GLD-290                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 11-2870
                                      ___________

                              RONALD JOSEPH PAYNE,
                                          Appellant

                                            v.

           SUPERINTENDENT PITKINS; DR. SALAME; DR. ROBINSON
                  ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                             (D.C. Civil No. 10-cv-00128)
                     Magistrate Judge: Honorable Cathy Bissoon
                     ____________________________________

        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
                                 September 15, 2011

             Before: AMBRO, CHAGARES and COWEN, Circuit Judges

                            (Opinion filed: October 13, 2011)
                                       _________

                                       OPINION
                                       _________

PER CURIAM.

      Ronald Joseph Payne, an inmate in Pennsylvania, filed this suit under 42 U.S.C. §

1983 seeking damages based on a claim that, while working in the kitchen at SCI-Laurel

Highlands, he broke his arm in a slip-and-fall accident and did not receive proper
treatment until five months later. The named defendants (Superintendent Pitkins, and

Drs. Robinson and Salameh1) moved to dismiss, arguing, inter alia, that Payne failed to

properly exhaust administrative remedies before filing suit, as required by 42 U.S.C. §

1997e(a). In particular, defendants pointed out that Payne was injured on May 17, 2008,

but he did not file a grievance until September 8, 2009, and while Payne had surgery on

his arm on October 17, 2008, his grievance was filed almost a year after the surgery. The

Department of Corrections (“DOC”) rejected Payne’s grievance as untimely, explaining

that “[t]he issue … describe[d] concerning a broken arm happened in 2008. It is well past

the 15 day time frame for filing a grievance.” Payne argued in response to the motions to

dismiss that he had been denied his property for sixty days and denied access to the

commissary for two weeks, suggesting that he was prevented from commencing the

grievance process in a timely manner.

        The Magistrate Judge recommended that the motions to dismiss be granted,

explaining that even if Payne’s obligation to file a grievance was not triggered until after

his surgery, the grievance was submitted nearly eleven months after expiration of the

fifteen-day deadline. In addition, Payne did not appeal the rejection of his grievance, and

the Magistrate Judge concluded Payne’s procedural default in the administrative review

process bars his claim from being heard in federal court. Finally, the Magistrate Judge

concluded that equitable tolling would not render Payne’s grievance timely filed or

excuse his failure to appeal.

        After issuance of the Report and Recommendation, to which Payne filed no

   1
       Dr. Salameh is misidentified in the caption as “Dr. Salame.”
                                              2
objections, the parties consented in writing to the jurisdiction of the Magistrate Judge,

who thereafter adopted the Report and Recommendation as the opinion of the court and

dismissed the complaint. Payne timely filed this appeal.

       We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo the

dismissal of a prisoner civil rights complaint for failure to exhaust administrative

remedies. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). Because Payne is

proceeding in forma pauperis, we must dismiss his appeal if, inter alia, we determine that

the appeal is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i).

       After a review of the record, we discern no error in the Magistrate Judge’s

analysis. The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be

brought with respect to prison conditions under section 1983 of this title by a prisoner

confined in jail, prison, or other correctional facility until such administrative remedies as

are available are exhausted.” 42 U.S.C. § 1997e(a). In Woodford v. Ngo, 548 U.S. 81

(2006), the Supreme Court held that “the PLRA exhaustion requirement requires proper

exhaustion.” Id. at 93 (emphasis added); see Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.

2004) (explaining that the PLRA includes a procedural default component and that the

determination whether a prisoner properly exhausted a claim is made by evaluating

compliance with the prison’s specific grievance procedures).

       The record here is undisputed that Payne filed a grievance regarding his broken

arm and the alleged delay in treatment on September 8, 2009. The DOC rejected the

grievance as untimely filed – a determination that was undoubtedly correct regardless of

whether the fifteen-day period for filing is measured from the date of Payne’s injury or

                                              3
the date of his subsequent surgery. Payne did not appeal the denial of his grievance. His

argument for tolling or extending the time to file a grievance based on a lack of access to

materials or a commissary for short periods of time cannot, as the Magistrate Judge fully

explained, remedy the gross untimeliness of his grievance. Even under a most favorable

reading of the record, Payne filed his grievance several months too late.

       “Proper exhaustion demands compliance with an agency’s deadlines and other

critical procedural rules because no adjudicative system can function effectively without

imposing some orderly structure on the course of its proceedings.” Woodford, 548 U.S.

at 90-91. Consequently, an “untimely or otherwise procedurally defective administrative

grievance or appeal” is insufficient to satisfy the PLRA’s exhaustion requirement. Id. at

83; see Spruill, 372 F.3d at 230. Applying these principles, the Magistrate Judge

correctly held that Payne failed to properly exhaust the claim that he raises in this suit,

and, accordingly, properly dismissed the complaint.

       For these reasons, we conclude that this appeal lacks any arguable legal merit, and

we will dismiss it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).




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