Filed: Aug. 13, 2008
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-13-2008 Bricker v. Stowitzky Precedential or Non-Precedential: Non-Precedential Docket No. 07-3505 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Bricker v. Stowitzky" (2008). 2008 Decisions. Paper 660. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/660 This decision is brought to you for free and open access by the Opinions of the
Summary: Opinions of the United 2008 Decisions States Court of Appeals for the Third Circuit 8-13-2008 Bricker v. Stowitzky Precedential or Non-Precedential: Non-Precedential Docket No. 07-3505 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008 Recommended Citation "Bricker v. Stowitzky" (2008). 2008 Decisions. Paper 660. http://digitalcommons.law.villanova.edu/thirdcircuit_2008/660 This decision is brought to you for free and open access by the Opinions of the ..
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Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
8-13-2008
Bricker v. Stowitzky
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3505
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Bricker v. Stowitzky" (2008). 2008 Decisions. Paper 660.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/660
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3505
___________
RONALD L. BRICKER,
Appellant
v.
PAUL J. STOWITZKY; FRED J. RUFFO; DEBRA K. SAUERS;
RHONDA OSOKO; JAMES STILES; DONNA BONNER; EDWARD P. PAVLICK;
JACQUELINE S. MARQUARDT; OFFICER HARVEY; MS. JANET KIMMELL;
DEPUTY NEISWONGER; JEFFREY A. BEARD; MR. MARTIN;
WILLIAM STICKMAN; GEORGE MESAROS; MR. COLEMAN,
All Defendants herein, “In their individually and in their Official Capacities”
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 06-cv-01704)
District Judge: Honorable Arthur J. Schwab
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
July 28, 2008
Before: MCKEE, SMITH and CHAGARES, Circuit Judges
(Opinion filed: August 13, 2008)
_________
OPINION
_________
PER CURIAM
Ronald L. Bricker, a Pennsylvania state prisoner proceeding pro se, appeals from
the District Court’s order granting the appellees’ motion to dismiss and denying as moot
his motion for a preliminary injunction. For the following reasons, we will affirm.
Bricker is presently incarcerated at the State Correctional Institute at Mercer,
Pennsylvania (“SCI-Mercer”). In December 2006, Bricker commenced a civil rights
action under 42 U.S.C. § 1983 against several employees of the Pennsylvania Department
of Corrections (the “Commonwealth Defendants”), alleging that corrections officers at
SCI-Mercer had violated his constitutional rights in various ways. Bricker subsequently
filed a motion for preliminary injunction to enjoin the Commonwealth Defendants from
their allegedly unconstitutional conduct.
On April 26, 2007, the Commonwealth Defendants moved pursuant to Federal
Rule of Civil Procedure 12(b)(6) to dismiss the complaint on the ground that Bricker had
failed to exhaust his administrative remedies before filing suit. The matter was referred
to Magistrate Judge Lisa Pupo Lenihan, who agreed that Bricker had failed to properly
exhaust. By order entered August 6, 2007, the District Court adopted the Magistrate
Judge’s report, granted the Commonwealth Defendants’ motion to dismiss and, in light of
its order dismissing the case, denied Bricker’s motion for a preliminary injunction as
moot. The present appeal followed.1
1
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.
2
We will affirm the District Court’s order. As an initial matter, we note that, in his
brief, Bricker does not raise any objections whatsoever to the District Court’s order
below; in fact, his complaints on appeal appear to be almost entirely unrelated to the
present § 1983 action. Instead, Bricker seems to be challenging the denial of a state-court
petition for habeas corpus in which he apparently argued that his criminal conviction was
invalid because the Pennsylvania Constitution of 1968 does not contain a crimes code.
Because that habeas petition is not at issue in this suit, we cannot consider this argument.
In any event, to the extent that Bricker’s brief can be construed as challenging the
disposition of his § 1983 action, we find that the District Court’s dismissal was proper.
As noted above, the District Court dismissed Bricker’s civil rights complaint on the
ground that he had failed to exhaust his administrative remedies prior to bringing suit;
according to the District Court, Bricker failed to exhaust all but one of his claims, and
procedurally defaulted the one claim that he did attempt to exhaust. See 42 U.S.C. §
1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001); Williams v. Beard,
482 F.3d 637,
639 (3d Cir. 2007).
The record reflects that Bricker filed only one grievance during his incarceration at
SCI-Mercer, grievance No. MER-123974-05, in which he complained that Corrections
Officer Harvey was not enforcing institutional rules regarding the use of headsets with
personal televisions. Even though Bricker did attempt to exhaust this claim, it appears
that the grievance was rejected at the third stage of the review process for failure to
3
include copies of the grievance record, as required by DC-ADM 804 Part VI.D.1.g.
Because Bricker thus failed to follow the procedural requirements of the grievance
system, the District Court concluded that Bricker had procedurally defaulted this claim.
See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).
Upon review of the administrative record, we agree with the District Court that
Bricker failed to exhaust all but one of his claims, and thus conclude that the District
Court’s dismissal of those claims was proper. With respect to the claim that Bricker did
attempt to exhaust—namely, that Officer Harvey was not enforcing institutional rules
regarding the use of headsets with personal televisions—it is at least arguable that the
District Court should have considered excusing the procedural default because, according
to Bricker, the prison librarian precluded him from making photocopies without a court
order. See, e.g., Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002) (finding that prisoner
may be able to prove that he exhausted his “available” administrative remedies where
prisoner’s failure to file a timely grievance was due to prison officials’ obstruction). We
need not resolve this question, however, because the underlying claim does not allege a
cognizable constitutional violation. See Estelle v. Gamble,
429 U.S. 97, 106 (1976) (“In
order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical needs.”)
Accordingly, for the foregoing reasons, we will affirm.
4
