IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey D. Turner, :

Appellant :

:

v. : No. 1472 C .D. 20 1 6

: Submitted: January 27 , 20 1 7

Sgt. Knight, Sgt. Justice, :

CO1 Besetter, CO1 John Doe #1, :

CO1 John Doe #2, M. Lamas Ex : Facility Mgr, Jeffrey Rockovan, : Major IV, Sgt. Jerry Young, CO1 D. : Moyer, CO1 A. Taylor, CO1 N., CO1 : Ngwanda, Lt. Settler, CO1 Porte, :

CO1 John Doe #3, Lt. Lusts : B. Rupert Unit Manager of A

- Block, : Link Unit Manager of J

- Block, : M. Luciano, R. Shrimp Grievan ce : Coordinator, Deputy, Lt. McEllan, : Lt. Foster, Rev. McCoy Chaplain, :

John Doe #7, Jane Doe #7, CO1 :

Emerick J

- Block, John Doe #8, :

John Doe #9, B.J. Solomon CCPM, : Shawn Kephart, Pitkens Facility : Manager, Religious Accommodation :

Committee, D. Varner Chief :

Grievance Coordinator, T. Williams :

Grievance Coordinator, John Wetzel :

BEFORE: HONORABLE R ENÉE COHN JUBELIRER, Judge

HONORABLE JULIA K. HEARTHWAY, Judge

HONORABLE DAN PELLEGRINI, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY

SENIOR JUDGE PELLEGRINI FILED: February 24, 2017

Jeffrey D. Turner (Turner), a state prisoner, appeals pro se from the

order of the Court of Common Pleas of Centre County (trial court) dism issing his2

action because he failed to exhaust his admi nistrative remedies as required by Section

6602(e) of Pennsylvania’s Prison Litigation Reform Act (PLRA)

, 42 Pa.C.S. §

6602(e)

, before bring ing the action

. 1 We affirm.

Turner filed a complaint , later amended, against certain officers of the

Department o f Corrections (D epartment ) for incident s that allegedly occurred while

he was incarcerated at the State Correctional Institution (SCI) at Rockview. 2

However, because all other actions and defendants were previously dismissed

, 3 t he

1 42 Pa.C.S. § 6602(e) provide s, in pertinent part:

(e) Dismissal of litigation.

-- Notwithstanding any filing fee which has

been paid, the court shall dismiss prison conditions litigation at any

time, including prior to service on the defendant, if the court

determines any of the following:

* * *

(2) The prison conditions litigation is frivolous or malicious or

fails to state a claim u pon which relief may be granted. . . .

42 Pa.C.S. § 6601 defines “Prison conditions litigation” as “[a] civil proceed ing arising in whole or

in part under Federal or State law with respect to the conditions of confinement or the effects of

actions by a government party on the life of an individual confined in prison.” Moreover, p ursuant

to Section 6603(a) of the PLRA, l itigation is subject to both federal and state exhaustion

requirements with regard to civil rights claims implicating prison conditions. 42 Pa.C.S. § 6603(a).

The federal Prison Litigation Reform Act states that exhaustion of administrative remedies is

ma ndatory when federal claims are asserted. See 42 U.S.C. § 1997e; Kittrell v. Watson , 88 A.3d

1091, 1095 (Pa. Cmwlth. 2014).

2 Turner was transferred out of SCI

- Rockview and is currently incarcerated at SCI

- Benner

Township

.

3 After Turner filed his amend ed complaint, the Department filed an Answer and New

Matter asserting various preliminary objections. On August 20, 2015, the trial court sustained all of

the Department’s objections save for the current cause of action before this court, and a ll other

de fendants were dismissed from the underlying action. In the present appeal, Turner does not raise

(Footnote continued on next page...)3

only cause of action tha t Turner now pursue s alleges that on July 12, 2013,

d efendants Mondy, Taylor and John Doe #4 (collectively, Remaining Defendants) 4

“ slammed [him] into the walls and the gate in the [Restricted Housing Unit] strip

cage[,] and threatened his life as well

, ” 5 and that these actions amount to excessive

force and cruel and unusual punishment in violation of the Eighth Amendment to the

United States Constitution

.

After the pleadings were closed, t he Remaining Defendants filed a

motion for summary judgment assert ing that the action should be dismissed under

Section 6602(e) of the PLRA

, 42 Pa.C.S. § 6602(e), because Turner failed to exhaust

his administrative remedies as outlined in the D epartment ’s Inmate Grievance

Review System (Grievance Policy), DC

- ADM 804. 6 A ffidavit s w ere attached to th is

motion stating that Turner did not timely file a grievance relating to the allegations in

the amended complaint that specifically n am ed the Remaining Defendants.

(continued...)

any specific arguments with respect to the trial court’s previous order sustaining the Department’s

preliminary objections

.

4 Turner lists “ CO1 A. Taylor ” in the caption for this matter, above, but fails to include

either “Mondy” or “John Doe #4

. ”

5 (Record (R.) Item 16, Amended Complaint at 5.)

6 The Department’s Administrative Directives, including DC

- ADM 804, are available at

http://www.cor.pa.gov.4

In his response to the Remaining Defendant s ’ motion for summ ary

judgment

, Turner contended that he exhaust ed his administrative remedies by filing

Grievance 481695 (Grievance) on October 11, 2013 . Th e Grievance provides:

Today I received legal mail from my attorney with the

[statutes] [t]hat COI Moyer and [COI] Yo ung did in fact

[violate] . . . current [policies] as well as show “deliberate

indifference” as well as (RLUIPA) [Religious Land Use

And Institutionalized Persons Act] under 42 U.S.C.

§2000cc to cc5. On July 12 th 2013 they both . . . [coerced]

me to submi t to a “pat search” while attempting to enter B

yard, which resulted in sexual harassment, assault by staff

and ethnic intimidation of my person and religious beliefs . .

. I would like this practice stopped as well as $250,000.00

in damages & charges imp osed. I have spoken and written

to staff as calling [such] as calling the sexual hotline on

7/28/13 [at appro ximately] 12:00 pm with no results . . . .

( Record ( R. ) Item No. 56, “Plaintiff’s Motion for Summary Judgment, to Challenge

Validity of Defendan t’s Summary Judgment

. ” ) Significantly , th at Grievance does not

name any of the Remaining Defendants and was rejected as untimely because it was

filed almost two months after the alleged incident took place.

Turner also contended that he exhausted his adm inistrative remedies

pursuant to Grievance Policy DC

- ADM 008, “Prison Rape Elimination Act (PREA),”

because , as his Grievance provides

, he called the Sexual Abuse Hotline (Hotline) on

July 28, 2013

, to report the incident.

The trial court determined that because Turner’s Grievance was

untimely

, he never filed a grievance under DC

- ADM 804 which deals with prison

abuse allegations. Th e trial court also found that DC

- ADM 008 does not apply

because it only pertains to sexual assault and abuse , which is not a lleged against the5

Remaining Defendants and, in any event, the Hotline call relate d to a completely

different incident of alleged sexual misconduct and did not specifically name or

involve any of the Remaining Defendants . Because he failed to exhaust his

administrative remedies, the trial court granted the Remaining Defendant s ’ motion

for summary judgment and dismissed Turner’s action with prejudice. 7 This appeal

followed. 8

On appeal, Turner contends that the trial court erred when determining

that he f ailed to exhaust his administrative remedies because he submitted the

Grievance and called the Hotline about an alleged incident of sexual abuse and

somehow that should serve as showing that he exhausted his administrative remedies.

The administrative re medies available for complaints regarding prison

conditions are set forth in the Department’s Grievance Policy and regulations.

“Section 93.9 [of the Department’s regulations] establishes an inmate grievance

system that provides a forum for prison inmates to complain to the Department about

problems that arise ‘during the course of confinement.’ 37 Pa. Code § 93.9.”

Morgalo v. Gorniak , 134 A.3d 1139, 1150 (Pa. Cmwlth. 2016) (quoting McCray v.

7 App ealing the trial court’s order, Turner attached Grievance Policy DC

- ADM 001,

contending the trial court erred in not finding that it applied without saying why it should apply.

Because Turner failed to raise this issue previously , t he trial court correctl y reasoned in its Opinion

in Response to Erro rs Complained of on Appeal that the issue is waived. See Pa.R.A.P. 302(a)

(“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”)

8 Our review of a trial court or der granting summary judgment is limited to determining

whether the trial court abused its discretion or committed an error of law. Manley v. Fitzgerald , 997

A.2d 1235, 1238 n. 2 (Pa. Cmwlth. 2010). Summary judgment may only be granted when, after

examini ng the record in the light most favorable to the non

- moving party, the record clearly

demonstrates that there are no genuine issues of material fact and the moving party is entitled to

judgment as a matter of law. Id.6

Department of Corrections , 872 A.2d 1127, 1131 (Pa. 2005)). T he Department’s

Grievance Policy and Inmate Handbook provide that:

[ t ] he inmate grievance process begins with the filing of a

grievance with the Facility Grievance Coordinator.

. . . ‘The [process] requires an inmate who has received an

initial determin ation on his grievance to appeal to the

Superintendent and, thereafter, seek final review with [the

Department]. If the inmate fails to complete each of these

steps, he fails to exhaust his administrative remedies.’

Kittrell v. Watson , 88 A.3d 1091, 1095 (Pa. Cmwlth. 2014).

Morgalo , 134 A.3d at 1150

- 51.

Here, affidavit s are attached to the Remaining Defendant s ’ motion for

summary judgment stating that Turner has not timely filed any grievances related to

the underlying incident that specifically name the Remaining Defendants

. Turner

also consistently fails to allege that he timely filed a grievance specifically naming

and pertaining to actions by the Remaining Defendants

, all of which must occur

before he is able to maintain his claims

.

Accordingly, b ecause Turner has failed to exhaust all administrative

r emedies, we affirm the trial court ’ s order dismissing this matter with prejudice.

_________________________________ DAN PELLEGRINI, Senior JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Jeffrey D. Turner, :

Appellant :

:

v. : No. 1472 C .D. 201 6

: Sgt. Knight, Sgt. Justice, :

CO1 Besetter, CO1 John Doe #1, :

CO1 John Doe #2, M. Lamas Ex : Facility Mgr, Jeffrey Rockovan, : Major IV, Sgt. Jerry Young, CO1 D. : Moyer, CO1 A. Taylor, CO1 N., CO1 : Ngwanda, Lt. Settler, CO1 Porte, :

CO1 John Doe #3, Lt. Lusts : B. Rupert Unit Manager of A

- Block, : Link Unit Manager of J

- Block, : M. Luciano, R. Shrimp Grievance : Coordinator, Deputy, Lt. McEllan, : Lt. Foster, Rev. McCoy Chaplai n, :

John Doe #7, Jane Doe #7, CO1 :

Emerick J

- Block, John Doe #8, :

John Doe #9, B.J. Solomon CCPM, : Shawn Kephart, Pitkens Facility : Manager, Religious Accommodation :

Committee, D. Varner Chief :

Grievance Coordinator, T. Williams :

Grievance Coordina tor, John Wetzel :

O R D E R

AND NOW, this 24 th day of February , 201 7 , it is hereby ordered that

the Court of Common Pleas of Centre County’s order dated July 14, 2016, is

affirmed.

_________________________________ DAN PELLEGRINI, Senior Jud ge