Shawn A. Lockett, Sr v. Warden Dominick Derose

DLD-057 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-3561
___________
SHAWN A. LOCKETT, SR.,
Appellant
v.
WARDEN DOMINICK DEROSE
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 08-cv-01643)
District Judge: Honorable A. Richard Caputo
____________________________________
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
November 25, 2009
Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges
(Opinion filed: December 11, 2009)
_________
OPINION
_________
PER CURIAM.
Shawn A. Lockett, Sr., a Pennsylvania state inmate, filed this civil rights action
under 42 U.S.C. § 1983 against Dominick DeRose, the Warden at Dauphin County

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Lockett sought damages and other relief based on, inter alia, an alleged denial of1
adequate medical care; denial of sanitary housing conditions; denial of access to the
courts, to church services, to mail, and to the law library; a challenge to his placement in
lock-down status; a challenge to receipt of a misconduct report; and prison officials’
alleged use of excessive force to quell a disturbance.
Lockett averred in the complaint that there is a grievance procedure available at2
Dauphin County Prison, that he filed a grievance concerning the facts relating to this
complaint, but that he did not complete the grievance process before filing suit.
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Prison, asserting several violations of his constitutional rights. Lockett filed his1
complaint on August 18, 2008, in the Dauphin County Court of Common Pleas. The state
court transferred the action to the United States District Court for the Middle District of
Pennsylvania, where it was entered on the docket on September 8, 2008.
The District Court granted Lockett leave to proceed in forma pauperis. After
service of the complaint, Warden DeRose filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6), arguing, inter alia, that Lockett, by his own admission
in the complaint, did not exhaust administrative remedies through the prison grievance
process prior to filing suit, as required under 42 U.S.C. § 1997e(a). Lockett responded2
by arguing that he “did put in grievances” but had “no respon[se] back from the warden.”
He further contended that all of his belongings were confiscated after June 16, 2008, “so
th[ere] was no way ... to follow up with the grievances ... put in” because he was “without
paper or anything to write with.”
The District Court granted the motion to dismiss. It noted that Lockett signed the
complaint on July 28, 2009, and that it was clear from the face of the complaint that

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Lockett did not exhaust the grievance process prior to that date. The District Court
rejected Lockett’s contention that he could not exhaust due to a lack of paper or pen,
observing that this contention is inconsistent with the factual allegations set forth in the
complaint. As averred in the complaint, Lockett’s belongings were confiscated following
a June 16, 2008, incident, but were returned on July 10, 2008. Lockett received a write
up sometime after the June 16 incident, and he was able to appeal that write up to Warden
DeRose, who responded to the appeal before Lockett filed his complaint. The District
Court noted that these factual allegations undermine Lockett’s subsequent contention that
Warden DeRose had failed to respond to his grievances, or that Lockett was unable to
“follow up with the grievances ... put in.” Accordingly, the District Court dismissed
Lockett’s complaint, without prejudice, for failure to exhaust available administrative
remedies prior to filing suit.
Lockett timely filed a motion for reconsideration, to which he attached copies of:
(i) a grievance response dated August 19, 2008, from the Commissoner of the Prison
Board of Inspectors, advising Lockett that a grievance he had filed was denied, and that
he could appeal further to the full Prison Board; and (ii) a grievance response dated
September 10, 2008, from the Prison Board Solicitor, advising that the Prison Board had
denied Lockett’s appeal, and that Lockett could appeal further to the Dauphin County
Solicitor. Lockett did not submit evidence of an appeal to the Dauphin County Solicitor,
nor did he claim to have pursued such an appeal.

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The District Court denied reconsideration. It explained that, even if it is assumed
that Lockett filed an appeal to the Dauphin County Solicitor and completed the grievance
process, his exhaustion of administrative remedies occurred only after the filing of his
complaint. Because the Prison Litigation Reform Act (“PLRA”) requires a prisoner to
exhaust before filing suit, Lockett did not satisfy the exhaustion requirement.
Lockett timely filed this appeal, and he has been granted leave to proceed in forma
pauperis. This Court has appellate jurisdiction under 28 U.S.C. § 1291. Because
Lockett’s appeal lacks an arguable basis in law or fact, we will dismiss it pursuant to 28
U.S.C. § 1915(e)(2)(B).
As the District Court observed, the PLRA provides that an inmate must refrain
from bringing suit “until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requirement applies to all inmate suits
about prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S.
516, 532 (2002). Proper exhaustion requires that an inmate proceed through all available
steps in the administrative review process, and that the inmate do so in accordance with
established deadlines and procedural rules so that the reviewing body can addresses the
issues raised. See Woodford v. Ngo, 548 U.S. 81, 90 (2006). Courts have recognized
that an inmate cannot satisfy the PLRA by exhausting administrative remedies after filing
suit. See, e.g., Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003) (“[I]n considering

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motions to dismiss for failure to exhaust under section 1997e(a), the district court must
look to the time of filing, not the time the district court is rendering its decision, to
determine if exhaustion has occurred. If exhaustion was not completed at the time of
filing, dismissal is mandatory.”).
Here, Lockett dated his complaint July 28, 2008, it was filed in state court on
August 18, 2008, and it was entered on the District Court’s docket on September 8, 2008.
Assuming arguendo that September 8 reflects the date on which Lockett filed suit, it is
clear from Lockett’s own representations and submissions that he did not complete the
administrative review process prior to that date. Lockett received an intermediate-level
response to his grievance from the Prison Board Solicitor on September 10. Assuming
that Lockett pursued the next level in the administrative process through an appeal to the
Dauphin County Solicitor, that appeal necessarily occurred after he had filed suit in
federal court. Accordingly, the District Court properly granted the motion to dismiss and
dismissed the complaint without prejudice for failure to comply with § 1997e(a).
For these reasons, we will dismiss the appeal pursuant to § 1915(e)(2)(B).

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