Joshua Payne v. K. Ducan, et al

Filing

NOT PRECEDENTIAL PER CURIAM OPINION Coram: AMBRO, GREENAWAY JR. and SCIRICA, Circuit Judges. Total Pages: 4. BLD-209

Case: 17-1442

Document: 003112670104

Page: 1

BLD-209

Date Filed: 07/10/2017

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 17-1442
___________
JOSHUA I. PAYNE,
Appellant
v.
K. DUNCAN; J. ZEIGLER; S. SETTLE;
K. MCELWAIN; MICHAEL BELL; S. WHALEN
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 15-cv-01010)
District Judge: Honorable Robert D. Mariani
____________________________________

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
May 4, 2017
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
(Opinion filed: July 10, 2017)
_________
OPINION*
_________
PER CURIAM

*

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

Case: 17-1442

Document: 003112670104

Page: 2

Date Filed: 07/10/2017

Joshua Payne appeals, pro se and in forma pauperis, the District Court’s final
order granting Defendants’ motion for summary judgment. We will summarily affirm
because no substantial question is presented.
In May 2015, Payne filed suit under 42 U.S.C. § 1983 against six SCI Camp Hill
employees – Duncan, Ziegler, Settle, McElwain, Whalen, and Bell. Payne specifically
alleged that, in retaliation for filing previous grievances and lawsuits, Duncan and Ziegler
searched his cell in March 2013 and removed and discarded his legal and religious
materials and personal photographs. The officers allegedly denied his request for a
confiscation slip, and defendants McElwain and Settle refused to act on his report of
missing property. Payne alleged that all six defendants violated his equal protection
rights by obstructing his ability to present his evidence in other lawsuits. Payne alleged
that defendants Settle, McElwain, and Whalen conspired to violate his constitutional
rights by assisting in the destruction of his legal materials. He alleged that Bell conspired
to violate his constitutional rights by assigning Whalen as his initial grievance officer in
violation of the prison grievance procedure. Payne filed a prison grievance in March
2013 and alleges he also submitted a subsequent grievance.
The Defendants moved to dismiss for failure to state a claim or, in the alternative,
summary judgment. The District Court entered summary judgment in favor of the
Defendants. Payne timely appealed.

2

Case: 17-1442

Document: 003112670104

Page: 3

Date Filed: 07/10/2017

We have jurisdiction under 28 U.S.C. § 1291, and review de novo the District
Court’s decision to grant summary judgment. Gallo v. City of Philadelphia, 161 F.3d
217, 221 (3d Cir. 1998). While viewing the facts in a light most favorable to the
nonmoving party, Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10 F.3d 144,
146 (3d Cir. 1993), we will affirm if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); Celotex
Corp. v. Catrett, 477 U.S. 317, 323-33 (1986).
Payne has not properly exhausted the claims presented in his federal civil rights
suit. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 92 (2006); Spruill v.
Gillis, 372 F.3d 218, 232 (3d Cir. 2004). A Pennsylvania inmate’s failure to properly
identify a fact relevant to a claim – including the identity of a defendant – in a grievance
constitutes a failure to properly exhaust his administrative remedies as to that defendant.
See Spruill, 372 F.3d at 234.
Here, Payne’s initial grievance named only Defendant Whalen – Duncan, Ziegler,
Settle, and McElwain are not named at all, and the grievance is merely addressed to Bell.
Payne did not assert any claims relating to access to courts, equal protection, the Eighth
Amendment, or substantive or procedural due process in his initial grievance. Payne’s
administrative appeal mentioned only Whalen. Payne’s final appeal at the prison level
did not identify any of the named Defendants, nor did it assert any claims relating to
access to courts, conspiracy, substantive or procedural due process, the Eighth

3

Case: 17-1442

Document: 003112670104

Page: 4

Date Filed: 07/10/2017

Amendment, or equal protection. Payne has submitted no argument or evidence showing
that he named these defendants or claims at any point in the grievance process.
The material facts are thus not in dispute: Payne did not properly exhaust all
available administrative remedies as to the Defendants because he did not identify each
of them in his prison grievances or subsequent appeals. See 42 U.S.C. § 1997e(a);
Spruill, 372 F.3d at 234. And he did not exhaust his administrative remedies as to the
access to courts, conspiracy, substantive and procedural due process, Eighth Amendment,
or equal protection claims for the same reason. Thus, Defendants are entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp., 477 U.S. at 32333.
For the foregoing reasons, we will summarily affirm the District Court’s order.
See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.

4