                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-20-2008

Robert Porter v. Dave Blake
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2173




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Recommended Citation
"Robert Porter v. Dave Blake" (2008). 2008 Decisions. Paper 635.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/635


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DLD-258                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 08-2173
                                  ________________

                                ROBERT R. PORTER,

                                                            Appellant

                                           v.

                         DAVE BLAKE, Corrections Officer;
                       BARRY WRIGHT, Corrections Officer;
                         MARK CAPOZZA, Unit Manager
                     ____________________________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-00464)
                    District Judge: Honorable Nora Barry Fischer
                   _______________________________________

      Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
          Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 24, 2008

             Before: BARRY, CHAGARES and COWEN, Circuit Judges

                                Filed: August 20, 2008
                              _______________________

                                      OPINION
                              _______________________

PER CURIAM

      Appellant, Robert Porter, appeals from the final order of the United States District

Court for the Western District of Pennsylvania granting summary judgment in favor of
the defendants. For essentially the reasons provided by the Magistrate Judge, in a Report

and Recommendation that was adopted as the opinion of the District Court, we will

dismiss the appeal pursuant to 28 U.S.C. 1915(e)(2)(B).

       Porter, an inmate previously incarcerated at the State Correctional Institution at

Greene (“SCI-Greene”), filed the underlying civil action against SCI-Greene correctional

officers Donald Blake, Barry Wright and Mark Capozza. Porter alleged that sometime in

mid to late March 2002, defendants Blake and Wright gave him an opened container of

milk that they had contaminated with Hepatitis C and A blood. Porter claimed that this

contaminated milk caused him to contract Hepatitis that same month. Porter further

alleged that defendant Capozza, the Unit Manager, failed to report the incident despite

his responsibility for supervising the officers.

       The defendants ultimately filed motions for summary judgment, arguing that

Porter had not exhausted administrative remedies and/or procedurally defaulted his

claims insofar as the only grievance he filed (Grievance # 26070 submitted on July 13,

2002) merely complained that his health had been put in jeopardy as a result of his

contraction of Hepatitis from an unknown source at SCI-Greene, and because it was

rejected by the grievance officer as untimely. The Magistrate Judge to whom the action

was referred agreed with the defendants that Porter failed to properly exhaust his

administrative remedies, and recommended that the defendants’ motions be granted.

Over Porter’s objections, the District Court adopted the recommendation, granting


                                              2
summary judgment in favor of defendants. This timely appeal followed.

       We exercise plenary review over the District Court’s decision to grant summary

judgment. See Torres v. Fauver, 292 F.3d 141, 145 (3d Cir. 2002). Under 42 U.S.C. §

1997e(a), prisoners are required to exhaust available administrative remedies before

bringing a civil rights action concerning prison conditions, regardless of whether these

remedies can provide the inmate with the relief sought. See Booth v. Churner, 532 U.S.

731, 741 (2001). The Pennsylvania Department of Corrections has a three-tier grievance

system, set forth in Policy Statement DC-ADM 804, which serves as a prisoner’s

administrative remedy. See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). In order

to avoid a procedural default, an inmate is required at the initial level to, inter alia,

“identify any persons who may have information that could be helpful in resolving the

grievance,” and to submit the grievance “within fifteen (15) working days after the

events on which the claims are based.” Id. at 234, quoting DC-ADM 804, Part VI.A.1.d

and VI.A.1.e.

       Porter appears to contend that he exhausted his administrative remedies because

he appealed Grievance # 26070 to final review. That contention, however, is erroneous.

While Porter did in fact proceed with his grievance through all three tiers of the

grievance system, the grievance officer rejected Grievance # 26070 as untimely while

also noting that Porter failed to provide a date on which the medical issue allegedly

occurred. The Superintendent thereafter denied Porter’s appeal, specifically finding that,


                                               3
insofar as Porter alleged he received his Hepatitis blood test results on April 11, 2002,

his grievance dated July 13, 2002 was clearly outside the time requirements established

by DC-ADM 804. The responses Porter received on initial review and from the

Superintendent were upheld on final review by the Chief Grievance Coordinator. See

Defendants’ Brief in Support of Summary Judgment, Exhibit A 1-6. As the Supreme

Court has explicitly held, an untimely “or otherwise procedurally defective administrative

grievance or appeal” does not satisfy the mandatory exhaustion requirement of the Prison

Litigation Reform Act. Woodford v. Ngo, 548 U.S. 81, 83 (2006). See also Spruill, 372

F.3d at 230.

       Finally, Porter’s contention that he is entitled to an exception to the exhaustion

requirement because “defendants’ misconduct evaded [his] perception,” and because,

after receiving his test results on April 11, 2002, he had “to recollect back to the incident

of being given a funny tasting milk,” is unavailing. As defendants asserted in their

summary judgment motions, Porter’s own allegations indicate that he suspected

defendants Blake and Wright of contaminating his milk in March 2002 or, at the latest, in

April after he learned the results of his blood test. This is a full three months prior to his

submission of Grievance # 26070, wherein he claimed the source of his contraction of

Hepatitis was unknown. Moreover, despite Porter’s argument to the contrary, the

exhaustion requirement is not excused merely because a prisoner alleges that the

correctional defendants engaged in misconduct (unrelated to the grievance process itself)


                                              4
and should be estopped from raising the exhaustion defense. The Supreme Court has

stated, “[t]he benefits of exhaustion can be realized only if the prison grievance system is

given a fair opportunity to consider the grievance.” Woodford v. Ngo, 548 U.S. at 95.

The administrative system was simply never given that opportunity with respect to a

timely grievance against the named defendants in this case.

       The record clearly reflects that Porter did not properly exhaust administrative

remedies as required by 42 U.S.C. § 1997e(a). Summary judgment was thus appropriate

because Porter failed to come forward with any evidence to rebut the record evidence

that he committed a procedural default. See Fed. R. Civ. P. 56(e); see also Spruill, 372

F.3d at 230. We, therefore, discern no error in the District Court’s decision granting

summary judgment in favor of defendants. Accordingly, we will dismiss the appeal as

lacking in merit pursuant to 28 U.S.C. § 1915(e)(2)(B)(i). See Neitzke v. Williams, 490

U.S. 319 (1989). Appellant’s motion for the appointment of counsel is denied. Tabron

v. Grace, 6 F.3d 147, 155-58 (3d Cir. 1993).




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