Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-23-2005
Harris v. Armstrong
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1369
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Recommended Citation
"Harris v. Armstrong" (2005). 2005 Decisions. Paper 660.
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DPS-279 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1369
________________
BOBBY HARRIS,
Appellant,
v.
THOMAS M. ARMSTRONG; JAMES CASNER;
THOMAS L. JAMES, Chief Grievance Coordinator;
HEARING EXAMINER MICHAEL FERSON;
CHIEF HEARING EXAMINER ROBERT BITNER;
PAUL STOWITZKY; JOHN C. SMITH; MARK
CAPOZZA; MICHAEL MAHLMEISTER; WALTER
S. SMITH; DENNIS L. FISHER; MARTIN
SAUNDERS; DAVID SHAW; JOHN DOES
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 03-cv-00013)
District Judge: Honorable Terrence F. McVerry
__________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
and/or Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 16, 2005
Before: ROTH, BARRY AND SMITH, CIRCUIT JUDGES
(Filed August 23, 2005)
_________________
OPINION
_________________
PER CURIAM
Appellant Bobby Harris filed a civil rights action in United States District Court
for the Middle District of Pennsylvania, alleging that prison officials failed to protect him
from an inmate assault in violation of his Eighth Amendment rights. The District Court
appointed counsel, and discovery ensued. Harris’ deposition was taken. The defendants
filed a motion for summary judgment, which, by agreement of the parties and with
permission of the District Court, was limited to the issue whether, under the undisputed
facts, Harris had exhausted his administrative remedies as required by 42 U.S.C. §
1997e(a). Counsel for Harris submitted written opposition to this motion.
Following the filing of a Report and Recommendation by the Magistrate Judge,
appointed counsel moved to withdraw and the motion was granted. Harris submitted
Objections to the report pro se. The District Court overruled the Objections and granted
summary judgment to the defendants, concluding that Harris had failed to exhaust
administrative remedies. Harris was granted leave to appeal in forma pauperis in this
Court.
We will summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6, because
it clearly appears that no substantial question is presented by this appeal. A prisoner must
exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a) prior to bringing suit.
See Booth v. Churner, 532 U.S. 731 (2001). This “exhaustion requirement applies to all
inmate suits about prison life, whether they involve general circumstances or particular
2
episodes, and whether they allege excessive force or some other wrong.” Porter v.
Nussle, 534 U.S. 516, 532 (2002). The three steps in the Pennsylvania grievance process
are (1) Initial Review pursuant to DC-ADM-804 Part VI.B of the inmate’s filed
grievance; (2) the first appeal from the Initial Review, or Appeal to Facility Manager
pursuant to DC-ADM-804 Part VI.C; and (3) a final appeal, the Appeal to the Secretary's
Office of Inmate Grievances and Appeals pursuant to DC-ADM-804 Part VI.D. Spruill
v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).
Harris admitted in his deposition that he did not submit a grievance under DC-
ADM 804 concerning his failure to protect claim. He argued, however, that he
substantially complied with the section 1997e(a) exhaustion requirement through (1)
several pieces of third-party correspondence, including a letter from Joe Heckel of the
Pennsylvania Prison Society, a Pennsylvania State Police (PSP) report, and a
Family/Inmate Complaint from two of Harris’ family members, and three
communications from Harris himself; (2) his appeal of Misconduct #A280072 pursuant to
DC-ADM 801; and (3) a DC-ADM 804 grievance, #4019, concerning the loss of his
personal property when he was transferred after the assault.1 He argues that his claims
ultimately were addressed by prison officials as a result of these actions.
We reject this argument as unpersuasive for reasons similar to those given by the
Magistrate Judge and District Court. We have held, and both the Magistrate Judge and
1
As the parties are familiar with the undisputed facts concerning exhaustion, and
specifically the contents of these items, we will not discuss them in any detail here.
3
District Court assumed, that a prisoner’s civil rights case may be heard on the merits
notwithstanding the failure to file a DC-ADM 804 grievance under certain limited
circumstances. See Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (exhaustion
requirement met where Office of Professional Responsibility fully examined merits of
excessive force claim and correctional officers may have impeded filing of grievance).
See also Brown v. Croak, 312 F.3d 109, 110 (3d Cir. 2002) (assuming that prisoner with
failure to protect claim is entitled to rely on instruction by prison officials to wait for
outcome of internal security investigation before filing grievance). Cf. Ray v. Kertes, 285
F.3d 287, 297-98 (3d Cir. 2002) (declining to decide question whether prisoner may
satisfy exhaustion requirement in course of proceedings charging prisoner with
misconduct under DC-ADM 801).
However, those circumstances are not present here. Our review of the District
Court's grant of summary judgment is plenary and we must affirm summary judgment if
there is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). We have
carefully reviewed Harris’ thorough brief in opposition to the defendants’ motion for
summary judgment and the items at issue in this appeal. We conclude that Harris cannot
escape the fact that he never asserted that prison officials were in any way responsible for
the attack which occurred on June 20, 2001. Moreover, the merits of this specific claim
were not ultimately addressed by prison officials.
4
At his misconduct hearing, for example, Harris claimed that he should not have
been charged with fighting because he was acting in self-defense after he was attacked
and stabbed. His claim that he acted in self-defense in fighting back, in which he
emphasized that he was the victim and not the aggressor, is substantially different from
his claim that prison officials knew of and disregarded an excessive risk to his safety.
Farmer v. Brennan, 511 U.S. 825, 838 (1994). The family complaint and
communications from Harris himself are similarly inadequate insofar as they convey the
unrelated argument that the misconduct was fabricated. The state police report and
Heckel letter do not convey Harris’ failure to protect claim. The DC-ADM 804
grievance, #4019, concerning the loss of his personal property is wholly unrelated, and,
furthermore, it serves to show that Harris was not on grievance restriction, and was aware
of the grievance procedures, and could have made use of them to pursue his failure
protect claim.
The judgment of the District Court granting summary judgment to the defendants
is affirmed.
5