Opinion
No. 10-2951.
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 October 28, 2010.
Opinion filed: November 10, 2010.
On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 07-cv-5826), District Judge: Honorable William J. Martini.
Eugene R. Wilson, Newark, NJ, pro se.
Melissa Jennifer Brown, Esq., Sean X. Kelly, Esq., Marks, O'Neill, O'Brien Courtney, Pennsauken, NJ, Nancy Kaplen, Esq., Office of Attorney General of New Jersey, Trenton, NJ, for Correctional Medical Services, et al.
Before: BARRY, FISHER and STAPLETON, Circuit Judges.
OPINION
Eugene R. Wilson, a New Jersey state prisoner, proceeding pro se, appeals from the District Court's grant of summary judgment to the defendants. Because the appeal presents no substantial question, we will summarily affirm.
Wilson filed a complaint in the United States District Court for the District of New Jersey alleging under both federal and state theories of liability that he was seriously and permanently injured by deficient medical care. The District Court granted Wilson's motion to proceed in forma pauperis and later granted his application for appointment of pro bono counsel. The District Court was unable to locate a pro bono attorney, however, and Wilson continued to represent himself. Defendants Correctional Medical Services, Niranjana Shah, M.D., Jeane Betha, C.M.A., and Rosenleine Prophete, R.N. ("Medical Defendants") brought a motion to dismiss, arguing that Wilson had failed to exhaust available administrative remedies. The District Court granted the Medical Defendant's Motion to Dismiss as to all defendants and dismissed all state law claims without prejudice.
II.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We may summarily affirm if the appeal presents no substantial question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6.
III.
The District Court properly found that Wilson failed to exhaust administrative remedies before filing his complaint. Under the Prison Litigation Reform Act ("PLRA"), prisoners must first properly exhaust their administrative remedies before filing an action under section 1983. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). The Medical Defendants demonstrated that Wilson failed to properly exhaust his administrative remedies, relying on a declaration by a prison official involved in processing inmate grievances and appeals, copies of the administrative grievance forms filed by Wilson, and Wilson's own admissions.
In order to comply with the PLRA, an inmate must exhaust all available administrative remedies, including intermediate or final administrative review of a prison's decision. Booth v. Churner, 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). It appears from the record that Wilson filed numerous Inmate Request Forms ("IRFs") relating to the medical care (or lack thereof) he received in prison, but he failed to appeal their rejections. Although Wilson explains that waiting for an appeal from the administration would have been "redundant or frivolous," the requirements of the PLRA must be met even where available administrative remedies are not "plain, speedy, and effective." Id. at 731, 121 S.Ct. 1819. Having reviewed the record, we agree with the District Court's grant of summary judgment to the defendants.
Wilson did appeal a single, unrelated, IRF in March of 2009.
Wilson notes in his appeal that throughout this litigation he has represented himself pro se, despite the District Court's order appointing counsel. Although the District Court determined that Wilson's case was appropriate for counsel, courts have no authority to compel counsel to represent an indigent civil litigant. Tabron v. Grace, 6 F.3d 147, 154 n. 1 (3d Cir. 1993) (citing Mallard v. United States District Court for the S. Dist. of Iowa, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989)). Even if an attorney had volunteered to represent Wilson, nothing in the record indicates that there would have been a different outcome in the litigation. Under the New Jersey Administrative Code, inmates must submit an administrative appeal within ten days of the issuance of a decision. N.J. Admin. Code § 10A:1-4.6. At the time Wilson filed his initial complaint, this period had already lapsed on all of the IRFs relevant to his claims; the assistance of counsel would have been insufficient for him to overcome this procedural bar.
We share the District Court's concern as to Wilson's argument that IRFs are not generally returned by prison officials. However this does not appear to have affected Wilson in this case because the applicable inmate handbook allows inmates to submit an Administrative Remedy Form if an IRF is not returned within thirty days of its receipt by the prison. Nothing in the record indicates that Wilson availed himself of this procedure.
As the appeal presents no substantial question, we will summarily affirm the District Court judgment. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10.6.