Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
7-15-2008
Michael Sharpe v. Sean Costello
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1811
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"Michael Sharpe v. Sean Costello" (2008). 2008 Decisions. Paper 838.
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DLD-245 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-1811
MICHAEL SHARPE,
Appellant,
v.
MR. SEAN COSTELLO, Chaplain; MR. CAMERON
LINDSAY, Warden; MR. FRANK KARAM, Assistant
Warden; Warden SCOTT DODRILL; HARLEY G. LAPPIN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 06-cv-01493)
District Judge: Honorable Yvette Kane
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
June 26, 2008
Before: BARRY, CHAGARES and NYGAARD, Circuit Judges
(Opinion filed: July 15, 2008)
OPINION
PER CURIAM
Appellant Michael Sharpe, now a federal prisoner incarcerated at the Federal
Correctional Institution in Fairton, New Jersey, filed an in forma pauperis civil rights
action, see Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), in United States District Court for the Middle District of Pennsylvania
against three defendants employed by the United States Bureau of Prisons (“BOP”).
Sharpe alleged a violation of his Eighth Amendment rights in that defendant Sean
Costello, the chaplain at the United States Penitentiary in Canaan Township,
Pennsylvania, where he previously was incarcerated, unsuccessfully attempted to sexually
assault him and he had to fight off the chaplain’s advances. Sharpe sought money
damages. The Magistrate Judge recommended dismissing the complaint as lacking an
arguable basis in fact or law under the in forma pauperis statute. Sharpe filed an amended
complaint. The District Court approved and adopted the Report and Recommendation,
dismissed the original complaint, and permitted the filing of the amended complaint.
In his amended complaint, Sharpe alleged that the chaplain tried to touch his penis
through his clothing when they were alone together in the chapel area. Sharpe completed
and submitted a grievance in connection with the incident. Thereafter, he was placed in
the Special Housing Unit pending an investigation of the chaplain, and urged to withdraw
his grievance. The chaplain continued to harass him verbally. In further retaliation for
his having filed the grievance and his refusal to withdraw it, the defendants increased his
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custody score from “10" to “17," and moved him to a higher custody institution for
disciplinary purposes, five hundred miles away from his release designation. The
defendants also retaliated against him by restricting his access to the law library. Sharpe
again sought money damages. In screening the amended complaint, the District Court
concluded that, once again, Sharpe had failed to state an Eighth Amendment claim with
respect to the chaplain’s attempted touching and verbal harassment, and the supervisory
defendants’ alleged failure to protect him from the same. The District Court did,
however, allow the case to proceed against the remaining four BOP defendant employees
on the basis of the First Amendment retaliation claim.1
The defendants filed a motion to dismiss the amended complaint or, in the
alternative, a motion for summary judgment, alleging that Sharpe failed to exhaust his
administrative remedies with respect to his First Amendment claim. In support, they
submitted the Declaration of Susan Albert, a paralegal at USP-Canaan. Her review of
1
Rauser v. Horn, 241 F.3d 330 (3d Cir. 2001), establishes a three-part test for
determining whether a prisoner-plaintiff has stated a claim of retaliation. First, the
prisoner “must prove that the conduct which led to the alleged retaliation was
constitutionally protected.” Id. at 333. Second, he “must show that he suffered some
‘adverse action’ at the hands of prison officials.” Id. (quoting Allah v. Seiverling, 229
F.3d 220, 225 (3d Cir. 2000)). Finally, he must prove “that his constitutionally protected
conduct was ‘a substantial or motivating factor’ in the decision to discipline him.” Id.
(quoting Mount Healthy Bd. of Ed. v. Doyle, 429 U.S. 274, 287 (1977)). “Once a prisoner
demonstrates that his exercise of a constitutional right was a substantial or motivating
factor in the challenged decision, the prison officials may still prevail by proving that they
would have made the same decision absent the protected conduct for reasons reasonably
related to a legitimate penological interest.” See id. at 334.
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Sharpe’s administrative remedies revealed that, between December 29, 2003 and July 15,
2007, he filed fifteen grievances, four of which were filed after he was placed in the
Special Housing Unit. However, none of the four relevant grievances raised issues
relating to his claims that his custody-level score was manipulated in retaliation for filing
a grievance against a staff member or that BOP personnel improperly manipulated a
transfer outside of his 500-mile radius release designation, or limited his access to the law
library. Sharpe opposed summary judgment, contending that he tried to exhaust
administrative remedies but the BOP had an unwritten policy of not responding to inmate
grievances.2
In a judgment entered on March 4, 2008, the District Court granted the defendants’
motion and awarded judgment to them and against Sharpe, concluding that Sharpe’s
failure to present his claims of retaliation through the BOP administrative remedy process
prevented consideration of his First Amendment claim on the merits. In a thorough
memorandum opinion, the court reviewed the grievances filed between September 20,
2005, the date when Sharpe was placed in the Special Housing Unit, and August 1, 2006,
when Sharpe filed his civil action, and found that none of them related to his contention
that he was wrongfully designated for a higher security prison, improperly placed more
than 500 miles from his release date, or that his law library privileges were unduly
2
Sharpe seemed to base this assertion on the fact that the BOP would not disclose to
him the results of an internal investigation into Chaplain Costello’s alleged misconduct.
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restricted. To the extent that Sharpe made general reference to retaliatory acts during his
attempts at informal resolution, he did not appeal the responses he received to the
intermediate and final administrative levels of the Warden, the Regional Director, and the
Central Office. In addition, although his initial grievance and subsequent appeals
addressed his placement in the SHU, they focused only on the BOP’s failure to provide
him with “official paperwork” authorizing his placement in the SHU and a hearing on the
placement.3 Sharpe appeals.
Our Clerk granted Sharpe leave to proceed in forma pauperis and advised him that
his appeal was subject to dismissal under 28 U.S.C. § 1915(e)(2), or that it might be
appropriate for summary action under Third Circuit LAR 27.4 and I.O.P. 10.6. He was
invited to submit a written response, but has not done so.
We will dismiss the appeal as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i). We
have jurisdiction under 28 U.S.C. § 1291. An appellant may prosecute his appeal without
prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute provides
that the Court shall dismiss the appeal at any time if the Court determines that it is
frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable
3
The District Court declined to consider any claim of a procedural or substantive due
process violation, because it was not included in the amended complaint and was alluded
to only in Sharpe’s response in opposition to the motion for summary judgment. This was
within the court’s discretion. See Adams v. Gould Inc., 739 F.2d 858, 863 (3d Cir. 1984).
In any event, Sharpe’s placement in administrative custody pending an investigation into
Costello’s alleged misconduct did not deprive him of any constitutionally protected
liberty interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995).
5
basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). 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 conclude that there is no arguable basis in fact or law for disagreeing with the District
Court’s summary judgment determination. Neitzke, 490 U.S. at 325; Celotex Corp., 477
U.S. at 322-23.
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 episodes, and whether they allege excessive force or some
other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Proper exhaustion means
using all steps provided by the BOP and doing so properly so that it addresses the issues
on the merits. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). It demands compliance
with the BOP’s deadlines and other critical procedural rules because no adjudicative
system can function without imposing structure on the course of its proceeding. Id. at 90-
91. If the prisoner fails to follow the procedural requirements, then his claims are
procedurally defaulted. See Spruill v. Gillis, 372 F.3d 218, 228-31 (3d Cir. 2004).
The Bureau of Prisons has established an administrative remedy procedure through
which an inmate can seek formal review of any complaint regarding any aspect of his
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imprisonment. 28 C.F.R. § 542.10. In order to exhaust appeals under the administrative
remedy process, an inmate must first raise his complaint with his unit team through an
informal resolution attempt. See 28 C.F.R. § 542.13. If the concern is not informally
resolved, the inmate may file an appeal to the Warden of the institution where he is
confined. See § 542.14. The inmate must then further appeal an adverse decision to the
Regional Director and then to the Central Office of the Federal Bureau of Prisons. See §
542.15. No administrative grievance is considered to have been fully and finally
exhausted until denied by the Bureau of Prisons’s Central Office. See § 542.15(a).
Upon careful review of the record, we agree with the District Court that Sharpe
failed to exhaust his administrative remedies. Accordingly, we may not reach the merits
of his First Amendment claim. Summary judgment was appropriate because he failed to
come forward with any evidence to rebut the record evidence that he committed a
procedural default by failing to complete the grievance process with respect to any
grievance relating to his claim of retaliation. See Fed. R. Civ. Pro. 56(e); see also Spruill,
372 F.3d at 230. Moreover, the record establishes that remedies were available to him,
see Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000), notwithstanding his assertion to
the contrary. We, therefore, discern no error in the dismissal of Sharpe’s amended
complaint on the basis of failure to exhaust under section 1997e(a).
We will dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
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