ALD-225 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 12-1949
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JERRY SHRUBB,
Appellant
v.
WARDEN, JEFFERSON COUNTY PRISON; DEPUTY WARDEN, JEFFERSON
COUNTY PRISON; JOHN DOES CORRECTIONAL OFFICER(S)/SERGEANT(S),
JEFFERSON COUNTY PRISON; PRIMECARE MEDICAL., INC. GLENNA
BODENHORN, R.N; CARRIE MITCHELL, L.P.N; CYNTHIA STRADOFSKY,
L.P.N.; CINDY CUNNINGHAM, PA
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-09-cv-01013)
District Judge: Honorable Maureen P. Kelly, Magistrate Judge
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Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
July 12, 2012
Before: SLOVITER, FISHER and WEIS, Circuit Judges
(Opinion filed: July 19, 2012)
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OPINION
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PER CURIAM.
1
Jerry Shrubb appeals pro se from the order of the United States District Court for
the Western District of Pennsylvania granting Defendants’ motion for summary
judgment. Because the appeal is lacking in arguable merit, we will dismiss it under 28
U.S.C. §1915(e)(2).
I.
As the parties are familiar with the extensive procedural background of this case
we will only briefly mention the procedural history. Shrubb is a Pennsylvania state
prisoner. He filed suit against the warden and employees of Jefferson County Prison and
medical personnel at the prison, alleging various federal and state law claims arising out
of his fifteen-day confinement at the prison in 2007 while awaiting transfer to a State
Correctional Institution. Richardson alleges that he was inappropriately placed on suicide
watch and deprived of his anti-psychotic medications and his pain medication. While in
custody, Shrubb underwent withdrawal from his medication, and suffered extended
periods of severe hallucination in which he often could not distinguish what was real. He
further alleges that, during his time on suicide watch, he was deprived of showers,
physically and verbally abused, and forced to defecate on the floor.
On January 31, 2012, the District Court 1 granted the defendants’ motions for
summary judgment, finding that Shrubb had failed to exhaust his available administrative
remedies and that the court no longer had jurisdiction over his state claims. This appeal
followed.
1
The parties consented to proceed before a Magistrate Judge under 28 U.S.C. §636(c).
2
We have appellate jurisdiction under 28 U.S.C. §1291, and because Shrubb is
proceeding in forma pauperis, we review the appeal for possible dismissal under 28
U.S.C. §1915(e)(2). This Court’s review is plenary. See McGreevy v. Stroup, 413 F.3d
359, 363 (3d Cir. 2005) (stating standard of review over an order granting summary
judgment). An appeal must be dismissed under 28 U.S.C. §1915(e)(2) if it has no
arguable basis in law or fact. Neitzke v.Williams, 490 U.S. 319 (1989).
II.
We agree with the court that Shrubb failed to exhaust his available administrative
remedies. Exhaustion is required by 42 U.S.C. §1997(e) before an inmate suit can be
maintained. Booth v. Churner, 532 U.S. 731, 739 (2001). Exhaustion of administrative
remedies must be proper and in accordance with applicable regulations and policies, and
noncompliance cannot be excused by the courts. Woodford v. Ngo, 548 U.S. 81, 83
(2006). Failure to comply with procedural requirements of the applicable prison’s
grievance system will result in a procedural default of the claim. Spruill v. Gillis, 372
F.3d 218, 227-32 (3d Cir.2004).
The Jefferson County Handbook provides a three-step process for grievances: 1)
the inmate should first attempt to speak or write to staff about the grievance; 2) the
inmate must submit a completed request form to the Deputy Warden stating the nature of
the grievance, who will then provide a grievance form; and 3) the grievance form must be
sent back to the Deputy Warden within fifteen days of the event on which the claim is
based. Shrubb admits that he did not file a written grievance form although he did orally
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complain to the officers. Shrubb claims that he was unable to file a grievance because he
was in the middle of a “psychotic break.” However, Shrubb had received a copy of the
Inmate Handbook, and had properly submitted requests on other occasions during his
stay at Jefferson County Prison. He argues that his oral complaints to the Defendants
were sufficient to exhaust his administrative remedies. This is not so. Shrubb was aware
of and had previously availed himself of the proper procedures, and could have done so
for this grievance. Shrubb’s failure to exhaust administrative grievances resulted in a
procedural default.
Because the federal claims were dismissed before trial, the court properly
dismissed the state law claims for lack of jurisdiction. Where the claim over which the
district court has original jurisdiction is dismissed before trial, the district court must
decline to decide the pendent state claims unless considerations of judicial economy,
convenience, and fairness to the parties provide an affirmative justification for doing so.
Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (citing Lovell Mfg.
v. Export-Import Bank of the United States, 843 F.2d 725 (3d Cir. 1988)). In the present
case the court correctly noted that, as the statutes of limitation on Shrubb’s state law
claims were tolled while the claim was pending in Federal Court, there were no further
considerations that would warrant hearing the pendent state claims in federal court. The
court was thus correct in dismissing the claims without prejudice.
In sum, because this appeal is lacking in arguable legal merit, we will dismiss it
according to 28 U.S.C. §19158(e)(2).
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