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Precedential or Non-Precedential: Non-Precedential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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"Francis Veasey v. Mike Fisher" (2009). 2009 Decisions. Paper 1998.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1998


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DLD-63                                                         NOT PRECEDENTIAL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., 

, 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,

, 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 

, 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, 

, 230-31 (3d Cir. 2004). Pursuant to Pennsylvania’s Inmate

Grievance System, Policy Number DC-ADM 804, an inmate must submit each grievance


                                              3
through three administrative levels to exhaust it. 

       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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