DLD-056                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3628
                                       ___________

                                NATHANIEL JACKSON,
                                             Appellant

                                             v.

                 SUPERINTENDENT GREENE SCI; JOHN DOE #1;
            LT. JOHN DOE #2; WEXFORD MEDICAL CORRECTIONAL;
                 JOHN & JANE DOES #3; JOHN & JANE DOES #4;
                  JOHN & JANE DOES #5; BYANAHAK JIN, M.D.;
             CORRECTIONAL OFFICER CARTER; LT. JOHN DOE #6
                     ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-15-cv-00457)
                      District Judge: Honorable Arthur J. Schwab
                      ____________________________________

       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, 2016

           Before: CHAGARES, VANASKIE and KRAUSE, Circuit Judges

                           (Opinion filed: December 13, 2016)
                                       _________

                                        OPINION *
                                        _________

*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

       Nathaniel Jackson appeals the District Court’s order granting Defendants’ motion

for summary judgment and motion for judgment on the pleadings and dismissing his

claims. Jackson is an inmate at S.C.I. Greene and is proceeding pro se and in forma

pauperis. Because the appeal presents no substantial question, we will summarily affirm.

       Jackson filed an Eighth Amendment deliberate indifference claim pursuant to 42

U.S.C. § 1983 against prison staff, administrators, and a doctor, and a negligence claim

under Pennsylvania state law against a doctor and health service provider after allegedly

receiving inadequate medical treatment for a broken finger. Defendants moved for

summary judgment on the Eighth Amendment claim, arguing that Jackson failed to

exhaust his administrative remedies, and moved for judgment on the pleadings on the

negligence claim. The Magistrate Judge recommended that both motions be granted.

After considering Jackson’s objection, the District Court adopted the Magistrate Judge’s

report and recommendation and granted Defendants’ motion for summary judgment and

motion for judgment on the pleadings. Jackson timely appealed.

       We have jurisdiction under 28 U.S.C. § 1291 and exercise plenary review over the

District Court’s decision to grant summary judgment and judgment on the pleadings.

Gallo v. City of Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998); Ehrheart v. Verizon

Wireless, 609 F.3d 590, 593 n.2 (3d Cir. 2010). A grant of summary judgment will be

affirmed if our review reveals that "there is no genuine dispute as to any material fact and

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the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Judgment

on the pleadings is appropriate if “the movant clearly establishes that no material issue of

fact remains to be resolved and that he is entitled to judgment as a matter of law.”

Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289, 290 (3d Cir. 1988) (internal

quotations omitted); Fed. R. Civ. P. 12(c). We review the facts in a light most favorable

to the nonmoving party. Coolspring Stone Supply, Inc. v. Am. States Life Ins. Co., 10

F.3d 144, 146 (3d Cir. 1993).

       The motion for summary judgment was properly granted as to Jackson’s Eighth

Amendment claims because he failed to exhaust his available administrative remedies.

An inmate must exhaust all available administrative remedies before seeking relief under

§ 1983. 42 U.S.C. § 1997e(a); Porter v. Nussle, 534 U.S. 516, 532 (2002). “Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural

rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Prison grievance procedures are

administrative remedies for this purpose. Concepcion v. Morton, 306 F.3d 1347, 1348-

49 (3d Cir. 2002). “Failure to exhaust administrative remedies is an affirmative defense

that must be pled and proven by the defendant[s].” Brown v. Croak, 312 F.3d 109, 111

(3d Cir. 2002).

       Defendants asserted that Jackson failed to exhaust his available administrative

remedies because he did not provide complete documentation for his grievances upon

request, as required by S.C.I. Greene’s grievance policy. In support, Defendants

submitted the entire file relating to Jackson’s grievances. These submissions show that
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Jackson did not submit a copy of his initial grievance during his appeal and that he was

informed that he could request a copy through the facility grievance coordinator. Jackson

failed to do so, and therefore did not properly comply with the procedural deadlines and

rules. See Woodford, 548 U.S. at 90. Accordingly, Defendants have demonstrated that

Jackson failed to exhaust his administrative remedies, and summary judgment was

therefore properly granted.

       Defendants’ motion for judgment on the pleadings as to Jackson’s negligence

claims was also properly granted. Jackson had to file a certificate of merit within sixty

days of filing his medical negligence claim. See Pa. R. Civ. P. 1042.3(a). Jackson did

not file the certificate, despite being notified by Defendants of the requirement. See

Schmigel v. Uchal, 800 F.3d 113, 124-25 (3d Cir. 2015) (holding plaintiff must receive

thirty days’ notice of the Rule 1042.3(a) certificate of merit requirement before the right

to dismiss an action for medical negligence vests). In his objections below, Jackson

attempted to excuse his failure to file the certificate of merit by noting that the Magistrate

Judge ordered that Defendants’ separate motion to dismiss for failure to state a claim be

held in abeyance pending outcome of the motion for summary judgment. While Jackson

is correct in this regard, the order to hold in abeyance is irrelevant and does not excuse

his failure to file the certificate because (1) Defendants filed a separate motion for

judgment on the pleadings well after this order, which is what the District Court

considered and (2) the order that Jackson attempts to use as excusing his failure to file


                                              4
was still entered well after the sixty-day time frame to file the certificate of merit had

passed. Therefore, the negligence claim was properly dismissed on the pleadings.




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