Geoffrey Willard Atwell v. Superintendent Thomas Lavan

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2228
GEOFFREY WILLARD ATWELL,
Appellant
v.
SUPERINTENDENT THOMAS LAVAN; PA GOVERNOR EDWARD G. RENDELL;
MARK S. SCHWEIKER; SECRETARY JEFFREY A. BEARD; THOMAS L. JAMES;
SHARON M. BURKS; SARAH HART; RANDY SEARS; DONALD KELCHNER;
MICHAEL J. KAZOR; CHARLES MARSELLA; KRISTA J. GRIFFITH; REX P.
HILDEBRAND; *LEE T. BERNARD; JOHN S. SHAFFER; MICHAEL FARNAN;
MIKE FISHER; MARK BERGSTROM; THOMAS W. CORBETT, JR.; ROBERT A.
GREEVY; JAMES O. THOMAS, JR.; CHUCK ROBERTS; JAMES J. MCGRADY;
ROBERT FANECK; GEORGINE LEACHEY; C. ZALEDONIS; KENNETH
BURNETT; CHRIS PUTNAM; RICHARD KELLER; W.C. WEST; DANIEL TUCKER;
D.I. SMITH; DAVE MORRIS; THEODORE HIGGINS; D.O. STANLEY BOHINSKI;
R. STANISH; SCOTT THOMAS; SGT. HARRISON; PATRICIA GINOCCHETTI; J.
DOKNOVITCH; PATRICIA BLIZZARD; ERIC MYERS; SHERI GAUGHAN; TOM
DOUGHERTY; BENJAMIN A. MARTINEZ; SEAN R. RYAN; PRISON GUARD
MCCRONE; KATHLEEN ZWIERZYNA; JUDITH B. SELVEY; JUDGE JAMES
GARDNER COLLINS; GREGORY R. NEUHAUSER; R. DOUGLAS SHERMAN;
SGT. DIETRICH
(*PER CLERK’S ORDER 2/3/09)
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(M.D. Pa. Civil Action No. 03-cv-01728)
District Judge: Honorable Sylvia H. Rambo
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 2, 2010

-- 1 of 6 --

1
Atwell pursued his amended complaint filed on January 20, 2004. Although Atwell
asserted in his amended complaint that his sentence expired on May 22, 2002, he later
maintained that his sentence expired on October 19, 2002.
2
Before: McKEE, FUENTES and NYGAARD, Circuit Judges
(Opinion filed: February 19, 2010)
OPINION
PER CURIAM
Geoffrey Atwell, a former state prisoner proceeding pro se, appeals two orders of
the United States District Court for the Middle District of Pennsylvania granting summary
judgment in favor of the defendants in his civil rights action. We will affirm.
Atwell filed a civil rights action against 54 defendants, including prison employees
and other Commonwealth of Pennsylvania employees, alleging that he was improperly
incarcerated beyond the expiration of his prison sentence. Atwell claimed that his
sentence expired on October 19, 2002, but he was not released from prison until May 22,
2004. Atwell also claimed that the defendants violated his right of access to the courts
and that they were deliberately indifferent to his medical needs.1
The District Court dismissed fourteen of the defendants pursuant to 28 U.S.C.
§ 1915(e)(2) and later granted an additional defendant’s motion to dismiss the complaint.
Following discovery, the remaining Commonwealth defendants moved for summary
judgment. Two medical defendants, Dr. Stanish and Dr. Bohinski, also filed a motion for

-- 2 of 6 --

2
To the extent Atwell challenges in his reply briefs the District Court’s rulings on his
access to the courts claim and his denial of medical care claim against defendants other
than Stanish and Bohinski, he did not adequately raise these issues in his opening brief
and they are waived. Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993). Similarly, to
the extent Atwell seeks to appeal other District Court orders issued during the course of
the proceedings below, Atwell’s brief contains no argument as to those orders and we do
not consider them.
3
summary judgment. Atwell filed a cross-motion for summary judgment. The Magistrate
Judge recommended that the District Court grant the motions of the Commonwealth
defendants and Dr. Stanish and Dr. Bohinski and deny Atwell’s motion. The District
Court adopted the Magistrate Judge’s reports and recommendations, and this appeal
followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review of a
grant of summary judgment is de novo. Watson v. Abington Township, 478 F.3d 144,
155 (3d Cir. 2007). In his brief, Atwell challenges the grant of summary judgment in
favor of the Commonwealth defendants on his excessive confinement claim and the grant
of summary judgment in favor of Dr. Stanish and Dr. Bohinski. We will address these
rulings.2
In granting summary judgment on Atwell’s excessive confinement claim, the
District Court recognized that the Eighth Amendment protects an inmate from being
incarcerated beyond the term of his sentence. Sample v. Diecks, 885 F.2d 1099, 1108 (3d
Cir. 1989). Here, the record reflects that Atwell received consecutive sentences in
connection with convictions in the Court of Common Pleas of Adams County. Atwell

-- 3 of 6 --

3
42 Pa. Cons. Stat. § 9757 provides: “Whenever the court determines that a sentence
should be served consecutively to one being then imposed by the court, or to one
previously imposed, the court shall indicate the minimum sentence to be served for the
total of all offenses with respect to which sentence is imposed. Such minimum sentence
shall not exceed one-half of the maximum sentence imposed.”
4
The Commonwealth Court explained, “As an example, a prisoner subject to a
sentence of two to four years is subsequently sentenced to a consecutive three to six year
sentence whose minimum terms are aggregated under 42 Pa.C.S. § 9757 for a total
minimum term of five years. If the maximum terms were not also aggregated and
constructive parole was allowed on the two to four year sentence at the two year point,
the combined maximum term would be eight years. Thus, the prisoner’s sentence would
be, if the maximum term were not automatically aggregated along with the minimum
terms, a five to eight year sentence in violation of the last portion of 42 Pa.C.S. § 9757
that mandates that the aggregated minimum term shall not exceed one-half of the
4
believes that the maximum date for these sentences was miscalculated, resulting in more
than a year of excessive confinement.
Atwell’s belief is based on the misconception that corrections officials could not
aggregate his maximum sentences. Under Pennsylvania law, when a sentencing court
imposes a consecutive sentence, aggregation with other consecutive sentences is
automatic and mandatory under 42 Pa. Cons. Stat. § 9757. Com. ex. rel. Smith v.
Pennsylvania Dep’t of Corr., 829 A.2d 788, 793 (Pa. Commw. Ct. 2003); Gillespie v.
Commonwealth, 527 A.2d 1061, 1065 (Pa. Commw. Ct. 1987).3 Atwell’s contention that
maximum sentences are not aggregated is incorrect. In Gillespie, the Commonwealth
Court stated that maximum sentences are aggregated, explaining that aggregation is
necessary to make workable the last part of § 9757, which requires that a total minimum
sentence shall not exceed one-half of the maximum sentence imposed. 527 A.2d at
1065. 4

-- 4 of 6 --

maximum term.” Id. at 1065-66.
5
Based on this conclusion, we do not address the District Court’s alternative
conclusions that Atwell’s claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994),
and that Atwell did not show deliberate indifference on the part of the defendants. We
also do not address Atwell’s argument in his brief that § 9757 is unconstitutional, as he
did not challenge the constitutionality of the statute in his amended complaint.
6
Although Stanish and Bohinski argue that Atwell has waived this issue by failing to
raise it in his brief, Atwell states in his brief that the District Court erred in granting
summary judgment in their favor and he refers to evidence purporting to establish that he
exhausted his administrative remedies. See Appellant’s Br. at 16. We will thus address
this issue.
5
Although the Commonwealth defendants concede that errors were made as to the
correct effective date for Atwell’s sentences and his sentence calculation, Atwell was
released before the maximum expiration date of his sentences. See 12/21/07 Magistrate
Judge’s Report at 45-46, 49. The District Court did not err in granting summary
judgment for the Commonwealth defendants on Atwell’s excessive confinement claim.5
Atwell also challenges the District Court’s grant of summary judgment in favor of
Dr. Stanish and Dr. Bohinski, which was based on a finding that Atwell did not exhaust
his administrative remedies.6 Exhaustion of available administrative remedies is required
for any suit challenging prison conditions. Woodford v. Ngo, 548 U.S. 81, 85 (2006).
Stanish and Bohinski established that Atwell filed ten grievances before filing his
complaint. While Atwell grieved about his mail, the length of his confinement, and other
issues, he did not grieve about the medical care that is the subject of his amended
complaint. The record also reflects that Atwell was asked at his deposition whether he
had filed a grievance related to the medical care he received from Stanish and Bohinski.

-- 5 of 6 --

7
The scope of this appeal is limited to the District Court’s orders granting summary
judgment. Atwell did not file a notice of appeal from the District Court’s denial of his
motion for reconsideration. See Fed. R. App. P. 4(a)(4)(B)(ii).
6
Atwell replied that he had filed a grievance about not receiving a medical diet, but that he
did not recall whether he had filed a grievance about his treatment for the ailments at
issue. Atwell did not produce in response to the summary judgment motion evidence of
any grievances related to his treatment for these ailments. In his brief, Atwell relies on
documents related to Grievance Number 40189. As recognized by the District Court, this
grievance only involved Atwell’s complaint of excessive confinement. Thus, the District
Court did not err in granting summary judgment for Stanish and Bohinski based on a
failure to exhaust administrative remedies.
Accordingly, we will affirm the orders of the District Court.7

-- 6 of 6 --