DLD-023 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 10-2951
___________
EUGENE R. WILSON,
Appellant
v.
CORRECTIONAL MEDICAL SERVICES (C.M.S.); MS. IFILL, Administrator Dir.
Medical Dept.; DR. NIRANJANA SHAH, M.D.; GWEN WYNN, R.N., C.M.S.;
BETHEA JEANE, R.N.,C.M.S.; ROSELEIN PROPHETE, R.N., C.M.S.; MS.
ESTHER,R.N., C.M.S.; MS. WHITE, Medical Odbunsman; MR. SETH, Pharmacy
preparation stock an Medication; NEW JERSEY DEPARTMENT OF CORRECTION;
BRUCE HAULK, N.S.P. Superintendant; IFILL ADMINISTRATOR, N.S.P. MEDICAL
DEPT.; JOHN HOCHBERG, M.D.; MICHAEL V. SMITH, O.C. PROVIDER C.M.S.;
JOHN DOES, (Ficitious Names, Real Names Unknown)
____________________________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 07-cv-5826)
District Judge: Honorable William J. Martini
____________________________________
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
October 28, 2010
Before: BARRY, FISHER and STAPLETON, Circuit Judges
(Opinion filed : November 10, 2010)
_________
OPINION
_________
PER CURIAM
Eugene R. Wilson, a New Jersey state prisoner, proceeding pro se, appeals from
the District Court’s grant of summary judgment to the defendants. Because the appeal
presents no substantial question, we will summarily affirm.
Wilson filed a complaint in the United States District Court for the District of New
Jersey alleging under both federal and state theories of liability that he was seriously and
permanently injured by deficient medical care. The District Court granted Wilson’s
motion to proceed in forma pauperis and later granted his application for appointment of
pro bono counsel. The District Court was unable to locate a pro bono attorney, however,
and Wilson continued to represent himself. Defendants Correctional Medical Services,
Niranjana Shah, M.D., Jean Betha, C.M.A., and Rosenleine Prophete, R.N. (“Medical
Defendants”) brought a motion to dismiss, arguing that Wilson had failed to exhaust
available administrative remedies. The District Court granted the Medical Defendant’s
Motion to Dismiss as to all defendants and dismissed all state law claims without
prejudice.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We may
summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4;
2
I.O.P. 10.6.
III.
The District Court properly found that Wilson failed to exhaust administrative
remedies before filing his complaint. Under the Prison Litigation Reform Act (“PLRA”),
prisoners must first properly exhaust their administrative remedies before filing an action
under section 1983. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83 (2006). The
Medical Defendants demonstrated that Wilson failed to properly exhaust his
administrative remedies, relying on a declaration by a prison official involved in
processing inmate grievances and appeals, copies of the administrative grievance forms
filed by Wilson, and Wilson’s own admissions.
In order to comply with the PLRA, an inmate must exhaust all available
administrative remedies, including intermediate or final administrative review of a
prison’s decision. Booth v. Churner, 532 U.S. 731 (2001). It appears from the record
that Wilson filed numerous Inmate Request Forms (“IRFs”) relating to the medical care
(or lack thereof) he received in prison, but he failed to appeal their rejections. 1 Although
Wilson explains that waiting for an appeal from the administration would have been
“redundant or frivolous,” the requirements of the PLRA must be met even where
available administrative remedies are not “plain, speedy, and effective.” Id. at 731.
Having reviewed the record, we agree with the District Court’s grant of summary
1
Wilson did appeal a single, unrelated, IRF in March of 2009.
3
judgment to the defendants.
Wilson notes in his appeal that throughout this litigation he has represented
himself pro se, despite the District Court’s order appointing counsel. Although the
District Court determined that Wilson’s case was appropriate for counsel, courts have no
authority to compel counsel to represent an indigent civil litigant. Tabron v. Grace, 6
F.3d 147, 154 n.1 (3d Cir. 1993) (citing Mallard v. United States District Court for the S.
Dist. of Iowa, 490 U.S. 296 (1989)). Even if an attorney had volunteered to represent
Wilson, nothing in the record indicates that there would have been a different outcome in
the litigation. Under the New Jersey Administrative Code, inmates must submit an
administrative appeal within ten days of the issuance of a decision. 2 N.J. Admin. Code §
10A:1-4.6. At the time Wilson filed his initial complaint, this period had already lapsed
on all of the IRFs relevant to his claims; the assistance of counsel would have been
insufficient for him to overcome this procedural bar.
As the appeal presents no substantial question, we will summarily affirm the
District Court judgment. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.
2
We share the District Court’s concern as to Wilson’s argument that IRFs are not
generally returned by prison officials. However this does not appear to have affected
Wilson in this case because the applicable inmate handbook allows inmates to submit
an Administrative Remedy Form if an IFR is not returned within thirty days of its
receipt by the prison. Nothing in the record indicates that Wilson availed himself of
this procedure.
4