Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
9-25-2007
Roscoe v. Dobson
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-1418
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Recommended Citation
"Roscoe v. Dobson" (2007). 2007 Decisions. Paper 379.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/379
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CLD-351 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-1418
________________
ALFONZO A. ROSCOE,
Appellant
v.
C.O. DOBSON; LT. FELLMAN; LT. LYONS; ASSOCIATE WARDEN MEEKS;
WARDEN TROY WILLIAMSON; KAREN F. HOGSTEN; J. ESPARZA
____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(M.D. Pa. Civ. No. 05-cv-02547)
District Judge: Honorable Yvette Kane
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
August 23, 2007
Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES
(Filed September 25, 2007 )
_______________________
OPINION
_______________________
PER CURIAM
Alfonzo Roscoe, a federal prisoner proceeding pro se, appeals from an order of the
United States District Court for the Middle District of Pennsylvania granting summary
judgment in favor of prison employees in his civil rights action because he failed to
exhaust his administrative remedies. We will dismiss Roscoe’s appeal pursuant to 28
U.S.C. § 1915(e)(2)(B).
In August 2005, Roscoe reported to his work supervisor that Corrections Officer
Dobson pushed and shoved him and then threatened to kill him. Roscoe was taken to a
lieutenant’s office for an interview, and later was placed in the Special Housing Unit
(SHU). Roscoe filed a Request for Administrative Remedy concerning the incident. The
Warden responded that Roscoe’s allegations would be evaluated, but he would not be
notified of the results of any investigation. The Warden notified Roscoe that he could
appeal to the Regional Director.
Roscoe filed an appeal alleging that he was assaulted and challenging his
confinement in the SHU. The Regional Director rejected the appeal because Roscoe did
not provide a copy of the institution’s response or submit the correct number of
continuation pages. Roscoe timely resubmitted his appeal, but the Regional Director
denied it, stating that Roscoe’s allegations were referred to the proper authority, and that
he was not entitled to information about the investigation. And the Regional Director
stated that the Warden determined that his release to the general population could be
detrimental to the safety, security, and orderly running of the prison, and that he would
remain in the SHU pending the investigation. The Regional Director notified Roscoe that
he had 30 days to appeal the decision, which was issued on November 30, 2005.
Roscoe timely appealed to the Bureau of Prisons Central Office. On December 14,
2
2005, the Central Office rejected the appeal because Roscoe provided the wrong form,
failed to provide a copy of his administrative remedy request form and the institution’s
response, and did not submit the correct number of continuation pages. Roscoe was given
15 days to resubmit his appeal. Roscoe resubmitted his appeal, but the Central Office did
not receive it until January 27, 2006. On February 8, 2006, the Central Office rejected the
appeal as untimely, and advised Roscoe that he could resubmit the appeal with
verification from staff that the untimeliness was not his fault.
On March 13, 2006, Roscoe resubmitted the appeal with a letter from staff stating
that Roscoe “could have received” his copy of the December 14, 2005, rejection notice on
December 27, 2005, two days before the 15-day deadline. But the Central Office again
rejected Roscoe’s appeal as untimely, noting that staff could not confirm exactly when he
received his rejection notice, and concluding that his appeal was late based on the day
staff believed he received the notice.
The District Court did not err in granting summary judgment for the prison
employees because Roscoe did not properly exhaust his administrative remedies. The
Prison Litigation Reform Act prohibits an inmate from bringing a civil rights action until
such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). This
provision requires proper exhaustion, which demands compliance with an agency’s
deadlines and other critical procedural rules. Woodford v. Ngo, 126 S. Ct. 2378, 2386-87
(2006). Here, the Bureau of Prison’s Central Office found Roscoe’s appeal untimely and
3
rejected it.
We have stated that compliance with an administrative remedy scheme will be
satisfactory if substantial. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). But we
also have stated that, whatever the parameters of substantial compliance may be, it does
not encompass the filing of a suit before administrative exhaustion has been completed.
See Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (holding inmate could not
cure defect in action by amending complaint dismissed for failure to exhaust
administrative remedies). Roscoe filed his civil rights action on December 8, 2005,
before he appealed to the Central Office. As noted by the District Court, his complaint
was subject to dismissal even if his final administrative appeal was timely because he
filed the complaint while he was still in the process of exhausting his administrative
remedies. See Johnson v. Jones, 340 F.3d 624, 627-28 (8 th Cir. 2003) (collecting cases
and holding that a complaint must be dismissed if exhaustion was not completed at the
time of filing).
Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).