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


8-13-2008

Bricker v. Stowitzky
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3505




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Recommended Citation
"Bricker v. Stowitzky" (2008). 2008 Decisions. Paper 660.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/660


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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              ___________

                                  No. 07-3505
                                  ___________

                             RONALD L. BRICKER,

                                                Appellant

                                        v.

        PAUL J. STOWITZKY; FRED J. RUFFO; DEBRA K. SAUERS;
RHONDA OSOKO; JAMES STILES; DONNA BONNER; EDWARD P. PAVLICK;
 JACQUELINE S. MARQUARDT; OFFICER HARVEY; MS. JANET KIMMELL;
       DEPUTY NEISWONGER; JEFFREY A. BEARD; MR. MARTIN;
       WILLIAM STICKMAN; GEORGE MESAROS; MR. COLEMAN,
   All Defendants herein, “In their individually and in their Official Capacities”
                  ____________________________________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                          (D.C. Civil No. 06-cv-01704)
                  District Judge: Honorable Arthur J. Schwab
                  ____________________________________

                Submitted Pursuant to Third Circuit LAR 34.1(a)
                                July 28, 2008
            Before: MCKEE, SMITH and CHAGARES, Circuit Judges

                         (Opinion filed: August 13, 2008)
                                    _________

                                    OPINION
                                   _________
PER CURIAM

          Ronald L. Bricker, a Pennsylvania state prisoner proceeding pro se, appeals from

the District Court’s order granting the appellees’ motion to dismiss and denying as moot

his motion for a preliminary injunction. For the following reasons, we will affirm.

          Bricker is presently incarcerated at the State Correctional Institute at Mercer,

Pennsylvania (“SCI-Mercer”). In December 2006, Bricker commenced a civil rights

action under 42 U.S.C. § 1983 against several employees of the Pennsylvania Department

of Corrections (the “Commonwealth Defendants”), alleging that corrections officers at

SCI-Mercer had violated his constitutional rights in various ways. Bricker subsequently

filed a motion for preliminary injunction to enjoin the Commonwealth Defendants from

their allegedly unconstitutional conduct.

          On April 26, 2007, the Commonwealth Defendants moved pursuant to Federal

Rule of Civil Procedure 12(b)(6) to dismiss the complaint on the ground that Bricker had

failed to exhaust his administrative remedies before filing suit. The matter was referred

to Magistrate Judge Lisa Pupo Lenihan, who agreed that Bricker had failed to properly

exhaust. By order entered August 6, 2007, the District Court adopted the Magistrate

Judge’s report, granted the Commonwealth Defendants’ motion to dismiss and, in light of

its order dismissing the case, denied Bricker’s motion for a preliminary injunction as

moot. The present appeal followed.1



   1
       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291.

                                                 2
       We will affirm the District Court’s order. As an initial matter, we note that, in his

brief, Bricker does not raise any objections whatsoever to the District Court’s order

below; in fact, his complaints on appeal appear to be almost entirely unrelated to the

present § 1983 action. Instead, Bricker seems to be challenging the denial of a state-court

petition for habeas corpus in which he apparently argued that his criminal conviction was

invalid because the Pennsylvania Constitution of 1968 does not contain a crimes code.

Because that habeas petition is not at issue in this suit, we cannot consider this argument.

       In any event, to the extent that Bricker’s brief can be construed as challenging the

disposition of his § 1983 action, we find that the District Court’s dismissal was proper.

As noted above, the District Court dismissed Bricker’s civil rights complaint on the

ground that he had failed to exhaust his administrative remedies prior to bringing suit;

according to the District Court, Bricker failed to exhaust all but one of his claims, and

procedurally defaulted the one claim that he did attempt to exhaust. See 42 U.S.C. §

1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001); Williams v. Beard, 482 F.3d 637,

639 (3d Cir. 2007).

       The record reflects that Bricker filed only one grievance during his incarceration at

SCI-Mercer, grievance No. MER-123974-05, in which he complained that Corrections

Officer Harvey was not enforcing institutional rules regarding the use of headsets with

personal televisions. Even though Bricker did attempt to exhaust this claim, it appears

that the grievance was rejected at the third stage of the review process for failure to



                                              3
include copies of the grievance record, as required by DC-ADM 804 Part VI.D.1.g.

Because Bricker thus failed to follow the procedural requirements of the grievance

system, the District Court concluded that Bricker had procedurally defaulted this claim.

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

       Upon review of the administrative record, we agree with the District Court that

Bricker failed to exhaust all but one of his claims, and thus conclude that the District

Court’s dismissal of those claims was proper. With respect to the claim that Bricker did

attempt to exhaust—namely, that Officer Harvey was not enforcing institutional rules

regarding the use of headsets with personal televisions—it is at least arguable that the

District Court should have considered excusing the procedural default because, according

to Bricker, the prison librarian precluded him from making photocopies without a court

order. See, e.g., Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002) (finding that prisoner

may be able to prove that he exhausted his “available” administrative remedies where

prisoner’s failure to file a timely grievance was due to prison officials’ obstruction). We

need not resolve this question, however, because the underlying claim does not allege a

cognizable constitutional violation. See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“In

order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently

harmful to evidence deliberate indifference to serious medical needs.”)

       Accordingly, for the foregoing reasons, we will affirm.




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