NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 13-2453
___________
WILLIAM VICTOR;
DEMETRIUS BAILEY
v.
R. M. LAWLER; M. W. HARLOW; DORINA VARNER; D. BAIRD;
M. HARMON; C. COOK; ANN MILLER; MELISSA MCMAHON;
K. FISHER; T. GIMBENSKI; G. WALTER; J. OAKES; L. BOAL;
M. DONALDSON; R. STEVER; N. LEHMAN; N. GROVE;
J. MEANS; D. W. BEAVER; M GARZARELLI; K. YOST; HOFFER;
SHELA FINK; C. MITCHELL; KAREN OLNOSKY
DEMETRIUS BAILEY,
Appellant
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 07-cv-02058)
District Judge: Honorable Robert D. Mariani
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 1, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: May 2, 2014)
___________
OPINION
___________
PER CURIAM
Demetrius Bailey appeals from the judgment of the United States District Court
for the Middle District of Pennsylvania in his civil rights case. We will affirm.
On November 13, 2007, Bailey and fellow prisoner William Victor filed a civil
rights action pursuant to 42 U.S.C. § 1983 against various defendants, including past and
present employees of the Pennsylvania State Correctional Institution at Huntingdon
(“SCI-Huntingdon”). The complaint included a claim that Defendants issued misconduct
charges against Bailey and Victor in retaliation for their filing of grievances and a state
lawsuit. Bailey and Victor further asserted that defendants sexually harassed, verbally
abused, assaulted, and mistreated them while they were housed at SCI-Huntingdon. The
District Court granted summary judgment to Defendants as to all of Victor’s claims, and
as to some of Bailey’s claims, and referred the matter to the Magistrate Judge for further
proceedings. Eventually, all of Bailey’s claims were dismissed, except for an Eighth
Amendment claim alleging the excessive use of force by four named defendants. A jury
found in Defendants’ favor as to that claim, and Bailey has timely appealed.
In his brief, Bailey primarily argues that the District Court erred by dismissing on
summary judgment his claim related to grievance #203323 (involving an alleged incident
of excessive force on October 4, 2007), for failure to exhaust administrative remedies.1
1
A prisoner bringing a civil rights complaint must first exhaust all available
administrative remedies. Porter v. Nussle, 534 U.S. 516, 520 (2002); 42 U.S.C.
§ 1997e(a). We review the District Court’s order granting summary judgment de novo
and review the facts in the light most favorable to the nonmoving party. Burns v. Pa.
2
In his Report and Recommendation (“R&R”) regarding cross-motions for summary
judgment, the Magistrate Judge found that Defendants had “shown that Bailey appealed
or attempted to appeal 19 grievances during his incarceration at SCI-Huntingdon.” R&R,
dkt. #315 at 21. Number 203323 of the grievances was not among those that the
Magistrate Judge found exhausted, and he did not discuss it. In his objections to the
R&R, Bailey argued that he had exhausted his remedies for that grievance through the
provisions of prison procedure DC-ADM 804. He contended that the grievance appeal
was improperly rejected for the reason given; namely that he had sent the original
grievance rather than a copy.2 The District Court rejected all of Bailey’s objections.
Dist. Ct. Op., dkt. #332, May 18, 2010. Nearly a year later, Bailey filed a motion
pursuant to Fed. R. Civ. P. 59(e) or 60(b), seeking reconsideration of the finding that he
had failed to exhaust administrative remedies on claim #203323, repeating his argument
that his appeal had been improperly rejected. Dist. Ct. dkt. #353. The District Court
again denied relief. Dist. Ct. Op., dkt. #355, May 20, 2011.
Dep’t of Corr., 642 F.3d 163, 170 (3d Cir. 2011). A grant of summary judgment will be
affirmed if our review reveals that “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).
2
The Secretary’s Office of Inmate Grievances & Appeals (“SOIG”) rejected Bailey’s
first attempted grievance appeal because it was premature; the Chief Grievance Officer
advised Bailey to await the initial review response. See dkt. #263, Appendix 3, page 28
of 40. His second attempt to appeal to the SOIG was rejected because he had failed to
include a copy of the initial review response/rejection by the Grievance Officer. Id. at 29
of 40. Bailey appears to believe he complied by sending an original of the grievance to
the Chief Grievance Officer, but she was not asking for a copy of the grievance; rather,
she noted that Bailey had not sent in the initial response.
3
Some 10 months later, Bailey filed a “Motion to Intervene Base [sic] on New
Evidence from Prior Ruling by the District Court,” dkt. #374. In it, Bailey relied on an
opinion by Judge Nealon in Victor v. SCI-Smithfield, No. 08-cv-01374, 2011 WL
3584781 (M.D. Pa. Aug. 12, 2011). In that opinion, Judge Nealon noted that there is
more than one way that a Pennsylvania inmate can exhaust a claim of abuse: “In addition
to complying with the inmate grievance system in DC–ADM 804, an inmate may report
abuse ‘verbally or in writing to any staff member’ or ‘report it in writing to the
[Department’s Office of Professional Responsibility (“OPR”)3 ]’.” Id. At *9 (quoting
Knauss v. Shannon, 08-cv-01698, 2010 WL 569829, at *7 (M.D. Pa. Feb. 12, 2010), and
the Pennsylvania Department of Correction’s “Inmate Abuse Allegation Monitoring,”
Policy Statement DC-ADM 001 (effective Sept. 29, 2005)). Judge Nealon held that
“grievance to the OPR under DC-ADM 001, [is] the only step [an inmate has] to take
under that policy.” Id. At *9 (quoting Knauss, 2010 WL 569829, at *8); see also McCain
v. Wetzel, 12-cv-00789, 2012 WL 6623689, at *6 (M.D. Pa. Oct. 26, 2012). In Victor,
the Court noted that pursuant to DC-ADM 001 the OPR had 30 days to complete an
investigation. The Court found exhaustion even though Victor had not waited until thirty
days expired before filing his complaint, noting that it was “unclear from the record when
the investigations were actually completed,” that by the defendants’ admission, the
3
The policy statement has since been modified to replace the OPR with “the
Department’s Office of Special Investigations and Intelligence.” DC-ADM 001, Inmate
Abuse Allegation Monitoring Policy, effective 11/19/2010, available at
www.portal.state.pa.us.
4
investigation took at least five months, and that the defendants had not raised non-
exhaustion as a defense. Victor, 2011 WL 3584781, at *10.
Bailey argued first that because the OPR investigated his grievance (even though
he began the process through the regular DC-ADM 804 grievance system), he exhausted
his remedies pursuant to DC-ADM 001. He also argued that because the OPR never sent
him a response, further steps to exhaust were not “available” to him. In their response to
Bailey’s motion, the Defendants argued that Bailey could have raised the issue earlier in
the litigation, and that Victor could be distinguished on the facts, noting that there was no
inordinate delay in Bailey’s case. The District Court denied Bailey’s motion, noting that
Bailey “filed this action before exhausting his administrative remedies and had ample
opportunity to raise this matter pending the two motions for summary judgment.” Dkt.
#377 at 3-4. The Court also noted that Bailey had not introduced new factual evidence in
support of his motion. Id.
This Court has not considered whether a Pennsylvania prisoner can exhaust his
administrative remedies through DC-ADM 001, nor what steps would be necessary under
that procedure. But even if we were to agree with the various District Court opinions
holding that an inmate need only file a grievance with the OPR under DC-ADM 001 in
order to exhaust administrative remedies, we do not agree that a prisoner can file a
complaint before the OPR’s investigation is complete, at least absent unusual
circumstances. Under the PLRA, “[n]o action shall be brought with respect to prison
conditions . . . by a prisoner confined in any jail, prison, or other correctional facility
5
until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a)
(emphasis added). Exhaustion of administrative remedies must be proper and in
accordance with applicable regulations and policies, and noncompliance cannot be
excused by the courts. Woodford v. Ngo, 548 U.S. 81, 83-84 (2006); Spruill v. Gillis,
372 F.3d 218, 222 (3d Cir. Pa. 2004); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. Pa.
2000). If exhaustion is not complete at the time of filing, dismissal is mandatory. See
Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003); Smith v. Mensinger, 293 F.3d 641,
647 n.3 (3d Cir. 2002).
Here, after Bailey filed a grievance, the grievance officer filed an Initial Review
Response stating that he had reviewed the grievance and that it was being investigated by
the Security Office. On appeal, the Superintendent stated in a document dated November
8, 2007, that he concurred with the response given by the grievance officer, and noted
that “an ongoing investigation into your allegations is in progress.” Bailey filed his
complaint about a week later, without waiting for that investigation to conclude. This
defeats “the basic purpose of the grievance filing mechanism, which is to notify officials
of a problem and provide an opportunity for efficient correction.” Small v. Camden
Cnty., 728 F.3d 265, 273 (3d Cir. 2013).
Bailey states in his brief that he was transferred from SCI-Huntingdon to SCI-
Forest on October 29, 2007, in retaliation for filing grievances, and that “Security Office
at Huntingdon Lt. Baird did not file a summary statement for Initial Review Response to
grievance as require by DC-ADM 804 and never forward their investigation or OPR’s
6
investigation to Mr. Bailey at SCI-Forest as require by policy DC-ADM 001.” It appears
that Bailey did not learn of the completion of the investigation until he was afforded
discovery in connection with his complaint. We construe his brief as arguing that any
appeals process was “unavailable to him.” See Small, 728 F.3d at 273-74 (prison’s
failure to respond to grievance within the time allowed renders process unavailable).
Bailey’s failure to send the initial review response to the Chief Grievance Officer,
however, clearly constituted a default to the extent he was attempting to follow the DC-
ADM 804 process. See Woodford, 548 U.S. at 90 (exhaustion for purposes of § 1997e(a)
requires properly completing all steps required by prison grievance procedures). And
even if he was attempting to exhaust through the DC-ADM 001 process, his failure to
learn of the completion of the investigation does not excuse the fact that he filed his
complaint prematurely. The record reflects no genuine dispute surrounding Bailey’s
unsuccessful attempt to administratively exhaust this grievance. Defendants were thus
entitled to judgment as a matter of law.4
Bailey’s brief cursorily raises a number of other issues. While we take seriously
our obligation to liberally construe pro se filings, see Haines v. Kerner, 404 U.S. 519, 520
(1972), we do not discern any viable claims in the remainder of Bailey’s brief.
Nevertheless, we will discuss them briefly.
First, Bailey states that he was “denied to present evidence in summary judgment
4
We see nothing in Bailey’s several motions in the District Court that would have
required the District Court to reconsider its determination that the claim was
7
because Defendant’s [sic] Counsel and Agents at SCI-Greene denied him the right to
documents of guards [sic] Assault and make copies,” but the exhibit he attaches in
support of that claim actually undermines his claim—it is a letter from the Pennsylvania
Department of Corrections, informing him that he would “be permitted to review the
[listed] documents and make copies at your expense.” Further, Bailey does not explain
why summary judgment was incorrect.
Second, he argues that “retaliatory fabricated misconducts,” “retaliatory assaults,”
and “retaliatory-transfer” should have been at issue in the trial. It is not clear whether
Bailey is complaining about (1) claims dismissed at summary judgment for failure to
exhaust, (2) an evidentiary ruling at trial, or (3) a decision by his attorney to limit the
evidence presented. Without more detail, we are unable to review this claim.
Third, Bailey complains that his witnesses did not testify because counsel was
ineffective. Again, we are left with no information to support the claim. Bailey does not
explain how his attorney was ineffective, nor what his witnesses might have said had they
testified. But in any event, an attorney’s poor performance is not a ground for
vacating the District Court’s judgment. See Link v. Wabash R.R. Co., 370 U.S. 626,
633-34 (1962); Nelson v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006).
Fourth, Bailey complains that the Court’s order granting Defendants’ motion in
limine was erroneous. The Court ruled that it did “not have sufficient information” to
rule on the motion in limine before trial; thus, the Court withheld ruling on the motion,
unexhausted.
8
noting that it would assess the issues as they arose at trial. Dist. Ct. Op., dkt. #394, May
1, 2013. But we are unable to evaluate the District Court’s evidentiary rulings at trial
without reviewing a transcript, and Bailey has not provided one, as required by Rule
10(b) of the Federal Rules of Appellate Procedure. We require the transcript not only to
assess the merits of the issues, but to determine whether Bailey preserved them for
appellate review. It is the appellant’s duty to arrange for the trial transcript, and we may
dismiss an appeal if an appellant fails to do so. See Fed. R. App. P. 3(a)(2); 10(b)(1); 3d
Cir. L.A.R. 11.1; Richardson v. Henry, 902 F.2d 414, 416 (5th Cir. 1990) (dismissing
appeal by inmate in civil rights action for failure to provide a transcript).
For the foregoing reasons, we will affirm the judgment of the District Court.5
5
Bailey’s “Motion for Court Order” is denied. Bailey seeks to be allowed to speak to his
grandmother by telephone, and complains that his legal documents are being destroyed.
His complaints do not appear to have any relationship to this appeal. Bailey’s “Motion
for Reply Brief,” which seeks a remand and a new trial, is denied.
9