Joshua Payne v. Michael Gourley

• Court: Court of Appeals for the Third Circuit
• Decided: September 24, 2025
• Docket: 25-1765
• Status: Unpublished

Opinion

BLD-218 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 25-1765 ___________

JOSHUA I. PAYNE, Appellant

v.

M. GOURLEY, Deputy Superintendent of Facility Manager SCI-Camp Hill; W. NICKLOW, Deputy Superintendent of Centralized Services SCI-Camp Hill; L. KENDALL, Deputy Superintendent of Diagnostic and Classification SCI-Camp Hill; D. BENNER, Major or Unit Manager at SCI-Camp Hill; R. EVANS, Major of the Guard at SCI-Camp Hill; L. NEWSOME, CCTM SCI-Camp Hill; B. RITCHEY, Unit Manager in the RHU/DTU SCI-Camp Hill; WIMER, Psychology Staff at SCI-Camp Hill; E. MILLER, Unit Manager SCI-Camp Hill ____________________________________

On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civil Action No. 1:23-cv-00532) District Judge: Honorable Julia K. Munley ____________________________________

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 September 18, 2025

Before: SHWARTZ, MATEY, and CHUNG, Circuit Judges

(Opinion filed September 24, 2025) _________

OPINION* _________

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

Joshua Payne appeals pro se and in forma pauperis from the District Court’s order

granting summary judgment in favor of prison officials at Pennsylvania State

Correctional Institution at Camp Hill. We will affirm.

I.

Payne suffers from mental health disorders that have led to violent outbursts and

suicidal ideations during his incarceration. In June 2022, prison officials placed him in a

diversionary treatment unit within SCI Camp Hill’s restricted housing unit after he

attacked corrections officers. Payne avers that a member of the prison’s medical staff

would meet with him at his cell door and discuss sensitive aspects of his mental health

within earshot of guards and other inmates, who then used that information to torment

him. He further alleges that, during a six-week stretch in the fall of 2022, a certain prison

guard—whom Payne does not name as a defendant—regularly refused to serve him

breakfast or lunch, reduced the number of showers he could take each week, limited his

yard time, and denied him access to group sessions that ostensibly were part of his

treatment regimen (collectively, “denial-of-services claims”). Payne also claimed that

prison staff moved him into a urine-soaked, feces-riddled cell in mid-November and

refused to clean it or to provide him with supplies to do so himself. Although he filed

more than twenty grievances, he says the prison’s Program Review Committee met them

with indifference.

2 Two of Payne’s many grievances are relevant here. Grievance #1004149, filed

October 26, 2022, addresses the improper disclosure of his medical information. The

prison’s grievance coordinator denied that grievance on October 28 because Payne did

not file it within 15 days of the challenged conduct and because he invoked discrete

events, which had to be submitted separately per Department of Corrections policy.

Payne did not appeal that decision. Grievance #1009367, filed November 30, 2022,

concerns the denial of services and Payne’s cell relocation. Payne asserted that these acts

were done in retaliation for filing a lawsuit against the unnamed prison guard; however,

the form did not mention any unsanitary conditions or need for cleaning supplies. That

grievance was denied on timeliness grounds on December 5, and Payne did not appeal.

Payne returned to general population in late December 2022. He initiated this

matter three months later by filing a complaint in the United States District Court for the

Middle District of Pennsylvania under 42 U.S.C. § 1983, which he amended, asserting,

inter alia, that defendants violated his Eighth and Fourteenth Amendment rights.

Defendants moved for summary judgment on the ground that Payne failed to exhaust

administrative remedies as required by the Prison Litigation Reform Act of 1996

(“PLRA”), 42 U.S.C. § 1997e, either because he did not appeal unfavorable resolutions

of his grievances in accordance with Department policy or because he failed to raise the

challenged condition or conduct in a grievance in the first place.

Payne did not dispute defendants’ contention that the 21 grievances he filed did

not satisfy his exhaustion obligations. Instead, he presented two previously undisclosed

documents purporting to be grievances dated November 10 and November 30, 2022,

3 pertaining to the denial of services and the unsanitary cell, respectively. He also

proffered two forms that he subsequently used to inquire into the status of each

grievance. The precise nature of Payne’s argument was unclear from his filings. In his

“counter statement” of facts, Payne intimated that the prison guards to whom he handed

the grievances failed to submit them on his behalf because he did not receive a “Pink

Action Return Copy” confirming their submission. See ECF Doc. 42 ¶¶ 11-14. By

contrast, after lamenting in his opposition brief that he “had to depend on the same

officers” whose conduct he now challenges “to place[] his grievances into the proper

mail/lock-box,” Payne specifically asserted that his administrative remedies were

unavailable because “the prison failed to process” the grievances and “failed to respond

to his follow-ups.” See ECF Doc. 41 at 4-5.

The District Court referred the matter to Chief United States Magistrate Judge

Daryl F. Bloom, who authored a report recommending that the District Court grant

defendants’ motion pursuant to Talley v. Clark, 111 F.4th 255, 263 (3d Cir. 2024), in

which we held that “a prisoner in the Pennsylvania State prison system who ha[s] been

impeded from filing a grievance [must] seek an extension of time to file such a grievance

once the impediment is gone.” For purposes of resolving defendants’ motion, Judge

Bloom assumed administrative remedies were unavailable to Payne before his release

from the restricted housing unit in late December 2022. Because Payne never sought an

extension of time to file either grievance after his administrative remedies were restored,

Judge Bloom concluded that he could not satisfy the PLRA’s exhaustion requirements.

4 Payne filed objections to the report in which he sought to clarify that he “[wa]s not

asserting that the correctional staff did not submit the[] two additional grievances,” but

rather that “the Facility Grievance Coordinator failed to process” them. See ECF Doc. 48

at 2. That distinction, in Payne’s view, rendered his circumstances more like that of the

prisoner-appellants in Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 154 (3d

Cir. 2016), and Shifflett v. Korszniak, 934 F.3d 356, 359 (3d Cir. 2019), whose failure to

exhaust administrative remedies we excused due to the DOC-appellees’ dereliction in

timely adjudicating the inmates’ grievances. Defendants countered that Payne had

“change[d] his tune” after receiving Judge Bloom’s report and that the District Court

“should not sanction such gamesmanship” by entertaining his new legal theory. See ECF

Doc. 49 at 4.

The District Court adopted Judge Bloom’s recommendation, granted defendants’

motion, and entered judgment in their favor. Although the court agreed with Judge

Bloom’s exhaustion analysis under Talley, it adopted that rationale only in the

alternative. The primary basis for the court’s disposition of Payne’s mental-health-

disclosure and denial-of-services claims was his failure to “respond to the motion for

summary judgment with evidence demonstrating that administrative remedies were

unavailable to him,” without which he could not show a genuine issue of material fact on

the question of exhaustion. See ECF Doc. 50 at 18-23. The court noted that Payne raised

those issues in separate grievances and that the prison’s grievance coordinator denied

both, but that he did not appeal the coordinator’s adverse decisions.

5 As for Payne’s unsanitary-cell-conditions claim, the court observed that Payne

filed a grievance about his relocation to the cell in question that conspicuously omitted

any mention of human waste or unanswered pleas for cleaning supplies. The sole basis

for that grievance, which Payne filed same day he claims he filed the “missing grievance”

involving the same cell, was that he was moved in retaliation for filing a lawsuit. The

court explained that Payne could have appealed the denial of that bona fide grievance

“with the evidence he advances now”—i.e., that he “ostensibly filed another grievance

with details making the claim timely under” Department policy that either went

undelivered or unaddressed—but did not, rendering the claim unexhausted. See id. at 23-

24. Payne appeals.

II.

We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over

the District Court’s summary judgment ruling. See Blunt v. Lower Merion Sch. Dist.,

767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is proper “if the movant shows

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). A genuine dispute of material fact exists if the

evidence is sufficient for a reasonable factfinder to return a verdict for the nonmoving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We may summarily

affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; 3d Cir.

I.O.P. 10.6.

6 III.

The PLRA “requires that prisoners seeking relief in federal court must first

exhaust the administrative remedies available at the prison level.” Williams v. Beard,

482 F.3d 637, 639 (3d Cir. 2007) (citing 42 U.S.C. § 1997e(a)). Failure to do so will

render a claim procedurally defaulted. See Spruill v. Gillis, 372 F.3d 218, 230-31 (3d

Cir. 2004). In Pennsylvania, the Department of Corrections follows a three-step process

for resolving grievances: initial review by a grievance officer, direct appeal to the facility

manager, and an appeal to the Secretary’s Office of Inmate Grievances and Appeals for

final review. See id. at 232.

The record demonstrates that Payne did not appeal the denial of the grievances he

submitted based upon the alleged disclosure of his medical information (Grievance

#1004149) or the denial of services (Grievance #1009367)—the latter of which also

contained an allegation that he was relocated to a different cell in retaliation for suing a

prison guard, but was silent on the cell’s condition. He offered no explanation for his

failure to seek further review. Thus, the District Court properly determined that he failed

to exhaust his administrative remedies and granted summary judgment in appellees’ favor

on those claims.

On appeal, Payne highlights the missing grievances he produced in opposition to

appellees’ summary judgment motion. He says that the prison failed to process those

forms, even though he submitted one of them on the same day as Grievance #1009367.

One form merely reiterates the same denial-of-services claims set forth in Grievance

7 #1009367, which the grievance coordinator considered and rejected; the other contains

the first mention of human waste in Payne’s cell.

Unfortunately for Payne, his bare allegation that someone failed to process a

newly identified grievance of questionable provenance, which he made for the first time

in a brief in opposition to a motion for summary judgment, is insufficient to create a

genuine issue of material fact on the question of exhaustion. “[T]o avoid summary

judgment,” even pro se litigants like Payne “still must present at least affidavits” or their

equivalent setting forth critical facts. See Mala v. Crown Bay Marina, Inc., 704 F.3d 239,

249 (3d Cir. 2013) (citing Brooks v. Kyler, 204 F.3d 102, 108 n.7 (3d Cir. 2000)); see

also FED. R. CIV. P. 56(c)(4). The submission need not be sworn. “[T]he matter can

instead be supported by an unsworn ‘declaration, certificate, verification, or statement.’”

United States ex rel. Doe v. Heart Solution, PC, 923 F.3d 308, 315 (3d Cir. 2019)

(quoting 28 U.S.C. § 1746). Whatever form the statement takes, it must be “made under

penalty of perjury and dated.” Id. Because Payne’s unsworn allegations lack the

required certification, the record before us contains no creditable evidence on which a

factfinder could resolve the issue of exhaustion in his favor. See Lauria v. Lieb, --- F.4th

----, 2025 WL 2628170, at *2 (3d Cir. Sept. 12, 2025) (reaffirming Doe’s holding that

unsworn statements not made under penalty of perjury cannot create a factual issue on

summary judgment).

Accordingly, we will affirm the judgment of the District Court.