GLD-328                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 13-1933
                                      ___________

                              DAVID STRICKENGLOSS,
                                            Appellant

                                            v.

  STATE CORRECTION INSTITUTION AT MERCER; DOCTOR MORGAN; P.A.
       HORNEMAN; THE MEDICAL DEPARTMENT AT SCI MERCER
               ____________________________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                            (D.C. Civil No. 2:12-cv-00361)
                       District 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
                                    July 11, 2013
            Before: FUENTES, FISHER and VANASKIE, Circuit Judges

                              (Opinion filed: July 19, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      David Strickengloss, a prisoner formerly incarcerated at the State Correctional

Institution at Mercer (“SCI-Mercer”) in Pennsylvania, appeals pro se the District Court’s
entry of summary judgment in a civil rights action brought under 42 U.S.C. § 1983. For

the reasons that follow, we will summarily affirm. See LAR 27.4; I.O.P. 10.6.

       In his complaint, Strickengloss alleged that the defendants were deliberately

indifferent to a serious medical need in violation of the Eighth Amendment.

Strickengloss alleged that a fall on February 26, 2012 caused a serious injury to his back

and knee, and that the defendants’ treatment, or lack of treatment, constituted a

constitutional violation. The defendants raised the affirmative defense of failure to

exhaust administrative remedies, and the District court granted summary judgment in

their favor on that basis.

       We have jurisdiction under 28 U.S.C. § 1291. We review de novo an award of

summary judgment, “applying the same test that the District Court should have applied

and viewing the facts in the light most favorable to the nonmoving party.” Schneyder v.

Smith, 653 F.3d 313, 318 (3d Cir. 2011). A motion for summary judgment should be

granted if there is no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(a).

       Under the Prison Litigation Reform Act (PLRA), a prisoner is required to exhaust

his administrative remedies prior to filing suit under § 1983. See 42 U.S.C. § 1997e(a);

Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Proper exhaustion of administrative

remedies prior to bringing suit is mandatory. See Booth v. Churner, 532 U.S. 731, 740-

41 (2001); Woodford v. Ngo, 548 U.S. 81, 84-85 (2006).

       Pennsylvania Department of Corrections Policy Statement No. DC-ADM 804-1

sets out the administrative grievance process for state correctional facilities. It includes

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three levels: an initial, formal grievance; an appeal to the superintendent; and a final level

appeal to the Secretary’s Office of Inmate Grievances and Appeals (SOIGA). See

Ahmed v. Dragovich, 297 F.3d 201, 203-04 (3d Cir. 2002) (discussing Pennsylvania’s

prison grievance system). The undisputed factual record indicates that Strickengloss did

not present his claim at each level prior to filing suit.

       Strickengloss filed an administrative grievance which was denied on March 2,

2012. Strickengloss alleged that he filed a timely appeal to the superintendent on March

7, 2012.1 Assuming that he did, Strickengloss had 15 days from the date of the

superintendent’s response to file an appeal to SOIGA. Strickengloss filed the instant

action on March 20, 2012. Strickengloss claimed he never received a response from the

superintendent, and so he filed an appeal to SOIGA some eight months later, well after

commencing this action. Assuming that all of Strickengloss’s allegations are true, by his

own admission he did not properly exhaust administrative remedies prior to filing suit.

See, e.g., Jones v. Bock, 549 U.S 199, 204 (2007). Assuming, as Strickengloss alleged,

that the prison never responded to his appeal to the superintendent, he could not have


1
 In an appendix in support of his response to the defendants’ motions to dismiss,
Strickengloss attached a document purporting to be a timely filed appeal of his grievance,
dated March 5, 2012. Strickengloss attached a different document purporting to be a
timely filed appeal to the superintendent in his 102-pages of objections to the Magistrate
Judge’s report and recommendation. The second purported appeal is dated March 7,
2012, but has a stamp reading August 21, 2012. The document itself alleged that he
attempted to mail another appeal to the superintendent on March 2 or 3. We note that
Strickengloss’s original form complaint, dated March 20, 2012, specifically asks
prisoners what steps were taken to appeal an administrative grievance, and Strickengloss
made no mention of any administrative appeal on March 3, 5, or 7. The defendants first
raised the issue of failure to properly exhaust in motions to dismiss filed on July 9 and 10
of 2012, and the defendants alleged that no appeal to the superintendent was filed.
                                               3
known there would be no response by the time he filed this action. As the Supreme Court

has noted, the PLRA demands that a prisoner exhaust his administrative remedies before

filing suit. See id. Strickengloss did not do so. He therefore procedurally defaulted his

claim. See Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004).

       Finding no substantial question to be presented by this appeal, we will summarily

affirm the judgment of the District Court. Strickengloss’s motion for appointment of

counsel is denied.




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