Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-6-2005

Lock v. Nash
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2040




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Recommended Citation
"Lock v. Nash" (2005). 2005 Decisions. Paper 445.
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BPS-376                                                    NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        NO. 05-2040
                                     ________________

                                        JOHN LOCK,
                                               Appellant

                                                v.

                                WARDEN JOHN NASH;
                         M. E. RAY, Northeast Regional Director
                        ____________________________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                                (D.C. Civ. No. 04-cv-00539)
                      District Judge: Honorable Thomas I. Vanaskie
                     _______________________________________

            Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                   September 22, 2005

     BEFORE: RENDELL, FISHER and VAN ANTWERPEN, CIRCUIT JUDGES

                                   (Filed: October 6, 2005)

                                _______________________

                                        OPINION
                                _______________________

PER CURIAM

       John Lock, a federal prisoner, appeals from the order of the United States District

Court for the Middle District of Pennsylvania granting the defendants’ motion to dismiss

his civil rights action. The parties are familiar with the facts, so we will not set forth the
case’s history in detail. In summary, Lock filed his complaint1 pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 

(1971), regarding

events while he was housed at FCI-Schuylkill. Specifically, his claims are based on

incidents on January 24, 2002 and May 8, 2003, when he was sexually assaulted by other

inmates; in October 2002, when his request for a transfer to another prison was denied;

and during 2002 and 2003, when he spent a prolonged period in segregation. Lock

sought damages and injunctive relief. The defendants filed a motion to dismiss the

complaint, arguing, inter alia, that Lock failed to exhaust his administrative remedies, as

required by 42 U.S.C. § 1997e(a). Lock filed a response. The District Court dismissed

the complaint, finding that Lock failed to exhaust his administrative remedies. Lock

appeals and has been granted leave to proceed in forma pauperis on appeal. We have

jurisdiction under 28 U.S.C. § 1291.

       Under the Prison Litigation Reform Act (“PLRA”), exhaustion of administrative

remedies is required for all actions concerning prison conditions brought under federal

law. 42 U.S.C. § 1997e(a); Spruill v. Gillis, 

, 227 (3d Cir. 2004). In Spruill,

we held that the PLRA required “proper” exhaustion, meaning that the inmate must

follow the procedural requirements of the prison grievance system. 

        As noted by the District Court, Lock originally filed his complaint on January
14, 2004, in the United States District Court for the District of Columbia. The matter
was transferred pursuant to 28 U.S.C. § 1406(a) to the Eastern District of Pennsylvania,
then was transferred again to the Middle District of Pennsylvania.

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228, 231. If the prisoner fails to follow the procedural requirements, then his claims are

procedurally defaulted.

       Under the Federal Bureau of Prisons (“BOP”) administrative remedy procedures,

an inmate must first submit an attempt at informal resolution to his unit team. 28 C.F.R.

§ 542.13(a). If the concern is not resolved, the inmate may submit an administrative

remedy request to the Warden, then to the BOP Regional Director, then to the BOP

Central Office. 28 C.F.R. §§ 542.14-15. Informal resolution and submission of a formal

written Administrative Remedy Request, on the appropriate form (BP-9), must be

completed within twenty calendar days after the incident date. 28 C.F.R. § 542.14(a).

       As relevant to this case, although the record contains documentation relating to the

factual background of his other claims, Lock attempted to pursue administrative remedies

with respect to only the May 8, 2003 sexual assault. The twenty-day period for

submitting an administrative remedy request expired on May 28, 2003. However, Lock

waited until June 4, 2003, when he submitted a request to prison staff, stating that he

wished to begin the administrative remedy process regarding the May 8, 2003 incident.

He filed a request for relief to the Northeast Regional Office. On June 18, 2003, the

Regional Office rejected the submission, explaining that it had been submitted to the

wrong level and should have been filed at the institution. Lock filed at the institutional

level an unsuccessful informal resolution request, followed by a request for administrative

remedy on July 31, 2003. The request was rejected as untimely. Lock then attempted to



                                             3
appeal to the Regional Office. He asserted that in June 2003, a prison officer asked him

to defer his filing, and in July 2003, that same officer told him he had plenty of time to

file his complaint. The Regional Office rejected the appeal as untimely. Lock attempted

to appeal to BOP Central Office, which rejected the appeal as untimely, concurring with

the prison’s and Regional Office’s reasons for rejecting Lock’s filings.

       Upon careful review of the record, we agree with the District Court that Lock

failed to exhaust his administrative remedies. We also agree that Lock’s reliance on a

prison officer’s advice in June and July 2003 to delay his filings is unavailing, because

the twenty-day period for filing an administrative remedy request had already passed by

then. We discern no error in the dismissal of Lock’s complaint on the basis of failure to

exhaust under section 1997e(a).

       We will dismiss this appeal under 28 U.S.C. § 1915(e)(2)(B).




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