                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-9-2005

Maclary v. Carroll
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1975




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Recommended Citation
"Maclary v. Carroll" (2005). 2005 Decisions. Paper 718.
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APS-321
                                                           NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                   NO. 05-1975
                                ________________

                             WILLIAM MACLARY,

                                         Appellant

                                          v.

                      WARDEN THOMAS CARROLL;
                DEPUTY WARDEN LAWRENCE MCGUIGAN;
                CAPTAIN DEAN SAGARS, Watch Commander;
                     JOHN DOE, Unknown Lieutenants;
                         SGT. WASHINGTON;
                             SGT. RILEY;
                            LT. HARVEY;
                           CPL. MERSON;
                      DEPUTY WARDEN E. BURRIS;
                            A. RENDINA

                    ____________________________________

                  On Appeal From the United States District Court
                             For the District of Delaware
                             (D.C. Civ. No. 03-cv-00984)
                   District Judge: Honorable Joseph J. Farnan, Jr.

                  _______________________________________

Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   July 28, 2005

      Before: SLOVITER, FUENTES AND NYGAARD, CIRCUIT JUDGES

                              (Filed August 9, 2005)
                                _______________________

                                        OPINION
                                _______________________

PER CURIAM

       William Maclary, a state prisoner, appeals from the order of the United States

District Court for the District of Delaware granting summary judgment in favor of the

defendants in his civil rights action. The parties are familiar with the facts, so we will

only briefly summarize as follows. In October 2003, Maclary filed a civil rights

complaint regarding the conditions of his fifteen-day confinement in the pre-hearing

detention/isolation unit (“ISO”), stemming from an incident that occurred several weeks

earlier, on September 13, 2003. Among other things, Maclary alleged that he was denied

soap, dental hygiene items, and a change of clothing while in the ISO. He sought

compensatory and punitive damages. Maclary later amended his complaint to include

allegations that the prison had never replaced the clothing that had been taken from him

when he was sent to the ISO, and that during October 2003, he made several unanswered

requests for new clothes.

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

judgment, arguing that Maclary failed to exhaust his administrative remedies fully as

required by 42 U.S.C. § 1997e(a), and also addressing the merits of the claims. Maclary

filed a response, and the defendants filed a reply. Maclary then filed his own motion for

summary judgment. The District Court granted the defendants’ motion for summary
judgment, denied the defendants’ motion to dismiss, denied Maclary’s motion for

summary judgment, and entered judgment in the defendants’ favor. Maclary appeals. We

have jurisdiction under 28 U.S.C. § 1291. The defendants-appellees have filed a motion

for summary affirmance, to which Maclary has filed a response.

       Under the Prison Litigation Reform Act (“PLRA”), exhaustion of administrative

remedies is required before an action concerning prison conditions may be brought under

federal law. 42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004). In

Spruill, we held that the PLRA required “proper” exhaustion, meaning that the inmate

must follow the procedural requirements of the prison grievance system. Spruill, 372

F.3d at 228, 231. If the prisoner fails to follow the procedural requirements, then his

claims are procedurally defaulted. Relevant to this case, the three-step grievance

procedure in place in Delaware, Procedure No. 4.4 (1998), provides a three-part review.

We briefly summarize that procedure. First, the prisoner must file a grievance within

seven days with the Inmate Grievance Chair, for an attempt at informal resolution;

second, if unresolved, the grievance is forwarded to the Resident Grievance Committee

for a determination, which is forwarded in turn to the Warden; and third, the Bureau

Grievance Officer conducts the final level of review.

       After reviewing the record in this case, we agree with the District Court that

Maclary did not meet his burden to defeat summary judgment with respect to his claims

relating to his confinement in the ISO. In their motion for summary judgment, the

defendants presented the affidavit of the Inmate Grievance Chairperson, who stated that
Maclary filed no grievances concerning the conditions of his confinement in the ISO, and

that the only grievance that Maclary filed during the relevant period concerned the

removal of clothing, a towel, and a washcloth from his personal property while he was

confined in the ISO. In response, Maclary alleged that he filed unanswered and

unprocessed grievances and letters to prison officials on the matter, but he did not offer

any support for those bare assertions. Consequently, his opposition to the defendants’

summary judgment motion did not create a genuine issue for trial. See Fireman’s Ins. Co.

v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982) (Fed. R. Civ. P. 56(e) does not allow a

party opposing summary judgment to rely merely upon bare assertions, conclusory

allegations, or suspicions). Maclary contends on appeal that summary judgment was

improperly granted because the District Court did not tell him to proffer evidence that he

attempted to exhaust his administrative remedies. We note that the nature of Maclary’s

burden in responding to the defendants’ summary judgment motion is clearly contained in

the federal rule governing summary judgment. See Fed. R. Civ. P. 56(e) (when a

summary judgment motion is made and supported by affidavits or other proof, the party

opposing summary judgment “may not rest upon the mere allegations or denials of the

. . . pleading”; the response, “by affidavits or as otherwise provided in this rule, must set

forth specific facts showing that there is a genuine issue for trial”).

       As for Maclary’s claim presented in his amended complaint that his requests for

new clothes went unanswered, the defendants conceded in their summary judgment

motion that Maclary did file a grievance on October 6, 2003 concerning this issue. The
defendants’ exhibits attached to the summary judgment motion also included the affidavit

of the Correctional Sergeant who processed the inmates’ written clothing requests. In the

affidavit, the Correctional Sergeant stated that her records do not contain any written

requests by Maclary. However, a property requisition–also attached to the summary

judgment motion–shows that Maclary accepted the requested items some months later.

Although the substance of Maclary’s request apparently has been resolved, it is unclear

what happened in the processing of Maclary’s grievance. Assuming arguendo that the

formal grievance procedures were not “available” within the meaning of section 1997e(a),

see Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002), we conclude that Maclary does

not allege an “extreme deprivation[] . . . required to make out a conditions-of-

confinement claim,” see Hudson v. McMillian, 503 U.S. 1, 9 (1992), and cannot show

that the defendants acted with deliberate indifference to his health or safety, see Farmer v.

Brennan, 511 U.S. 825, 834 (1994).

       We have carefully reviewed the record and have considered the arguments

presented on appeal.1 As no substantial question is presented by this appeal, we will grant

the appellees’ motion and summarily affirm the District Court’s order entered . See 3d

Cir. I.O.P. 10.6.



       1
         In his response to the motion for summary affirmance, Maclary notes that he
filed in District Court a motion for the production of documents, which was unanswered
by the defendants. This motion appears in the record as a request made under Rule 34,
Federal Rules of Civil Procedure. We observe that the parties had not yet entered into
discovery. See Fed. R. Civ. P. 34(b), 26(d). We also observe that the motion was not
made pursuant to Rule 56(f) in form or in content.
