BLD-056 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3737
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FREDERICK M. TORRENCE,
Appellant
v.
RAYMOND J. SOBINA; PENNSYLVANIA BOARD OF PROBATION AND
PAROLE; SHELLY LEE THOMPSON; CARRIE EVERETT; DEB WOODARD
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 10-cv-00217)
Magistrate Judge: Honorable Susan Paradise Baxter
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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
December 1, 2011
Before: SCIRICA, SMITH and CHAGARES, Circuit Judges
(Opinion Filed: December 27, 2011)
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OPINION OF THE COURT
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PER CURIAM.
In June 2010, Frederick Torrence, then incarcerated at the State Correctional
Institution at Forest (“SCI-Forest”) in Marienville, Pennsylvania, commenced this action
in federal court by filing a pro se civil rights complaint pursuant to 42 U.S.C. § 1983.
The complaint, which sought money damages, named the Pennsylvania Department of
Probation and Parole (“PDPP”) and various prison officials as defendants. The complaint
alleged that PDPP had unlawfully extended Torrence’s prison sentence, and that the other
defendants had, inter alia, falsified official state documents, stolen his legal mail, and
committed perjury to cover their acts of retaliation against him.
The parties ultimately consented to proceed before a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c)(1). In September 2010, the defendants collectively
moved to dismiss the complaint or, in the alternative, for summary judgment, arguing that
Torrence’s claims failed because, inter alia, he had failed to exhaust his administrative
remedies. Although Torrence filed a response in opposition to that motion, that response
did not challenge the defendants’ exhaustion argument.
The following month, the defendants filed another motion, this time seeking
dismissal alone. The only material difference between this new motion and the earlier
motion was that this new motion did not raise the exhaustion issue. The defendants filed
this new motion to “avoid[] the necessity of converting the motion to one for summary
judgment.” (Defs.’ Br. in Supp. of Mot. to Dismiss filed on Oct. 21, 2010, at 2.) In
February 2011, Torrence filed a motion of his own, seeking “judgment as a matter of
law.”
On September 26, 2011, the Magistrate Judge issued an order granting the
defendants’ latter motion, denying their earlier motion as moot, and dismissing
Torrence’s motion. In dismissing the complaint, the Magistrate Judge concluded that the
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claims against PDPP were barred by the Eleventh Amendment. As for the claims against
the individual defendants, the Magistrate Judge held that those claims were barred by the
doctrine of claim preclusion because “[t]he present suit is based on the same cause of
action as [Torrence’s] two previous civil rights actions, involves the same parties . . . and
there was a previous final judgment.”1 (Mem. Op. 10.) Torrence now seeks review of
the Magistrate Judge’s decision.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and exercise
plenary review over the order at issue here. See Gallo v. City of Phila., 161 F.3d 217,
221 (3d Cir. 1998). We may take summary action in this appeal “if it clearly appears that
no substantial question is presented.” 3d Cir. I.O.P. 10.6.
For substantially the reasons provided by the Magistrate Judge, we agree that
Torrence’s claims against PDPP are barred by the Eleventh Amendment. As for the
claims against the individual defendants, we need not decide whether those claims are
barred by the doctrine of claim preclusion, for they fail on exhaustion grounds.
Under the Prison Litigation Reform Act (“PLRA”), a prisoner must properly
exhaust all administrative remedies before bringing § 1983 claims concerning prison
conditions. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93 (2006).
“[E]xhaustion is mandatory under the PLRA,” and “unexhausted claims cannot be
1
In both of those earlier cases, Torrence’s cognizable claims against the prison officials
were rejected for failure to exhaust his administrative remedies. See Torrence v.
Thompson, No. 10-4106, 2011 U.S. App. LEXIS 11273, at *7-10 (3d Cir. June 3, 2011)
(per curiam); Torrence v. Thompson, 335 F. App’x 151, 153 (3d Cir. 2009) (per curiam).
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brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). In this case, the defendants,
in support of their motion for summary judgment, submitted a declaration from Dorina
Varner, a Pennsylvania Department of Corrections Chief Grievance Officer assigned to
the Grievance Review Office. That declaration averred that, “[s]ince his arrival at SCI-
Forest, Torrence has never properly appealed any grievances to [the Secretary’s Office of
Inmate Grievances and Appeals],” (Defs.’ Mot. for Summ. J., at Ex. 1 para. 10), the
office that reviews the second (and final) appeal in Pennsylvania’s prison grievance
process, see Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). Torrence’s opposition to
the defendants’ summary judgment motion did not take issue with Varner’s declaration or
otherwise refute their argument that he had failed to exhaust his administrative remedies.
In light of the above, we will summarily vacate the Magistrate Judge’s resolution
of the defendants’ motions — we need not disturb the Magistrate Judge’s dismissal of
Torrence’s meritless motion for judgment as a matter of law — and remand with
instructions to enter an order (1) granting the defendants’ motion for summary judgment,
and (2) denying the defendants’ subsequent motion to dismiss as moot. Torrence’s
“Motion for Attorney’s Fee’s [sic] and Judgment Cost” is denied.
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