CLD-278                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-1520
                                       ___________

                             JOHN LEWIS GERHOLT, SR.,
                                          Appellant

                                             v.

        DONALD ORR, JR., Warden, individually and in his official capacity;
          COUNTY OF BEDFORD; RONALD LEIDY, Correctional Officer,
        individually and in his official capacity; JAMES BAKER, Correctional
      Officer, individually and in his official capacity; LIEUTENANT CLIPPER,
             Correctional Officer, individually and in his official capacity;
      EUGENE D. DOWNY, Treatment Specialist, individually and in his official
                 capacity; PRIME CARE MEDICAL DEPARTMENT
                      ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-13-cv-00007)
                       District Judge: Honorable Kim R. Gibson
                      ____________________________________

        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
                                    July 23, 2015
       Before: FUENTES, GREENAWAY, JR. and VANASKIE, Circuit Judges

                             (Opinion filed: August 19, 2015)
                                        _________

                                        OPINION*

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
                                        _________

PER CURIAM

       Appellant, John Lewis Gerholt, Sr., appeals pro se from the judgment entered

against him in this civil rights action. For the following reasons, we will summarily

affirm. See Third Cir. LAR 27.4 and I.O.P. 10.6.

                                              I.

       Gerholt is a Pennsylvania prisoner who was housed at the Bedford County

Correctional Facility (“BCCF”) in 2012 while he was awaiting trial on first-degree

murder charges. In January 2013, Gerholt commenced this civil rights action under 42

U.S.C. § 1983 claiming that BCCF staff had denied him due process of law and violated

his right to be free from cruel and unusual punishment.1 Specifically, Gerholt alleged

that, on May 15, 2012, BCCF Warden Donald Orr, Jr., entered his cell while he was

sleeping, assaulted him, and instructed him to stop contacting law enforcement

authorities with his personal problems.2 Gerholt further alleged that several corrections

officers and medical employees were aware of the assault, but refused to report it to local

law enforcement due to fear of retaliation. Gerholt’s initial complaint named only

Warden Orr as a defendant, but he later amended the complaint to add as defendants: the


1
 Gerholt invoked both the Eighth and Fourteenth Amendment. Because he was a pretrial
detainee at the time, his federal claims are governed by the Fourteenth Amendment. See
note 3, infra. Gerholt also asserted state-law claims for assault and battery as well as
negligence.
2
  Gerholt explained in his complaint that he had written to the Bedford County District
Attorney and the Huntingdon Barracks of the State Police seeking assistance in locating
items that had been stolen from his home.



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County of Bedford; Correctional Officers Ronald Leidy, James Baker, and Lieutenant

Clipper; Dr. Eugene D. Downy; and Prime Care Medical. Gerholt maintained that he

suffered permanent injuries as a result of the incident, and sought declaratory relief and

compensatory damages.

       The matter was referred to a Magistrate Judge who determined that Gerholt had

failed to state a federal claim against any defendant except Warden Orr. See 28 U.S.C.

1915A(b)(1). The District Court agreed, approved and adopted the Report and

Recommendation, and dismissed the amended complaint as to all other defendants.

       Following discovery, Warden Orr moved for summary judgment on the ground

that Gerholt had failed to exhaust his administrative remedies in accordance with the

Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). Despite notice and

ample time to respond, Gerholt did not oppose the motion. The Magistrate Judge

reviewed the record and agreed that Gerholt had not properly exhausted his claim against

Warden Orr. See id.; Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). Gerholt then

submitted objections to the Magistrate Judge’s Report and Recommendation, but did not

address his failure to satisfy the PLRA’s exhaustion requirement. The District Court

approved and adopted the Report and Recommendation over Gerholt’s objections, and

granted Warden Orr’s motion for summary judgment. This appeal followed.

                                               II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our review of

a District Court’s sua sponte dismissal under the PLRA is plenary. Allah v. Seiverling,

229 F.3d 220, 223 (3d Cir. 2000). We also exercise plenary review over an order




                                           3
granting summary judgment. DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004).

Summary judgment is proper where, viewing the evidence in the light most favorable to

the nonmoving party and drawing all inferences in favor of that party, there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).

       Upon review, we see no error in the District Court’s adjudication of this case.3

First, the District Court properly dismissed Gerholt’s claim against the County of

Bedford, as he attempted to hold the County liable solely on a theory of respondeat

superior. See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A[n]

[individual government] defendant in a civil rights action must have personal

involvement in the alleged wrongs; liability cannot be predicated solely on the operation

of respondeat superior.”).

       The District Court also properly dismissed Gerholt’s claims against the corrections

officers and medical defendants. Gerholt claimed that these defendants violated his

rights by failing to report the May 15, 2012 incident to local law enforcement. While we

have recognized that a corrections officer’s failure to intervene in an assault can be the

basis of liability under the Eighth Amendment, Smith v. Mensinger, 293 F.3d 641, 650


3
  As a pretrial detainee, Gerholt was subject to the protections of the Fourteenth
Amendment, not the Eighth Amendment. We have made clear, however, that “the Due
Process rights of a pretrial detainee are at least as great as the Eighth Amendment
protections available to a convicted prisoner.” Boring v. Kozakiewicz, 833 F.2d 468, 471
(3d Cir. 1987) (quotation marks omitted). Thus, even though the constitutional
protections afforded prisoners and pre-trial detainees against inadequate medical care
arise from different textual sources, the standards governing the provision of medical care
to each class are similar. Id. at 472.



                                         4
(3d Cir. 2002), we have never indicated that a corrections officer who learns of an

incident after the fact and fails to report it to law enforcement can be liable under § 1983.

See Parratt v. Taylor, 451 U.S. 527, 535 (1981) (explaining that in order to establish

liability under § 1983, a plaintiff must demonstrate that the defendant state actor deprived

him of a federally secured right), overruled on other grounds by Daniels v. Williams, 474

U.S. 327 (1986).

       We also agree with the District Court that Gerholt failed to exhaust his claim

against Warden Orr. Pursuant to the PLRA, a prisoner may not bring a lawsuit “with

respect to prison conditions under section 1983 of this title . . . until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see also Booth v.

Churner, 206 F.3d 289, 298 (3d Cir. 2000) (holding that an isolated assault constitutes a

“prison condition” for purposes of § 1997e(a)). Section 1997e mandates “proper

exhaustion”; thus, a “procedurally defective administrative grievance or appeal” does not

satisfy the mandatory exhaustion requirement. Woodford, 548 U.S. at 83-84. “[T]he

determination whether a prisoner has ‘properly’ exhausted a claim . . . is made by

evaluating the prisoner’s compliance with the prison’s administrative regulations

governing inmate grievances, and the waiver, if any, of such regulations by prison

officials.” Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004).

       In the amended complaint, Gerholt claimed that he attempted to exhaust his “legal

remedies” by submitting a “request form” to his shift commander asking to speak to

Bedford State Police. Such a request does not, however, comply with the prison’s

grievance procedure. (BCCF Inmate Grievance Procedures and Guidelines 4-6, 7; ECF



                                          5
No. 41-4) (explaining procedure for initiating inmate grievance, including provision for

“sensitive complaints”). Therefore, it does not assist Gerholt in meeting the PLRA’s

exhaustion requirement. See, e.g., Small v. Camden Cnty., 728 F.3d 265, 273 (3d Cir.

2013) (concluding that inmate did not exhaust remedies by sending letters to individuals

outside of prison administration); Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir.

2002) (“To exhaust remedies, a prisoner must file complaints and appeals in the place,

and at the time, the prison’s administrative rules require.”). Moreover, Gerholt conceded

at his deposition that he was aware of the prison’s grievance procedure but chose not to

utilize it in this instance because he “assumed that the Warden answered them and it

would just be a waste of time, he’d just throw it away.” (Gerholt Dep. 49, Apr. 16, 2014;

ECF No. 41-1.) We have made clear, however, that the PLRA requires exhaustion of all

remedies that are available to an inmate, Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir.

2002), and that the exhaustion requirement is not subject to a “futility exception,” Nyhuis

v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). Therefore, Gerholt’s belief that he would not

obtain any redress by following the prison’s established grievance procedure does not

provide us with a basis to excuse the exhaustion requirement.

                                             III.

        Accordingly, because this appeal presents no substantial question, we will

summarily affirm the District Court’s judgment. See Third Cir. LAR 27.4 and I.O.P.

10.6.




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