IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

JOHN DUNMIRE, )

Plaintiff ) C.A. No. 05-64 Erie

)

v. ) District Judge McLaughlin

) Magistrate Judge Baxter

CAPT. DEPASQUAL, et al., )

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that Defendant’s Motion to Dismiss [Document # 15] be

granted.

II. REPORT

A. Relevant Procedural and Factual History

On February 23, 2005, Plaintiff John Dunmire, an inmate incarcerated at the State

Correctional Institution at Albion, Pennsylvania (“SCI-Albion”), filed this pro se civil rights

action pursuant to 42 U.S.C. § 1983. Named as Defendants are: Captain DePasqual, a

corrections officer at SCI-Albion; Pennsylvania Department of Corrections; Marilyn S. Brooks,

Superintendent at SCI-Albion; Major Giddens, a corrections officer at SCI-Albion; and Michael

Harlow, Deputy Superintendent at SCI-Albion. 

Plaintiff claims that Defendants violated his Eighth Amendment right against cruel and

unusual punishment when, on September 14, 2004, he was forced to submit to a strip search in

SCI-Albion’s recreation yard weight pit “in plain view of female corrections officers as well [as]

all inmates in the east yard ... and inmates looking out their windows on housing units D and C.”

(See Document 14, Amended Complaint, Sections III and IV.C). As relief, Plaintiff seeks

“punitive, exemplary and compensatory damages.” (See Document # 14, Amended Complaint,

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Although Plaintiff’s Amended Complaint does not specifically cite a violation of the Fourth Amendment, pro se

pleadings are to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting Conley v. Gibson,

355 U.S. 41, 45-46 (1957).

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Section VI).

Defendants have filed a motion to dismiss Plaintiff’s claims based on: (i) Plaintiff’s

failure to exhaust his administrative remedies; (ii) Plaintiff’s failure to state a claim upon which

relief may be granted; and (iii) the Eleventh Amendment’s bar against bringing suit against the

Pennsylvania Department of Corrections. [Document # 15]. Plaintiff has filed a response to

Defendants’ motion to dismiss [Document # 18] arguing that it was not necessary for him to

exhaust his administrative remedies because the initial response received from SCI-Albion’s

grievance officer acknowledged that “a mistake was made” with regard to the strip search. 

Plaintiff also argues that his claims are actionable under both the Fourth and Eighth

Amendments; however, he has voluntarily withdrawn his claims against the Pennsylvania

Department of Corrections in recognition of the Eleventh Amendment’s immunity provisions.1

(See Document # 18 at ¶ 2). Plaintiff’s claims against the remaining Defendants are now ripe

for consideration.

B. Standard of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Langford v.

City of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). The motion cannot be granted unless

the court is satisfied “that no relief could be granted under any set of facts that could be proved

consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The issue

is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer

evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of

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the Federal Rules of Civil Procedure states that a pleading must set forth a claim for relief which

contains a short and plain statement of the claim showing that the pleader is entitled to relief. 

Therefore, in order to survive a motion to dismiss for failure to state a claim, the complaint must

set forth sufficient information to suggest that there is some recognized legal theory upon which

relief can be granted.

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim

if it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972), quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should be done so despite failure to cite

proper legal authority, confusion of legal theories, poor syntax and sentence construction, or

litigant’s unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared

by a prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith

v. U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections,

949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe

all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d

Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same).

C. The Exhaustion Requirement and Procedural Default

The Prison Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e(a), provides: 

no action shall be brought with respect to prison conditions under section 1983 of

this title ... by a prisoner confined in any jail, prisons, or other correctional

facility until such administrative remedies as are available are exhausted.

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There is an emerging split of authority among the Circuits on this issue. Compare Ross v. County of Bernalillo,

365 F.3d 1181 (10th Cir. 2004), and Pozo v. McCaughtry, 286 F.3d 1022 (7th Cir. 2002), with Thomas v. Woolum,

337 F.3d 720 (6th Cir. 2003).

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Id. 

The requirements that an inmate exhaust administrative remedies applies to all inmate

suits regarding prison life, including those that involve general circumstances as well as

particular episodes. Porter v. Nussle, 534 U.S. 516 (2002). See also Concepcion v. Morton,

306 F.3d 1347 (3d Cir. 2002) (for history of exhaustion requirement). Administrative

exhaustion must be completed prior to the filing of an action. McCarthy v. Madigan, 503 U.S.

140, 144 (1992). Thus, federal courts are barred from hearing a claim if a plaintiff has failed to

exhaust all the available remedies. Grimsley v. Rodriquez, 113 F.3d 1246 (Table), 1997 WL

2356136 (Unpublished Opinion) (10th Cir. May 8, 1997). However, a plaintiff’s failure to

exhaust his administrative remedies does not deprive the district court of subject matter

jurisdiction. Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir. 2000) (“...[W]e agree with the clear

majority of courts that § 1997e(a) is not a jurisdictional requirement, such that failure to comply

with the section would deprive federal courts of subject matter jurisdiction.”).

The exhaustion requirement is not a technicality, rather it is federal law which federal

district courts are required to follow. Nyhuis, 204 F.3d at 73 (by using language “no action shall

be brought,” Congress has “clearly required exhaustion”). There is no “futility” exception to the

administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201, 206 (3d Cir. 2002)

citing Nyhuis, 204 F.3d at 78. 

In addition, the United States Court of Appeals for the Third Circuit has explicitly held

that the exhaustion requirement of the PLRA includes a procedural default component, by

analogizing it to the exhaustion doctrine (with its corollary procedural default component) in the

habeas context. Spruill v. Gillis, 372 F.3d 218, 228-229 (3d Cir. June 18, 2004).2 The Circuit

explained:

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We believe that Congress's policy objectives will be served by interpreting

§ 1997e(a)'s exhaustion requirement to include a procedural default

component. Based on our earlier discussion of the PLRA's legislative

history, [...] Congress seems to have had three interrelated objectives

relevant to our inquiry here: (1) to return control of the inmate grievance

process to prison administrators; (2) to encourage development of an

administrative record, and perhaps settlements, within the inmate

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

erecting barriers to frivolous prisoner lawsuits. Each of these goals is

better served by interpreting § 1997e(a)'s exhaustion language to include a

procedural default component than by interpreting it merely to require

termination of all administrative grievance proceedings.

Id. Having concluded that the PLRA includes a procedural default component, the Court then

indicated that “prison grievance procedures supply the yardstick for measuring procedural

default.” Id. at 231.

D. Exhaustion and Procedural Default applied

In order to exhaust all of the administrative remedies within the Pennsylvania

Department of Correction’s (“D.O.C.”) grievance system, a grievance must be appealed through

all administrative levels of appeal at the inmate’s institution and the D.O.C. inmate-initiated

grievances must follow the procedures set forth in Administrative Directive 804 (“DC-ADM

804”), which is included as part of the inmate handbook distributed to each inmate. The first

step in the grievance process is for the inmate to file a claim with the institution’s grievance

officer. The grievance officer will investigate a grievance and provide the inmate with an Initial

Review Response, which includes “a brief rationale, summarizing the conclusions and any

action taken or recommended to resolve the issues raised in the grievance.” DC-ADM 804

VI(B)(4). If the inmate is not satisfied with the Initial Review Response, there are two levels of

appeal he must pursue to exhaust his claim: (1) an appeal within five days of his receipt of the

Initial Review Response to the prison superintendent and, if the appeal is denied, (2) an appeal

to the D.O.C. Secretary’s Office of Inmate Grievances and Appeals (“D.O.C. Secretary”). DCADM 804 VI(C)(1).

Defendants argue that Plaintiff never exhausted his administrative remedies in

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accordance with the PLRA’s requirements. Plaintiff admits that he did not pursue any

administrative remedies beyond his receipt of the Initial Review Response to his grievance,

which disclosed:

A mistake was made and we offer our apology for any inconvenience

that may have been caused by the mistake. As soon as the issue was

brought to the attention of senior staff, corrective action was taken to

ensure an incident like this does not happen in the future.

We are conducting a fact-finding to pinpoint where communication

broke down and the decision was made to conduct the searches in the

weight pit.

(See Attachment to Document # 15 at p. 5). Nonetheless, Plaintiff contends that “this response

from the defendants to plaintiff’s grievance nullified any reason for plaintiff to appeal this

grievance because defendants admitted their conduct was wrong.” (See Document # 18 at ¶ 1).

As cited earlier, the Third Circuit has steadfastly recognized that there is no “futility”

exception to the administrative exhaustion requirement. Ahmed v. Dragovich, 297 F.3d 201,

206 (3d Cir. 2002) citing Nyhuis, 204 F.3d at 78. Most recently, in Williamson v. Wexford

Health Sources, Inc., 131 Fed. Appx. 888 (3d Cir. 2005), the Third Circuit upheld the dismissal

of an action because of the plaintiff’s failure to exhaust his administrative remedies, despite the

plaintiff’s contention that further administrative exhaustion would have been futile because he

had “received all the medical treatment he requested” in his grievance. 131 Fed. Appx. at 890,

citing Nyhuis, 204 F.3d at 69 n. 4, 71. 

Here, Plaintiff attempts to argue that further administrative exhaustion would have been

futile because Defendants already admitted their conduct was wrong in the initial response to his

grievance. This argument must fail in light of the foregoing precedent. Moreover, Plaintiff now

seeks monetary damages for the conduct he originally challenged in his grievance. In order to

comply with the administrative exhaustion requirement, Plaintiff needed to present his claims

for monetary damages at all levels of the administrative appeal process before filing suit in this

case. See Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000)(holding that inmate was required

to exhaust all administrative remedies available to him prior to filing action with the federal

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court, “even though the Commonwealth of Pennsylvania’s inmate grievance process could not

provide [him] with the money damages he sought”). Plaintiff failed to do this. Moreover,

because any attempt to file an administrative appeal now would be time-barred, Plaintiff’s

claims are procedurally defaulted. As a result, this case should be dismissed.

III. CONCLUSION

For the foregoing reasons, it is respectfully recommended that Defendant’s motion to

dismiss [Document # 15] be granted.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date

of service to file written objections to this Report and Recommendation. Any party opposing

the objections shall have seven (7) days from the date of service of objections to respond 

thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: September 22, 2005

cc: The Honorable Sean J. McLaughlin 

United States District Judge

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