Abdul Brown v. Pennsylvania Department of Corrections

DLD-126 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3625
___________
ABDUL BROWN,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JEFFREY A. BEARD;
JOHN S. SHAFFER; LANCE COUTURIER; FREDERICK MAUE; SHARON BURKS;
HARRY WILSON; MARK KRYSEVIG; LINDA HARRIS; CAROL SCIRE;
DARLENE LINDERMAN; ROBERT TRETINIK; EDWARD MANCHAS;
MICHAEL ZAKEN; GARY GALLUCCI; DANIEL HOOPER;
GREGORY MOHRING; ROBERT STAFFORD; MARK MOZINGO; CHRIS MEYER;
KATRINA SHIVER; DONNA VILCOSS; MIKE PIOVARCHY; BRIAN PETROSKY;
JAMES REED; RAY A. BARNES; ADAM SNYDER; DAN EVANS; PETE
SAAVEDRA; HALLEY; RICHTER; KEEFER; KREMPOSKY; GARY ABRAMS
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 05-969)
District Judge: Honorable Gary L. Lancaster
____________________________________
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
February 7, 2008
Before: BARRY, CHAGARES AND GREENBERG, CIRCUIT JUDGES.
(Opinion filed: April 1, 2008)
_________
OPINION
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By orders entered January 23, 2006, and November 13, 2006, the District Court1
dismissed the Department of Corrections and Christopher Meyer from the case. Brown
does not seek review of these orders.
2
PER CURIAM
Abdul Brown, a Pennsylvania state prisoner proceeding pro se, appeals from the
District Court’s orders granting the appellees’ motions for summary judgment. For the
reasons set forth below, we will summarily affirm the District Court’s order. See I.O.P.
10.6.
I.
Brown is presently incarcerated at the State Correctional Institute at Fayette,
Pennsylvania (“SCI-Fayette”). In July 2005, Brown commenced a civil rights action
under 42 U.S.C. § 1983 in the United States District Court for the Western District of
Pennsylvania against the Pennsylvania Department of Corrections, 31 of its employees
(the “Commonwealth Defendants”), Dr. Pete Saavedra, and Physician’s Assistant
Christopher Meyer. In the complaint, which contained over 116 paragraphs of1
accusations, Brown essentially alleged that he was subjected to cruel and unusual
conditions while incarcerated in the Long Term Segregation Unit at SCI-Fayette. Brown
claimed that the Commonwealth Defendants mistreated him in retaliation for his having
commenced litigation against the Department of Corrections. Brown also alleged that Dr.
Saavedra deprived him of adequate psychiatric treatment in retaliation for his having filed

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the lawsuit. Brown sought relief under the First, Fourth, Eighth, and Fourteenth
Amendments.
Following discovery, the Commonwealth Defendants and Dr. Saavedra both
moved for summary judgment on the ground that Brown had not exhausted his
administrative remedies prior to commencing this action. The matter was referred to
Magistrate Judge Robert C. Mitchell, who agreed that Brown had failed to exhaust his
grievances against the Commonwealth Defendants, but found that he had attempted to
pursue administrative appeals for his grievance against Dr. Saavedra. By order entered
April 12, 2007, the District Court adopted the Magistrate Judge’s report, granted the
Commonwealth Defendants’ motion, and denied Dr. Saavedra’s motion.
Dr. Saavedra subsequently filed a second motion for summary judgment, this time
alleging that Brown had failed to offer sufficient evidence to support his Eighth
Amendment claim. Magistrate Judge Mitchell agreed, and the District Court granted the
motion. Now, Brown appeals from the District Court’s orders granting summary
judgment to the Commonwealth Defendants and Dr. Saavedra.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review a
District Court’s grant of summary judgment de novo. Pennsylvania Coal Ass’n v.
Babbitt, 63 F.3d 231, 236 (3d Cir. 1995). Summary judgment is proper only if it appears
“that there is no genuine issue as to any material fact and that the moving party is entitled

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to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); Carrasca v. Pomeroy, 313 F.3d
828, 832-33 (3d Cir. 2002). If a motion for summary judgment demonstrates that no
genuine issue of material fact exists, the nonmoving party must set forth specific facts
showing a genuine material issue for trial and may not rest upon the mere allegations or
denials of his pleadings. Connors v. Fawn Mining Corp., 30 F.3d 483, 489 (3d Cir.
1994).
III.
A. The Commonwealth Defendants’ Motion for Summary Judgment
Upon review, we believe that the District Court properly granted the
Commonwealth Defendants’ motion for summary judgment on the ground that Brown
failed to exhaust his administrative remedies before commencing the present action.
Under 42 U.S.C. § 1997e(a), a prisoner is required to exhaust the available administrative
remedies before bringing a federal civil rights action concerning prison conditions. See
Booth v. Churner, 532 U.S. 731, 741 (2001). The Pennsylvania Department of
Corrections has a three-tiered grievance system which serves as a prisoner’s
administrative remedy: (1) initial review; (2) appeal to the Superintendent; and (3) appeal
to the Secretary’s Office for final review. See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir.
2004).
In support of their summary judgment motion, the Commonwealth Defendants
submitted a declaration on behalf of Kristen Reisinger, an Administrative Officer in the

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The record reveals that Brown filed additional grievances after July 14, 2005, the date2
upon which he filed the present complaint.
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Office of Inmate Grievances. In her declaration, Ms. Reisinger stated that during the
relevant period, Brown filed 60 inmate grievances, but failed to properly exhaust any of
them. In response to the Commonwealth Defendants’ motion, Brown submitted2
documentation demonstrating that, contrary to Ms. Reisinger’s contention, he had
properly exhausted one of those 60 grievances, Grievance #105975. While it appears that
Brown is correct, Grievance #105975 pertained to Dr. Saavedra, not to the
Commonwealth Defendants. Brown did not provide any other evidence demonstrating
that he had appealed from his grievances against the Commonwealth Defendants.
Accordingly, we conclude that summary judgment was proper. See Carrasca, 313 F.3d at
832-33.
B. Dr. Saavedra’s Motion for Summary Judgment
We also agree with the District Court that Brown failed to provide sufficient
evidence to withstand summary judgment on his claims against Dr. Saavedra. In the
complaint, Brown alleged that Dr. Saavedra maliciously discontinued Brown’s anti-
psychotic medication in violation of his Eighth Amendment rights, and in retaliation for
his having commenced litigation against the Department of Corrections. In order to
prevail on his Eighth Amendment claim, Brown must show that Dr. Saavedra was
deliberately indifferent to a serious medical need. See Estelle v. Gamble, 429 U.S. 97,

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104 (1976). To prevail on his retaliation claim, Brown must show that he engaged in
constitutionally protected activity, that he suffered adverse action at the hands of a state
actor, and that the protected activity was a substantial factor in causing the adverse action.
See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003).
In support of his summary judgment motion, Dr. Saavedra submitted numerous
medical records demonstrating that he had provided medical treatment to Brown on at
least 18 occasions during the relevant period, and that his decision to discontinue Brown’s
medication was based on Brown’s refusal to take it. In order to withstand summary
judgment, Brown was required to set forth specific evidence showing a genuine material
issue for trial. See Connors, 30 F.3d at 489. Brown, however, failed to produce any
evidentiary support for his claims. Indeed, at his deposition, Brown conceded that the
only evidence he had was “his belief,” and his “word” against that of Dr. Saavedra.
In his opposition to Dr. Saavedra’s motion, Brown did not attempt to provide any
support for his claims, but instead argued that the court should reject the motion as
untimely under the court’s case management order. Brown also argued that Dr. Saavedra
should have raised this argument in his first summary judgment motion. While Brown’s
arguments are sound, we agree with the Magistrate Judge that, given the total lack of
evidentiary support for Brown’s claims, it was prudent to dismiss them prior to trial.
Accordingly, we believe that the District Court properly entered summary judgment on
Brown’s claims against Dr. Saavedra. See id.

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Approximately four months after initiating this appeal, Brown submitted a motion to3
withdraw his appeal in order to recover his filing fees and to terminate deductions from
his prison account. Because Brown’s filing fee will not be returned to him even if he
withdraws the appeal, we deny the motion. See Goins v. Decaro, 241 F.3d 260, 261-62
(2d Cir. 2001) (“The [Prison Litigation Reform Act of 1995] makes no provision for
return of fees partially paid or for cancellation of the remaining indebtedness in the event
that an appeal is withdrawn.”)
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IV.
For the foregoing reasons, we conclude that the District Court properly granted
summary judgment in favor of the Commonwealth Defendants and Dr. Saavedra. As
there is no substantial question presented by this appeal, we will summarily affirm. See3
Third Cir. LAR 27.4; I.O.P. 10.6.

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