2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-2-2009

Brian Edward Griffin v. Melvin S. Lockett

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2267

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Recommended Citation

"Brian Edward Griffin v. Melvin S. Lockett" (2009). 2009 Decisions. Paper 717.

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ALD-292 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2267

___________

BRIAN EDWARD GRIFFIN,

Appellant

v.

MELVIN S. LOCKETT; R. M. LAWLER; A. LOVETT; SCOTT WALTERS; 

SCOTT WALTERS; DONALD VAUGHN; KENNETH HOLLIBAUGH; 

DONALD WILLIAMSON

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 1-06-cv-02445)

District Judge: Honorable Sylvia H. Rambo

____________________________________

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

August 20, 2009

Before: SLOVITER, FUENTES AND JORDAN, Circuit Judges

(Opinion filed: September 2, 2009)

_________

OPINION

_________

PER CURIAM

Brian Griffin appeals pro se from the District Court’s order dismissing his action

filed pursuant to 42 U.S.C. § 1983 for failure to exhaust administrative remedies. For the
2

reasons that follow, we will summarily affirm.

Because we write primarily for the parties, it is not necessary to recite the facts or

procedural history of this case except insofar as they are helpful to our discussion. In

December 2006, Griffin filed a complaint alleging First and Fourteenth Amendment

violations by various prison officials. Griffin, who was housed at SCI-Huntingdon,

mailed a letter to prison officials at the central office at SCI-Camp Hill. The letter

contained abusive language that threatened prison employees with bodily harm. 

Consequently, Griffin received a misconduct report and was sentenced to sixty days in

Disciplinary Custody in the Restrictive Housing Unit (“RHU”). Griffin’s confinement in

RHU was prolonged, however, and he claims that this additional confinement denied him

due process of law. In addition, Griffin alleges that his First Amendment rights were

violated because he received the misconduct report in retaliation for writing the letter,

which contained protected speech. 

Defendants filed an answer that included several affirmative defenses, one of

which is that Griffin failed to exhaust administrative remedies. The court permitted

discovery and both parties filed motions for summary judgment. After ruling on these

motions, the District Court determined that the following issues were to be resolved at a

bench trial: Griffin’s First Amendment claim, defendants’ argument that there was a

legitimate governmental interest in punishing an inmate for using abusive language, and

whether Griffin could show personal involvement by the named defendants. 
3

Defendants filed a pretrial memorandum, which included a statement that Griffin

did not appeal the matter to the second level of appeal. Defendants also included such a

statement in their proposed findings of fact. At trial, one of their witnesses produced a

Misconduct Tracking System Report showing that Griffin had only appealed the

misconduct to the first level. Griffin also conceded during cross-examination that he did

not appeal to the second and third levels available to him. 

The District Court determined that Griffin did not satisfy the exhaustion

requirement set forth in 42 U.S.C. 1997e(a) and dismissed the action. Griffin timely

appealed. In support of his appeal, Griffin argues that defendants had waived their

affirmative defense and that the District Court erred in denying him the opportunity to

amend his complaint. 

We have jurisdiction under 28 U.S.C. § 1291. Because Griffin is proceeding in

forma pauperis, we must dismiss the appeal under 28 U.S.C. § 1915 (e)(2)(B) if it is

legally frivolous. We may summarily affirm the appeal presents no substantial question. 

See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6. After a bench trial, we review the

District Court’s factual findings for clear error and exercise plenary review over its

conclusions of law. Am. Soc’y for Testing & Materials v. Corrpro Cos., 478 F.3d 557,

566 (3d Cir. 2007). We review denial of a motion to amend the complaint for abuse of

discretion. Foman v. Davis, 371 U.S. 178, 182 (1962).
4

The Prison Litigation Reform Act of 1996 (PLRA) provides that no action shall be

brought with respect to prison conditions under 42 U.S.C. § 1983 by a prisoner confined

in any jail, prison, or other correctional facility until such administrative remedies as are

available are exhausted. 42 U.S.C. § 1997e(a). Failure to exhaust administrative

remedies is an affirmative defense that defendants must plead and prove. Ray v. Kertes,

285 F.3d 287, 295 (3d Cir. 2002). The defense must be raised early in litigation. 

Robinson v. Johnson, 313 F.3d 128, 134 (3d Cir. 2002); Bradford-White Corp. v. Ernst &

Whinney, 872 F.2d 1153, 1160-61 (3d Cir. 1989). 

Griffin argues that the defendants waived the defense. However, as the District

Court properly found, defendants pled that Griffin failed to exhaust administrative

remedies as their first affirmative defense in their answer. Defendants also argued this

defense in their pretrial memorandum and in their proposed findings of fact, and

supported their defense at trial via witness testimony and the Misconduct Tracking

System Report. Moreover, Griffin admitted on cross-examination that he did not appeal

to the second and third levels available to him. Accordingly, there is no merit in Griffin’s

argument. Griffin’s alternative argument, that he exhausted this matter by filing a petition

for writ of habeas corpus in state court, does not satisfy 42 U.S.C. § 1997e(a). See Spruill

v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004) (discussing the Pennsylvania Department of

Corrections three-tier grievance system as the available administrative remedy). 
Finally, to the extent that Griffin appeals the District Court’s refusal to permit him

to amend his complaint, we conclude that the District Court did not abuse its discretion. 

On several occasions, the District Court explicitly ordered Griffin to comply with the

Local Rules and/or the Federal Rules of Civil Procedure for properly filing an amended

complaint. Although the court provided him with detailed instructions, Griffin failed to

comply.

As Griffin’s appeal presents no substantial question, we will summarily affirm the

District Court’s judgment.