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


12-23-2008

Thomas J. Bolla v. R. Strickland
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3466




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ALD-48                                                          NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 08-3466
                                       ___________

                                  THOMAS J. BOLLA,
                                                 Appellant

                                             v.

                       MR. R. STRICKLAND, Corrections Officer
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                                (D.C. Civil No. 07-00129)
                       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
                                  December 11, 2008

              Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                           (Opinion filed: December 23, 2008)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       Thomas J. Bolla filed this pro se action in the Western District of Pennsylvania

against R. Strickland, a corrections officer at Bolla’s place of confinement, alleging

                                             1
violations of his civil rights under 42 U.S.C. § 1983. The District Court granted

defendant’s motion for summary judgment and, for the reasons that follow, we will

affirm.

I. Background

          Bolla is currently an inmate in the custody of the Pennsylvania Department of

Corrections (“DOC”) at SCI-Houtzdale. He filed a complaint in the District Court on

May 31, 2007, alleging that Strickland and four or five other corrections officers

subjected him to cruel and unusual punishment during a cell extraction on June 17, 2005.

After several additional filings from Bolla, including unsuccessful motions to amend the

complaint and for appointment of counsel, Strickland moved for summary judgment. The

District Court adopted the Magistrate Judge’s finding that Bolla had never submitted a

grievance related to the alleged use of force on June 17, 2005, and as a result it granted

Strickland’s motion for summary judgment based on Bolla’s failure to exhaust

administrative remedies. Bolla timely appealed from the District Court’s order.

II. Standards

          We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review over a District Court’s grant of summary judgment and apply the same test applied

by the District Court. Saldana v. Kmart Corp., 260 F.3d 228, 231 (3d Cir. 2001).

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

the nonmovant, there is no genuine issue of material fact and the moving party is entitled



                                               2
to judgment as a matter of law. Id. at 232; Fed. R. Civ. P. 56(c). The party opposing

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

pleading”; the party’s response, “by affidavits or as otherwise provided in this rule, must

set forth specific facts showing that there is a genuine issue for trial.” Saldana, 260 F.3d

at 232 (citing Fed. R. Civ. P. 56(e)); Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574 (1986). We view the facts in the light most favorable to the nonmoving

party and draw all inferences in that party’s favor. See Reitz v. County of Bucks, 125

F.3d 139, 143 (3d Cir. 1997).

III. Discussion

       The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner to

exhaust his administrative remedies before bringing a civil rights action in federal court.

Spruill v. Gillis, 372 F.3d 218, 227-28 (3d Cir. 2004). The exhaustion requirement

includes a procedural default component, and a prisoner must comply with prison

grievance procedures to properly exhaust his claims. Id. at 230-31. The Magistrate Judge

found that Bolla “never, even in an untimely fashion, submitted a grievance about the

alleged use of force on June 17, 2005,” and this finding was apparently determinative for

the District Court in concluding that Bolla had failed to exhaust his administrative

remedies before proceeding in the federal court.

       In his original complaint, however, Bolla alleged that he did in fact file the

appropriate grievance. He further alleged that any untimeliness in his filing was due to



                                              3
the prison’s depriving him of access to a writing utensil. Bolla offers nothing more to

support these bare assertions, but it would not alter the course of this litigation had he

done so. Submitting a grievance for review is only the first of three steps an inmate must

take to fully exhaust administrative remedies:

                DC-ADM-804 Part VI provides for three stages of review
                within Pennsylvania’s Grievance System: Initial Review (DC-
                ADM-804 Part VI.B), which addresses the inmate's filed
                grievance; the first appeal from the Initial Review, known as
                Appeal to Facility Manager (DC-ADM-804 Part VI.C); and a
                second and final appeal, the Appeal to Secretary's Office of
                Inmate Grievances and Appeals (DC-ADM-804 Part VI.D).

Spruill, 372 F.3d at 232. Even if Bolla properly submitted a grievance regarding the

alleged institutional abuse on June 17, 2005, it is undisputed that none of the subsequent

required measures were taken. Therefore, after viewing the evidence in the light most

favorable to Bolla, the non-moving party, see Reitz, 125 F.3d at 143, we find that no

genuine issue of material fact exists as to whether he complied with prison grievance

procedures and properly exhausted his claims. Accordingly, we will affirm the District

Court’s order granting summary judgment for Strickland.1




                                              4



   1
       Bolla’s pending motions for appointment of counsel are denied.
