Gregory L. Hughes v. Joseph W. Chesney

APS-33 UNREPORTED - NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-2824
________________
GREGORY L. HUGHES,
Appellant
v.
JOSEPH W. CHESNEY;
LINDA J. NAUROTH, (H.C.A.C.);
DERFLER, (R.H.U.); O'CONNOR
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 00-cv-00017)
District Judge: Honorable Edwin M. Kosik
_______________________________________
Submitted For Possible Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
October 30, 2003
Before: SLOVITER, ROTH and AMBRO, Circuit Judges.
(Filed November 21, 2003)
_______________________
OPINION
_______________________
PER CURIAM
Gregory Lamont Hughes, a prisoner, filed a § 1983 complaint, which was

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1 The Complaint, originally filed in the Eastern District, was transferred to the Middle 1
District in January, 2000. 2
2
amended, alleging several violations of his constitutional rights under the First, Eighth
and Fourteenth Amendments.1 Specifically, he alleged the following: (1) the defendants
were deliberately indifferent to his medical needs when they denied him available
treatment for Hepatitis-C; (2) Hughes was wrongly held in restrictive custody for 117
days in violation of his due process rights; (3) the defendants retaliated against him for
filing grievances against them by (a) disciplining him from May, 1999 through July 23,
1999 (117 days), based on five false misconduct reports; (b) denying him access to courts,
legal materials, the law library, and phone calls to his attorney and by opening, tampering
with, and delaying his incoming and outgoing legal mail; and (c) by harassing him with
racially discriminatory remarks; (4) the defendants denied him access to the courts by
denying him use of the law library and by denying him an emergency call to his attorney
while he was in restrictive custody, causing him to miss a deadline for filing a brief in one
of his cases; (5) medical staff and prison personnel violated his First Amendment right to
religious freedom by forcing him to take a test for tuberculosis that contained a pork-
derivative. He sought injunctive relief and compensatory and punitive damages.
The defendants filed a Rule 12(b)(6) motion claiming that the Eleventh
Amendment barred suit against them in their official capacities and that the Complaint
failed to state a claim upon which relief could be granted. By order entered September
27, 2001, the District Court dismissed without prejudice for non-exhaustion all of

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3
Hughes’ claims with the exception of the 8th Amendment medical treatment claim against
defendants Chesney, Derfler, O’Connor, and Nauroth. The District Court dismissed the
Eighth Amendment claim on its merits as to defendants Chesney and Derfler, finding that
Hughes had failed to show that they were personally involved, and dismissed with
prejudice all claims against the defendants in their official capacities as barred by the
Eleventh Amendment. The District Court denied the defendants’ Rule 12(b)(6) motion as
to the Eighth Amendment claim against defendants O’Connor and Nauroth.
By orders entered September 10, 2002, and March 31, 2003, the District Court
granted Nauroth’s and O’Connor’s separate summary judgment motions respectively,
holding that neither defendant was deliberately indifferent to Hughes’ medical health
needs relating to Hepatitis-C treatment. The District Court found that Hughes was
evaluated for the Hepatitis-C treatment at SCI-Frackville in January, 2000, and was found
ineligible because of his psychiatric history and previous substance abuse. Further, the
District Court found that the medical records showed that medical staff nonetheless
monitored Hughes’ Hepatitis-C condition regularly and that he refused to cooperate with
staff regarding other testing that was part of the Hepatitis-C monitoring protocol. As to
Nauroth in particular, the District Court concluded that she was not liable for failing to
respond directly to Hughes regarding his treatment by prison doctors or for denying his
grievances regarding Hepatitis-C treatment. The District Court denied reconsideration of
its grant of summary judgment in defendant Nauroth’s favor. This timely appeal
followed.

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4
I
We agree with the District Court’s finding that neither Nauroth nor Dr. O’Connor
is liable under the Eighth Amendment for deliberate indifference to Hughes’ medical
needs. Thus, the District Court correctly granted summary judgment for Nauroth and Dr.
O’Connor. The District Court correctly dismissed the Eighth Amendment claim as
meritless against Chesney and Derfler. Accordingly, substantially for the same reasons as
set forth in the District Court’s opinions, we will affirm the District Court orders as to
Hughes’ Eighth Amendment claim.
Hughes’ claim that his placement in disciplinary custody for 117 days violated his
due process rights lacks merit. Hughes does not allege a deprivation of a viable liberty
interest. See Griffin v. Vaughn, 112 F.3d 705, 706, 708 (3d Cir. 1997) (holding that
exposure to as long as fifteen months segregation does not constitute an “atypical and
significant hardship” under Sandin v. Conner, 515 U.S. 472 (1995)). Because Hughes’
117-day restriction cannot be construed as a violation of his due process rights, we will
affirm the District Court’s dismissal of the claim, modified to be a dismissal with
prejudice for failure to state a claim upon which relief can be granted.
We conclude, however, that the District Court acted prematurely in dismissing sua
sponte for non-exhaustion, Hughes’ retaliation, denial of access to the courts, and
freedom of religion claims, in light of the defendants’ failure to raise non-exhaustion as
an affirmative defense in their Rule 12(b)(6) motion. We decided Ray v. Kertes, 285
F.3d 287 (3d Cir. 2002), and Mitchell v. Horn, 318 F.3d 523 (3d Cir. 2003), after the

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District Court entered its order dismissing the claims for non-exhaustion. In Ray, we held
that the exhaustion requirement in 41 U.S.C. § 1997e(a) is an affirmative defense that
may be waived or forfeited. We held in Mitchell that “failure to exhaust is not a
permissible basis for sua sponte dismissal.” Here, the defendants did not raise failure to
exhaust as an affirmative defense. Hughes’ failure to exhaust is not apparent from the
Complaint or other documents Hughes submitted in subsequent motions. Given the
factual questions regarding exhaustion, and in light of this Court’s intervening decisions
in Ray and Mitchell, we believe that we should allow the District Court, on remand, to
consider the post-Ray issues concerning exhaustion. In so doing, we express no opinion
on the underlying merits.
To summarize, because no substantial question is presented by this appeal, we will
affirm the District Court’s judgment as to Hughes’ Eighth Amendment claim and we will
affirm the dismissal with prejudice of Hughes’ due process claim. See Third Circuit LAR
27.4 and I.O.P. 10.6. We will remand Hughes’ retaliation, denial of access to the courts,
and freedom of religion claims for further proceedings consistent with this opinion.

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