                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 11-3739
                                       ___________

                            GEORGE M. ROWANN, Appellant

                                            v.

                   BRIAN V. COLEMAN, (Warden), et al.; JOHN DOE(S),
                                 Employees, et al.
                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-10-cv-01222)
                      District Judge: Honorable Gary L. Lancaster
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 14, 2012

   Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: August 15, 2012)
                                        _________

                                        OPINION
                                        _________

PER CURIAM

       George Rowann, a pro se litigant in the custody of the Commonwealth of

Pennsylvania, appeals the dismissal of his civil-rights suit. We will affirm.

       Because the parties are our primary audience, we need not recite the facts of this

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case at length. In his original complaint, Rowann challenged his placement in

disciplinary custody at both SCI-Smithfield and SCI-Fayette, naming superintendant

Brian V. Coleman and “each of his officers, agents, employees, and all persons acting in

concert or participation with them” as defendants. Later, Rowann filed a document

entitled “The Complaint,” which appeared to allege that, in retaliation for filing the

lawsuit, he had been assaulted on two occasions by guards at the facility. The District

Court sua sponte dismissed the suit without prejudice, concluding that 1) it would have

been impossible for Rowann to have exhausted his administrative remedies under the

Prison Litigation Reform Act (PLRA) before pursuing legal action, as he complained of

incidents taking place on September 7 but filed suit a week later; and 2) the document

entitled “The Complaint,” which was construed as a supplemental complaint, 1 was

impermissibly filed without leave of the court, but was in any event moot because the

original complaint was to be dismissed. Rowann appealed. 2

       Our first task is to determine what issues are properly before us. It is well settled

that an appellant’s failure raise a particular issue in his opening brief results in waiver of

that issue. See Free Speech Coalition, Inc. v. Att’y Gen., 677 F.3d 519, 545 (3d Cir.

2012). We have not yet decided, in a precedential opinion, whether this rule applies with


1
 See Fed. R. Civ. P. 15(d); Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185,
1188 (3d Cir. 1979).
2
 Exercising jurisdiction under 28 U.S.C. § 1291, see Frederico v. Home Depot, 507 F.3d
188, 192 (3d Cir. 2007), we conduct plenary review of the dismissal of the complaint.
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
                                               2
full force to pro se litigants, who are otherwise afforded courtesies not extended to their

represented counterparts, such as liberal construction of pleadings. See, e.g., Henderson

v. Fisher, 631 F.2d 1115, 1117 (3d Cir. 1980) (per curiam). Other courts have held that it

does so apply. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per

curiam).

       In his opening, informal brief, Rowann insists that he was the victim of retaliation

and that he was unable to file grievances because of interference by prison officials. He

fails, however, to address the salient question in this case, to which his attention was

specifically drawn in the briefing order: did the District Court erroneously dismiss his

supplemental complaint as moot? Arguing the facts of the supplemental complaint is

unavailing, because those factual contentions were never properly before the District

Court and were not the basis of its ruling. We conclude that when a pro se appellant

declines to brief a matter that he was explicitly instructed to raise, he has waived the issue

in question unless extraordinary circumstances affected his compliance. No such

circumstances are apparent here.

       Rowann’s alternative grievance argument is also unsuccessful. Rowann submitted

evidence in District Court to support his contention that efforts to exhaust his

administrative remedies were frustrated. See, e.g., ECF No. 38-2. Problematically, his

submissions dated from after the initiation of the suit; in other words, they bolstered,

rather than undermined, the District Court’s conclusion that he had impermissibly

pursued federal litigation before even attempting to exhaust his administrative remedies,
                                              3
a course prohibited by the PLRA. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.

2003); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001).

       Having determined that the procedural question is waived, and finding no merit in

Rowann’s attempt to excuse compliance with the PLRA’s exhaustion requirement, we

will affirm the District Court’s judgment. 3 Our decision today is without prejudice to

Rowann’s filing a new suit based on the facts he would have alleged in his supplemental

complaint, assuming he first exhausts his administrative remedies and complies with all

other procedural requirements; we stress that we have not evaluated the merits of the

allegations contained therein.




3
  To the extent that Rowann argues that the District Court failed to properly consider a
request for injunctive relief, any such error was harmless, as Rowann failed to show that
he was likely to succeed on the merits of his complaint. See Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Similarly, although a District Court should
generally not raise sua sponte the affirmative defense of failure to exhaust, see Jones v.
Bock, 549 U.S. 199, 216 (2007), it may do so if the defense is apparent from the face of
the complaint. See Ray v. Kertes, 285 F.3d 287, 296 (3d Cir. 2002). In this case, a filing
date mere days after the complained-of incident satisfies the Kertes standard; and, in any
event, Rowann was given an opportunity to explain himself after being put on notice of
the defect in his complaint, but failed to do so.
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