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


11-1-2007

Rankine v. Folino
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1843




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Recommended Citation
"Rankine v. Folino" (2007). 2007 Decisions. Paper 275.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/275


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DLD-22                                           NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-1843


                                DERRICK RANKINE,
                                               Appellant
                                       v.

             SUPERINTENDENT FOLINO; JEFFREY BEARD; DEPUTY
               JACKSON; DEPUTY BARONE; GRIEVANCE SHARON
               DELELTO, Coordinator; BUSINESS MGR. JEAN SCOTT;
               DR. SACKS; COURT OF COMMON PLEAS, PHILA PA;
                  DAVID A. SZEWCZAK, Superior Court Prothonotary;
             CAPTAIN HALL; LT. A. E. GUMBAREVIO; LT. MEIGHEN,
            and all RHU that worked in RHU between 2/22/04 to 3/04; SGTS
             CONNER; SGT TANNER; SGT SANTOGO, and all RHU SGT
           that worked in the RHU between 2/22/04 to 3/04; C.O. STICKLES;
             C.O. STEPHEN; C.O. RAUSENWINDER; C.O. MANBERRY;
               C.O. ANGELO; C.O. HENRY; C.O. JORDAN; DELFORD
                    STUMP; MR. IVAN, Counselor SCI-Greene; C.O.
             ENGELHARDT; THOMPSON; C.O. COY; MR. GEEHRING,
            Mailroom Supervisor; THE MEDICAL ADMINISTRATOR, and
              all Medical Staff at SCI-Greene who worked on F.B. and F.A.
            between 2/22/03 to 3/04; C.O. BLAKE, RHU; C.O. ANDERSON,
                RHU; MRS. BARR, Hearing Examiner SCI-Greene; MR.
            THOMAS JAMES, SCI Camphill Hearing Officer; MR. OHARA
                      ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. Civil No. 04-cv-00100)
                    District Judge: Honorable Sean J. McLaughlin
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                   October 18, 2007

Before: BARRY, CHAGARES AND VAN ANTWERPEN, CIRCUIT JUDGES
                            (Opinion filed: November 1, 2007)


                                          OPINION



PER CURIAM

       Appellant Derrick Rankine, an inmate at the State Correctional Institution at

Greene in Waynesburg, Pennsylvania (“SCI-Greene”), filed a pro se civil rights action

pursuant to 42 U.S.C. § 1983 in United States District Court for the Western District of

Pennsylvania against numerous defendants. He alleged violations of his constitutional

rights in connection with his access to the courts; his right to be free from retaliation for

exercising his constitutional right to petition the courts; and certain prison conditions he

was subjected to, including an unheated cell, verbal harassment of a sexual nature by the

guards, and improper withholding of medical care and clean and unspoiled food, all as

thoroughly set forth in the first Report and Recommendation filed in this case by the

Magistrate Judge. Rankine sought money damages.

       Several claims were dismissed early in the litigation pursuant to Federal Rule of

Civil Procedure 12(b)(6). For example, Rankine’s access to the courts claims were

dismissed for failure to show actual injury, Lewis v. Casey, 518 U.S. 343, 349 (1996),

and his verbal harassment claims were determined to be not actionable, see, e.g.,

MacLean v. Secor, 876 F. Supp. 695, 698-99 (E.D. Pa. 1995). Several defendants with no




                                               2
connection to the wrongs alleged also were dismissed.1 Rankine’s retaliation claim and

most of his Eighth Amendment claims were allowed to proceed. The remaining

defendants answered the complaint and amended complaint and raised the exhaustion of

administrative remedies defense, 42 U.S.C. § 1997e(a). They then moved for summary

judgment. The Magistrate Judge filed a Report and Recommendation, addressing that

motion, and Rankine filed Objections to it. In an order entered on February 15, 2007, the

District Court overruled Rankine’s Objections and granted summary judgment to the

remaining defendants. Rankine appeals. His motion to appeal in forma pauperis was

granted by our Clerk and he was notified that his appeal would be considered under 28

U.S.C. § 1915(e)(2)(B).

        We will dismiss the appeal as frivolous. An appeal is frivolous when it lacks an

arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Our

review of the District Court's grant of summary judgment is plenary and we must affirm

summary judgment 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). We conclude that there is no arguable basis in fact or law for disagreeing with

the District Court’s summary judgment determination. Neitzke, 490 U.S. at 325; Celotex

Corp., 477 U.S. at 322-23.

        The defendants sought summary judgment on the basis that Rankine failed to



   1
       These rulings are plainly not in error and we will not address them further.

                                              3
exhaust his administrative remedies. A prisoner 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. See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir.

2004).

         In support of their summary judgment motion, the defendants submitted a 367-

page appendix containing the complete record of Rankine’s 143 grievances filed at SCI-

Greene from January 20, 2004 through August 25, 2004. As explained by the Magistrate

Judge in a Report and Recommendation adopted by the District Court, Rankine is barred

from relief because of the procedural defaults he committed during the grievance process,

id. at 230 (Prison Litigation Reform Act contains a procedural default component).

Specifically, he did not properly file for final appeal concerning any pertinent grievance.2


   2
     Certain grievances were appealed to the final level but were rejected because
Rankine bypassed the intermediate appeal to the Superintendent or failed to prosecute
them (by explaining the reasons for the appeal), or because his intermediate appeal had
been rejected as untimely, among other reasons.

                                             4
Although many of his grievances were rejected prior to the final appeal stage on the

ground that he would not use the exact spelling of his name as it appears on his judgment

of commitment, we agree with the Magistrate Judge that the grievance process was not

thereby rendered unavailable to him. Cf. Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.

2000) (exhaustion requirement met where Office of Professional Responsibility fully

examined merits of excessive force claim and correctional officers may have impeded

filing of grievance). On the contrary, the summary judgment record establishes that the

grievance process remained open to Rankine notwithstanding that many of his grievances

were frivolous.

      We will dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).




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