Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-30-2003

Casey v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4245




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                                                   NOT PRECEDENTIAL

        THE UNITED STATES COURT OF APPEALS
               FOR THE THIRD CIRCUIT

                        ___________

                        No. 02-4245
                        ___________

                      BRYAN CASEY,

                                       Appellant


                              v.

          *ASHLEY SMITH; *JAMES GRACE;
        *CLINTON P. MYERS; *KAYE STEWART;
*ROBERT DUCK; WALLACE COUCH,in their individual capacities

         *(Amended-See Clerk's Order dated 01/17/03)

                        ___________


 ON APPEAL FROM THE UNITED STATES DISTRICT COURT
     FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

                  (D.C. Civil No. 01-cv-00965)
       Magistrate Judge: The Honorable J. Andrew Smyser

                        ___________

          Submitted Under Third Circuit LAR 34.1(a)
                        July 7, 2003

BEFORE: NYGAARD, SMITH, and GREENBERG, Circuit Judges.

                    (Filed: July 30, 2003 )
                                       ___________

                                OPINION OF THE COURT
                                     ___________


NYGAARD, Circuit Judge.

              Bryan Casey appeals from the Magistrate Judge’s October 21, 2002 order

denying his motion for reconsideration of the Magistrate’s order granting summary

judgment to Wallace Couch and Kaye Stewart, Appellees. On appeal, Casey alleges that

the Magistrate Judge erred by determining that his grievance was untimely, that he did not

substantially comply with the grievance process, and that Appellees had not waived the

affirmative defense of exhaustion of administrative remedies.

              The Magistrate Judge presided by consent, and we have jurisdiction over

the Magistrate Judge’s final order pursuant to 28 U.S.C. § 1291. We review the grant of

summary judgment de novo, applying the familiar standard that a moving party is entitled

to summary judgment “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” FED. R. C IV. P. 56(c). Because we find no issues of material fact, and that

Appellees are entitled to judgment as a matter of law, we will affirm the Magistrate

Judge’s grant of summary judgment.




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              The history of this case, its facts, and procedure are well known to counsel

and the parties. Inasmuch as we are writing a non-precedential opinion and only for the

parties herein, we will recite only those facts necessary to our holding. The Pennsylvania

Department of Corrections has implemented an official Inmate Grievance System,

governed by Administrative Directive 804 and supplemental Bulletins. Pursuant to this

system, an inmate is required to present his grievance to the grievance coordinator for

initial review within fifteen days after the events upon which the grievance is based. If

unsatisfied with the result at this stage, the inmate may appeal the decision to the

Superintendent of the local prison. As the final administrative step, the inmate may

appeal the Superintendent’s decision to the Department of Corrections Chief Hearing

Examiner. Exhaustion of available administrative remedies is mandatory for an inmate to

initiate a federal lawsuit. Booth v. Churner, 

, 739 (2001) (discussing the

effects of the Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e(a)). Exhaustion

must take place irrespective of whether the administrative process provides the inmate

with the relief he is seeking, but an inmate may satisfy his burden by substantially

complying with the administrative process. Nyhuis v. Reno, 

, 75–77 (3d Cir.

2000). The failure to exhaust administrative remedies is an affirmative defense that must

be pleaded and proven by the defendants. Ray v. Kertes, 

, 295 (3d Cir.

2002).




                                              3
              Bryan Casey filed suit on May 31, 2001, alleging that the named Appellees,

as correctional officers at SCI–Huntington, failed to protect him from injuries allegedly

sustained in an August 8, 1999 attack by his cellmate. Casey filed a grievance within

fifteen days of the alleged incident on August 16, 1999. However, this grievance did not

pertain to his current § 1983 claims, but rather his attempts to press assault charges

against his cellmate.1 It was not until July 20, 2000, that Casey finally filed a grievance

with Grievance Coordinator Diana Baney that related to the August 8th attack and

pertained to the alleged failure to protect by correction officers. M s. Baney denied this

grievance as untimely. See App. at 86–87. Casey then sent a letter appealing Ms.

Baney’s decision to Superintendent Kenneth Kyler, which was denied on the merits. See




1.      The body of Casey’s August 16, 1999 grievance states:
              On Saturday Aug. 8, 99 I was attacked in my cell in the
              RHU by m y cellie Vincent Davis. H e cut me about 3x’s
              with an open razor blade. I was taken out of that cell and
              moved ov er here on the drug unit side of C-A block w here
              the RHU Lt. came later that evening and took pictures of
              the wounds on my body. The next day I was visited by a
              Det. from the State Police barracks here in Huntingdon
              County. He asked me did I w as to press charges, I said yes.
              He said that the guy w ill be charged with agg. assault. H e
              said that since the jail was locked down, he could not take
              me out to a room and get a report, that he’ll be back later
              that week. H e never cam e back. So I w rote Deputy
              M eyers, Security Captain, & I talked to my cou nselor Mrs.
              Ruppert about pressing charges. I have still got no
              assistance in doing so. I wish to see a officer & press
              charges.
M agistrate’s July 30, 2002 O rder, A pp. at 

. On his final administrative appeal, Casey’s grievance was deemed untimely

by Robert Bitner, Chief Hearing Examiner on August 16, 2000. See App. at 93.

              Casey failed to exhaust his administrative remedies because he failed to file

his grievance pertaining to his § 1983 claims within the fifteen day time period set out in

Pennsylvania’s Inmate Grievance System. Although he claims substantial compliance by

virtue of his uncertainty that the exhaustion requirement did not encompass a futility

exception, he has not demonstrated why his situation is distinguishable from that in

Nyhuis. In Nyhuis v. Reno, an inmate, Nyhuis, brought a Bivens action against several

correctional officers and asked for monetary and declaratory relief. 

(3d Cir.

2000). The defendants contended that the case should be dismissed for Nyhuis’ failure to

exhaust his administrative remedies, pursuant to the Prison Litigation Reform Act of

1996, 42 U.S.C. § 1997e(a). We rejected Nyhuis’ response “that since the Bureau of

Prisons' administrative process could not afford the monetary or declaratory relief he

requested, exhaustion would essentially be futile, and thus, § 1997e(a) should not bar his

action.” 

. Instead, we held that “we are of the opinion that §

1997e(a), as amended by the PLRA, completely precludes a futility exception to its

mandatory exhaustion requirement.” 

In light of our holding in Nyhuis and

Casey’s lengthy delay in filing his grievance, we reject Casey’s substantial compliance

argument. See Ahmed v. Dragovich, 

, 209 (3d Cir. 2002) (“Whatever the

parameters of ‘substantial compliance’ referred to [in Nyhuis], it does not encompass a



                                             5
second-step appeal five months late nor the filing of a suit before administrative

exhaustion, however late, has been completed.”).

              Casey also argues that the Appellees have waived the affirmative defense of

failure to exhaust administrative remedies because Superintendent Kyler reached the

merits of Casey’s grievance during his administrative appeal. Although we have found

that exhaustion can be waived if the ultimate administrative authority fully examines the

grievance on the merits, Camp v. Brennan, 

, 281 (3d Cir. 2000), Casey

cannot escape the fact that his grievance was determined to be untimely in the final

administrative stage. As we look to the decision of the ultimate administrative authority,

here, Chief Hearing Examiner Bitner’s determination of untimeliness, Camp is

inapplicable to Casey’s situation and exhaustion has not been waived.

              For the foregoing reasons, we will affirm the order of the Magistrate Judge.




                                             6
_________________________


TO THE CLERK:

           Please file the foregoing opinion.




                                          /s/ Richard L. Nygaard
                                          Circuit Judge




                                          7