                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-25-2007

Roscoe v. Dobson
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1418




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Recommended Citation
"Roscoe v. Dobson" (2007). 2007 Decisions. Paper 379.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/379


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CLD-351                                                        NOT PRECEDENTIAL


                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 07-1418
                                   ________________

                                ALFONZO A. ROSCOE,
                                     Appellant

                                             v.

   C.O. DOBSON; LT. FELLMAN; LT. LYONS; ASSOCIATE WARDEN MEEKS;
       WARDEN TROY WILLIAMSON; KAREN F. HOGSTEN; J. ESPARZA
                 ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                            (M.D. Pa. Civ. No. 05-cv-02547)
                        District Judge: Honorable Yvette Kane
                     _______________________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   August 23, 2007
           Before: RENDELL, SMITH AND JORDAN, CIRCUIT JUDGES


                               (Filed September 25, 2007 )
                               _______________________

                                       OPINION
                               _______________________

PER CURIAM

       Alfonzo Roscoe, a federal prisoner proceeding pro se, appeals from an order of the

United States District Court for the Middle District of Pennsylvania granting summary

judgment in favor of prison employees in his civil rights action because he failed to
exhaust his administrative remedies. We will dismiss Roscoe’s appeal pursuant to 28

U.S.C. § 1915(e)(2)(B).

       In August 2005, Roscoe reported to his work supervisor that Corrections Officer

Dobson pushed and shoved him and then threatened to kill him. Roscoe was taken to a

lieutenant’s office for an interview, and later was placed in the Special Housing Unit

(SHU). Roscoe filed a Request for Administrative Remedy concerning the incident. The

Warden responded that Roscoe’s allegations would be evaluated, but he would not be

notified of the results of any investigation. The Warden notified Roscoe that he could

appeal to the Regional Director.

       Roscoe filed an appeal alleging that he was assaulted and challenging his

confinement in the SHU. The Regional Director rejected the appeal because Roscoe did

not provide a copy of the institution’s response or submit the correct number of

continuation pages. Roscoe timely resubmitted his appeal, but the Regional Director

denied it, stating that Roscoe’s allegations were referred to the proper authority, and that

he was not entitled to information about the investigation. And the Regional Director

stated that the Warden determined that his release to the general population could be

detrimental to the safety, security, and orderly running of the prison, and that he would

remain in the SHU pending the investigation. The Regional Director notified Roscoe that

he had 30 days to appeal the decision, which was issued on November 30, 2005.

       Roscoe timely appealed to the Bureau of Prisons Central Office. On December 14,



                                              2
2005, the Central Office rejected the appeal because Roscoe provided the wrong form,

failed to provide a copy of his administrative remedy request form and the institution’s

response, and did not submit the correct number of continuation pages. Roscoe was given

15 days to resubmit his appeal. Roscoe resubmitted his appeal, but the Central Office did

not receive it until January 27, 2006. On February 8, 2006, the Central Office rejected the

appeal as untimely, and advised Roscoe that he could resubmit the appeal with

verification from staff that the untimeliness was not his fault.

       On March 13, 2006, Roscoe resubmitted the appeal with a letter from staff stating

that Roscoe “could have received” his copy of the December 14, 2005, rejection notice on

December 27, 2005, two days before the 15-day deadline. But the Central Office again

rejected Roscoe’s appeal as untimely, noting that staff could not confirm exactly when he

received his rejection notice, and concluding that his appeal was late based on the day

staff believed he received the notice.

       The District Court did not err in granting summary judgment for the prison

employees because Roscoe did not properly exhaust his administrative remedies. The

Prison Litigation Reform Act prohibits an inmate from bringing a civil rights action until

such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). This

provision requires proper exhaustion, which demands compliance with an agency’s

deadlines and other critical procedural rules. Woodford v. Ngo, 126 S. Ct. 2378, 2386-87

(2006). Here, the Bureau of Prison’s Central Office found Roscoe’s appeal untimely and



                                              3
rejected it.

       We have stated that compliance with an administrative remedy scheme will be

satisfactory if substantial. Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004). But we

also have stated that, whatever the parameters of substantial compliance may be, it does

not encompass the filing of a suit before administrative exhaustion has been completed.

See Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002) (holding inmate could not

cure defect in action by amending complaint dismissed for failure to exhaust

administrative remedies). Roscoe filed his civil rights action on December 8, 2005,

before he appealed to the Central Office. As noted by the District Court, his complaint

was subject to dismissal even if his final administrative appeal was timely because he

filed the complaint while he was still in the process of exhausting his administrative

remedies. See Johnson v. Jones, 340 F.3d 624, 627-28 (8 th Cir. 2003) (collecting cases

and holding that a complaint must be dismissed if exhaustion was not completed at the

time of filing).

       Accordingly, we will dismiss this appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).
