Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-29-2007

Weldon v. Cywinski
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3753




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Recommended Citation
"Weldon v. Cywinski" (2007). 2007 Decisions. Paper 1404.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1404


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ALD-166                                             NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                   NO. 06-3753
                                ________________

                              ROBERT C. WELDON,

                                        Appellant

                                         v.

          JEFF CYWINSKI; MR. GRIEGO; ROBERT KOMSISKY;
        DONALD JONES; JAMES MCGRADY; RICHARD HOLMES;
      THOMAS STACHELEK; KENNETH BURNETT; THOMAS LAVAN;
       DONALD KELCHNER; JEFFREY A. BEARD; DEPARTMENT OF
       CORRECTIONS; MR. BUZINK; MR. TUPPER; PENNSYLVANIA
            STATE POLICE; THE STATE OF PENNSYLVANIA

                    ____________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 04-cv-00529)
                  District Judge: Honorable William W. Caldwell
                  _______________________________________


          Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                  March 22, 2007

     Before:    SLOVITER, CHAGARES AND GREENBERG, Circuit Judges.

                              (Filed: March 29, 2007)

                            _______________________

                                    OPINION
                            _______________________
PER CURIAM

      Robert C. Weldon appeals from the orders of the United States District Court for

the Middle District of Pennsylvania entering judgment in favor of certain defendants and

dismissing his claims filed against the Commonwealth of Pennsylvania, the Pennsylvania

State Police, the Department of Corrections (“DOC”), a state trooper, a state magistrate

judge, and a certain DOC official. For the following reasons, we will dismiss the appeal

under 28 U.S.C. § 1915(e)(2)(B).

      In 2004, Weldon filed a complaint for injunctive relief and damages under 42

U.S.C. § 1983. In it, he alleged that two non-defendant prison officials who had issued

false disciplinary misconducts against him retaliated after he complained about them by

intimidating him and placing him in a cell with another inmate who ultimately assaulted

him. He claims that the state trooper investigating the assault should have charged the

inmate with assault instead of harassment and that the magistrate judge who heard the

matter should have found the inmate guilty. The district court dismissed the claims

against the Commonwealth, the state police and the DOC on Eleventh Amendment

immunity grounds, dismissed the claim against the state magistrate judge because he was

entitled to absolute judicial immunity, and dismissed the claims against Buzink and

Burnett for failure to state a claim. The court granted summary judgment to the rest of

the defendants–DOC officials–because Weldon had failed to exhaust his claims through

the prison’s grievance system.

      Because Weldon is proceeding in forma pauperis, we must analyze his appeal for

                                            2
possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under that statute, we must

dismiss an appeal if it lacks arguable merit in fact or law. See Neitzke v. Williams, 

, 325 (1989).

       We substantially agree with the district court’s disposition on Weldon’s claims. It

correctly dismissed the claims against the Commonwealth of Pennsylvania, the

Pennsylvania State Police and the DOC as barred by the Eleventh Amendment. See Will

v. Mich. Dep’t of State Police, 

, 71 (1989); Bolden v. Se. Pa. Trans. Auth.,

, 813-14 (3d Cir. 1991). The district court also properly determined that

state magistrate judge Tupper was entitled to absolute judicial immunity from the claims

for damages. See Gallas v. Supreme Court of Pa., 

, 768 (3d Cir. 2000).1

       Furthermore, to state a claim for relief under § 1983, a complaint must sufficiently

allege a deprivation of a right secured by the Constitution. See Nami v. Fauver, 

, 65 (3d Cir. 1996). Accepting as true all of the factual allegations in the complaint, as

well as all reasonable inferences that can be drawn from them, we agree with the district

court’s conclusion that Weldon’s claims against grievance coordinator Burnett and

Trooper Buzink should be dismissed under § 1915(e)(2)(B) because they fail to state a

claim for which relief may be granted. In neither instance did Weldon allege the

deprivation of a constitutionally-protected right.



  1
    Weldon’s demand for injunctive relief concerns his request to be transferred to a
federal prison–a demand which is not made of Tupper, nor does it have anything to do
with Weldon’s claim against him.

                                              3
       The district court granted summary judgment as to the remaining claims against

the prison officials because Weldon had failed to properly exhaust his administrative

remedies. Before filing suit, a prisoner must properly exhaust the administrative remedies

available to him. See Jones v. Bock, 

, 922-23 (2007). Compliance with the

grievance procedures of a particular prison is what determines whether a prisoner has

“properly exhausted” the remedies available. See 

Weldon admits that he did

not file grievances regarding the facts alleged in his complaint. Instead, he states that he

complained to the State Police and pursued the matter through the criminal courts.

During the course of this case, Weldon submitted copies of grievance forms that he has

filed, but none readily addresses the facts he alleged in his complaint against the DOC

officials named in this action.2 Before attempting to obtain relief for alleged civil rights

violations committed by prison officials in federal court, Weldon needed to have utilized

the proper administrative procedures. Because he did not do so, the district court properly

granted summary judgment in favor of the DOC officials for failure to exhaust.

       We will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B). Weldon’s

motions for appointment of counsel and for a stay of appeal are denied.




  2
    Several of the copies of grievance forms submitted with his opposition to summary
judgment are illegible, but it is clear from Weldon’s explanations and the admission in his
complaint that those grievances did not serve to “properly exhaust” his administrative
remedies with respect to the claims alleged in this case.

                                              4