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


8-7-2008

Johnson v. Townsend
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1324




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                                                            NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                  NO. 07-1324
                               ________________

                               DAVID JOHNSON,
                                                              Appellant

                                        v.

            BENJAMIN TOWNSEND, Corrections Food Service Supervisor;
  FRANKLIN TENNIS, Individually, and in his official capacity as Superintendent of
SCI-Rockview; ALBERT WINKLEMAN, Individually, and official capacity as Assistant
 Food Service Manager; GARY SOWASH, Individually, and official capacity as Corr.
 Food Service Manager; SHARON BURKS, Individually, and official capacity as Chief
 Grievance Officer; ANTHONY W. RUSS, Individually, and official capacity as Major
  Officer of Professional Responsibility; JEFFREY A. RACKOVAN, Individually, and
 official capacity as Grievance Coordinator and Asst. Superintendent; D. LEATHERS,
         Individually, and official capacity, Capt. of Security; RICK HOOVER;
                                 SHANNON DULANEY
                     _______________________________________

                  On Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civ. No. 03-cv-02277)
                   District Judge: Honorable A. Richard Caputo
                  _______________________________________

                    Submitted Under Third Circuit LAR 34.1(a)
                                  June 2, 2008

              Before: RENDELL, JORDAN and ROTH, Circuit Judges


                          (Opinion Filed: August 7, 2008)
                            _______________________

                                  OPINION
                           _______________________
PER CURIAM,

       David Johnson, proceeding pro se, appeals the District Court’s orders granting

defendants’ motions to dismiss and for summary judgment. We affirm.

       In December 2003, Johnson filed the underlying civil rights action naming various

administrative officials and correctional officers from SCI-Rockview. After being

granted leave, Johnson filed an amended complaint on March 3, 2004 and a second

amended complaint on December 21, 2004 against the following defendants: Benjamin

Townsend, Food Service Supervisor; Jeffrey Rackovan, Grievance Co-ordinator and

Assistant Superintendent; J. Leathers, Captain of Security; Frank Tennis, Superintendent;

Sharon Burks, Chief Grievance Officer; Albert Winkleman, Assistant Food Service

Manager; Gary Sowash, Food Service Manager; Rick Hoover, Counselor; and Shannon

Dulaney, Psychologist. Johnson alleged that he had been: (1) retaliated against for

exercising his First Amendment rights; (2) subjected to excessive force, deliberate

indifference, and cruel and unusual punishment in violation of the Eighth Amendment;

(3) denied his right to due process of law in violation of the Fourteenth Amendment; and

(4) subjected to state law torts of intentional infliction of emotional distress, assault,

battery and negligence.

       Basically, Johnson asserted that he had been assigned to work in the prison’s

kitchen as a clerk by defendants Townsend and Sowash in October 2001. According to

Johnson, under threat of misconduct and in violation of Department of Corrections



                                               2
(“DOC”) policy, these defendants required him to work nine and one-half (9½) hours a

day, seven days a week while only paying him for a 40-hour work week. On May 27,

2003, after contacting then-Deputy Superintendent Tennis and the employment office

about his situation, Johnson was removed from his job in the culinary department and

reassigned to the tin shop. The following day, Johnson filed a grievance (# 52784)

complaining about, inter alia, his work schedule. A second grievance (#55535) was filed

on June 28, 2003, wherein Johnson alleged that Townsend had retaliated against him for

filing the first grievance, and that he had been threatened by other inmates who were

informed by Townsend that he was the reason behind new restrictions placed on workers

in the culinary department. Johnson further asserted that, due to his fear of harm from

Townsend and other inmates, he went to the culinary building only occasionally and,

resultantly, suffered weight loss, loss of sleep, blurred vision and the reoccurrence of

migraine headaches. With respect to defendants Dulaney and Hoover, Johnson claimed

that these defendants retaliated against him for his grievances and for the filing of the

underlying civil action by requiring him to repeat sex offender treatment and providing

him with a negative review prior to his appearance before the Parole Board in June 2004.

The actions of Dulaney and Hoover formed the bases of grievance #80993.

       After a preliminary screening of Johnson’s amended complaint by the Magistrate

Judge to whom it was referred, the District Court dismissed Johnson’s claim for monetary

damages against all defendants in their official capacities in accordance with 28 U.S.C. §



                                              3
1915A(b)(2) on the basis of Eleventh Amendment immunity. Additional claims were

disposed of in an order entered on November 8, 2005, wherein the District Court adopted

the Magistrate Judge’s Report recommending that the defendants’ motion to dismiss be

granted in part and denied in part. In particular, the following claims were dismissed for

failure to state a claim: 1) all due process claims against the defendants with respect to

Johnson’s allegations of being required to work on his days off and to work without

compensation; 2) Johnson’s Eighth Amendment claims against defendant Townsend; 3)

the due process and state law claims against defendants Sowash and Winkleman; and 4)

his state negligence claims against defendants Leathers, Tennis, Sowash and Winkleman.

       Defendants thereafter filed a motion for summary judgment, in which they argued,

inter alia, that Johnson did not present his grievances through final review as required by

the DOC process and 42 U.S.C. § 1997e(a). In a third Report issued on August 22, 2006,

the Magistrate Judge recommended that summary judgment be granted in favor of

defendants with respect to the First Amendment retaliation claim against defendant

Townsend alleging that he created a potentially hostile environment. The Magistrate

Judge concluded that, because Johnson failed to appeal grievance #55535 to final review,

he did not exhaust his administrative remedies and the claim was now procedurally

defaulted. The same conclusion was given for the remainder of Johnson’s claims, which,

according to the Magistrate Judge, were either not properly appealed through the

grievance system to final review (e.g., grievance #80993 regarding the actions of Dulaney



                                              4
and Hoover), or not presented in any grievance whatsoever (e.g., the claims against

defendants Tennis, Burks, and Leathers). Given that all the claims over which the

District Court had original jurisdiction were subject to dismissal, the Magistrate Judge

recommended that the court decline to exercise supplemental jurisdiction over Johnson’s

remaining state law claims against Townsend. Over Johnson’s objections, the District

Court adopted the Magistrate Judge’s Report and Recommendation in a Memorandum

Opinion and Order entered on December 27, 2006, granted defendants’ motion for

summary judgment with respect to Johnson’s remaining federal law claims and dismissed

the remaining state law claims. This timely appeal followed.

       We have jurisdiction over the instant appeal pursuant to 28 U.S.C. § 1291, and

exercise plenary review over the District Court’s orders granting a motion to dismiss and

for summary judgment. See Debiec v. Cabot Corp., 352 F.3d 117, 128 n.3 (3d Cir. 2003);

Broselow v. Fisher, 319 F.3d 605, 607 (3d Cir. 2003). In considering a Rule 12(b)(6)

motion, a court is required to “accept all factual allegations as true, construe the

complaint in the light most favorable to the plaintiff, and determine whether, under any

reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v.

County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008), quoting Pinker v. Roche

Holdings Ltd., 292 F.3d 361, 374 n. 7 (3d Cir. 2002). See also Bell Atlantic Corp. v.

Twombly, __ U.S. __, 127 S.Ct. 1955, 1969 n. 8 (2007). The “[f]actual allegations [of

the complaint] must be enough to raise a right to relief above the speculative level.”



                                              5
Phillips, 515 F.3d at 234, (quoting Twombly, 127 S.Ct. at 1965). With respect to a grant

of summary judgment, we must affirm if there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). Federal Rule of Civil Procedure 56(e), concerning the

requirements for opposing a motion for summary judgment, provides that Johnson, as an

adverse party, “may not rest upon the mere allegations or denials of [his] pleading, but

[his] response, by affidavits or as otherwise provided in this rule, must set forth specific

facts showing that there is a genuine issue for trial.” Having carefully reviewed the

record and the parties’ submissions, we conclude that judgment was properly entered in

favor of defendants for essentially the reasons given by the District Court.

       Johnson raises several contentions on appeal. Many of them can be disposed of

with little discussion. We find no error with the District Court’s decision to dismiss

Johnson’s state law claims against defendants Sowash, Winkelman, Tennis and Leathers.

The doctrine of sovereign immunity, codified at 1 Pa.C.S. § 2310, protects the

Commonwealth and its employees from such a suit for monetary damages unless the

cause of action falls within one of several statutory exceptions not implicated here, see 42

Pa.C.S.A. § 8522, or the individual’s conduct falls outside the scope of the employee’s

employment. As we noted in Brumfield v. Sanders, 232 F.3d 376 (3d Cir. 2000),

Pennsylvania has accepted the Restatement (Second) of Agency’s definition of conduct

“within the scope of employment.” “According to the Restatement, ‘conduct is within the



                                              6
scope of employment if, but only if: (a) it is the kind [the employee] is employed to

perform; (b) it occurs substantially within the authorized time and space limits [and] (c) it

is actuated, at least in part, by a purpose to serve the master....’” Id. at 380, quoting

Restatement (Second) Agency § 228. While Johnson may take issue with the manner in

which they performed their duties, we agree with the District Court that defendants

Sowash, Winkelman, Tennis and Leathers were acting within the scope of their

employment when handling his grievances and work assignments.

       Johnson’s due process and Eighth Amendment claims relating to the number of

days and hours he was required to work fare no better. Johnson basically claims a

protected liberty interest in days off from work, hours worked in any given day and

adequate compensation. A protected liberty interest can arise either from the Due Process

Clause itself or from state law. Asquith v. Dep’t of Corrections, 186 F.3d 407, 409 (3d

Cir. 1999) (citation omitted). As has previously been determined, however, “[n]o liberty

interest traced from the Due Process Clause is implicated if ‘the conditions or degree of

confinement to which a prisoner is subjected [are] within the sentence imposed upon him’

and do not otherwise violate the Constitution.” Torres v. Fauver, 292 F.3d 141, 150 (3d

Cir. 2002), quoting Fraise v. Terhune, 283 F.3d 506, 522 (3d Cir.2002) (internal

quotation marks and citations omitted). We initially note, as did the District Court, that

inmates have no federally protected right not to work while imprisoned after conviction,

see Ali v. Johnson, 259 F.3d 317, 317 -318 (5th 2001); Tourscher v. McCullough, 184



                                               7
F3d 236, 240 (3d Cir. 1999), nor do they have a constitutional right to compensation. See

Murray v. Mississippi Dept. of Corrections, 911 F.2d 1167, 1167 (5th Cir. 1990).

Moreover, while there appears to be no question that Johnson – who was compensated for

his regular hours as well as a large portion of his excess hours – was required to carry out

his duties as a clerk in the culinary department on a work schedule unmatched by most of

the prison population, we are not prepared to hold that the amount of his working hours

alone exceeded his sentence “in such an unexpected manner as to give rise to protection

by the Due Process Clause of its own force” and violated some other constitutional

provision. Sandin v. Conner, 515 U.S. 472, 484 (1995).

       We further agree with the District Court that Johnson was not deprived of any

state-created liberty interest. As the District Court correctly concluded, even assuming

arguendo that DC-ADM 816 – the DOC policy governing inmate employment and

compensation – created a liberty interest in Johnson’s compensation and days off or hours

worked, the work situation that Johnson found himself in for a 20 month period does not

amount to an “atypical and significant hardship.” See Id.; see also Griffin v. Vaughn, 112

F.3d 703, 706 (3d Cir. 1997). Likewise, Johnson’s complaints of mental and physical

exhaustion are insufficient to bring his work assignment in the culinary department within

the Eighth Amendment’s prohibition against cruel and unusual punishment absent any

indication that he was compelled to perform physical labor which was beyond his

strength, endangered his life or health, or caused undue pain, or where there is no



                                             8
allegation that the work assignment was punitive in nature. Berry v. Bunnell, 39 F.3d

1056, 1056-57 (9th Cir. 1994), citing Howard v. King, 707 F.2d 215, 219 (5th Cir. 1983)

(Eighth Amendment claim stated where inmate required to work in excess of 56 hours a

week in a field for over a year caused continual exhaustion and physical breakdown); Ray

v. Mabry, 556 F.2d 881, 882 (8th Cir. 1977) (same for disabled prisoner made to perform

manual labor for 90-120 hours per week); Woolsey v. Beto, 450 F.2d 321 (5th Cir. 1971)

(same where punitive work assignments given to an inmate suffering from tuberculosis).

       Finally, Johnson challenges the District Court’s conclusions that he failed to

exhaust his Eighth Amendment retaliation claim against defendant Townsend, as well as

his claims against defendants Tennis, Burks, and Leathers. An inmate must exhaust

administrative remedies pursuant to 42 U.S.C. § 1997e(a) prior to bringing suit. See

Booth v. Churner, 532 U.S. 731 (2001). This “exhaustion requirement applies to all

inmate suits about prison life, whether they involve general circumstances or particular

episodes, and whether they allege excessive force or some other wrong.” Porter v.

Nussle, 534 U.S. 516, 532 (2002). The three steps in the Pennsylvania grievance process

are: (1) Initial Review pursuant to DC-ADM-804 Part VI.B of the inmate’s filed

grievance; (2) the first appeal from the Initial Review, or Appeal to Facility Manager

pursuant to DC-ADM-804 Part VI.C; and (3) a final appeal, the Appeal to the Secretary’s

Office of Inmate Grievances and Appeals pursuant to DC-ADM-804 Part VI.D. Spruill

v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). An inmate’s failure to substantially comply



                                             9
with the procedural requirements of the prison’s grievance system will result in a

procedural default of the issue and effectively bar the inmate from bringing his claim in

federal court. Id. at 231.

       As explained by the Magistrate Judge, the record evidence shows that the only

grievance Johnson filed and exhausted through the final level of review was the claim

against Townsend set forth in grievance #52784, which concerned Johnson’s allegation

that he was being overworked and underpaid. Johnson contends, however, that he

combined grievance #55535, alleging retaliation by Townsend, with grievance #52784,

and therefore exhausted both grievances. Although Johnson correctly notes that the DOC

permits grievances to be combined when “necessary to ... support the claim,” see

DC-ADM-804 Part VI.A.11, we are not persuaded that Johnson properly invoked this

exception in the instant case. While Johnson mentions a general fear of further abuse and

aggression from Townsend and other inmates in grievance #52784, his specific claim of

retaliation by Townsend for filing the initial grievance is the basis of grievance #55535.

Moreover, Johnson’s contention that he combined the two grievances is belied by his

actions throughout the grievance process. In particular, in his appeal to final review of

grievance #52784, Johnson referred to the claim at issue as that presented in a single

“grievance” and, in fact, he notified the Chief Grievance Officer that he was pursuing the

retaliation claim in a separate grievance. See Exhibit A, page 14 attached to Aplt’s Brief.

Additionally, Johnson filed his second-step review of grievance #55535 on July 14, 2003.



                                             10
See id. at page 10. This appeal would have been unnecessary if Johnson had actually

combined the two grievances as his appeal of grievance #52784 to final review was filed

the very next day on July 15, 2003. See id. at page 14.

       Finally, we do not read the language of the grievance officers in their responses to

the appeals of grievance #52784 as excusing any procedural default that Johnson

committed with respect to grievance #55535. Cf. Spruill, 372 F.3d at 234. Acting

Superintendent Tennis merely responded to Johnson’s allegation of a general fear of

“further abuse and aggression” from Townsend and other inmates set forth in grievance

#52784 by noting that Johnson’s “reassign[ment] from Food Service ... should minimize

any contact [he has] with Food Service staff or inmates.” See id. at page 6. Likewise, in

addition to referencing only grievance #52784, Chief Grievance Officer Burks noted her

decision on final review as one upholding the “responses provided by staff at the

institutional level” to Johnson’s “request for assistance.” See id. at page 16. Her decision

focused on the issue of compensation given Johnson’s allegations of being overworked

and underpaid. There simply is no indication that she also specifically considered the

separate issue of retaliation by Townsend.

       Johnson’s argument that his procedural default for failing to name defendants

Leathers, Tennis and Burks in any grievance was also excused is equally unconvincing.

“[T]he PLRA exhaustion requirement requires proper exhaustion.” Woodford v. Ngo,

548 U.S. 81, __, 126 S.Ct. 2378, 2387 (2006). While the Supreme Court has noted that



                                             11
“nothing in the [PLRA] imposes a ‘name all defendants’ requirement,” Jones v. Bock,

127 S.Ct. 910, 923 (2007), it has also recognized that “[t]he level of detail necessary in a

grievance to comply with the grievance procedures will vary from system to system and

claim to claim, but it is the prison’s requirements and not the PLRA, that define the

boundaries of proper exhaustion.” Under DC-ADM 804.VI.A.1.g, Johnson was required

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

grievance.” Spruill, 372 F.3d at 234. While we have held that the prison can excuse an

inmate’s procedural default by “identifying the unidentified person and acknowledging

that they were fairly within the compass of the prisoner’s grievance,” id., such is not the

situation in the present case where defendant Leathers’ response to Johnson’s initial

grievance was basically limited to addressing Johnson’s complaints regarding his work

hours and compensation issues. Defendant Leathers informed Johnson on June 11, 2003

that the inmates would no longer be permitted to work on their days off, that calculations

for additional hours he worked were being made, and that there was no need for him to be

concerned about retaliation by any staff member for the filing of a grievance. See Exhibit

A to Aplt’s Informal Brief at 3. Similarly, those same issues were the focus of defendant

Tennis’ response which disposed of Johnson’s second-step appeal. Id. at 6.

       To the extent that Johnson raised allegations against these defendants that survive

the due process and Eighth Amendment analysis set forth previously, those allegations

were not properly raised in the filing of grievance #52784 in May 2003 or in the initial



                                             12
appeal filed a month later, and, in fact, they pertain more to the allegations in grievance #

55535 filed on June 28, 2003. Many of the allegations involving these named defendants

did not even arise until well after grievance #52784 was disposed of. See, e.g., Johnson’s

Amended Complaint at ¶ 57 and 68, reproduced in Aples.’ Supp. Apx. at 11 and 13,

referencing incidents involving defendant Leathers in September 2003 and January 2004.

The initial grievance may have alerted officials to a potential problem regarding

Johnson’s work schedule and compensation claim and the ensuing appeals of his

disagreement with the grievance officers’ review, but it did not alert them to the specific

acts of unconstitutional conduct they allegedly committed. Unlike the situation presented

in Williams v. Beard, 482 F.3d 637, 640 (3d Cir. 2007), it is not at all clear from the

grievance responses that each and every one of these other named defendants who were

involved in the review process were “fairly within the compass” of grievance #52784

itself.

          Accordingly, for the foregoing reasons, we will affirm the judgment of the District

Court.




                                               13
