BLD-377 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2381
___________
FRANK JONES,
Appellant
v.
BRIAN COLEMAN, Superintendent; JILL MONAS;
JASON ASHTON; DAWN MURRAY
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(W.D. Pa. Civil No. 2-11-cv-00701)
District Judge: Honorable David S. Cercone
____________________________________
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
August 8, 2013
Before: HARDIMAN, GREENAWAY, JR. and SCIRICA, Circuit Judges
(Opinion filed: August 22, 2013)
_________
OPINION
_________
PER CURIAM
Frank Jones, an inmate at the Pennsylvania State Correctional Institute at Fayette,
appeals from the order of the United States District Court for the Western District of
1
Pennsylvania granting Appellees’ motion for summary judgment. We will summarily
affirm. See Third Circuit LAR 27.4 and I.O.P 10.6.
I.
Because we write primarily for the parties, we recount only the essential facts and
procedural history. Frank Jones, an inmate at SCI-Fayette, filed numerous grievances
against his unit supervisors alleging retaliation as evidenced by a negative parole
recommendation and a more restrictive inmate status designation. The grievances were
rejected for Jones’ failure to comply with the provision of DC-ADM 804-1, entitled the
“Consolidated Inmate Grievance Review System.” Jones appealed and Appellee
Superintendent Coleman dismissed on May 19, 2010 for Jones’ failure to cure the
deficiencies with his grievance as directed. Jones appealed to the Secretary’s Office of
Inmate Grievances & Appeals, the final appeal stage, but was informed on June 6, 2010,
that his appeal was incomplete for failure to provide the necessary documentation
relevant to his appeal. He was directed to file the necessary documentation within fifteen
days. On July 1, 2010, Jones requested a copy of his appeal documentation from
Appellee Coleman, who in turn informed Jones that a prison regulation requires Jones to
pay a $16 fee. There is no evidence that Jones paid the fee, received a copy of his appeal
documentation or timely sent his appeal documentation to the Secretary’s Office. The
Secretary’s Office dismissed Jones’ grievance appeal on July 16, 2010 for failure to
provide the required documentation for proper review.
2
On May 11, 2011, Jones, proceeding pro se and in forma pauperis, filed a
complaint pursuant to 42 U.S.C. § 1983, alleging that his civil rights were violated when
Appellees, all employees of SCI-Fayette, retaliated against him by classifying him as an
“H” code inmate and providing a negative parole recommendation. Pursuant to a case
management order issued by the Magistrate Judge, Appellees filed a motion for summary
judgment arguing that Jones’ complaint should be dismissed for failure to exhaust his
administrative remedies. The Magistrate Judge found Jones’ response did not properly
deny the factual allegations of Appellees’ Concise Statement of Facts and adopted those
facts as true. The Magistrate Judge concluded that Jones failed to exhaust his
administrative remedies by not submitting the required documentation at the final appeal
level and recommended granting Appellees’ motion for summary judgment.
On March 28, 2013, the District Court rejected Jones’ objections, adopted the
Magistrate Judge’s report and recommendation as the opinion of the court and granted
Appellees’ motion for summary judgment. This appeal followed.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary review over the District Court’s dismissal. See DeHart v. Horn, 390 F.3d 262,
267 (3d Cir. 2004). We may summarily affirm the District Court’s judgment if no
substantial question is presented by the appeal. See 3d Cir. L.A.R. 27.4; 3d Cir. I.O.P.
10.6; see also U.S. v. Baptiste, 223 F.3d 188, 190 n.3 (3d Cir. 2000).
III.
3
Summary judgment is proper where, viewing the evidence in the light most
favorable to the nonmoving party and drawing all inferences in favor of that party, there
is no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56; Kaucher v. County of Bucks, 455 F.3d 418, 422-
23 (3d Cir. 2006). We agree with the District Court’s grant of Appellees’ motion for
summary judgment.
Pursuant to the Prison Litigation Reform Act (PLRA), “[n]o action shall be
brought with respect to prison conditions under section 1983…by a prisoner confined in
any jail, prison or other correctional facility until such administrative remedies as are
available are exhausted.” 42 U.S.C. § 1997e(a). Properly perfected exhaustion of
administrative remedies is mandatory. Woodford v. Ngo, 548 U.S. 81, 93 (2006). To
properly exhaust, a prisoner must bring his complaint to every level of the state’s prison
grievance system and follow all of its procedures. Id., at 85. An untimely or otherwise
procedurally defective administrative grievance or appeal results in a procedural default
and does not satisfy the exhaustion requirement thereby precluding an action in federal
court. See Id., at 90-91 (proper exhaustion of administrative remedies means using all
steps that the agency holds out, and doing so properly so that the agency addresses the
issues on the merits); Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004).
Under DC-ADM 804, exhaustion requires three steps: the filing of an initial
grievance; an appeal to the facility manager or superintendent; and an appeal to the
Secretary’s Office of Inmate Grievances and Appeals.
4
Jones argues that Appellees’ failure to respond to his timely filed grievance appeal
within the time-frame prescribed by DC-ADM 804 rendered the administrative remedies
unavailable to him under PLRA. Jones’ argument is unavailing. Even accepting as true
that Coleman was untimely in responding to Jones’ grievance, his action did not preclude
Jones’ from filing a timely, proper appeal of Coleman’s decision once that decision was
reached. At no time was the grievance process unavailable to Jones. As the record
reflects, Jones did appeal to the Secretary’s Office. The issue before the District Court
was whether Jones properly exhausted his remedies at this stage. We agree with the
District Court’s finding that Jones failed to do so.
Jones neglected to properly provide the documentation needed for the Secretary’s
Office to address the merits of his grievance and the Secretary gave Jones fifteen working
days to comply with the proper procedure. Jones did not timely submit the necessary
paperwork for the Secretary’s Office to address his appeal on the merits and his appeal
was dismissed for that reason. It is thus undisputed that he procedurally defaulted on his
final appeal and his action in federal court is precluded. Therefore, Jones’ appeal
presents no substantial question and the order of the District Court is summarily affirmed.
5