1. Plaintiff is currently confined in the State Correctional Institution, in Graterford, Pennsylvania. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

CHARLIE EAKLE, :

:

Plaintiff : CIVIL NO. 4:CV-05-1233

:

v. : (Judge Jones)

:

Superintendent TENNIS, et al., :

 : 

Defendants :

ORDER

July 14, 2006

Charles Eakle, an inmate formerly confined in the Smithfield State Correctional

Institution (“SCI-Smithfield”), in Huntingdon, Pennsylvania, filed this civil rights action

filed pursuant to 42 U.S.C. § 1983.1

 The Plaintiff alleges that Defendants have denied

him the opportunity to have a cellmate because staff at SCI-Rockview and SCI-Smithfield

have told him they do not want to promote homosexual activity. Plaintiff names as

Defendants various officials and employees of the Pennsylvania Department of

Corrections, most of whom are employed at either SCI-Smithfield or SCI-Rockview,

including SCI-Smithfield Superintendent John A. Palakovich, SCI-Rockview

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2. In Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004), the United States Court of Appeals for the

Third Circuit addressed the issue of whether the Defendants in Spruill properly identified their

motion as one for dismissal pursuant to Fed.R.Civ.P. 12(b)(6). The Court noted that “[g]iven that

the exhaustion issue turns on the indisputably authentic documents related to Spruill's grievances,

we hold that we may also consider these without converting it to a motion for summary judgment. 

Id. at 223 (citing Steele v. Fed. Bureau of Prisons, 355 F.3d 1204, 1212 (10th Cir. 2003)); see also

Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002)(“In appropriate cases, failure to exhaust may be

raised as the basis for a motion to dismiss”); Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002)

(motions to dismiss may be pursued on failure to exhaust grounds in certain circumstances). 

Accordingly, the records submitted by Defendants are indisputably authentic records which may be

considered by this Court without converting the motion to dismiss to a motion for summary

judgment. 

3. The statement of factual background is taken from the complaint, the brief attached to the

complaint, the amended complaint, (docs. 1, 32 ), and the administrative remedy documents

submitted by Defendants. (Rec. Doc. 52, Exs. 1, 3, 4). 

2

Superintendent Tennis, and former SCI-Rockview Superintendent Meyers.

Presently pending before the Court is Defendants' Motions to Dismiss the action,

in which Defendants argue that Eakle has failed to exhaust available administrative

remedies.2

 (Rec. Docs 21, 35, 37). The Motions have been fully briefed and are ripe for

disposition. For the reasons set forth below, Defendants' Motions to Dismiss will be

granted. 

Background3

Plaintiff alleges that from approximately June 2002 to September 2004, he has

contacted numerous staff members at SCI-Rockview and SCI-Smithfield and requested

that his “'Z' Code single cell status” be changed so that he could have a cellmate of his

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choosing. (Rec. Docs. 1, 32). In that time period, Plaintiff has received misconducts for

being in another inmate's cell, breaking cell restriction, and being in an unauthorized area.

Id.

On July 30, 2003, Plaintiff submitted Grievance No. 57949-03, alleging that: 

On January 16, 2003, I had spoken to my counselor, Mr. Knapp about

getting rid of my “Z” code. He had replied I am not going to double cell

you, [and] to stop promoting homosexual activity.

On January 19, 2003, I had received a misconduct for being in somebody

else's cell when I was not.

On January 24, 2003, Mr. Knapp had stopped in the RHU and had stated

that PRC had placed me on the “Z” code. 

On February 2, 2003, I had sent a request to Vivieonal of the PRC and

stated every thing to him about my “Z” code and how he had told me to

speak to my counselor about getting rid of my “Z” code. 

On February 25, 2003, I had sent a request to the Unit Manager, Mr.

Morningstar, [and] Mr. Knapp asking to get my “Z” code removed due to

the fact of mental anguish and my seizures. 

On June 24, 2003, I had received a reply back from Mr. Knapp, stating that

on November 29, 1999, I had allegedly performed oral sex with a cellie,

Richard Burk on B/C, which was not forced, also stated I admitted to having

sex with a Paul Letmattes, and he suggests at this time, he recommends that

I keep my single cell status. 

I would like a cellie of my choice due to my protection and the protection

of security of the institution. 

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(Rec. Doc. 52, Ex. 3). On August 8, 2003, Grievance Officer Morningstar responded to

Grievance No. 57949-03 with the following: 

I have interviewed Mr. Eakle's grievance and found it without merit. The

Unit Team reviewed Mr. Eakle's “Z” Code status as part of his Annual Case

Review in July 2003. It was determined that in the best interests of

institution security that the “Z” Code be retained. If Mr. Eakle feels there

is a medical reason for the “Z” Code to be removed, the medical department

should notify his counselor, Mr. Knapp of this need. As of this date we

have not received any notification. 

(Rec. Doc. 52, Ex. 3, Official Inmate Grievance Initial Review Response). Eakle did not

appeal Grievance No. 57949-03 to final review. (Rec. Doc. 21, Ex. A, Declaration of

Sharon M. Burks, Chief Grievance Coordinator, at ¶ 13 ). 

On January 12, 2005, Eakle submitted Grievance No. 107065-05, challenging the

DOC's policy prohibiting sexual contact between inmates. (Rec. Doc. 52, Ex. 4, Official

Inmate Grievance). Plaintiff believes that he is being discriminated against, claiming that

“homosexuality is not a crime” and that he is being “punish[ed] for being or trying to be

[himself]. Id. 

On January 25, 2005, Unit Manager Royer responded with the following: 

Inmate Eakle files this grievance, apparently alleging that DOC policy in

some way discriminates against him. He was interviewed with CO Sullivan

on 01-19-05. During the course of that interview, he, at different times,

referred to himself as a homosexual and stated that he is a woman. I

explained to inmate Eakle that DOC policy covers all inmates engaging in

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sexual acts whether consensual or not consensual. This violates DOC

policy. This is true for all inmates, not just him. 

The conversation during this interview with inmate Eakle was rather wideranging and at times disjointed. At times, he appeared to be questioning the

reason he was assigned single cell status. Then he would make the claim he

was really a woman, not a man. His thinking appeared to be very paranoid

and scattered. For this reason, I will make a referral to the mental health

staff for evaluation and recommendations. As for the grievance, it is

dismissed as being frivolous and without merit. The DOC has rules for all

inmates to follow. Eakle is certainly not being discriminated against due to

any rules which forbid sexual relations amongst the inmate population. 

(Rec. Doc. 52, Ex. 4, Official Inmate Grievance Initial Review Response). Eakle then

filed an appeal of Grievance No. 107065-05 to Superintendent Palakovich. On February

2, 2005, Superintendent Palakovich denied Eakle's appeal, stating the following: 

I have reviewed your appeal to grievance #107065-05 received on February

1, 2005. You claim the DOC policies discriminate against homosexuals in

your initial grievance. Mr. Royer correctly advised that DOC policies are

designed to protect all individuals. The current statutes prohibit any sexual

contact between inmates as well as inmates and staff. This includes

consensual sex. Officer Sullivan obviously directed you to wear you cap

with the bill in the front. This is not discrimination but only enforcement

of procedures. I find no basis for your appeal and therefore it is denied. 

(Rec. Doc. 52, Ex. 4, Response to Grievance Appeal No. 107065-05). Although Eakle

filed a grievance to the Secretary's Office of Inmate Grievances and Appeals, by letter

dated February 18, 2005, his appeal was returned to him for the following reasons: 

This is to acknowledge receipt of your letter/documents to this office

regarding your appeal to the above reference grievance number. Upon

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review of this letter/documents, it is the decision of this office to file your

letter without action.

This action is being taken due to your repeated failure to comply with the

provisions of the DC-ADM 804, Inmate Grievance System, section VI. D.,

1f, effective January 1, 2001. This policy specifically identifies the

documents required for a proper appeal to final review. Additionally, the

revised policy, effective January 3, 2005, under section VI. D., 1g, provides

the same instructions. 

Our records indicate that you are more than familiar with the grievance

process based upon the number of grievances you have filed; therefore, you

should not have to be told each time you file an appeal of the documents

required. You are hereby advised that any subsequent appeals to this office

that do not include the necessary documentation in accordance with the

above-cited provisions will be immediately dismissed. 

I trust you will heed this warning and comply with the policy as required.

(Rec. Doc. 52, Ex. 4, Feb. 18, 2005 letter from Secretary's Office of Inmate Grievance's

and Appeals). There is no record that Plaintiff ever provided the Secretary's Office of

Inmate Grievances and Appeals with the required documents. (Rec. Doc. 52, Ex. 1, ¶ 14).

Thus, Plaintiff never appealed Grievance No. 107065-05 beyond the appeal to the

Superintendent. (Rec. Doc. 21, Ex. A, ¶ 14). 

On June 20, 2005, Eakle filed the instant action in which he seeks compensatory

and punitive damages, as well as to have “the DOC's employees change their rules and

policy's (sic) towards homosexuals.” (Rec. Docs. 1, 32). 

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Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of

claims that fail to assert a basis upon which relief can be granted. See Fed.R.Civ.P.

12(b)(6). When deciding a motion to dismiss for failure to state a claim, the court is

required to accept as true all of the factual allegations in the complaint and all reasonable

inferences that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845,

847 (3d Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). “The

complaint will be deemed to have alleged sufficient facts if it adequately put[s] the

defendant on notice of the essential elements of the plaintiff’s cause of action.” Id. The

court will not dismiss a complaint for failure to state a claim unless it appears beyond a

doubt that “no relief could be granted under any set of facts that could be proved

consistent with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514

(2002). 

“In determining whether a claim should be dismissed under Rule 12(b)(6), a court

looks only to the facts alleged in the complaint and its attachments without reference to

other parts of the record.” Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1261 (3d Cir. 1994). The court, however, need not accept “bald assertions” or “legal

conclusions.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

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Likewise, the court need not “conjure up unpled allegations or contrive elaborately arcane

scripts” to breathe life into an otherwise defective complaint. Gooley v. Mobil Oil Corp.,

851 F.2d 513, 514 (1st Cir. 1988). Consistent with these principles, the court must grant

leave to amend before dismissing a complaint that is merely deficient. See Shane v.

Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

Discussion

Defendants contend that Eakle's complaint should be dismissed for his failure to

exhaust available administrative remedies. In pertinent part, the Prison Litigation Reform

Act provides:

No action shall be brought with respect to prison conditions under

section 1983 of this title, or any other Federal law, by a prisoner

confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.

42 U.S.C. § 1997e(a).

Exhaustion requires completion of the entire administrative process. Ahmed v.

Sromovski, 103 F. Supp. 2d 838, 843-44 (E.D. Pa. 2000). If a prisoner fails to follow the

required administrative procedures, including meeting deadlines, the inmate’s action

cannot be maintained. See Buckner v. Bussanich, No. 1:CV-00-1594, slip op. at 6 (M.D.

Pa. April 3, 2001) (Caldwell, J.)(“an administrative remedy is not made unavailable

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simply because a prisoner failed to timely exercise his rights under the procedure.

Otherwise, the prisoner could avoid the exhaustion requirement simply by refusing to

pursue administrative remedies”).

The Pennsylvania Department of Corrections’ administrative remedies for inmate

grievances are provided for in Department of Corrections Administrative Directive 804.

Seewww.cor.state.pa.us, DOC Policies, DC-ADM 804, Inmate Grievance System Policy

(“DC-ADM 804"). First, the Pennsylvania DOC Consolidated Inmate Review System

provides for three levels of administrative review of inmate grievances: the initial

grievance submitted to the Facility Grievance Coordinator, an intermediate level of

appeal to the Facility Manager, and a final level of appeal to the Secretary's Office of

Inmate Grievances and Appeals. See DC-ADM 804 § VI; see also Booth v. Churner, 206

F.3d 289, 293 n. 2 (3d Cir.2000) (outlining the grievance review process).

 The grievance procedure requires a prisoner to submit a grievance for initial review

within fifteen working days after the event upon which the grievance is based. See DCADM 804 § VI, Part A(8). The inmate should state the facts upon which he is entitled

to relief. See DC-ADM 804 § VI, Part A(7)(“The inmate shall include a statement of

facts relevant to the claim . . . The inmate should identify any persons who may have

information that could be helpful in resolving the grievance. The inmate should also

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include information on attempts to resolve the matter informally.”). Indeed, in Spruill v.

Gillis, 372 F.3d 218, 227-28 (3d Cir.2004), the Third Circuit Court of Appeals

recognized the significance in identifying the relevant facts and persons in order to bring

a subsequent federal lawsuit: 

On this matter, the text is mandatory, or nearly so . . . To the extent

that Brown's identity is a “fact [] relevant to the claim.” – and it is–

it was mandatory for Spruill to include it. To the extent that Brown

was a “person [] who may have information” or someone with whom

Spruill made “attempts to resolve the matter informally” – and he was

– Spruill was required to identify Brown if practicable. 

Spruill, 372 F.3d at 234. Moreover, the exhaustion requirement of § 1997e(a) is not

satisfied simply "whenever there is no further process available to the inmate within the

grievance system (which would happen if, say, an inmate fails to file an administrative

appeal) . . ." Spruill, 372 F.3d at 227-28. Rather, § 1997e(a) requires that an inmate

"avail[ ] himself of every process at every turn (which would require all appeals to be

timely pursued, etc.)." Id.

In applying the above analysis to the factual background surrounding this action,

it is readily apparent that Plaintiff has procedurally defaulted on his claims. Plaintiff's

Grievance No. 57949-03 was never appealed to final review. Plaintiff's appeal of

Grievance No. 107065-05 to the Secretary's Office of Inmate Grievance and Appeals was

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rejected, because it failed to comply with DC-ADM 804, VI., D., 1g; specifically, it did

not include copies of plaintiff's initial grievance and his appeal to the Superintendent. 

(Rec. Doc. 52, Ex. 4). The record discloses that Eakle failed to resubmit the required

documentation relative to his appeal. Id. Thus, Eakle has sustained a procedural default

under the applicable DOC regulations. 

Spruill cited with approval the Seventh Circuit decision in Pozo v. McCaughtry,

286 F.3d 1022, 1025 (7th Cir. 2002). Spruill, 372 F.3d at 231. In Pozo, the Seventh

Circuit ruled that “to exhaust remedies, a prisoner must file complaints and appeals in the

place, and at the time, the prison’s administrative rules require.” Pozo, 286 F.3d at 1025

(emphasis added). Eakle offers no justification for his failure to appeal Grievance No.

57949-03 to final review, or to resubmit the appropriate documentation in accordance

with the appropriate Department of Corrections Directive, to appeal Grievance No.

107065-05. Thus, Eakle is now foreclosed from litigating his claims in this Court. 

In Spruill, the Third Circuit found that a procedural default component to the

exhaustion requirement served the following congressional objectives: “(1) to return

control of the inmate grievance process to prison administrators; (2) to encourage

development of administrative record, and perhaps settlements, within the inmate

grievance process; and (3) to reduce the burden on the federal courts by erecting barriers

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to frivolous prisoner lawsuits.” 372 F.3d at 230. In Pusey v. Belanger, No. Civ. 02-351,

2004 WL 2075472 at *2-3 (D. Del. Sept. 14, 2004), the court applied Spruill to dismiss

an inmate’s action for failure to timely pursue an administrative remedy over the inmate’s

objection that he did not believe the administrative remedy program operating in

Delaware covered his grievance. In Berry v. Kerik, 366 F.3d 85, 86-88 (2d Cir. 2004),

the court affirmed the dismissal of an inmate’s action with prejudice where the inmate

had failed to offer appropriate justification for the failure to timely pursue administrative

grievances. In Ross v. County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004), the

court embraced the holding in Pozo, stating that “[a] prison procedure that is procedurally

barred and thus is unavailable to a prisoner is not thereby considered exhausted.” These

precedents support dismissal of this action for Eakle's failure to pursue his administrative

remedies with respect to his claims. Accordingly, Defendants' Motions to Dismiss the

instant action will be granted. 

NOW, THEREFORE, IT IS ORDERED THAT:

1. Defendants' Motions to Dismiss (docs. 21, 35, 37) Plaintiff's

action are GRANTED. 

2. Defendants' Motions for Protective Orders (docs. 33, 39) are

DISMISSED as moot. 

3. Plaintiff's Motion to Appoint Counsel (doc. 45) is

DISMISSED as moot. 

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4. Plaintiff's Motion for Preliminary Injunctive Relief (doc. 47)

and Defendants' Motion for Enlargement of Time (doc. 49) to

respond thereto, are DISMISSED as moot. 

5. The Clerk of Court is directed to CLOSE this case. 

6. Any appeal taken from this order will be deemed frivolous,

without probable cause, and not taken in good faith.

 S/ John E. Jones III

John E. Jones III

United States District Judge

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