Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
7-21-2005
Booth v. Pennce
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1355
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Recommended Citation
"Booth v. Pennce" (2005). 2005 Decisions. Paper 796.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/796
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DPS-226 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-1355
________________
TIMOTHY BOOTH,
Appellant
v.
C/O PENCE;
MARY CANION;
LT. PEKINS;
C/O FOREMAN;
SUPERINTENDENT VAUGHN
____________________________________
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civ. No. 01-cv-04296)
District Judge: Honorable Anita B. Brody
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
May 5, 2005
Before: ROTH, BARRY and SMITH, Circuit Judges
(Filed: July 21, 2005)
_______________________
OPINION
_______________________
PER CURIAM
Timothy Booth, pro se, appeals from an order of the United States District Court
for the Eastern District of Pennsylvania granting Appellees’ motion for summary
judgment. We will affirm.
In 2001, Booth filed a 42 U.S.C. § 1983 civil rights complaint against various
defendants employed at S.C.I. Graterford, where Booth was an inmate. In his complaint
he alleged, inter alia, violations of his First and Eighth Amendment rights. Upon an
earlier motion, the District Court dismissed the claims against defendants Canion and
Vaughn, leaving Lieutenant Pickens and correctional officers Pence and Foreman as
defendants in the case.
Beginning in April 2001, Booth had a series of disciplinary issues with Pickens,
Pence and Foreman. Booth disobeyed a direct order from Pence, for which Pence issued
a misconduct charge. On the same day, Booth filed a grievance in which he accused
Pence of harassing him and filing false misconduct charges against him because Booth
had informally complained about Pence to other prison guards. Booth failed to appeal the
denial of his grievance to the Secretary’s Office of Inmate Grievances and Appeals, the
highest administrative appeal level. Regarding these events, Booth alleged a retaliation
claim in his complaint as well as an Eighth Amendment cruel and unusual punishment
claim based on the alleged filing of false misconduct charges.
A few months later, Booth was involved in a series of incidents in the prison
cafeteria. First, Pickens allegedly gave Booth a “disrespectful look” because Booth took
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extra mustard packets from a cafeteria tray. Booth, who is diabetic, ordinarily goes
through the “diet line” in the cafeteria. According to prison regulations, this makes him
ineligible to go through the regular food line. Pickens asked Booth if he had eaten food
from the regular food line. When Booth admitted doing so, Pickens reminded him that he
was supposed to eat from the diet line and told him that he would “be waiting for him at
lunch.” Booth allegedly perceived this as a threat that Pickens would give him a
misconduct charge in order to interfere with possible parole. In a final incident, Pickens
allegedly refused to allow Booth to return to the regular line for sugar packets after Booth
passed through the diet line. Booth claims that he needed the sugar to offset his insulin
shock and that he ended up going into diabetic shock. He did not, however, manifest any
symptoms of diabetic shock and was fine after a fellow inmate gave him some fruit juice.
Moreover, when Booth was directly asked at his deposition if he went into diabetic shock,
his reply was, “You could say I was in the insulin shock. You still can–all depends on
how far you go into it.” Booth filed a grievance with respect to the first two incidents and
then filed three follow-up grievances because of what he perceived as administrative
inaction with respect to his first grievance. In none of the grievances, however, did Booth
specifically mention the alleged diabetic shock incident. Booth also failed to pursue the
highest level of administrative appeal with respect to these incidents. Based on these
events, Booth alleged an Eighth Amendment claim of deliberate indifference to a serious
medical need for withholding sugar packets.
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In a final incident, Booth failed to stand for an inmate count on three separate
occasions. On the third time, Foreman issued him a misconduct charge for failing to obey
a direct order. Booth claims that it was a false misconduct, but he did not file a
grievance. In his complaint, Booth asserts a retaliation claim as well as a cruel and
unusual punishment claim on the basis of the alleged false misconduct charge.
Appellees filed a motion for summary judgment on the basis that Booth failed to
exhaust his claims administratively and that his claims lacked merit. The District Court,
after noting that Appellees had raised exhaustion for the first time in their summary
judgment motion, concluded that Booth failed to exhaust his administrative remedies.
With respect to Pence, it found that Booth did not pursue his appeal to the highest
administrative level. As to Pickens, the District Court concluded that Booth failed to
pursue his administrative appeal to the highest level and that it was not clear that Booth
grieved the incident that actually underlay his deliberate indifference claim. Lastly, with
respect to Foreman, the District Court found that Booth did not pursue any administrative
remedy. Because it is unclear whether failure to raise exhaustion in the initial responsive
pleading constitutes a waiver of this affirmative defense, however, the District Court
proceeded to consider the merits of Booth’s claims.
As to Booth’s retaliation claims, the District Court found them meritless because it
was not clear that Booth’s informal complaints against Pence were constitutionally
protected activity and because, for all his retaliation claims, Booth failed to demonstrate
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the existence of a causal nexus between his protected activity and the adverse actions
taken by Appellees. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). With regard
to Booth’s Eighth Amendment claim based on alleged issuance of false misconducts, the
District Court concluded that issuance of false misconducts was not a sufficiently serious
deprivation to support a claim of cruel and unusual punishment. See Farmer v. Brennan,
511 U.S. 825, 834 (1994). As to Booth’s deliberate indifference claim, the District Court
concluded that Booth failed to show that Pickens was aware of a serious medical need, as
Booth did not exhibit any symptoms of diabetic shock and did not request medical
assistance. See id. at 834-37. For the above reasons, the District Court granted summary
judgment in favor of Appellees. Booth appealed. Appellees have filed a motion for
summary affirmance to which Booth has filed a response. Booth has also filed a motion
for appointment of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our
review is plenary. See Guardian Life Ins. Co. Of Am. v. Goduti-Moore, 229 F.3d 212,
213 (3d Cir. 2000).
We agree with the District Court’s grant of summary judgment in favor of
Appellees for the reasons discussed in the District Court’s memorandum and summarized
above.
Summary action is appropriate if there is no substantial question on appeal. See
Third Circuit LAR 27.4. For essentially the reasons set forth by the District Court, we
will grant Appellees’ motion for summary affirmance of the District Court’s order
5
granting summary judgment in favor of Appellees. See Third Circuit I.O.P. 10.6.
Appellant’s motion for appointment of counsel is denied.