Francis Veasey v. Mike Fisher , 307 F. App'x 614 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-22-2009
Francis Veasey v. Mike Fisher
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2491
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DLD-63 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-2491
___________
FRANCIS VEASEY,
Appellant
v.
MIKE FISHER;
TOM CORBETT, Attorney General, Pennsylvania;
JEFFERY BEARD, Secretary, Pennsylvania Department of Corrections;
LOUIS FOLINO, Superintendent, SCI-Greene;
DEAN GEEHRING, Superintendent, SCI-Greene;
CAPTAIN WINFIELD, Shift Commander, SCI-Greene;
LIEUTENANT TONY, Shift Supervisor, SCI-Greene;
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-cv-01446)
District Judge: Honorable Donetta W. Ambrose
____________________________________
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
December 24, 2008
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed January 22, 2009)
_________
OPINION
_________
PER CURIAM
Francis Edward Veasey filed pro se an action under 42 U.S.C. § 1983 alleging
violations of his civil rights by the current and former Attorney General, the Secretary of
the Pennsylvania Department of Corrections, and four employees of the Department of
Corrections. For the reasons that follow, we will affirm.
I. Background
This action was filed while Veasey was incarcerated at the State Correctional
Institution at Fayette. In his original complaint, filed in the Eastern District Court of
Pennsylvania, Veasey alleged irregularities in the handling of his legal mail resulting
from a change in policy in March 2002. Following a change in venue to the Western
District of Pennsylvania, Defendants filed a motion to dismiss, or in the alternative,
motion for summary judgment. Defendants’ motion argued that claims arising from
events prior to February 1, 2005, were time barred and that Plaintiff failed to exhaust
administrative remedies as required by the Prison Litigation Reform Act, 42 U.S.C. §
1997e(a). In support of their motion, Defendants included an affidavit from Dorina
Varner, the Assistant Chief Grievance Coordinator, who stated that Plaintiff did not
exhaust his administrative remedies with regard to his legal mail. Plaintiff was ordered to
file a response by January 11, 2008. Plaintiff did not file a response to Defendants’
motion. The District Court adopted the Magistrate’s Judge’s conclusion that Plaintiff did
not exhaust administrative remedies with regard to his legal mail and granted the
Defendants’ motion. Plaintiff timely appealed.
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II. Standards
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review over a District Court’s grant of summary judgment and apply the same test applied
by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001). Entry
of summary judgment is appropriate when pleadings, discovery materials and affidavits
show that there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). When a moving party demonstrates the absence of a genuine
issue of material fact, the nonmoving party must go beyond the pleadings and point to
“specific facts showing that there is a genuine issue for trial.” Fed. R. Civ. P. 56(e). If
that does not happen, the moving party is entitled to a judgment as a matter of law.
Celotex Corp., 477 at 323.
III. Discussion
No prisoner may file an action in federal court with respect to prison conditions
without first exhausting all available administrative remedies. 42 U.S.C. § 1997e(a).
Exhaustion is mandatory. See Booth v. Churner 532 U.S. 731, 741 (2001). The
exhaustion requirement includes a procedural-default component, and a prisoner must
comply with the prison grievance procedures to properly exhaust his claims. Spruill v.
Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004). Pursuant to Pennsylvania’s Inmate
Grievance System, Policy Number DC-ADM 804, an inmate must submit each grievance
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through three administrative levels to exhaust it. Id. at 232.
Here, Veasey presented no evidence in response to the Defendants’ motion that he
did not exhaust his administrative remedies. Defendants’ motion included the affidavit
from the assistant grievance coordinator, averring that Veasey never exhausted a single
grievance with regard to his inmate mail. In response to the motion, Veasey failed to
point to any evidence suggesting that he did in fact exhaust administrative remedies
concerning inmate mail. Accordingly, we will affirm the District Court’s order granting
summary judgment on the basis of non-exhaustion.
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