Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-30-2003
Casey v. Smith
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-4245
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-4245
___________
BRYAN CASEY,
Appellant
v.
*ASHLEY SMITH; *JAMES GRACE;
*CLINTON P. MYERS; *KAYE STEWART;
*ROBERT DUCK; WALLACE COUCH,in their individual capacities
*(Amended-See Clerk's Order dated 01/17/03)
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 01-cv-00965)
Magistrate Judge: The Honorable J. Andrew Smyser
___________
Submitted Under Third Circuit LAR 34.1(a)
July 7, 2003
BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.
(Filed: July 30, 2003 )
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Bryan Casey appeals from the Magistrate Judge’s October 21, 2002 order
denying his motion for reconsideration of the Magistrate’s order granting summary
judgment to Wallace Couch and Kaye Stewart, Appellees. On appeal, Casey alleges that
the Magistrate Judge erred by determining that his grievance was untimely, that he did not
substantially comply with the grievance process, and that Appellees had not waived the
affirmative defense of exhaustion of administrative remedies.
The Magistrate Judge presided by consent, and we have jurisdiction over
the Magistrate Judge’s final order pursuant to 28 U.S.C. § 1291. We review the grant of
summary judgment de novo, applying the familiar standard that a moving party is entitled
to summary judgment “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 a judgment as a matter of
law.” FED. R. C IV. P. 56(c). Because we find no issues of material fact, and that
Appellees are entitled to judgment as a matter of law, we will affirm the Magistrate
Judge’s grant of summary judgment.
2
The history of this case, its facts, and procedure are well known to counsel
and the parties. Inasmuch as we are writing a non-precedential opinion and only for the
parties herein, we will recite only those facts necessary to our holding. The Pennsylvania
Department of Corrections has implemented an official Inmate Grievance System,
governed by Administrative Directive 804 and supplemental Bulletins. Pursuant to this
system, an inmate is required to present his grievance to the grievance coordinator for
initial review within fifteen days after the events upon which the grievance is based. If
unsatisfied with the result at this stage, the inmate may appeal the decision to the
Superintendent of the local prison. As the final administrative step, the inmate may
appeal the Superintendent’s decision to the Department of Corrections Chief Hearing
Examiner. Exhaustion of available administrative remedies is mandatory for an inmate to
initiate a federal lawsuit. Booth v. Churner, 532 U.S. 731, 739 (2001) (discussing the
effects of the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a)). Exhaustion
must take place irrespective of whether the administrative process provides the inmate
with the relief he is seeking, but an inmate may satisfy his burden by substantially
complying with the administrative process. Nyhuis v. Reno, 204 F.3d 65, 75–77 (3d Cir.
2000). The failure to exhaust administrative remedies is an affirmative defense that must
be pleaded and proven by the defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.
2002).
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Bryan Casey filed suit on May 31, 2001, alleging that the named Appellees,
as correctional officers at SCI–Huntington, failed to protect him from injuries allegedly
sustained in an August 8, 1999 attack by his cellmate. Casey filed a grievance within
fifteen days of the alleged incident on August 16, 1999. However, this grievance did not
pertain to his current § 1983 claims, but rather his attempts to press assault charges
against his cellmate.1 It was not until July 20, 2000, that Casey finally filed a grievance
with Grievance Coordinator Diana Baney that related to the August 8th attack and
pertained to the alleged failure to protect by correction officers. M s. Baney denied this
grievance as untimely. See App. at 86–87. Casey then sent a letter appealing Ms.
Baney’s decision to Superintendent Kenneth Kyler, which was denied on the merits. See
1. The body of Casey’s August 16, 1999 grievance states:
On Saturday Aug. 8, 99 I was attacked in my cell in the
RHU by m y cellie Vincent Davis. H e cut me about 3x’s
with an open razor blade. I was taken out of that cell and
moved ov er here on the drug unit side of C-A block w here
the RHU Lt. came later that evening and took pictures of
the wounds on my body. The next day I was visited by a
Det. from the State Police barracks here in Huntingdon
County. He asked me did I w as to press charges, I said yes.
He said that the guy w ill be charged with agg. assault. H e
said that since the jail was locked down, he could not take
me out to a room and get a report, that he’ll be back later
that week. H e never cam e back. So I w rote Deputy
M eyers, Security Captain, & I talked to my cou nselor Mrs.
Ruppert about pressing charges. I have still got no
assistance in doing so. I wish to see a officer & press
charges.
M agistrate’s July 30, 2002 O rder, A pp. at 16.
4
App. at 90. On his final administrative appeal, Casey’s grievance was deemed untimely
by Robert Bitner, Chief Hearing Examiner on August 16, 2000. See App. at 93.
Casey failed to exhaust his administrative remedies because he failed to file
his grievance pertaining to his § 1983 claims within the fifteen day time period set out in
Pennsylvania’s Inmate Grievance System. Although he claims substantial compliance by
virtue of his uncertainty that the exhaustion requirement did not encompass a futility
exception, he has not demonstrated why his situation is distinguishable from that in
Nyhuis. In Nyhuis v. Reno, an inmate, Nyhuis, brought a Bivens action against several
correctional officers and asked for monetary and declaratory relief. 204 F.3d 65 (3d Cir.
2000). The defendants contended that the case should be dismissed for Nyhuis’ failure to
exhaust his administrative remedies, pursuant to the Prison Litigation Reform Act of
1996, 42 U.S.C. § 1997e(a). We rejected Nyhuis’ response “that since the Bureau of
Prisons' administrative process could not afford the monetary or declaratory relief he
requested, exhaustion would essentially be futile, and thus, § 1997e(a) should not bar his
action.” Nyhuis, 204 F.3d at 68. Instead, we held that “we are of the opinion that §
1997e(a), as amended by the PLRA, completely precludes a futility exception to its
mandatory exhaustion requirement.” Id. at 71. In light of our holding in Nyhuis and
Casey’s lengthy delay in filing his grievance, we reject Casey’s substantial compliance
argument. See Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (“Whatever the
parameters of ‘substantial compliance’ referred to [in Nyhuis], it does not encompass a
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second-step appeal five months late nor the filing of a suit before administrative
exhaustion, however late, has been completed.”).
Casey also argues that the Appellees have waived the affirmative defense of
failure to exhaust administrative remedies because Superintendent Kyler reached the
merits of Casey’s grievance during his administrative appeal. Although we have found
that exhaustion can be waived if the ultimate administrative authority fully examines the
grievance on the merits, Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000), Casey
cannot escape the fact that his grievance was determined to be untimely in the final
administrative stage. As we look to the decision of the ultimate administrative authority,
here, Chief Hearing Examiner Bitner’s determination of untimeliness, Camp is
inapplicable to Casey’s situation and exhaustion has not been waived.
For the foregoing reasons, we will affirm the order of the Magistrate Judge.
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_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge
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