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


5-23-2007

Muhammad v. Beard
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4897




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

Recommended Citation
"Muhammad v. Beard" (2007). 2007 Decisions. Paper 1072.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1072


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 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
ALD-214                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                    NO. 06-4897
                                 ________________

                              CARLOS MUHAMMAD,

                                                  Appellant

                                           v.

     SECRETARY JEFFREY A. BEARD; SUPERINTENDENT ROZUM; UNIT
                         MANAGER MR. ORR
                ____________________________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                            (D.C. Civ. No. 06-cv-00093J)
                      District Judge: Honorable Kim R. Gibson
                   _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                     May 3, 2007

          Before: SLOVITER, CHAGARES and GREENBERG, Circuit Judges

                               (Filed: May 23, 2007)
                             _______________________

                                    OPINION
                             _______________________

PER CURIAM

      Carlos Muhammad appeals from the District Court’s grant of summary judgment

in favor of Appellees Secretary Jeffrey A. Beard, Superintendent Rozum and Unit
Manager Mr. Orr. Because we determine that the appeal is lacking in arguable legal

merit, we will dismiss it under 28 U.S.C. § 1915(e)(2)(B).

       On April 28, 2006, while incarcerated at SCI Somerset, Muhammad filed a

complaint in the District Court pursuant to 42 U.S.C. § 1983 against the Appellees.

Muhammad alleges that he was “repeatedly subjected” to another inmate’s second-hand

cigarette smoke by Orr, who allegedly “kept [Muhammad] in the cell after [he] asked

repeatedly to be removed.”1 (Compl. at 4.) He seeks an order awarding him

compensation for his alleged physical and mental injuries in the amount of one million

dollars. (Id.)

       Appellees filed a motion to dismiss or, in the alternative, a motion for summary

judgment on September 25, 2006, asserting inter alia as a basis for dismissal that

Muhammad did not exhaust available administrative remedies. (Mot. to Dismiss or for

Sum. J. at 2.)2 The District Court, adopting a magistrate judge’s recommendation to


       1
          Specifically, Muhammad claims that he “complained of second-hand smoke to
[the] unit manager, Mr. Orr” but received no response. In describing the further review
he sought, Muhammad alleges only that he “asked Mr. Orr several times to remove me
from that cell.” (Compl. at 3.)
       2
         In support, the motion included as Exhibit C a signed, sworn declaration of
Administrative Officer II Tracy Pollock of the Grievance Review Office of
Pennsylvania’s Department of Corrections. Pollock described her office as responsible
for conducting the final review of inmate grievances as part of the state’s prisoner
grievance process, and stated that she is responsible for “reviewing grievance records of
appeals.” (Decl. at 1.) The declaration described in detail the three-step grievance
process, and concluded with Pollock’s statement that while she did not know whether
Muhammad had completed the first or second stages of the grievance procedure, “he did
not file a grievance on this issue with the Secretary’s Office of Inmate and Grievance

                                            -2-
which Muhammad did not object, treated the motion as one for summary judgment,

granted it, and entered judgment for the Appellees in a November 13 order. Muhammad

filed a timely notice of appeal.3

       Our review of the record makes clear that Muhammad’s appeal lacks any arguable

basis in law. “No action shall be brought with respect to prison conditions . . . by a

prisoner confined in any . . . prison . . . until such administrative remedies as are available

are exhausted.” 42 U.S.C. § 1997e(a). This rule means that “prisoners seeking relief in

federal court must first exhaust the administrative remedies available at the prison level,”

Williams v. Beard, – F.3d –, 2007 WL 973953, *2 (3d Cir. Apr. 3, 2007)(citing

Woodford v. Ngo, 126 S. Ct. 2378, 2382-83 (2006)); see also Spruill v. Gillis, 372 F.3d

218, 227 (3d Cir. 2004)(prisoner must exhaust grievance process “before coming to

federal court”), including the inmate grievance process outlined in Pennsylvania’s

Grievance System. Spruill, 372 F.3d at 232. Exhaustion is required even if the relief

sought cannot be granted by the administrative process. Woodford, 126 S. Ct. at 2382-

83. As described in a sworn statement attached to Appellees’ motion as “Exhibit A,” the

procedure required by the Grievance System includes initial review of a filed grievance, a

first appeal to a facility manager, and a final appeal to the Office of Inmate Grievances




Appeals for final review (Step 3).” (Id. at 4.)
       3
        We have jurisdiction over Muhammad’s appeal from the District Court’s final
order pursuant to 28 U.S.C. § 1291, and our review is plenary. See Spruill v. Gillis, 372
F.3d 218, 226 (3d Cir. 2004).

                                              -3-
and Appeals. (Decl. at 1.) See also Commw. of Pa. Dept. of Corr., Inmate Grievance

System, DC-ADM 804.

       Muhammad had only completed one step of the grievance process by the time that

he filed his complaint on April 28, 2006. By his own account, his efforts to obtain redress

consisted only of complaining repeatedly to Mr. Orr, and Pollock’s sworn declaration

confirmed that the grievance appeal process had not been completed. As the magistrate

judge noted in his Report and Recommendation as adopted by the district court, “there is

nothing in the record to rebut the [Appellees’] representation that [Muhammad] has failed

to exhaust the available administrative remedies.” (Report and Recommendation at 3.)

Because he did not exhaust his remedies within the prison, Muhammad could not proceed

with this action in federal court. See 42 U.S.C. § 1997e(a); Woodford, 126 S. Ct. at

2382-83.

       In sum, Muhammad’s complaint is barred by his failure to exhaust available

administrative remedies. We will dismiss his appeal under § 1915(e)(2).




                                            -4-
