2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-19-2012

Jerry Shrubb v. Warden Jefferson County Prison

Precedential or Non-Precedential: Non-Precedential

Docket No. 12-1949

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Recommended Citation

"Jerry Shrubb v. Warden Jefferson County Prison" (2012). 2012 Decisions. Paper 689.

http://digitalcommons.law.villanova.edu/thirdcircuit_2012/689
1

ALD-225 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-1949

___________

JERRY SHRUBB,

Appellant

v.

WARDEN, JEFFERSON COUNTY PRISON; DEPUTY WARDEN, JEFFERSON 

COUNTY PRISON; JOHN DOES CORRECTIONAL OFFICER(S)/SERGEANT(S), 

JEFFERSON COUNTY PRISON; PRIMECARE MEDICAL., INC. GLENNA 

BODENHORN, R.N; CARRIE MITCHELL, L.P.N; CYNTHIA STRADOFSKY, 

L.P.N.; CINDY CUNNINGHAM, PA

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 2-09-cv-01013)

District Judge: Honorable Maureen P. Kelly, Magistrate Judge

____________________________________

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

July 12, 2012

Before: SLOVITER, FISHER and WEIS, Circuit Judges

(Opinion filed: July 19, 2012)

_________

OPINION

_________

PER CURIAM.
2

Jerry Shrubb appeals pro se

I.

from the order of the United States District Court for 

the Western District of Pennsylvania granting Defendants’ motion for summary 

judgment. Because the appeal is lacking in arguable merit, we will dismiss it under 28 

U.S.C. §1915(e)(2).

As the parties are familiar with the extensive procedural background of this case 

we will only briefly mention the procedural history. Shrubb is a Pennsylvania state 

prisoner. He filed suit against the warden and employees of Jefferson County Prison and 

medical personnel at the prison, alleging various federal and state law claims arising out 

of his fifteen-day confinement at the prison in 2007 while awaiting transfer to a State 

Correctional Institution. Richardson alleges that he was inappropriately placed on suicide 

watch and deprived of his anti-psychotic medications and his pain medication. While in 

custody, Shrubb underwent withdrawal from his medication, and suffered extended 

periods of severe hallucination in which he often could not distinguish what was real. He 

further alleges that, during his time on suicide watch, he was deprived of showers, 

physically and verbally abused, and forced to defecate on the floor.

On January 31, 2012, the District Court1

 1 The parties consented to proceed before a Magistrate Judge under 28 U.S.C. §636(c).

granted the defendants’ motions for 

summary judgment, finding that Shrubb had failed to exhaust his available administrative 

remedies and that the court no longer had jurisdiction over his state claims. This appeal 

followed.
3

We have appellate jurisdiction under 28 U.S.C. §1291, and because Shrubb is 

proceeding in forma pauperis, we review the appeal for possible dismissal under 28 

U.S.C. §1915(e)(2). This Court’s review is plenary. See McGreevy v. Stroup, 413 F.3d 

359, 363 (3d Cir. 2005) (stating standard of review over an order granting summary 

judgment). An appeal must be dismissed under 28 U.S.C. §1915(e)(2) if it has no 

arguable basis in law or fact. Neitzke v.Williams

II.

, 490 U.S. 319 (1989).

We agree with the court that Shrubb failed to exhaust his available administrative 

remedies. Exhaustion is required by 42 U.S.C. §1997(e) before an inmate suit can be 

maintained. Booth v. Churner, 532 U.S. 731, 739 (2001). Exhaustion of administrative 

remedies must be proper and in accordance with applicable regulations and policies, and 

noncompliance cannot be excused by the courts. Woodford v. Ngo, 548 U.S. 81, 83 

(2006). Failure to comply with procedural requirements of the applicable prison’s 

grievance system will result in a procedural default of the claim. Spruill v. Gillis

The Jefferson County Handbook provides a three-step process for grievances: 1) 

the inmate should first attempt to speak or write to staff about the grievance; 2) the 

inmate must submit a completed request form to the Deputy Warden stating the nature of 

the grievance, who will then provide a grievance form; and 3) the grievance form must be 

sent back to the Deputy Warden within fifteen days of the event on which the claim is 

based. Shrubb admits that he did not file a written grievance form although he did orally 

, 372 

F.3d 218, 227-32 (3d Cir.2004).
4

complain to the officers. Shrubb claims that he was unable to file a grievance because he 

was in the middle of a “psychotic break.” However, Shrubb had received a copy of the 

Inmate Handbook, and had properly submitted requests on other occasions during his 

stay at Jefferson County Prison. He argues that his oral complaints to the Defendants 

were sufficient to exhaust his administrative remedies. This is not so. Shrubb was aware 

of and had previously availed himself of the proper procedures, and could have done so 

for this grievance. Shrubb’s failure to exhaust administrative grievances resulted in a 

procedural default.

Because the federal claims were dismissed before trial, the court properly 

dismissed the state law claims for lack of jurisdiction. Where the claim over which the 

district court has original jurisdiction is dismissed before trial, the district court must 

decline to decide the pendent state claims unless considerations of judicial economy, 

convenience, and fairness to the parties provide an affirmative justification for doing so. 

Borough of W. Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (citing Lovell Mfg. 

v. Export-Import Bank of the United States

In sum, because this appeal is lacking in arguable legal merit, we will dismiss it 

according to 28 U.S.C. §19158(e)(2).

, 843 F.2d 725 (3d Cir. 1988)). In the present 

case the court correctly noted that, as the statutes of limitation on Shrubb’s state law 

claims were tolled while the claim was pending in Federal Court, there were no further 

considerations that would warrant hearing the pendent state claims in federal court. The 

court was thus correct in dismissing the claims without prejudice.