CLD-224 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1900
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DEWAYNE RICHARDSON,
Appellant
v.
UNITED STATES OF AMERICA; FEDERAL BUREAU OF PRISONS; ATTORNEY
GENERAL UNITED STATES OF AMERICA; DAVID W. OGDEN, Deputy Attorney
General; DAVID J. EBBERT, Warden; J.CLEMENS, Associate Warden; RALEIGH,
Associate Warden; B.EY, Associate Warden; F. LARA, Associate Warden; PA
ROGESS; ASSOCIATE WARDEN JULIE NICKLINE; CAPTAIN K. GABRIELSON;
REGIONAL DIRECTOR D. SCOTT DODRILL; Counselor; R. LAINO, Health Service
Administrator; K. DEWALD, Assistant Health Service Administrator; PA-C R.
RACKOVAN; PA-C M. POWANDA; N WELDLICH, EMT; MAIL ROOM STAFF
PAWLINGS; MAIL ROOM STAFF SHANKS; MAIL ROOM STAFF WOLEVAR; PA
ROCESS; STOVER; C. FEGLEY
____________________________________
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 4-10-cv-01009)
District Judge: Honorable James M. Munley
____________________________________
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: RENDELL, HARDIMAN and COWEN, Circuit Judges
(Opinion filed: July 25, 2012)
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OPINION OF THE COURT
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PER CURIAM
Dewayne Richardson appeals from the District Court’s June 22, 2010 order
granting the appellees’ motion to dismiss and the court’s March 19, 2012 order granting
the appellees’ motion for summary judgment. Because we determine that the appeal is
lacking in arguable legal merit, we will dismiss it under 28 U.S.C. §1915(e)(2).
I
In 2010 Richardson filed a 42 U.S.C.§1983 civil rights complaint in the United
States District Court for the Middle District of Pennsylvania seeking compensation
against the defendants. Richardson’s claims stemmed from four separate incidents. Two
of his claims alleged that members of the FCI Allenwood staff exhibited deliberate
indifference to his serious medical needs. In his first claim, Richardson stated that on one
occasion in October 2008, a physician assistant gave him a different inmate’s medication
during the noon pill line, and that Richardson did not realize this until he had taken the
medication. In his other claim invoking deliberate indifference, Richardson stated that
his requests for treatment for excessive snoring were ignored by the staff.
His remaining claims stem from two different sets of facts. In the first of these,
Richardson stated that on several occasions the defendants read, copied, and destroyed
his legal correspondence with his attorney in violation of Bureau of Prisons policy
regarding Special Mail. In his final claim, Richardson alleged that on May 11, 2008, one
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of the defendants confiscated three pairs of his shoes and failed to send them to
Richardson’s mother as he had asked. Richardson claims that he did so in retaliation, as
Richardson had filed grievances against him.
II
On June 22, 2010 the District Court granted the defendants’ motion to dismiss all
claims, finding that Richardson failed to state a claim upon which relief may be granted.
The court dismissed the claims for deliberate indifference with prejudice, but dismissed
the other claims without prejudice, granting leave to file an amended complaint.
Richardson filed an amended complaint on July 9, 2010. On March 19, 2012 the court 1
entered an order granting summary judgment in favor of the remaining defendants on the
final two claims.
III
We have appellate jurisdiction under 28 U.S.C. §1291, and because Richardson 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 DiGiacomo v. Teamsters
Pension Trust Fund of Phila. and Vicinity, 420 F.3d 220, 222 n.4 (3d Cir. 2005) (stating
standard of review over dismissal under Federal Rule of Civil Procedure 12(b)(6)), 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.
1
On December 22, 2010, this case was reassigned from the Honorable James F.
McClure, Jr. to the Honorable James M. Munley.
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§1915(e)(2) if it has no arguable basis in law or fact. Neitzke v.Williams, 490 U.S. 319
(1989).
IV
We first address Richardson’s claims regarding deliberate indifference. The
District Court correctly analyzed Richardson’s claims under the standard set in Estelle v.
Gamble. 429 U.S. 97, 103-104 (1976) (holding that the plaintiff must allege that the
defendant acted with deliberate indifference to his serious medical needs in order to state
an Eighth Amendment medical claim upon which relief may be granted). The test for
whether a prison official acted with deliberate indifference is whether the defendant
“acted or failed to act despite his knowledge of a substantial risk of serious harm” Farmer
v. Brennan, 511 U.S. 825, 842 (1994). To establish a constitutional violation the
indifference must be deliberate and the actions intentional. Hampton v. Holmesburg
Prison Officials, 546 F.2d 1077, 1081 (3d Cir. 1976). Mere medical malpractice cannot
give rise to a violation of the Eighth Amendment. Estelle, 429 U.S. at 106.
We agree with the District Court that Richardson failed to state a claim regarding
either of his deliberate indifference causes of action. In his first claim, Richardson relied
on one incident in which he was given another inmate’s medication. He did not state that
this was intentional, nor did he indicate any medical problems that resulted from the
switched pills. In his second claim, Richardson again failed to state any serious medical
need that arose from not being treated for snoring.
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The District Court granted summary judgment against Richardson’s final two
claims because it found that he failed to exhaust his administrative remedies. Exhaustion
of available remedies 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). 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).
However, if an administrative remedy is not available because of interference on the part
of prison officials, a plaintiff need not exhaust the unavailable remedy. Brown v. Croak,
312 F.3d 109, 111-113 (3d Cir. 2002).
We agree with the District Court that Richardson’s claim regarding his legal mail
was not exhausted. As the court explained in detail, Richardson improperly filed his
initial informal resolution request (BP-9) in December 2007, sending it to general
outgoing mail instead of to his unit counselor. Richardson was aware of the proper
procedure, as he possessed a copy of the inmate handbook and had successfully
submitted BP-9 forms previously. Richardson’s next attempt at filing an administrative
remedy was in August 2009, and was properly rejected as untimely. Because Richardson
knew of and had availed himself of the proper remedy, it was available to him, and his
failure to exhaust it resulted in a procedural default.
Richardson also claimed that one of the defendants stole his shoes in retaliation for
filing grievances against them. While there may be an issue concerning exhaustion,
Richardson’s claim lacks legal merit. Even if Richardson was engaged in constitutionally
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protected activity, Richardson also had to show that he suffered an adverse action at the
hands of the prison officials in order to prevail on the retaliation claim. Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001). Such an action must be sufficiently adverse to deter a
person of ordinary firmness from engaging in the protected activity in order to prevail on
the retaliation claim. Id. We have held that the following actions were sufficient to
establish adversity: several months in disciplinary confinement; denial of parole,
financial penalties, and transfer to a distant prison where his family could not visit him
regularly. Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); Rauser, 241 F.3d at 333.
In comparison, the loss of three pairs of shoes is not sufficiently adverse to support a
retaliation claim.
V
In sum, because this appeal is lacking in arguable legal merit, we will dismiss it
according to 28 U.S.C.§1915(e)(2).
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