                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-6-2005

Jacobs v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1455




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"Jacobs v. PA Dept Corr" (2005). 2005 Decisions. Paper 572.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/572


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CPS-319                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                               ________________

                                     No. 05-1455
                                  ________________

                                   ANDRE JACOBS,

                                                 Appellant

                                            v.

             PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
           JEFFREY A. BEARD; ROBERT FRANK; JEFFREY FORTE;
        FRANK COLE; A. E. YUHOUSE; WINTERS; GREGORY MOHRING
                            ________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 04-cv-01365)
                     District Judge: Honorable Joy Flowers Conti
                                  ________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                     July 28, 2005

                BEFORE: ALITO, McKEE and AMBRO, Circuit Judges

                              (Filed : September 6, 2005)

                                  ________________

                                      OPINION
                                  ________________

PER CURIAM

      Andre Jacobs, a state prisoner, appeals from the order of the United States District

Court for the Western District of Pennsylvania granting the defendants’ motion to dismiss
his civil rights action. The parties are familiar with the facts, so we will not set forth the

case’s history in detail. In summary, Jacobs filed a civil rights complaint under 42 U.S.C.

§§ 1981, 1983, 1985 and 1986. His claims are based on an incident on May 30, 2003,

when he was allegedly assaulted by the defendants while he was an inmate at the State

Correctional Institution at Pittsburgh. On November 24, 2004, the defendants filed a

motion to dismiss the complaint, arguing, inter alia, that Jacobs failed to exhaust his

administrative remedies fully, as required by 42 U.S.C. § 1997e(a). By order entered

December 2, 2004, the Magistrate Judge ordered Jacobs to respond to the motion by

December 21, 2004, or to file an amended complaint to address the deficiencies in the

original complaint. Jacobs responded by filing a motion to reconsider the Magistrate

Judge’s order, asserting that he had already filed an amended complaint addressing the

exhaustion issues, but that he had mistakenly filed it in the wrong action, having written

the wrong docket number on the document.1 The Magistrate Judge denied Jacobs’s

motion. On December 22, 2004, the Magistrate Judge issued a report and

recommendation that the complaint be dismissed for failure to exhaust administrative

remedies in proper fashion. On that same date, Jacobs filed a motion seeking additional

time to respond to the defendants’ motion to dismiss. Shortly thereafter, Jacobs filed

another motion seeking additional time to respond to the defendants’ motion and

requested reconsideration of the Magistrate Judge’s recommendation; Jacobs asserted that



       1
        The erroneous docket number to which Jacobs alluded was the docket number of
another action filed by Jacobs against many of the same prison officials.

                                               2
the defendants had prevented his previous response to the motion from being filed and

returned the document to Jacobs. By order entered February 4, 2005, the District Court

adopted the report and recommendation and dismissed the complaint. Jacobs appeals and

has been granted leave to proceed in forma pauperis on appeal. We have jurisdiction

under 28 U.S.C. § 1291.

       Under the Prison Litigation Reform Act (“PLRA”), exhaustion of administrative

remedies is required for all actions concerning prison conditions brought under federal

law. 42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004). In Spruill,

we held that the PLRA required “proper” exhaustion, meaning that the inmate must

follow the procedural requirements of the prison grievance system. Spruill, 372 F.3d at

228, 231. If the prisoner fails to follow the procedural requirements, then his claims are

procedurally defaulted.

       Upon careful review of the record, we agree with the District Court that Jacobs

failed to exhaust his administrative remedies properly. The prison grievance procedure,

known as DC-ADM 804, provides a three-part review: first, the prisoner must file a

grievance within fifteen days with the grievance coordinator; second, the prisoner may

appeal to the facility manager within five days of receipt of the initial review; third, the

prisoner may appeal to the Central Office Review Committee. In this case, Jacobs filed

his grievance on June 2, 2003, which was denied on initial review on June 17, 2003.

Jacobs then attempted to pursue an appeal, not to the facility manager, but to the

Department of Corrections Office of Inmate Grievances and Appeals, which notified

                                               3
Jacobs on September 24, 2003, that he had failed to comply with the documentation

requirements required for appeal, namely, photocopies of the grievance, decision on

initial review, the appeal to the facility manager, and the facility manager’s decision. On

September 30, 2003, Jacobs then attempted to file an appeal to the facility manager (the

prison superintendent), who returned the appeal without action because it was filed three

and-a-half months after the proscribed five-day deadline. Jacobs again attempted to

appeal to the Office of Inmate Grievances and Appeals, which again informed Jacobs that

he had failed to comply with the documentation requirements required for appeal. Jacobs

was afforded ten working days to comply with the procedural requirements for pursuing

the appeal, but he apparently did nothing.

       We agree with the District Court that Jacobs did not follow the proper procedure to

exhaust his administrative remedies and that his claims are procedurally defaulted. We

note that Jacobs responded to the defendants’ failure to exhaust argument by referring to

an amended complaint misfiled in his other litigation, but the record does not reflect that

Jacobs ever submitted an amended complaint in this matter. Also, in responding to the

Magistrate Judge’s report and recommendation, Jacobs referred to documents in his

possession that would evidence his exhaustion of administrative remedies. However, he

did not file those documents, and he made no other attempt to support his bare assertion

that his administrative remedies were exhausted. Indeed, Jacobs did not even offer an

explanation regarding the exhaustion issue that would refute the Magistrate Judge’s

findings.

                                             4
We will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).




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