with the grievance 

procedures will vary . . . but it is the prison’s requirements . . . that define the boundaries 

of proper exhaustion.”). Fennell’s grievance forms indicate that he was “assaulted,” and 

nothing in those forms indicates that he was limiting his claim to the events that occurred 

in the dayroom. In fact, Fennell’s reference in the first grievance form to “others 

help[ing] later” indicates that he was complaining about both the dayroom assault and the 

subsequent assault the cell. Under these circumstances, we conclude that it was error for 

the District Court to find that Fennell failed to exhaust his claims concerning the assault 

that occurred in the cell after the incident in the dayroom. See Strong v. David, 297 F.3d 

646, 650 (7th Cir. 2002) (“When the administrative rulebook is silent, a grievance 

suffices if it alerts the prison to the nature of the wrong for which redress is sought. . . . 

All the grievance need do is object intelligibly to some asserted shortcoming.”).

The District Court properly held, however, that Fennell failed to exhaust his claim 

regarding the denial of medical care. Fennell did not raise the denial of medical care in 

his grievances, and his allegations of assault in those grievances do not fairly encompass 

a claim that he was not treated for his injuries. Thus, we will affirm the District Court’s 

denial of Fennell’s medical care claim to the extent that is based on his failure to exhaust 

prison administrative remedies. 
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For the foregoing reasons, we will affirm in part, vacate in part, and remand the 

matter to the District Court for further proceedings consistent with this opinion.