CLD-029                                                      NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-2194
                                     ___________

                                TYRONE WALLACE,
                                    Appellant

                                           v.

 Lt. MILLER; S. CROSS, Prison Vehicle Driver; JOHN DOE, Team Escorting Officer
                  ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                           (M.D. Pa. Civ. No. 11-cv-01503)
                     District Judge: Honorable John E. Jones, III
                     ____________________________________

    Submitted on Motion to Reopen and 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
                                 October 31, 2013

             Before: FUENTES, JORDAN and SHWARTZ, Circuit Judges

                           (Opinion filed: November 4, 2013)
                                       _________

                                       OPINION
                                       _________

PER CURIAM


      Tyrone Wallace, a federal prisoner proceeding pro se, appeals an order of the

United States District Court for the Middle District of Pennsylvania entering judgment



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for the defendants in his civil rights action. For the reasons that follow, we will affirm

the judgment of the District Court.1

         Wallace alleged in his complaint that on May 4, 2011, he was denied medical

treatment for a broken finger when defendants Lieutenant Miller and Officer Cross

prevented him from having surgery at an outside hospital. According to Wallace, Cross

would not allow him to read and sign the hospital’s forms and Miller directed the nurse to

cancel his surgery. Wallace also averred, among other things, that an escort team officer

put his handcuffs on too tight and caused his hands to become numb and swollen.

         The defendants filed a motion for summary judgment or, in the alternative, to

dismiss the complaint on various grounds, including a failure to exhaust administrative

remedies. Because both parties had submitted documents beyond the pleadings, the

Magistrate Judge considered the motion on the exhaustion issue as one for summary

judgment. The Magistrate Judge concluded that the undisputed evidence established that

Wallace did not properly exhaust his administrative remedies. The District Court agreed

and entered judgment for the defendants. This appeal followed.2

         We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise de novo review

over a determination of a failure to exhaust administrative remedies. Small v. Camden

County, 728 F.3d 265, 268 (3d Cir. 2013).



1
 This appeal was dismissed for failure to pay the Court’s filing fee. Wallace’s motions for reconsideration and to
reopen his appeal and to proceed in forma pauperis are granted.
2
 The District Court also decided that Wallace failed to state a claim against the defendants in their official capacities
and found no error in the Magistrate Judge’s conclusion that Lieutenant Miller was not personally involved in the
incident at issue. Because we conclude that summary judgment is warranted based on Wallace’s failure to exhaust
his administrative remedies, we need not address these rulings.

                                                            2
        As recognized by the District Court, the Prison Litigation Reform Act requires a

prisoner to exhaust available administrative remedies before bringing an action regarding

prison conditions. 42 U.S.C. § 1997e(a); Small, 728 F.3d at 268. Under § 1997e(a), a

prisoner must properly exhaust such remedies by complying with the prison grievance

system’s procedural rules. Woodford v. Ngo, 548 U.S. 81, 93-95 (2006); Spruill v.

Gillis, 372 F.3d 218, 222 (3d Cir. 2004). Here, those rules required that any

administrative remedy request based on the May 4, 2011 incident be submitted within 20

days or by May 24, 2011. 28 C.F.R. § 542.14(a).

        The defendants provided a computer-generated summary of the administrative

relief Wallace sought from May to November of 2011. This document reflects that on

May 26, 2011, the Bureau of Prisons Central Office received an administrative remedy

request involving a “staff complaint/re: injury on 4/13/11.” Ex. 8 to Def. Statement of

Material Facts. The request was rejected because it was filed at the wrong level and for

other unidentified reasons. It appears that Wallace was instructed to correct the

deficiencies and resubmit the form to his institution.3

        Wallace also submitted an administrative remedy request to his institution. This

request, which was received on June 17, 2011, was rejected as untimely. Wallace’s

appeal was also rejected. On July 18, 2011, the Bureau of Prisons Central Office

received another administrative remedy request, but it was rejected because it was filed at

the wrong level and untimely. Wallace was informed that he could resubmit his request

3
 The defendants did not submit a copy of the underlying grievance or response. We assume for purposes of this
appeal that the “staff complaint” involved the alleged denial of treatment and other claims raised in Wallace’s
complaint. The record reflects that Wallace’s finger was injured on April 13, 2011.

                                                         3
to the Warden with staff verification that his untimely submission was not his fault.

Wallace, however, did not resubmit the request. Instead, he filed his complaint in District

Court on or about August 15, 2011.

       The record thus reflects that Wallace’s administrative remedy requests were

rejected for failure to comply with prison procedures. Absent a showing by Wallace that

there is a genuine issue of material fact, the defendants established that he did not

properly exhaust his administrative remedies prior to filing suit and that summary

judgment is warranted. See Spruill, 372 F.3d at 231.

       Wallace asserted in his brief in opposition to summary judgment that he submitted

his administrative remedy request to the Warden as soon as his attempt at informal

resolution of his complaint was complete. He explained that, after the May 4, 2011

incident, it was difficult to write because his hands were numb and swollen from the tight

handcuffs, that on May 19, 2011, he submitted an informal resolution form to his unit

manager, and that on May 25, 2011, his unit manager forwarded the form to health care

services. Wallace stated that he received the form back on June 10, 2011, after the

deadline to submit his formal administrative remedy request.

       The District Court did not address Wallace’s assertions that there were delays in

completing the informal resolution process, which is required before an administrative

remedy request may be submitted. Wallace did not submit any evidence in support of

these assertions, although he attested that the statements in his brief were true. Even if

Wallace’s statements were properly supported, the applicable regulations allow for an

extension of time for filing a formal administrative remedy request where there is an

                                              4
unusually long period taken for informal resolution attempts. 28 C.F.R. § 542.14(b). In

addition, Wallace was told that he could resubmit his request to the Warden with staff

verification of the reason that the request was untimely. Thus, to the extent Wallace

faults the prison for his untimely administrative remedy request, he has not shown that

the grievance system was unavailable for exhaustion purposes. See, e.g., Small, 728 F.3d

at 273 (holding appeals process was unavailable where prison did not respond to

grievance).

       Wallace also asserted in a separate filing in response to the summary judgment

motion that in December 2011 he spoke to Unit Manager Brewer, who agreed to verify

the reason for his untimely submission as directed by the Bureau of Prisons. Wallace

stated that, as of January 30, 2012, Brewer had not prepared a letter. Any efforts that

Wallace has made to exhaust his administrative remedies after August 15, 2011, the date

he filed his complaint, are not relevant. A prisoner may not satisfy the exhaustion

requirement after the filing of his complaint. Ahmed v. Dragovich, 297 F.3d 201, 209 &

n.9 (3d Cir. 2002). See also Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003)

(citing cases).

       The defendants established that Wallace did not properly exhaust his

administrative remedies prior to filing suit. Because this appeal does not raise a

substantial question, we will affirm the judgment of the District Court.




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