Imanuel Bassil Ali v. Correctional Officer C.o. Suchocki

DLD-33 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-5160
IMANUEL BASSIL ALI,
Appellant,
v.
CORRECTIONAL OFFICER C.O. SUCHOCKI; C/O RAMBLER;
C/O. LAFFERTY; C/O GRAY; C/O SMITH; C/O DOYLE; C/O
HACKETT; C/O GOODMAN; C/O WALTER; C/O FERRO; C/O
BILONICK;C/O LANCASTER; C/O MICHAELUCCI; C/O BOLIN;
BARCLAY; C/O PLAVKOS; SGT. BROOKS,; SGT. LIPSCOMB;
LT. ESMUND; LT. LEGGETT; SGT. CONNER; C/O
ENGLEHARDT; SGT. ANDERSON; C/O FAUVIE; UNIT
COUNSELOR HARRIS; UNIT MANAGER KEN MILLER; UNIT
PSYCHOLOGIST MARY ANN MISTRIK; UNIT MANAGER
WARMAN; UNIT MANAGER CAPOZZA; CHAPLAIN MONIK; PRC
COORDINATOR JEAN MEARS; T. JACKSON, Deputy Superintendent
of Treatment; STICKMAN, Superintendent of Facility; DAN DAVIS,
Superintendent Assistant/Grievance Coordinator; SHARON DELETTO,
Grievance Coordinator; IVAN, RHU Counselor; L.S. FOLINO,
Superintendent of Facility; CAPTAIN HALL, RHU Shift Commander;
CAPT. LANTZ; BRENDA MARTIN, Unit Manager; UNIT
COUNSELOR MARIA BALESTRIERI; JEFFREY BEARD, Secretary of
DOC; H. C. O'HARA, Director of Office of Professional Responsibility
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 05-cv-01697)
District Judge: Honorable Donetta W. Ambrose
Submitted on Motions to Reopen the Appeal Pursuant to 3 Cir. LAR Misc.rd
107.2 and for Leave to Appeal In Forma Pauperis Pursuant to 28 U.S.C. § 1915

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The District Court denied as moot Ali’s post-judgment motion to voluntarily dismiss1
some of the defendants from the action.
2
October 25, 2007
Before: BARRY, CHAGARES AND VAN ANTWERPEN, CIRCUIT JUDGES.
(Opinion filed November 9, 2007)
OPINION
PER CURIAM
Appellant Imanuel Bassil Ali filed an in forma pauperis civil rights complaint in
United States District Court for the Western District of Pennsylvania against numerous
defendants, alleging a violation of his constitutional rights in connection with his food
and right to petition the court to seek redress of grievances. After Ali’s deposition was
taken, the defendants moved for summary judgment, contending, in pertinent part, that he
failed to exhaust his administrative remedies prior to filing suit with respect to all but two
of his grievances, 42 U.S.C. § 1997e(a), and those that he did exhaust did not rise to the
level of constitutional violations. The Magistrate Judge filed a Report and
Recommendation, addressing that motion, and Ali filed Objections to it. In an order
entered on November 27, 2006, the District Court granted summary judgment to the
defendants.1
Ali appealed, but his appeal was procedurally terminated by our Clerk for failure

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to pay the appellate fees. He has submitted motions to reopen the appeal pursuant to 3rd
Cir. LAR Misc. 107.2 and for leave to appeal in forma pauperis pursuant to 28 U.S.C. §
1915, which we will grant.
We will dismiss the appeal as frivolous. An appellant may prosecute his appeal
without prepayment of the fees, 28 U.S.C. § 1915(a)(1), but the in forma pauperis statute
provides that the Court shall dismiss the appeal at any time if the Court determines that it
is frivolous, 28 U.S.C. § 1915(e)(2)(B)(i). An appeal is frivolous when it lacks an
arguable basis either in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Our
review of the District Court's grant of summary judgment is plenary and we must affirm
summary judgment if there is no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-
23 (1986). We conclude that there is no arguable basis in fact or law for disagreeing with
the District Court’s summary judgment determination. Neitzke, 490 U.S. at 325; Celotex
Corp., 477 U.S. at 322-23.
A prisoner must exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a)
prior to bringing suit. See Booth v. Churner, 532 U.S. 731 (2001). As explained by the
Magistrate Judge in a Report and Recommendation adopted by the District Court, Ali is
barred from relief because of the procedural defaults he committed during the grievance
process with respect to all but two of his grievances, see Spruill v. Gillis, 372 F.3d 218,
230 (3d Cir. 2004) (Prison Litigation Reform Act contains a procedural default

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Although many of Ali’s grievances were rejected prior to the final appeal stage on2
the ground that he would not use the name that appears on his judgment of commitment,
Emanuel Lester, we agree with the Magistrate Judge that the grievance process was not
thereby rendered unavailable to him. We held in Ali v. Horn, C.A. No. 98-7214, that
prison officials could, consistent with the First Amendment, require Ali to use the name
on his judgment of commitment.
This grievance was rejected as frivolous. The grievance officer who investigated the3
complaint reasoned that, because Ali did not immediately complain about his tray as he
usually did when something was genuinely wrong, it was likely that the complaint was a
ploy to obtain extra food, something Ali had tried on other occasions.
4
component). In his deposition he could not recall completing the three levels of review,
see DC-ADM-804, except as to grievance nos. 121278 and 115857. The defendants
established by the affidavit of Kristen Reisinger that the only fully exhausted grievances
are nos. 121278 and 115857.2
Turning to the constitutional merit of these grievances, Ali claimed in one that his
package of pop tarts had been opened, which indicated to him that someone had tampered
with his food. He contended in the other that, after eating allegedly tainted food on June3
6, 2005, he developed a headache and nausea. In order to state a constitutional claim of
cruel and unusual punishment, a plaintiff's complaint must satisfy both the objective and
subjective requirements for an Eighth Amendment action pursuant to 42 U.S.C. § 1983.
Wilson v. Seiter, 501 U.S. 294, 298-99 (1991). Preliminarily, a plaintiff must show that
the deprivation was sufficiently serious. Id. at 298. The incidents about which Ali
complained do not rise to this level. There is no evidentiary support for Ali’s assertion of
adulterated food and thus no reason for a trial. Anderson v. Liberty Lobby, Inc., 477 U.S.

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Because Ali’s claims have no constitutional significance, we need not reach the4
question of whether the doctrines of respondeat superior and/or qualified immunity shield
the defendants from this action.
242, 249-50 (1986). The allegation that the food tampering was in retaliation for his4
previous litigation in 2002 also has no evidentiary support, id.; see also Rauser v. Horn,
241 F.3d 330, 333 (3d Cir. 2001).
We will grant the motions to reopen the appeal and for leave to appeal in forma
pauperis and dismiss the appeal as frivolous pursuant to 28 U.S.C. § 1915(e)(2)(B)(i).
The Clerk is directed to do an assessment order under section 1915(b).

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