NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 16-3543
___________
WILLIAM D. TURNER,
Appellant
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
JOHN DOE, Department of Responsibility; JOHN DOE, Chief Examiner of Corrections;
SUPERINTENDENT MAHANOY SCI; JOHN DOE, Deputy SCI Mahanoy; and
JANE HIMMAN, Facility Grievance Coordinator, SCI Mahanoy
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 4-14-cv-02068)
District Judge: Honorable Matthew W. Brann
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 21, 2017
Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges
(Opinion filed: March 23, 2017)
___________
OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
William Turner, a Pennsylvania inmate, was confined at SCI-Mahanoy from 1997
until September 2014, when he was transferred to SCI-Frackville. He filed this civil
rights action on October 20, 2014, claiming that there was improper double celling of
inmates at SCI-Mahanoy, that he received inadequate medical care for his diabetes, and
that he was transferred to SCI-Frackville in retaliation for filing a grievance.
The defendants (administrators at the Department of Corrections and officials at
SCI-Mahanoy) moved to stay discovery, answered the complaint, and later moved for
summary judgment. Thereafter, Turner filed a motion to amend his complaint.
The District Court stayed discovery, then granted the defendants’ motion for
summary judgment because Turner’s claims were barred by the applicable statute of
limitations or a failure to exhaust remedies.1 The District Court did not explicitly rule on
Turner’s motion to amend. Reconsideration was denied, and Turner appealed.
We have jurisdiction under 28 U.S.C. § 1291. In reviewing an award of summary
judgment, we apply the same test as the District Court, asking whether the record “shows
that there is no genuine issue as to any material fact and that the moving party is entitled
to judgment as a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)
(quotation omitted).
1
Pre-suit exhaustion of available institutional remedies is required by the Prison
Litigation Reform Act (“PLRA”). 42 U.S.C. § 1997e(a). Exhaustion must be in accord
with applicable regulations and policies. Woodford v. Ngo, 548 U.S. 81, 83 (2006). If
exhaustion is incomplete when an inmate files suit, dismissal is mandatory. See Porter v.
Nussle, 534 U.S. 516, 524 (2002); Nyhuis v. Reno, 204 F.3d 65, 77 n.12 (3d Cir. 2000).
An inmate cannot cure non-compliance with § 1997e(a) by exhausting remedies after
2
The District Court first considered Turner’s claim that his diabetes medication was
changed without him being advised of the possible side effects of his new medication.
The District Court noted that Turner filed a grievance regarding this issue in 2009, and
that final appeal of the grievance was denied on January 21, 2010, almost four years
before Turner initiated this lawsuit. We concur with the District Court’s conclusion that
this claim was time-barred in light of the applicable two-year statute of limitations. See
42 Pa. Cons. Stat. § 5524; Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985).
The District Court then considered whether three other grievances that Turner
filed could serve as a basis for exhaustion of his federal claims. The first of these
grievances concerned Turner’s removal from a prison job as a janitor; the second alleged
that he was improperly charged a co-payment for skin lotion; and the third concerned an
x-ray scan after Turner suffered a head injury. We agree with the District Court that
these grievances were all unrelated to the claims that Turner presented in this lawsuit and
thus could not provide evidence of compliance with the PLRA’s exhaustion requirement.
Next, the District Court considered Turner’s August 2014 grievance, which
complained of double celling and inadequate treatment for his diabetes at SCI-Mahanoy.
The final appeal of this grievance was dismissed on October 14, 2014, because Turner
failed to provide the “required documentation for proper review.” The District Court
found that Taylor’s failure to provide the required documents during the institutional
appeal constituted a failure to follow the procedural rules concerning grievances and thus
filing his complaint. Cf. Ahmed v. Dragovich,
3 297 F.3d 201, 209 (3d Cir. 2002).
ran afoul of the procedural default requirement of the PLRA. See Spruill v. Gillis, 372
F.3d 218, 230 (3d Cir. 2004). We agree with this assessment and the District Court’s
conclusion that the claims related to this grievance failed because of non-exhaustion.
The District Court also considered Turner’s October 30, 2014 grievance alleging
that he was transferred in retaliation for filing the August 2014 grievance. A final
institutional appeal of this grievance was denied on February 9, 2015, almost four months
after the filing of this action. The District Court correctly determined that this grievance
did not evidence proper exhaustion of institutional remedies. See Ahmed, 297 F.3d at
209; see also Johnson v. Jones, 340 F. 3d 624, 627-28 (8th Cir. 2003).2
2
We note Turner’s indication in the October 30, 2014 grievance that he had filed a
similar grievance on September 24, 2014, but received no response. If that were true—
no copy of a grievance filed on September 24, 2014, has ever been produced—it might be
the case that the District Court should have excused Turner from the PLRA’s exhaustion
requirement. See Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d Cir.
2016); Small v. Camden Cty., 728 F.3d 265, 273 (3d Cir. 2013).
On appeal, the parties were asked to address the District Court’s exhaustion ruling
in light of the allegedly filed September 24, 2014 grievance. Turner failed to do so in his
opening brief and thus waived the issue. Prometheus Radio Project v. FCC, 824 F.3d 33,
53 (3d Cir. 2016). Waiver aside, Turner’s isolated allusion in the October 30, 2014
grievance to an overlooked September 24, 2014 grievance was not enough to withstand
summary judgment. Cf. Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252
(3d Cir. 1999) (a plaintiff cannot avoid summary judgment with speculation; he must
provide competent evidence from which a rational trier of fact can find in his favor).
4
For the reasons given above, the defendants were entitled to summary judgment
on all of Turner’s claims, and the District Court thus did not abuse its discretion in
denying reconsideration. The judgment of the District Court will be affirmed.3
3
Although we do not condone the District Court’s failure to explicitly consider Turner’s
motion to amend, we conclude on this record that amendment of the sort proposed by
Turner would have been futile. Cf. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
5