GLD-197 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 10-4106

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FREDERICK M. TORRENCE,

Appellant,

v.

SHELLY LEE THOMPSON, RECORDS SUPERVISOR

AT SCI FOREST; *SECRETARY PENNSYLVANIA

DEPARTMENT OF CORRECTIONS; RAYMOND SOBINA,

SUPERINTENDENT AT SCI FOREST; MS.VICKIE SABELLA,

ACCOUNTING BUSINESS OFFICE AT SCI FOREST; MS.

CARRIE EVERETT, PAROLE SUPERVISOR AT SCI FOREST;

MS. SUSAN SATTERLEE, UNIT MANAGER AT SCI FOREST;

MS. DEB WOODARD, MAILROOM SUPERVISOR AT SCI

FOREST; CHRISTINA KENNEDY; MS. PAULA TOSKI,

BUSINESS MANAGER AT SCI FOREST

*(Pursuant to Rule 43(c), Fed. R. App. P.)

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civ. No. 10-cv-00067)

District Judge: Honorable Maurice B. Cohill, Jr.

__________________________________

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

May 26, 2011

Before: AMBRO, CHAGARES and GREENBERG, Circuit Judges

(Opinion filed June 3, 2011)

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OPINION

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PER CURIAM
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In a prior civil rights action, D.C. Civ. No. 07-cv-00331, appellant Frederick 

Torrence, a state prisoner, sued Records Supervisor Shelly Lee Thompson and other 

Pennsylvania Department of Corrections (“DOC”) officials, claiming, among other 

things, that they conspired to extend his maximum sixteen (16) year sentence. The 

District Court dismissed the action for failure to exhaust administrative remedies, 42 

U.S.C. § 1997e(a). Torrence appealed, and we dismissed the appeal pursuant to 28 

U.S.C. § 1915(e)(2)(B), because it presented no arguable legal issue. See Torrence v. 

Thompson, 335 Fed. Appx. 151 (3d Cir. 2009). We held that, although Torrence had 

filed grievances, he had failed to complete the “remaining steps for proper exhaustion.” 

Id. at 153. We rejected as meritless Torrence’s contention that section 1997e(a) did not 

apply to his claims. See

Torrence then filed a new action pursuant to 42 U.S.C. § 1983 in the United States 

District Court for the Western District of Pennsylvania, D.C. Civ. No. 10-cv-00067, 

against Thompson and other DOC officials, raising essentially the same claims. The 

defendants filed a motion to dismiss, or alternatively for summary judgment, arguing that 

the action could not proceed for several reasons. The defendants also attached to their 

motion the Declaration of Dorina Varner, a DOC Chief Grievance Officer assigned to the 

Secretary’s Office of Inmate Grievances and Appeals. Varner stated that Torrence had 

not fully complied with DC-ADM-804, and thus he had not exhausted his administrative 

remedies with respect to his cognizable claims. In fact, Torrence has never properly 

appealed any grievances to the Secretary’s Office. With respect specifically to his 

attempt to appeal grievance # 219730, Varner stated that Torrence had failed to include 

the required paperwork, that is, he had failed to include (1) a copy of the initial grievance, 

id.
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signed and dated; (2) the initial review response/rejection by the Grievance Officer and 

the inmate’s appeal to the Facility Manager, signed and dated; and (3) the Facility 

Manager’s decision/response. Varner stated that, after being advised of his obligation to 

do so in order to perfect his final appeal, Torrence had expressly declined. Therefore, his 

appeal was dismissed for failure to comply with the DOC’s procedural requirements. 

Attached to Varner’s Declaration was Torrence’s April 10, 2008 letter to her, in which he 

stated: “All of the documents you requested ... can be found on the D.O.C. computer.... 

I have exhausted my required steps. I need my limited funds to continue my present 

lawsuit against the D.O.C. and Parole Board.” See

Torrence submitted a brief in opposition to the defendants’ motion, in which he 

argued, among other things, that the exhaustion requirement should be excused in his 

case. Torrence argued that the grievance system at the State Correctional Institution –

Forest, where he is incarcerated, was flawed, and thus he did not have to exhaust his 

administrative remedies. To support his argument, he claimed that he never received a 

response to a grievance made in February, 2006 (which appears to be grievance # 

143304). Moreover, his prior civil rights action, D.C. Civ. No. 07-cv-00331, had been 

dismissed in error for failure to exhaust administrative remedies, because he never 

received the response. Torrence also filed a motion for a temporary restraining order and 

preliminary injunction, in which he sought protection for himself and staff witnesses 

from retaliation. The defendants opposed this motion.

Defendant’s Motion to Dismiss, etc., 

Exhibit A to Exhibit 1.

The Magistrate Judge recommended granting the defendants’ motion to dismiss or 

alternatively for summary judgment, and denying Torrence’s motion for a temporary 
4

restraining order and preliminary injunction. The Magistrate Judge concluded that 

Torrence had never properly appealed any grievances at the final stage, and, because he 

expressly refused to provide the necessary paperwork for his final appeal of grievance # 

219730, he had not satisfied section 1997e(a) with respect to his current civil action. 

With respect to his argument that the grievance system at SCI – Forest was flawed and 

thus his noncompliance should be excused, the Magistrate Judge found that his assertion 

that he never received a response to the grievance at issue in D.C. Civ. No. 07-cv-00331

was disingenuous and untrue.1

Torrence appeals. Our Clerk granted him leave to appeal 

 Torrence filed Objections. In an order entered on 

October 7, 2010, the District Court adopted the Report and Recommendation as the 

Opinion of the Court, granted the defendants’ motion to dismiss or alternatively for 

summary judgment, and denied Torrence’s motion for a temporary restraining order and 

preliminary injunction.

in forma pauperis

We will dismiss the appeal as frivolous. We have jurisdiction under 28 U.S.C. § 

1291. An appellant may prosecute his appeal without prepayment of the fees, 28 U.S.C. 

§ 1915(a)(1), but the 

and 

advised him that the appeal was subject to summary dismissal under 28 U.S.C. § 

1915(e)(2)(B) or summary affirmance under Third Cir. LAR 27.4 and I.O.P. 10.6. He 

was invited to submit argument in writing, and he has done so.

in forma pauperis

 1 The Magistrate Judge noted that Torrence himself filed the log recording the denial of 

his grievance and the Initial Review Response for that grievance, as exhibits to his 

motion for summary judgment in D.C. Civ. No. 07-cv-00331.

statute provides that the Court shall dismiss the 

appeal at any time if the Court determines that it is frivolous, 28 U.S.C. § 

1915(e)(2)(B)(i). An appeal is frivolous when it lacks an arguable basis either in law or 
5

fact. Neitzke v. Williams

We note as a preliminary matter that Torrence has already challenged in a habeas 

corpus petition the actions of the Pennsylvania Board of Probation and Parole in 

recalculating his maximum release date. That challenge was unsuccessful. 

, 490 U.S. 319, 325 (1989). We conclude that no arguable legal 

or factual issue is presented by Torrance’s appeal.

See Torrence 

v. Dep’t of Corrections, E.D. Pa. Civ. No. 07-cv-03620.2 To the extent that Torrence is 

now challenging the fact or duration of his recalculated maximum sentence, the instant 

action may not proceed because such a claim must be brought in a habeas corpus action. 

Preiser v. Rodriguez, 411 U.S. 475 (1973). In addition, Heck v. Humphrey, 512 U.S. 477

(1994), precludes section 1983 claims like Torrence’s whose success “would necessarily 

imply the invalidity” of a conviction or sentence that has not already been reversed, 

expunged, declared invalid, or “called into question by a federal court’s issuance of a writ 

of habeas corpus[.]” Id.

We further agree with the District Court that Torrence’s remaining claims are 

barred by his failure to completely exhaust his administrative remedies. To comply with 

the exhaustion requirement, a prisoner must complete the prison’s administrative process. 

“Proper exhaustion demands compliance with an agency’s deadlines and other critical 

procedural rules because no adjudicative system can function effectively without

imposing some orderly structure on the course of its proceedings.” 

at 487.

Woodford v. Ngo

 2 In short, the Parole Board re-paroled Torrence and he was released. His maximum date 

for his 8-16 year sentence was set as March 26, 2011. The Parole Board subsequently 

declared Torrence delinquent, and he was ordered to serve twelve months of backtime, 

thus extending his maximum release date to October 28, 2011. See Report and 

Recommendation, D.C. Civ. No. 07-cv-03620, at 2.

, 

548 U.S. 81, 90-91 (2006). A procedurally defective appeal does not satisfy the 
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exhaustion requirement of section 1997e(a). Spruill v. Gillis

As to whether exhaustion should be excused in Torrence’s case, we note that he 

refused to submit copies of the items the DOC requires to perfect an appeal - the initial 

grievance; the response by the Grievance Officer and the inmate’s appeal to the Facility 

Manager; and the Facility Manager’s response. As explained by the Magistrate Judge, 

Torrence offered no credible evidence that the grievance process at SCI-Forest is flawed. 

We further conclude that his original reason for refusing to comply with the procedural 

requirement - that the DOC already has the items in its computer and that he needs his 

limited funds to pursue his lawsuits against the DOC – is unpersuasive. An inmate who 

cannot, for financial reasons, afford the cost of photocopying three short items, and who 

then seeks an exemption from the requirement, might have a plausible argument that he 

had exhausted his administrative remedies if the institution then refuses to hear his appeal 

on a procedural ground. But where the inmate has filed numerous civil actions, and has 

previously provided numerous exhibits in those civil actions when it has been in his 

interest to do so, and then has flatly refused to comply with a reasonable administrative 

procedural requirement because he is saving his money for his lawsuits, that inmate has 

deliberately bypassed the administrative process, 

, 372 F.3d 218, 230 (3d Cir. 

2004) (section 1997e(a) contains procedural default component). Under DC-ADM 804, 

proper exhaustion requires three steps: the filing of an initial grievance; an appeal to the 

facility manager; and an appeal to the Secretary’s Office of Inmate Grievances and 

Appeals. Torrence did not argue in the proceedings below that he completed the required 

paperwork for his final appeal to the Secretary’s Office of Inmate Grievances and 

Appeals. It is thus undisputed that he defaulted on his final appeal.

Woodford, 548 U.S. at 97, and 
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“flout[ed] the agency’s procedural rules,” id.

Last, Torrence’s motion for a temporary restraining order and preliminary 

injunction was frivolous and thus was properly denied.

 Torrence’s financial argument, and thus his 

argument for an exemption, is disingenuous. The District Court properly held that he is 

barred by section 1997e(a) from pursuing his remaining claims in this lawsuit.

For the foregoing reasons, we will dismiss the appeal as frivolous pursuant to 28 

U.S.C. § 1915(e)(2)(B)(i).