Andre Jacobs v. Pennsylvania Department of Corrections

CPS-319 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 05-1455
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ANDRE JACOBS,
Appellant
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
JEFFREY A. BEARD; ROBERT FRANK; JEFFREY FORTE;
FRANK COLE; A. E. YUHOUSE; WINTERS; GREGORY MOHRING
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On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 04-cv-01365)
District Judge: Honorable Joy Flowers Conti
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Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
July 28, 2005
BEFORE: ALITO, McKEE and AMBRO, Circuit Judges
(Filed : September 6, 2005)
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OPINION
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PER CURIAM
Andre Jacobs, a state prisoner, appeals from the order of the United States District
Court for the Western District of Pennsylvania granting the defendants’ motion to dismiss

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The erroneous docket number to which Jacobs alluded was the docket number of1
another action filed by Jacobs against many of the same prison officials.
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his civil rights action. The parties are familiar with the facts, so we will not set forth the
case’s history in detail. In summary, Jacobs filed a civil rights complaint under 42 U.S.C.
§§ 1981, 1983, 1985 and 1986. His claims are based on an incident on May 30, 2003,
when he was allegedly assaulted by the defendants while he was an inmate at the State
Correctional Institution at Pittsburgh. On November 24, 2004, the defendants filed a
motion to dismiss the complaint, arguing, inter alia, that Jacobs failed to exhaust his
administrative remedies fully, as required by 42 U.S.C. § 1997e(a). By order entered
December 2, 2004, the Magistrate Judge ordered Jacobs to respond to the motion by
December 21, 2004, or to file an amended complaint to address the deficiencies in the
original complaint. Jacobs responded by filing a motion to reconsider the Magistrate
Judge’s order, asserting that he had already filed an amended complaint addressing the
exhaustion issues, but that he had mistakenly filed it in the wrong action, having written
the wrong docket number on the document. The Magistrate Judge denied Jacobs’s1
motion. On December 22, 2004, the Magistrate Judge issued a report and
recommendation that the complaint be dismissed for failure to exhaust administrative
remedies in proper fashion. On that same date, Jacobs filed a motion seeking additional
time to respond to the defendants’ motion to dismiss. Shortly thereafter, Jacobs filed
another motion seeking additional time to respond to the defendants’ motion and
requested reconsideration of the Magistrate Judge’s recommendation; Jacobs asserted that

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the defendants had prevented his previous response to the motion from being filed and
returned the document to Jacobs. By order entered February 4, 2005, the District Court
adopted the report and recommendation and dismissed the complaint. Jacobs appeals and
has been granted leave to proceed in forma pauperis on appeal. We have jurisdiction
under 28 U.S.C. § 1291.
Under the Prison Litigation Reform Act (“PLRA”), exhaustion of administrative
remedies is required for all actions concerning prison conditions brought under federal
law. 42 U.S.C. § 1997e(a); Spruill v. Gillis, 372 F.3d 218, 227 (3d Cir. 2004). In Spruill,
we held that the PLRA required “proper” exhaustion, meaning that the inmate must
follow the procedural requirements of the prison grievance system. Spruill, 372 F.3d at
228, 231. If the prisoner fails to follow the procedural requirements, then his claims are
procedurally defaulted.
Upon careful review of the record, we agree with the District Court that Jacobs
failed to exhaust his administrative remedies properly. The prison grievance procedure,
known as DC-ADM 804, provides a three-part review: first, the prisoner must file a
grievance within fifteen days with the grievance coordinator; second, the prisoner may
appeal to the facility manager within five days of receipt of the initial review; third, the
prisoner may appeal to the Central Office Review Committee. In this case, Jacobs filed
his grievance on June 2, 2003, which was denied on initial review on June 17, 2003.
Jacobs then attempted to pursue an appeal, not to the facility manager, but to the
Department of Corrections Office of Inmate Grievances and Appeals, which notified

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Jacobs on September 24, 2003, that he had failed to comply with the documentation
requirements required for appeal, namely, photocopies of the grievance, decision on
initial review, the appeal to the facility manager, and the facility manager’s decision. On
September 30, 2003, Jacobs then attempted to file an appeal to the facility manager (the
prison superintendent), who returned the appeal without action because it was filed three
and-a-half months after the proscribed five-day deadline. Jacobs again attempted to
appeal to the Office of Inmate Grievances and Appeals, which again informed Jacobs that
he had failed to comply with the documentation requirements required for appeal. Jacobs
was afforded ten working days to comply with the procedural requirements for pursuing
the appeal, but he apparently did nothing.
We agree with the District Court that Jacobs did not follow the proper procedure to
exhaust his administrative remedies and that his claims are procedurally defaulted. We
note that Jacobs responded to the defendants’ failure to exhaust argument by referring to
an amended complaint misfiled in his other litigation, but the record does not reflect that
Jacobs ever submitted an amended complaint in this matter. Also, in responding to the
Magistrate Judge’s report and recommendation, Jacobs referred to documents in his
possession that would evidence his exhaustion of administrative remedies. However, he
did not file those documents, and he made no other attempt to support his bare assertion
that his administrative remedies were exhausted. Indeed, Jacobs did not even offer an
explanation regarding the exhaustion issue that would refute the Magistrate Judge’s
findings.

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We will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).

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