Thomas J. Bolla v. R. Strickland

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-23-2008
Thomas J. Bolla v. R. Strickland
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-3466
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ALD-48 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-3466
___________
THOMAS J. BOLLA,
Appellant
v.
MR. R. STRICKLAND, Corrections Officer
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 07-00129)
District Judge: Honorable Kim R. Gibson
____________________________________
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 11, 2008
Before: SLOVITER, FUENTES and JORDAN, Circuit Judges
(Opinion filed: December 23, 2008)
_________
OPINION
_________
PER CURIAM
Thomas J. Bolla filed this pro se action in the Western District of Pennsylvania
against R. Strickland, a corrections officer at Bolla’s place of confinement, alleging
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violations of his civil rights under 42 U.S.C. § 1983. The District Court granted
defendant’s motion for summary judgment and, for the reasons that follow, we will
affirm.
I. Background
Bolla is currently an inmate in the custody of the Pennsylvania Department of
Corrections (“DOC”) at SCI-Houtzdale. He filed a complaint in the District Court on
May 31, 2007, alleging that Strickland and four or five other corrections officers
subjected him to cruel and unusual punishment during a cell extraction on June 17, 2005.
After several additional filings from Bolla, including unsuccessful motions to amend the
complaint and for appointment of counsel, Strickland moved for summary judgment. The
District Court adopted the Magistrate Judge’s finding that Bolla had never submitted a
grievance related to the alleged use of force on June 17, 2005, and as a result it granted
Strickland’s motion for summary judgment based on Bolla’s failure to exhaust
administrative remedies. Bolla timely appealed from the District Court’s order.
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).
Summary judgment is proper when, viewing the evidence in the light most favorable to
the nonmovant, there is no genuine issue of material fact and the moving party is entitled
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to judgment as a matter of law. Id. at 232; Fed. R. Civ. P. 56(c). The party opposing
summary judgment “may not rest upon the mere allegations or denials of the . . .
pleading”; the party’s response, “by affidavits or as otherwise provided in this rule, must
set forth specific facts showing that there is a genuine issue for trial.” Saldana, 260 F.3d
at 232 (citing Fed. R. Civ. P. 56(e)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574 (1986). We view the facts in the light most favorable to the nonmoving
party and draw all inferences in that party’s favor. See Reitz v. County of Bucks, 125
F.3d 139, 143 (3d Cir. 1997).
III. Discussion
The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner to
exhaust his administrative remedies before bringing a civil rights action in federal court.
Spruill v. Gillis, 372 F.3d 218, 227-28 (3d Cir. 2004). The exhaustion requirement
includes a procedural default component, and a prisoner must comply with prison
grievance procedures to properly exhaust his claims. Id. at 230-31. The Magistrate Judge
found that Bolla “never, even in an untimely fashion, submitted a grievance about the
alleged use of force on June 17, 2005,” and this finding was apparently determinative for
the District Court in concluding that Bolla had failed to exhaust his administrative
remedies before proceeding in the federal court.
In his original complaint, however, Bolla alleged that he did in fact file the
appropriate grievance. He further alleged that any untimeliness in his filing was due to
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the prison’s depriving him of access to a writing utensil. Bolla offers nothing more to
support these bare assertions, but it would not alter the course of this litigation had he
done so. Submitting a grievance for review is only the first of three steps an inmate must
take to fully exhaust administrative remedies:
DC-ADM-804 Part VI provides for three stages of review
within Pennsylvania’s Grievance System: Initial Review (DC-
ADM-804 Part VI.B), which addresses the inmate's filed
grievance; the first appeal from the Initial Review, known as
Appeal to Facility Manager (DC-ADM-804 Part VI.C); and a
second and final appeal, the Appeal to Secretary's Office of
Inmate Grievances and Appeals (DC-ADM-804 Part VI.D).
Spruill, 372 F.3d at 232. Even if Bolla properly submitted a grievance regarding the
alleged institutional abuse on June 17, 2005, it is undisputed that none of the subsequent
required measures were taken. Therefore, after viewing the evidence in the light most
favorable to Bolla, the non-moving party, see Reitz, 125 F.3d at 143, we find that no
genuine issue of material fact exists as to whether he complied with prison grievance
procedures and properly exhausted his claims. Accordingly, we will affirm the District
Court’s order granting summary judgment for Strickland.1
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1
Bolla’s pending motions for appointment of counsel are denied.