WILLIAM BRANDON CUMMINGS, Sovereign v. Lt. Crumb

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ALD-320 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2750
WILLIAM BRANDON CUMMINGS, Sovereign
v.
LT. CRUMB; LT. MARTIN VOJACEK;
BRIAN V. COLEMAN; EDWARD RENDELL, Governor;
THOMAS CORBETT, JR.; C. T. THOMAS, Officer
William Brandon Cummings, Appellant
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-08-cv-00707)
District Judge: Honorable Joy Flowers Conti
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
September 24, 2009
Before: SLOVITER, FUENTES and JORDAN , Circuit Judges
(Opinion filed: October 2, 2009)
OPINION
PER CURIAM
In a complaint dated May 9, 2008, William Cummings alleged that appellees

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forced him to sleep on a cold floor without a mattress for two nights beginning on May 3,
2008. Two days later, Cummings was allegedly hit with a night stick by Appellee
Shreve. Cummings contended that after he asked for help with the resulting back pain, he
was dragged to a strip search area and suffered further injury. Appellees filed a motion to
dismiss, arguing that Cummings had failed to exhaust his administrative remedies as
required by 42 U.S.C. § 1997e(a). The District Court granted the motion to dismiss, and
Cummings filed a timely notice of appeal.
Because Cummings is proceeding in forma pauperis on this appeal, we must
analyze his appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). Under §
1915(e)(2)(B), we must dismiss an appeal if the action (i) is frivolous or malicious, (ii)
fails to state a claim upon which relief may be granted, or (iii) seeks monetary damages
from a defendant with immunity. An action or appeal can be frivolous for either legal or
factual reasons. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Section 1997e(a)
provides that “[n]o action shall be brought with respect to prison conditions under section
1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or
other correctional facility until such administrative remedies as are available are
exhausted.”
In an amended complaint, Cummings explained that he did not file a grievance
because he was denied a pen and paper to write a grievance. However, as noted by the
District Court, his original complaint was dated May 8, 2008 - within the fifteen days that
he could file a grievance from the May 3rd and May 5th incidents. Thus, Cummings

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clearly had access to a pen and paper during that time.
In his response to the motion to dismiss, Cummings argued that he had previously
tried to use the grievance process in the facility on several occasions to no avail. He
explained that every grievance he had filed had been denied as frivolous, lacking merit, or
filed in bad faith. However, as explained by the District Court, there is no futility
exception to the exhaustion requirement. Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000).
Cummings also argued that he was denied the grievance process because he was
on grievance restriction. According to the Pennsylvania Department of Corrections
Grievance Policy DC-ADM 804 Part IV.L, an inmate on grievance restriction is restricted
to filing no more than one grievance every 15 days. Thus, being on grievance restriction
would not have prevented Cummings from exhausting his remedies. In his objections to
the Magistrate Judge’s Report and Recommendation, Cummings claimed that he tried to
file a grievance but that it was never returned to him. Cummings’s changing and
contradictory allegations do not excuse his failure to exhaust his administrative remedies.
For the above reasons, we will dismiss the appeal as legally and factually
frivolous. We further note that Cummings has now had three cases or appeals dismissed
as frivolous or for failure to state a claim. See C.A Nos. 09-1664, 09-2157, and E.D. Pa.
Civ. No. 08-cv-04220. Under 28 U.S.C. § 1915(g), a prisoner who has brought three
cases or appeals that were dismissed as frivolous or for failure to state a claim may not
proceed in forma pauperis unless he is under imminent danger of serious physical injury.

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