IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald Stockton, :

Appellant :

:

v. : No. 2350 C.D. 2015

: Submitted: April 29, 2016

Commonwealth of Pennsylvania :

Department of Corrections; :

Marirosa Lamas; B. Thompson; :

R. Marsh; T. Miller; L. Eatton; :

and R. Vance :

BEFORE: HONORABLE ROBERT SIMPSON, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION 

BY JUDGE SIMPSON FILED: August 23, 2016

This lawsuit arises out of a fight between inmates at a state 

correctional institution on June 4, 2010. Currently at issue is Ronald Stockton’s 

civil rights claim that prison authorities failed to protect him from the other inmate.

The case returns to us after remand. See Stockton v. Commonwealth, 

Dep’t. of Corr., (Pa. Cmwlth., No. 765 C.D. 2012, filed November 16, 2012), 2012 

WL 8679780 (unreported) (Stockton I). In Stockton I, we reversed, in part, an 

order of the Court of Common Pleas of Centre County (trial court) that sustained 

the preliminary objections filed by the Department of Corrections on behalf of the 
2

named appellees1(collectively, DOC) to Stockton’s complaint. We returned this 

matter to the trial court to address, among other things, Stockton’s “failure to 

protect” claim. On remand, the trial court determined Stockton failed to satisfy a 

statutory prerequisite to a civil rights suit involving prison conditions, exhaustion 

of administrative remedies. The trial court therefore entered summary judgment in 

favor of DOC.

In his current appeal, Stockton, representing himself, asks whether the

trial court erred in granting summary judgment in favor of DOC. He argues: (1)

DOC waived its affirmative defense of failure to exhaust administrative remedies 

as to Stockton’s “failure to protect” claim; (2) he exhausted his administrative 

remedies, or the exhaustion of remedies requirement does not apply to him; (3) the 

trial court abused its discretion in refusing to grant him further leave to amend; 

and, (4) the trial court had a duty to set up a process to ensure Stockton received all 

discoverable materials. Upon review, we affirm.

I. Background

This matter has a long and convoluted history. Stockton is an inmate 

currently incarcerated at SCI-Smithfield. Stockton filed suit in the trial court 

seeking monetary damages for alleged violations of his constitutional rights and 

 

1 Appellees, all of whom hold or held positions at SCI-Rockview, are: Marirosa Lamas, 

Superintendent; B. Thompson, Former Superintendent; R. Marsh, Deputy Superintendent; T. 

Miller, CCPM; L. Eatton, Security Captain; and, R. Vance, Security Lieutenant.
3

tortious conduct while incarcerated at SCI-Rockview. Specifically, he filed a 

series of amended complaints. Certified Record (C.R.), Item Nos. 3, 6, 37, 129.2

Stockton averred that he was previously found guilty of assaulting 

another inmate. See C.R., Item No. 3 at ¶10. The victim of Stockton’s earlier 

assault required over 50 stiches on his face. Id. As a result, Stockton received 

131⁄2 months confinement in the restricted housing unit (RHU).

While Stockton remained in the RHU, the brother of his victim 

entered the institution. Stockton avers that at the point where he was to leave RHU 

and re-enter the general population, prison officials warned the victim’s brother 

that Stockton was re-entering the general prison population and that the brother 

might also be a target of violence. Stockton avers that, by contrast, DOC took no 

steps to protect him from possible retaliation, such as warning him of the victim’s

brother’s presence once he returned to general population.

Shortly after he re-entered the general population, Stockton was 

“assaulted after being attacked” presumably by his prior victim’s brother. C.R., 

Item No. 26 at ¶31. Stockton blames DOC for not protecting him against this June 

4, 2010 assault, and this is the basis for his “failure to protect” claim.3

 

2 Unless otherwise noted, all citations are to the document numbers as listed in the index 

to the Certified Record.

3 Various internal prison proceedings followed the June 4, 2010 fight. Stockton was 

charged with misconduct, a charge he appealed but eventually lost. In addition, Stockton 

claimed he filed a grievance over his “failure to protect” claim. Although Stockton filed many 

(Footnote continued on next page...)
4

DOC filed preliminary objections. C.R., Item No. 17. In initially 

resolving DOC’s preliminary objections, the trial court concluded that Stockton did 

not allege exhaustion of administrative remedies in any of his complaints. C.R., 

Item No. 25. As a result, the trial court sustained the preliminary objections, and it 

dismissed Stockton’s suit with prejudice. C.R., Item No. 25 at ¶5.

Stockton appealed to this Court. In Stockton I, we determined: (1) 

Stockton’s common law tort claims were barred by sovereign immunity; (2) the 

trial court erred in sustaining DOC’s preliminary objection asserting failure to 

exhaust administrative remedies (a statutory prerequisite to suit) and, therefore, a 

remand was necessary; (3) Stockton did not set forth the required elements for an 

equal protection claim; (4) the trial court did not properly address DOC’s 

preliminary objections to Stockton’s “failure to protect” claim under 42 U.S.C. 

§1983, and, therefore, a remand was necessary for the trial court to do so; and, (5)

a remand was necessary to allow the trial court to consider whether any lapses in 

pleading the constitutional claims could be cured by amendment. See Stockton I. 

Thus, we affirmed the trial court’s order to the extent it dismissed common law tort 

claims and sustained DOC’s demurrer to Stockton’s equal protection claim. 

However, we vacated the trial court’s order to the extent it sustained DOC’s 

preliminary objections pertaining to Stockton’s “failure to protect” claim. We also 

stated the trial court may consider whether any perceived shortcomings in pleading 

 

(continued...)

grievances, DOC disputed that any of them pertained to a “failure to protect” Stockton around 

June 2010.
5

the equal protection and “failure to protect” claims are properly cured by 

amendment.

On remand, Stockton filed an amended complaint, and DOC filed 

preliminary objections and a motion for summary judgment. C.R., Item Nos. 37-

38, 105. The trial court granted DOC’s motion for summary judgment. C.R., Item 

No. 118. Thereafter, Stockton filed a “supplemental complaint.” C.R., Item No.

129. DOC filed its second motion for summary judgment on the ground that 

Stockton did not exhaust his administrative remedies as to the remaining “failure to 

protect” claim. C.R., Item No. 131.

After a hearing,4the trial court granted DOC’s second motion for 

summary judgment and dismissed Stockton’s suit with prejudice. C.R., Item Nos.

161, 163, 168. In its opinion and order, the trial court determined Stockton did not 

exhaust his administrative remedies and found his version of the events at issue

“incredible based on the inconsistencies, dates, and the testimony ... discussed [in 

the opinion].” C.R., Item No. 163 at 7. Thus, the trial court determined Stockton 

did not assert his “failure to protect” claim to DOC before he filed suit. Stockton 

again appealed to this Court.

 

4 Regarding a hearing on the motion for summary judgment and the trial court’s factual 

determinations, exhaustion of administrative remedies is a statutory prerequisite to suit under the 

Prisoner Litigation Reform Act, 42 U.S.C. §1997e(a). Thus, resolution of this threshold issue is

a matter to be decided by a judge even if factual determinations must be made, similar to a 

threshold decision on jurisdiction, venue, or on the ability of the court to afford relief. Small v. 

Camden County, 728 F.3d 265 (3rd Cir. 2013). Stockton does not assign error to this procedure.
6

II. Issues

On appeal,5 Stockton contends: (1) DOC waived its affirmative 

defense of failure to exhaust administrative remedies as to Stockton’s “failure to 

protect” claim; (2) he exhausted his administrative remedies, or he did not need to 

exhaust his administrative remedies; (3) the trial court abused its discretion in 

refusing to grant Stockton further leave to amend; and, (4) the trial court had a duty 

to set up a process to ensure Stockton received all discoverable materials.

III. Discussion

A. Waiver

1. Contentions

Stockton first argues DOC waived its affirmative defense of failure to 

exhaust administrative remedies. He asserts waiver occurred when DOC failed to 

properly raise and preserve this issue in its preliminary objections, answer to 

amended complaint or first summary judgment motion.

Stockton contends that case law establishes that the defense of 

exhaustion of administrative remedies is waived if it is not properly preserved. See

Smith v. Mensinger, 293 F.3d 641 (3rd Cir. 2002) (exhaustion provision of the

Prisoner Litigation Reform Act, 42 U.S.C. §1997e(a) (PLRA) requires inmates to 

exhaust claims before filing suit under 42 U.S.C. §1983; exhaustion is an 

affirmative defense that is waived if not properly preserved by a defendant).

 

5

In reviewing the grant of a motion for summary judgment, our scope of review is 

plenary and our standard of review requires that we affirm the trial court's order only where the 

record, when viewed in the light most favorable to the non-moving party, clearly shows there are 

no genuine issues of material fact and the moving party is entitled to judgment as a matter of 

law. P.J.S. v. Pa. State Ethics Comm’n, 894 A.2d 174 (Pa. 1999); Weckel v. Carbondale Hous.

Auth., 20 A.3d 1245 (Pa. Cmwlth. 2011); Kuniskas v. Commonwealth, 977 A.2d 602 (Pa.

Cmwlth. 2009).
7

Stockton argues DOC only “objected” that Stockton did not assert 

exhaustion in his complaint. Stockton argues alleging exhaustion in a complaint is 

not a requirement. Jones v. Bock, 549 U.S. 199 (2007) (failure to exhaust is an 

affirmative defense under PLRA; inmates are not required to specially plead or 

demonstrate exhaustion in their complaints). Thus, Stockton argues DOC waived 

the exhaustion defense by failing to advance it in its preliminary objections, answer 

to amended complaint or first summary judgment motion.

DOC counters the trial court did not err in finding exhaustion could be 

raised at the summary judgment stage because Stockton had notice of the defense

sufficient to avoid prejudice. DOC acknowledges it did not raise its failure to 

exhaust defense as early as possible. However, it asserts a court may consider an 

untimely assertion of an affirmative defense where the delay was not for a tactical 

or other improper reason and it did not prejudice the plaintiff’s case. Appellees’

Br. at 9-10 (citing Williams v. Nish, No. 1:11–CV–0396 (M.D. Pa., filed January 

7, 2015) (Rambo, J.), 2015 WL 106387). In other words, a post-answer exhaustion 

defense can be raised when the opposing party has notice of the defense sufficient 

to avoid prejudice. Baker v. Beard, No. 4:CV-05-281 (M.D. Pa., filed June 21, 

2006) (Jones, J.), 2006 WL 1725557.

DOC asserts nothing in the record suggests its delay in asserting its 

failure to exhaust defense caused any “appreciable prejudice.” Appellees’ Br. at 10 

(citing C.R., Item No. 163 at 3). Applying the holding in Nish, DOC argues the 

trial court here held a full hearing on the exhaustion issue and found there was no 

“indicia of improper actions on the part of [DOC] in failing to raise the failure to 

exhaust defense earlier.” C.R., Item No. 163 at 4. Thus, the trial court concluded 

DOC did not waive this defense. Id.
8

Further, in determining whether a party can raise a post-answer 

exhaustion defense, courts look to whether the opposing party had notice of the 

defense sufficient to avoid prejudice. Conrad v. Wachovia Grp. Long Term 

Disability Plan, Civil No. 08–5416 (D.N.J. filed September 21, 2010), 2010 WL 

3810198 (citing Eddy v. V.I. Water & Power Auth., 256 F.3d 204 (3d Cir. 2001));

see also Engers v. AT&T, 428 F.Supp.2d 213 (D.N.J. 2006) (exhaustion defense 

raised for first time at summary judgment stage is not waived where plaintiff 

suffered no prejudice and public policy was best served by applying the 

requirement).

2. Discussion

We agree that DOC could have, and should have, raised its failure to 

exhaust remedies defense at an earlier stage in these proceedings. However, the 

record lacks evidence to suggest DOC’s delay was for tactical or improper reasons.

Conrad. Further, Stockton does not argue DOC acted in bad faith as to the timing 

of this defense. Nish.

Importantly, Stockton does not identify any specific prejudice he 

suffered based on DOC’s delay in raising the failure to exhaust defense earlier. 

Conrad. 

In addition, our independent review fails to reveal any prejudice to 

Stockton, for two reasons. First, Stockton was clearly aware of the exhaustion 

requirement, regardless of DOC’s failure to raise the defense in its pleadings. This 

is evident because Stockton specifically addressed the issue in six of his court 

filings. 
9

Second, Stockton is not prejudiced in terms of his ability to contest 

the affirmative defense. This is because he had multiple opportunities to do so, 

including at the remand hearing before the trial court. 

Under similar circumstances of lack of prejudice, courts routinely 

consider the failure to exhaust defense when raised for the first time on summary 

judgment. See, e.g., Brown v. Deparlos, No. 12–1217 (3d Cir., filed July 2, 2012) 

(per curiam), 2012 WL 2512014 (affirming district court’s finding of no prejudice 

where failure to exhaust not argued until motion for summary judgment); Baker v. 

Beard, (M.D. Pa., filed June 21, 2006), 2006 WL 1725557 at *3 (granting 

summary judgment in favor of defendants on failure to exhaust, where defense 

raised for the first time on summary judgment, stating “[d]efendants have raised 

their exhaustion defense at an appropriate point in time since they do so prior to 

adjudication.”).

We conclude DOC could have, and should have, raised the defense of 

failure to exhaust at an earlier stage. However, Stockton suffered no prejudice. 

Further, DOC's delay was not for tactical or improper reasons. Also, Stockton 

does not argue DOC acted in bad faith as to the timing of this defense. For all 

these reasons we conclude DOC did not waive the failure to exhaust administrative 

remedies defense.

B. Exhaustion of Administrative Remedies

1. Contentions

Stockton next argues he made every attempt at properly exhausting 

his available administrative remedies. First, he challenges the trial court’s factual 
10

determinations that he did not file a grievance for his June 2010 “failure to protect” 

claim. 

Second, he asserts the somewhat inconsistent argument that the 

grievance procedures were not available to him because the assault on June 4, 2010 

was treated as a misconduct charge against him, and DOC policy does not permit 

an inmate to grieve matters handled as inmate misconduct. He therefore argues the 

grievance procedure was not an adequate administrative remedy for him.

Relatedly, Stockton asserts that the exhaustion requirement only relates to federal 

actions, not actions in state courts.

Third, Stockton argues that all the facts of the assault were revealed 

during the misconduct proceedings, so that exhausting the misconduct remedy

served the same function as exhausting grievance claims. In other words, the 

misconduct proceedings alerted DOC to the underlying elements of his “failure to 

protect” claim. Stockton thus asserts this other procedure satisfied the exhaustion 

of remedies requirement. 

DOC responds that the trial court properly determined that Stockton 

did not exhaust his administrative remedies. Further, Stockton’s misconduct 

appeal did not constitute an exhaustion of remedies. DOC highlights a factually 

identical case, in which the Third Circuit explained that the purpose of the 

exhaustion requirement is to ensure prison personnel have a fair opportunity to 

correct any errors before litigation in the court system is commenced. Howard v. 

Chatcavage, 570 Fed.Appx. 117 (3

rd Cir. 2014) (unreported), cert. denied, ___ U.S. 

___, 135 S. Ct. 968 (2015).
11

In Chatcavage, inmate Howard was involved in a fight with another 

inmate. Howard challenged a misconduct charge against him, which was later 

dismissed. However, Howard did not file a grievance regarding a separate failure 

to protect claim. Instead, Howard filed an action in court alleging a failure to 

protect. In response, DOC filed a summary judgment motion, arguing Howard did 

not exhaust his administrative remedies on his failure to protect claim before filing 

suit. The district court granted DOC’s summary judgment motion and dismissed 

the case for failure to exhaust administrative remedies. In upholding the dismissal,

the Third Circuit Court stated, “there is nothing in the record to indicate that 

Howard’s appeal of the misconduct for fighting alerted prison officials to this 

affirmative [failure to protect] claim against them, much less afforded [DOC] the 

opportunity to evaluate or remedy that claim before the initiation of this case.” Id.

at 119.

2. Discussion

a. Generally

In an effort to curb the number of prisoner filings, Congress enacted 

the PLRA, which, as relevant here, mandates that prisoners exhaust internal prison 

grievance procedures before filing suit. 42 U.S.C. §1997e(a); Small v. Camden 

County, 728 F.3d 265 (3rd Cir. 2013). The exhaustion provision of the PLRA 

reads:

No action shall be brought with respect to prison 

conditions under [42 U.S.C. §] 1983, or any other Federal 

law, by a prisoner confined in any jail, prison, or other 

correctional facility until such administrative remedies 

available are exhausted.

42 U.S.C. §1997e(a). Because Stockton’s current lawsuit raises a claim under 

Federal law, 42 U.S.C. §1983, this exhaustion requirement applies to him.
12

Furthermore, Pennsylvania also has a prisoner litigation statute 

containing functionally identical requirements for claims in Pennsylvania courts 

arising under Federal and state laws. 42 Pa. C.S. §6603(a), (b); see Kittrel v. 

Watson, 88 A.3d 1091 (Pa. Cmwlth. 2014). These provisions also apply to 

Stockton’s current lawsuit.

Under the PLRA, when federal claims are asserted, exhaustion is 

mandatory. See 42 U.S.C. §1997e. Exhaustion must also be “proper.” Woodford 

v. Ngo, 548 U.S. 81, 92 (2006). “Proper exhaustion demands compliance with an 

agency’s deadlines and other critical procedural rules because no adjudicative 

system can function effectively without imposing some orderly structure on the 

course of its proceedings.” Id. at 90-91. Hence, an inmate must “us[e] all steps 

that the agency holds out.” Id. at 90.

Exhaustion is mandatory, even if the administrative process cannot 

provide the prisoner with the relief he seeks. See Nyhuis v. Reno, 204 F.3d 65 

(3rd Cir. 2000); see also Salter v. Lamas, (Pa. Cmwlth., No. 369 C.D. 2013, filed 

October 4, 2013), 2013 WL 5526322. 

The purpose of the exhaustion requirement is to ensure that prison 

officials have a fair opportunity to correct their own errors before the initiation of a 

lawsuit. See Woodford; Chatcavage. 

b. Findings of Failure to Exhaust
13

We reject Stockton’s arguments. It is clear that the trial court had 

sufficient evidence to find that Stockton did not exhaust his administrative 

remedies. Stockton’s position during the hearing was that he filed grievances 

which pertained to his “failure to protect” claim. After carefully reviewing the 

testimony and documents, the trial court found otherwise. In relevant part, the trial 

court first rejected Stockton’s assertion that Grievance 342470, Stockton’s Exhibit 

1 at the hearing, pertained to the June 2010 assault incident. This grievance was 

first dated November 2010, and it appeared to relate to a different matter, the 

failure of a corrections officer to respond to one of Stockton’s numerous requests.

Next, the trial court accepted as credible DOC’s testimonial and 

documentary evidence from the coordinator of inmate grievances. He testified that 

another document Stockton identified as a June 2010 grievance appeared not 

authentic, because it lacked the coordinator’s stamp, markings and signature. He 

also testified that DOC’s computerized grievance records show several filings by 

Stockton during May and June 2010, but they were all for different matters. The 

numbers for the grievances ranged from 317490, filed May 10, 2010, to 325309, 

filed June 20, 2010. None of the grievances related to a “failure to protect” claim 

supposedly filed on around June 4, 2010. 

Also, in response to Stockton’s initial assertion that he handed his

written grievance to a specific corrections officer on June 4 or 5, 2010, DOC 

showed that the corrections officer did not work during that time. Stockton later 

changed his timing claims, a change in position that the trial court noted.
14

The trial court also referenced several other grievances attached to 

filings by Stockton. All the grievance numbers related to periods well after the 

June 2010 time frame, and they appeared to be related to other matters. 

Ultimately, the trial court found that Stockton did not exhaust his 

administrative remedies by filing a grievance. The trial court specifically rejected 

Stockton’s version of events and accepted the evidence supplied by the coordinator 

of inmate grievances.

Our review of the hearing testimony and exhibits reveals substantial

evidence supporting the trial court’s findings. Thus, we decline Stockton’s 

repeated invitations to revisit the findings.

c. Claimed Unavailability/Inapplicability of Grievance Remedy

Further, we reviewed the transcripts of the pre-trial conference of May 

29, 2015 and the hearing of July 17, 2015; however, we are unable to find where 

Stockton directed the trial court’s attention to his current additional factual 

arguments: that the grievance procedure was unavailable to him and that DOC was 

alerted to the underlying facts of his “failure to protect” claim by virtue of the 

misconduct proceedings. Accordingly, these factual arguments appear to have 

been waived for failure to submit them to the very patient fact-finder before the 

close of the record.

Not surprisingly, the record lacks any support for Stockton’s claim 

that the grievance remedy was unavailable to him. To the contrary, the record only 

supports a determination that Stockton was well aware of the grievance 

procedures, and he used them frequently. 
15

Moreover, there is no evidence that Stockton submitted a grievance on 

his “failure to protect” claim, and that it was rejected for the policy reason 

Stockton now asserts. Also with regards to Stockton’s belated policy argument, 

exhaustion of administrative remedies is mandatory, even if the administrative 

process cannot provide the prisoner with the relief he seeks. See Nyhuis; 

Chatcavage; see also Salter. Therefore, for factual and legal reasons, we reject 

Stockton’s argument that the grievance remedy was unavailable to him.6

Further we reject as frivolous Stockton’s assertion that the exhaustion 

of administrative remedies requirement does not apply to his lawsuit. See 42 

U.S.C §1997e(a); 42 Pa. C.S. §6603(a), (b); Kittrell.

d. Misconduct Appeals as Satisfying Exhaustion Requirement

We also reject Stockton’s assertion that all the underlying facts for his 

claim were revealed during the misconduct proceedings. The hearing record fails 

to support this assertion because Stockton did not offer any evidence supporting 

this position. Thus, there is no basis in the hearing record to evaluate what facts 

were revealed during the misconduct proceedings. Additionally, there is no 

information in the hearing record to establish that prison personnel were put on 

notice of Stockton’s “failure to protect” claim and afforded an opportunity to 

correct any errors prior to litigation. See Chatcavage.

 

6 Mindful that the trial court rejected Stockton’s testimony, there is no credible evidence 

that Stockton was told to delay filing a grievance or was impeded in any way. Compare Brown 

v. Croak, 312 F.3d 109 (3rd Cir. 2002); Camp v. Brennan, 219 F.3d 279 (3rd Cir. 2000). 
16

Here, Stockton’s misconduct appeal did not constitute an exhaustion 

of administrative remedies for a “failure to protect” claim. This conclusion is the 

same as that reached by the Third Circuit in Chatcavage, a decision properly relied 

on by the trial court here. Stockton did not give DOC the opportunity to correct 

any errors before he commenced suit. 

In short, exhaustion of administrative remedies is a prerequisite to 

filing a complaint in this context, and Stockton failed to exhaust his administrative 

remedies here.

C. Further Leave To Amend

Stockton next argues the trial court abused its discretion in not 

granting him further leave to amend his complaint to show he complied with the 

exhaustion requirement. Stockton asserts he “[e]xhausted the factual basis of [the] 

failure to protect claim ... [but that] the exhaustion requirement is only a means to 

alert officials of an issue [in order to] give [inmates] a chance to correct.”

Appellant’s Br. at 9.

DOC responds that Stockton did not set forth this assertion in his

statement of errors complained of on appeal; therefore, it is waived. See Pa. 

R.A.P. 1925(b)(3)(iv). However, DOC asserts, even if Stockton did not waive this

issue, he had a further opportunity to amend his complaint after this Court’s 

remand in Stockton I, but he did not do so. DOC further asserts, even if Stockton 

did amend his complaint on remand, such amendment would be futile as Stockton

could not show he complied with the exhaustion requirement.
17

Here, after Stockton’s appeal from the grant of summary judgment, 

the trial court ordered him to file a concise statement of errors pursuant to Pa. 

R.A.P. 1925(b). In its order, the trial court explicitly stated: “Stockton, is hereby 

notified that any issue not properly included in the timely filed statement shall be 

deemed waived by the appellate court.” C.R., Item No. 166. Stockton timely filed 

his 1925(b) statement. C.R., Item No. 167. Thereafter, the trial court issued its 

opinion. C.R., Item No. 168. In that opinion, the trial court found its “Opinion and 

Order entered on November 18, 2015, addressed the issues raised on appeal and 

provided the reasoning of [the trial court] in granting [DOC’s] Second Motion for 

Summary Judgment in this matter.” C.R., Item No. 168.

In his statement of errors complained of on appeal, Stockton did not

include the claim that the trial court abused its discretion in not granting him leave

to again amend his complaint in order to show he complied with the exhaustion 

requirement. Therefore, this issue is waived. See Commonwealth v. Castillo, 888 

A.2d 775 (Pa. 2005) (citing Commonwealth v. Lord, 719 A.2d 306 (Pa. 1998)) 

(“[a]ny issues not raised in a Pa. R.A.P. 1925(b) statement will be deemed 

waived”).

Further, even if properly preserved, any grant to further amend would 

be fruitless, given the trial court’s findings that Stockton did not prove he complied 

with the exhaustion requirement.

7

 See C.R., Item No. 163 at 4-6, n. 11. Therefore, 

we discern no reversible error.

 

7

Leave to amend a complaint is within the discretion of the trial judge. Balletta v. 

Spadoni, 47 A.3d 183 (Pa. Cmwlth. 2012). Leave to amend a complaint will be withheld where 

the initial complaint reveals the prima facie elements cannot be established and where the defects 

(Footnote continued on next page...)
18

D. Duty to Ensure Receipt of Discoverable Materials

Finally, Stockton argues the trial court had a duty to set up a process 

to ensure he received all discoverable materials necessary for his case. Stockton 

asserts DOC was required to turn over all information he requested that was 

relevant to “facts of claim.” Appellant’s Br. at 6. Stockton asserts DOC did not 

assert any of the discoverable material was protected by the attorney-client 

privilege, and thus those discoverable materials should be released to him for his 

case.

To that end, Stockton asserts the trial court “should have conducted an 

[in camera] inspection for discovery material that DOC claimed to provide security 

concerns.” Id. at 10. Stockton further argues DOC “could have provided” the 

requested materials in redacted form. Id; see also Williams v. Klem, Civ. No. 

3:07-1044 (M.D. Pa., filed March 3, 2011), 2011 WL 830537.

DOC counters that a process exists to ensure a defendant receives 

discoverable material. See Pa. R.C.P. Nos. 4000-4020. DOC asserts Stockton 

availed himself of that discovery process and served discovery motions on DOC. 

See C.R., Item Nos. 40, 46, 62, 74, 78, 110-111, 162; see also C.R., Item No. 52.

DOC argues that the fact that Stockton did not like the responses DOC provided 

does not mean the process was flawed. DOC further maintains that Stockton filed 

 

(continued...)

are so substantial that amendment is unlikely to cure them. Feldman v. Lafayette Green Condo. 

Assn., 806 A.2d 497 (Pa. Cmwlth. 2002).
19

several motions to compel, and those motions were denied. Id. DOC contends

these denials do not mean that discovery in this case was devoid of process.

Pa. R.C.P. Nos. 4000-4020 provide a clear path to discovery, 

including but not limited to Pa. R.C.P. No. 4009.1, pertaining to the production of 

documents and things, Pa. R.C.P. No. 4009.21, pertaining to subpoenas for 

production of documents, and Pa. R.C.P. No. 4009.27 pertaining to certificates of 

compliance that all documents and things required to be produced have, in fact, 

been produced.

There can be no argument that Stockton was aware of the discovery 

process, and that on numerous occasions he availed himself of that process. We 

conclude a discovery process was in place.

In short, we concur with DOC’s argument. Merely because Stockton 

did not like the responses from DOC does not mean that the process is non-existent

or flawed.

Based on the foregoing, we affirm.

 

ROBERT SIMPSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald Stockton, :

Appellant :

:

v. : No. 2350 C.D. 2015

:

Commonwealth of Pennsylvania :

Department of Corrections; :

Marirosa Lamas; B. Thompson; :

R. Marsh; T. Miller; L. Eatton; :

and R. Vance :

O R D E R

AND NOW, this 23rd day of August, 2016, the order of the Court of 

Common Pleas of Centre County is AFFIRMED.

 

ROBERT SIMPSON, Judge