The opinion of the court was delivered by: THOMAS VANASKIE, Chief Judge
On January 12, 2005, Plaintiff Mariah Rivers, an inmate
presently confined at the Huntingdon State Correctional
Institution ("SCI-Huntingdon"), Huntingdon, Pennsylvania, filed
this action pursuant to 42 U.S.C. § 1983 challenging defendants'
decision to restrict his visit with minors, including his
daughter, to non-contact visits. Rivers, who proceeds pro se,
claims that while housed at other Pennsylvania Department of
Corrections ("DOC") facilities he was not subjected to this
restriction, and therefore believes this limitation on his visits
with minors is in retaliation for his filing of grievances.
Rivers also claims his custody level was raised from 2 to 4
without justification upon reception at SCI-Huntingdon. Finally,
Plaintiff claims one defendant verbally threatened him. Named as
defendants are the following SCI-Huntingdon staff members:
Correctional Counselors Stratton, Cook and Hollibaugh;
Superintendent J. Grace; and Unit Manager Granlund.
Defendants have moved to dismiss, or in the alternative, for
summary judgment, based, in part, on Rivers' alleged failure to
properly exhaust administrative remedies. After being granted
additional time to file response to the instant motion, Rivers
filed a "Motion to Challenge or Quash Defense Motion for
Dismissal." (Dkt. Entry 27.) I will construe this submission as
Rivers' brief in opposition to defendants' motion. After careful
review of the summary judgment record, I find that Rivers failed
to properly exhaust administrative remedies with respect to all
claims raised in the Complaint. Of the issues raised, the
uncontested record reveals that Rivers only pursued the
non-contact visitation matter via the prison's administrative
remedy system. As for this claim, Rivers did not properly exhaust
his administrative remedies. At the third and final level of the
grievance process, Rivers' appeal was dismissed without
consideration after he failed to properly comply with procedural
requirements. Thus, this claim is procedurally defaulted and,
therefore, subject to dismissal. Defendants' motion, therefore,
will be granted.
Rivers was transferred from SCI-Camp Hill to SCI-Huntingdon on
June 8, 2004. Upon arrival at SCI-Huntingdon, Rivers' custody
level was raised by Defendant Stratton from 2 to 4. (Dkt. Entry
1, pp. 2.)
According to Rivers, in 1992, at the age of 17, he accidently
killed his best friend, who was 16 at the time. Pursuant to DC-ADM 812, the DOC's Inmate
Visitation policy, inmates who have committed an assaultive
offense against a minor victim are automatically assigned
non-contact visitation status will all minors.*fn1 Only the
Superintendent of a facility can authorize contact visits with a
minor for an offender who committed an assaultive offense against
a minor. (Id. at pp. 2, 14-15.) Pursuant to DC-ADM 812,
Defendant Stratton directed that Rivers have only non-contact
visits with all minors, including his young daughter. Rivers
claims that SCI-Huntingdon is the first DOC facility to impose
such a visitation restriction upon him. Plaintiff claims he was
permitted contact visits with minors from 1993 to 1999, and then
from 2001 until his transfer to SCI-Huntingdon. Rivers notes that
SCI-Huntingdon officials continue to deny him contact visits with
his daughter even though a DOC Central Office official stated
there are "no restrictions on [his] visiting list." (Id. at
In late August 2004, Rivers sought reconsideration of his
non-contact visitation with minors status. An institutional vote
sheet was completed by staff, denying Rivers' request for an
exemption. In late November 2004, Rivers renewed his request for
another vote sheet to reconsider his visitation situation.
Defendant Cook denied this request and advised Rivers that his
"recent attempt to have [his] cellie place [his] daughter on his
[visiting] list so [he] could have a contact visit with her
reinforces my decision to not process [his request]." (Dkt. Entry
1, p. 17.) Rivers' last claim is that after he began using the grievance
system to contest the non-contact visitation restriction
defendant Cook "threatened" him and told him that as long as he
was at SCI-Huntingdon he would not have contact visits with his
daughter. (Id. at pp. 6 and 16.)
Rivers seeks a court order requiring the DOC to permit him to
have contact visits with his daughter and other minors. He also
seeks an order to prevent DOC officials from placing him in the
institution's Restricted Housing Unit and from otherwise
retaliating against him due to his filing of the present action.
He also seeks an institutional transfer, noting that he does not
feel safe at SCI-Huntingdon.
As for exhaustion of administrative remedies, at some point
Rivers filed grievance # 90225 challenging SCI-Huntingdon's
visitation restrictions. On September 15, 2004, Superintendent
Grace denied his appeal, but advised Rivers that "following a
lengthy positive institutional adjustment, [he] may certainly
request reconsideration in regard to contact visits with minors."
(Id at p. 14.) Rivers then filed a letter appeal to final
review. (Dkt. Entry 18-6, Exhibit E, p. 3, River's Letter of
October 3, 2004, Final Appeal.) Rivers advised the DOC that "I
can't provide your office with any forms because I can't afford
copies and every time I send your office my originals of past
matters I don't get them back." (Id.) On October 20, 2004,
Rivers' appeal was dismissed on the ground that Rivers failed to
comply with the pertinent procedures that required him to include
"photocopies of the initial grievance, Initial Review, Initial
Review Response, and the Appeal to the Facility Manager along with the
Facility Manager's decision." (Dkt. Entry 18-3, Exhibit B, DC-ADM
804, Inmate Grievance System Policy, VI, D, 1, h.) The Office of
Inmate Grievances and Appeals had previously warned Rivers that
failure to provide the proper documentation in connection with
his appeal would result in the appeal being dismissed. (Dkt.
Entry 18-6, Exhibit E, p. 2, Letter dated October 20, 2004.)
III. Standard of Review on Summary Judgment
Summary judgment under Rule 56 of the Federal Rules of Civil
Procedure is appropriate if there are no genuine issues of
material fact presented and the moving party is entitled to
judgment as a matter of law. In determining whether a genuine
issue of fact exists, all doubts as to the facts are resolved in
favor of the nonmoving party. So too are all reasonable
inferences from the facts drawn in favor of the nonmoving party.
Conoshenti v. Public Serv. Elec. & Gas Co., 364 F.3d 135, 140
(3d Cir. 2004). Rule 56(c) imposes a burden on the moving party
to point to an absence of evidence supporting the nonmoving
party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325
(1986). Once the moving party has met this requirement, the
burden shifts to the opposition to "set forth specific facts
showing that there is a genuine issue for trial." Fed.R.Civ.P.
56(e). The evidence need not be in a form that would be
admissible at trial. Celotex, 477 U.S. at 324. However, the
nonmoving party "must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita Elec.
Indus. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Further,
a plaintiff may not simply "replace conclusory allegations of the complaint or answer with
conclusory allegations of an affidavit." Lujan v. National
Wildlife Federation, 497 U.S. 871, 888 (1990). At the
summary-judgment stage, the court's function is not to weigh the
evidence and determine the truth of the matter, but rather to
determine whether there is a genuine issue for trial. The mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion for
Under the Prison Litigation Reform Act ("PLRA"), exhaustion of
administrative remedies is required for all actions concerning
prison conditions brought under federal law. See
42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004).
This "exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or
particular episodes. . . ." Porter v. Nussle, 534 U.S. 516, 532
(2002). A prisoner must exhaust all available administrative
remedies before initiating a federal lawsuit. Booth v. Churner,
532 U.S. 731, 738 (2001). The PLRA "completely precludes a
futility exception to its mandatory exhaustion requirement."
Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). Additionally,
"proper" exhaustion under the PLRA "mean[s] that the inmate must
follow the procedural requirements of the prison grievance
system." Lock v. Nash, 3:CV-04-0539, 2005 WL 2465249 *1 (3d.
Cir. October 6, 2005) (citing Spruill, 372 F.3d. at 228).
Failure to substantially comply with procedural requirements of
the applicable prison's grievance system will result in a procedural default of the pursued issue.
Spruill, 372 F.2d at 230-232. Procedural default under §
1997e(a) is governed by the applicable prison grievance system,
provided that the "prison grievance system's procedural
requirements [are] not imposed in a way that offends the Federal
Constitution or the federal policy embodied in § 1997e(a)." Id.
at 231-232. Thus, a prisoner's failure to follow the ...