          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey D. Turner,                 :
             Appellant             :
                                   :
             v.                    : No. 1472 C.D. 2016
                                   : Submitted: January 27, 2017
Sgt. Knight, Sgt. Justice,         :
CO1 Besetter, CO1 John Doe #1,     :
CO1 John Doe #2, M. Lamas Ex       :
Facility Mgr, Jeffrey Rockovan,    :
Major IV, Sgt. Jerry Young, CO1 D. :
Moyer, CO1 A. Taylor, CO1 N., CO1 :
Ngwanda, Lt. Settler, CO1 Porte,   :
CO1 John Doe #3, Lt. Lusts         :
B. Rupert Unit Manager of A-Block, :
Link Unit Manager of J-Block,      :
M. Luciano, R. Shrimp Grievance    :
Coordinator, Deputy, Lt. McEllan,  :
Lt. Foster, Rev. McCoy Chaplain,   :
John Doe #7, Jane Doe #7, CO1      :
Emerick J-Block, John Doe #8,      :
John Doe #9, B.J. Solomon CCPM, :
Shawn Kephart, Pitkens Facility    :
Manager, Religious Accommodation :
Committee, D. Varner Chief         :
Grievance Coordinator, T. Williams :
Grievance Coordinator, John Wetzel :


BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE JULIA K. HEARTHWAY, Judge
            HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                               FILED: February 24, 2017

            Jeffrey D. Turner (Turner), a state prisoner, appeals pro se from the
order of the Court of Common Pleas of Centre County (trial court) dismissing his
action because he failed to exhaust his administrative remedies as required by Section
6602(e) of Pennsylvania’s Prison Litigation Reform Act (PLRA), 42 Pa.C.S. §
6602(e), before bringing the action.1 We affirm.


                 Turner filed a complaint, later amended, against certain officers of the
Department of Corrections (Department) for incidents that allegedly occurred while
he was incarcerated at the State Correctional Institution (SCI) at Rockview.2
However, because all other actions and defendants were previously dismissed,3 the

       1
           42 Pa.C.S. § 6602(e) provides, in pertinent part:

                 (e) Dismissal of litigation.--Notwithstanding any filing fee which has
                 been paid, the court shall dismiss prison conditions litigation at any
                 time, including prior to service on the defendant, if the court
                 determines any of the following:

                                                   ***

                          (2) The prison conditions litigation is frivolous or malicious or
                 fails to state a claim upon which relief may be granted. . . .

42 Pa.C.S. § 6601 defines “Prison conditions litigation” as “[a] civil proceeding arising in whole or
in part under Federal or State law with respect to the conditions of confinement or the effects of
actions by a government party on the life of an individual confined in prison.” Moreover, pursuant
to Section 6603(a) of the PLRA, litigation is subject to both federal and state exhaustion
requirements with regard to civil rights claims implicating prison conditions. 42 Pa.C.S. § 6603(a).
The federal Prison Litigation Reform Act states that exhaustion of administrative remedies is
mandatory when federal claims are asserted. See 42 U.S.C. § 1997e; Kittrell v. Watson, 88 A.3d
1091, 1095 (Pa. Cmwlth. 2014).

       2
       Turner was transferred out of SCI-Rockview and is currently incarcerated at SCI-Benner
Township.

       3
         After Turner filed his amended complaint, the Department filed an Answer and New
Matter asserting various preliminary objections. On August 20, 2015, the trial court sustained all of
the Department’s objections save for the current cause of action before this court, and all other
defendants were dismissed from the underlying action. In the present appeal, Turner does not raise
(Footnote continued on next page…)

                                                     2
only cause of action that Turner now pursues alleges that on July 12, 2013,
defendants Mondy, Taylor and John Doe #4 (collectively, Remaining Defendants)4
“slammed [him] into the walls and the gate in the [Restricted Housing Unit] strip
cage[,] and threatened his life as well,”5 and that these actions amount to excessive
force and cruel and unusual punishment in violation of the Eighth Amendment to the
United States Constitution.


                After the pleadings were closed, the Remaining Defendants filed a
motion for summary judgment asserting that the action should be dismissed under
Section 6602(e) of the PLRA, 42 Pa.C.S. § 6602(e), because Turner failed to exhaust
his administrative remedies as outlined in the Department’s Inmate Grievance
Review System (Grievance Policy), DC-ADM 804.6 Affidavits were attached to this
motion stating that Turner did not timely file a grievance relating to the allegations in
the amended complaint that specifically named the Remaining Defendants.




(continued…)

any specific arguments with respect to the trial court’s previous order sustaining the Department’s
preliminary objections.

       4
         Turner lists “CO1 A. Taylor” in the caption for this matter, above, but fails to include
either “Mondy” or “John Doe #4.”

       5
           (Record (R.) Item 16, Amended Complaint at 5.)

       6
         The Department’s Administrative Directives, including DC-ADM 804, are available at
http://www.cor.pa.gov.



                                                 3
             In his response to the Remaining Defendants’ motion for summary
judgment, Turner contended that he exhausted his administrative remedies by filing
Grievance 481695 (Grievance) on October 11, 2013. The Grievance provides:
            Today I received legal mail from my attorney with the
            [statutes] [t]hat COI Moyer and [COI] Young did in fact
            [violate] . . . current [policies] as well as show “deliberate
            indifference” as well as (RLUIPA) [Religious Land Use
            And Institutionalized Persons Act] under 42 U.S.C.
            §2000cc to cc5. On July 12th 2013 they both . . . [coerced]
            me to submit to a “pat search” while attempting to enter B-
            yard, which resulted in sexual harassment, assault by staff
            and ethnic intimidation of my person and religious beliefs . .
            . I would like this practice stopped as well as $250,000.00
            in damages & charges imposed. I have spoken and written
            to staff as calling [such] as calling the sexual hotline on
            7/28/13 [at approximately] 12:00 pm with no results . . . .


(Record (R.) Item No. 56, “Plaintiff’s Motion for Summary Judgment, to Challenge
Validity of Defendant’s Summary Judgment.”) Significantly, that Grievance does not
name any of the Remaining Defendants and was rejected as untimely because it was
filed almost two months after the alleged incident took place.


             Turner also contended that he exhausted his administrative remedies
pursuant to Grievance Policy DC-ADM 008, “Prison Rape Elimination Act (PREA),”
because, as his Grievance provides, he called the Sexual Abuse Hotline (Hotline) on
July 28, 2013, to report the incident.


             The trial court determined that because Turner’s Grievance was
untimely, he never filed a grievance under DC-ADM 804 which deals with prison
abuse allegations. The trial court also found that DC-ADM 008 does not apply
because it only pertains to sexual assault and abuse, which is not alleged against the


                                           4
Remaining Defendants and, in any event, the Hotline call related to a completely
different incident of alleged sexual misconduct and did not specifically name or
involve any of the Remaining Defendants.                   Because he failed to exhaust his
administrative remedies, the trial court granted the Remaining Defendants’ motion
for summary judgment and dismissed Turner’s action with prejudice.7 This appeal
followed.8


               On appeal, Turner contends that the trial court erred when determining
that he failed to exhaust his administrative remedies because he submitted the
Grievance and called the Hotline about an alleged incident of sexual abuse and
somehow that should serve as showing that he exhausted his administrative remedies.


               The administrative remedies available for complaints regarding prison
conditions are set forth in the Department’s Grievance Policy and regulations.
“Section 93.9 [of the Department’s regulations] establishes an inmate grievance
system that provides a forum for prison inmates to complain to the Department about
problems that arise ‘during the course of confinement.’                   37 Pa. Code § 93.9.”
Morgalo v. Gorniak, 134 A.3d 1139, 1150 (Pa. Cmwlth. 2016) (quoting McCray v.

       7
          Appealing the trial court’s order, Turner attached Grievance Policy DC-ADM 001,
contending the trial court erred in not finding that it applied without saying why it should apply.
Because Turner failed to raise this issue previously, the trial court correctly reasoned in its Opinion
in Response to Errors Complained of on Appeal that the issue is waived. See Pa.R.A.P. 302(a)
(“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”)

       8
         Our review of a trial court order granting summary judgment is limited to determining
whether the trial court abused its discretion or committed an error of law. Manley v. Fitzgerald, 997
A.2d 1235, 1238 n.2 (Pa. Cmwlth. 2010). Summary judgment may only be granted when, after
examining the record in the light most favorable to the non-moving party, the record clearly
demonstrates that there are no genuine issues of material fact and the moving party is entitled to
judgment as a matter of law. Id.


                                                  5
Department of Corrections, 872 A.2d 1127, 1131 (Pa. 2005)). The Department’s
Grievance Policy and Inmate Handbook provide that:

             [t]he inmate grievance process begins with the filing of a
             grievance with the Facility Grievance Coordinator. . . .
             ‘The [process] requires an inmate who has received an
             initial determination on his grievance to appeal to the
             Superintendent and, thereafter, seek final review with [the
             Department]. If the inmate fails to complete each of these
             steps, he fails to exhaust his administrative remedies.’
             Kittrell v. Watson, 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014).


Morgalo, 134 A.3d at 1150-51.


             Here, affidavits are attached to the Remaining Defendants’ motion for
summary judgment stating that Turner has not timely filed any grievances related to
the underlying incident that specifically name the Remaining Defendants. Turner
also consistently fails to allege that he timely filed a grievance specifically naming
and pertaining to actions by the Remaining Defendants, all of which must occur
before he is able to maintain his claims.


             Accordingly, because Turner has failed to exhaust all administrative
remedies, we affirm the trial court’s order dismissing this matter with prejudice.



                                       _________________________________
                                       DAN PELLEGRINI, Senior Judge




                                            6
            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Jeffrey D. Turner,                 :
             Appellant             :
                                   :
             v.                    : No. 1472 C.D. 2016
                                   :
Sgt. Knight, Sgt. Justice,         :
CO1 Besetter, CO1 John Doe #1,     :
CO1 John Doe #2, M. Lamas Ex       :
Facility Mgr, Jeffrey Rockovan,    :
Major IV, Sgt. Jerry Young, CO1 D. :
Moyer, CO1 A. Taylor, CO1 N., CO1 :
Ngwanda, Lt. Settler, CO1 Porte,   :
CO1 John Doe #3, Lt. Lusts         :
B. Rupert Unit Manager of A-Block, :
Link Unit Manager of J-Block,      :
M. Luciano, R. Shrimp Grievance    :
Coordinator, Deputy, Lt. McEllan,  :
Lt. Foster, Rev. McCoy Chaplain,   :
John Doe #7, Jane Doe #7, CO1      :
Emerick J-Block, John Doe #8,      :
John Doe #9, B.J. Solomon CCPM, :
Shawn Kephart, Pitkens Facility    :
Manager, Religious Accommodation :
Committee, D. Varner Chief         :
Grievance Coordinator, T. Williams :
Grievance Coordinator, John Wetzel :


                                  ORDER


             AND NOW, this 24th day of February, 2017, it is hereby ordered that
the Court of Common Pleas of Centre County’s order dated July 14, 2016, is
affirmed.


                                     _________________________________
                                     DAN PELLEGRINI, Senior Judge
