GLD-290 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 11-2870

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RONALD JOSEPH PAYNE,

 Appellant

v.

SUPERINTENDENT PITKINS; DR. SALAME; DR. ROBINSON

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On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 10-cv-00128)

Magistrate Judge: Honorable Cathy Bissoon

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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 15, 2011

Before: AMBRO, CHAGARES and COWEN, Circuit Judges

(Opinion filed: October 13, 2011)

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OPINION

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PER CURIAM.

Ronald Joseph Payne, an inmate in Pennsylvania, filed this suit under 42 U.S.C. § 

1983 seeking damages based on a claim that, while working in the kitchen at SCI-Laurel 

Highlands, he broke his arm in a slip-and-fall accident and did not receive proper 
2

treatment until five months later. The named defendants (Superintendent Pitkins, and 

Drs. Robinson and Salameh1) moved to dismiss, arguing, inter alia, that Payne failed to 

properly exhaust administrative remedies before filing suit, as required by 42 U.S.C. § 

1997e(a). In particular, defendants pointed out that Payne was injured on May 17, 2008, 

but he did not file a grievance until September 8, 2009, and while Payne had surgery on 

his arm on October 17, 2008, his grievance was filed almost a year after the surgery. The 

Department of Corrections (“DOC”) rejected Payne’s grievance as untimely, explaining 

that “[t]he issue ... describe[d] concerning a broken arm happened in 2008. It is well past 

the 15 day time frame for filing a grievance.” Payne argued in response to the motions to 

dismiss that he had been denied his property for sixty days and denied access to the 

commissary for two weeks, suggesting that he was prevented from commencing the 

grievance process in a timely manner. 

The Magistrate Judge recommended that the motions to dismiss be granted, 

explaining that even if Payne’s obligation to file a grievance was not triggered until after 

his surgery, the grievance was submitted nearly eleven months after expiration of the 

fifteen-day deadline. In addition, Payne did not appeal the rejection of his grievance, and 

the Magistrate Judge concluded Payne’s procedural default in the administrative review 

process bars his claim from being heard in federal court. Finally, the Magistrate Judge 

concluded that equitable tolling would not render Payne’s grievance timely filed or 

excuse his failure to appeal. 

After issuance of the Report and Recommendation, to which Payne filed no 

 

1 Dr. Salameh is misidentified in the caption as “Dr. Salame.”
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objections, the parties consented in writing to the jurisdiction of the Magistrate Judge, 

who thereafter adopted the Report and Recommendation as the opinion of the court and 

dismissed the complaint. Payne timely filed this appeal.

We have appellate jurisdiction under 28 U.S.C. § 1291. We review de novo the

dismissal of a prisoner civil rights complaint for failure to exhaust administrative 

remedies. Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). Because Payne is 

proceeding in forma pauperis, we must dismiss his appeal if, inter alia, we determine that 

the appeal is frivolous. See 28 U.S.C. § 1915(e)(2)(B)(i). 

After a review of the record, we discern no error in the Magistrate Judge’s 

analysis. The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be 

brought with respect to prison conditions under section 1983 of this title by a prisoner 

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

are available are exhausted.” 42 U.S.C. § 1997e(a). In Woodford v. Ngo, 548 U.S. 81

(2006), the Supreme Court held that “the PLRA exhaustion requirement requires proper

exhaustion.” Id. at 93 (emphasis added); see Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 

2004) (explaining that the PLRA includes a procedural default component and that the 

determination whether a prisoner properly exhausted a claim is made by evaluating 

compliance with the prison’s specific grievance procedures). 

The record here is undisputed that Payne filed a grievance regarding his broken 

arm and the alleged delay in treatment on September 8, 2009. The DOC rejected the 

grievance as untimely filed – a determination that was undoubtedly correct regardless of 

whether the fifteen-day period for filing is measured from the date of Payne’s injury or 
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the date of his subsequent surgery. Payne did not appeal the denial of his grievance. His 

argument for tolling or extending the time to file a grievance based on a lack of access to 

materials or a commissary for short periods of time cannot, as the Magistrate Judge fully 

explained, remedy the gross untimeliness of his grievance. Even under a most favorable 

reading of the record, Payne filed his grievance several months too late.

“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.” Woodford, 548 U.S. 

at 90-91. Consequently, an “untimely or otherwise procedurally defective administrative 

grievance or appeal” is insufficient to satisfy the PLRA’s exhaustion requirement. Id. at

83; see Spruill, 372 F.3d at 230. Applying these principles, the Magistrate Judge 

correctly held that Payne failed to properly exhaust the claim that he raises in this suit, 

and, accordingly, properly dismissed the complaint. 

For these reasons, we conclude that this appeal lacks any arguable legal merit, and 

we will dismiss it as frivolous under 28 U.S.C. § 1915(e)(2)(B)(i).