Rowann v. Coleman

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-3739
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GEORGE M. ROWANN, Appellant
v.
BRIAN V. COLEMAN, (Warden), et al.; JOHN DOE(S),
Employees, et al.
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 2-10-cv-01222)
District Judge: Honorable Gary L. Lancaster
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 14, 2012
Before: SCIRICA, GREENAWAY, JR. and VAN ANTWERPEN, Circuit Judges
(Opinion filed: August 15, 2012)
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OPINION
_________
PER CURIAM
George Rowann, a pro se litigant in the custody of the Commonwealth of
Pennsylvania, appeals the dismissal of his civil-rights suit. We will affirm.
Because the parties are our primary audience, we need not recite the facts of this
1
case at length. In his original complaint, Rowann challenged his placement in
disciplinary custody at both SCI-Smithfield and SCI-Fayette, naming superintendant
Brian V. Coleman and “each of his officers, agents, employees, and all persons acting in
concert or participation with them” as defendants. Later, Rowann filed a document
entitled “The Complaint,” which appeared to allege that, in retaliation for filing the
lawsuit, he had been assaulted on two occasions by guards at the facility. The District
Court sua sponte dismissed the suit without prejudice, concluding that 1) it would have
been impossible for Rowann to have exhausted his administrative remedies under the
Prison Litigation Reform Act (PLRA) before pursuing legal action, as he complained of
incidents taking place on September 7 but filed suit a week later; and 2) the document
entitled “The Complaint,” which was construed as a supplemental complaint, 1 was
impermissibly filed without leave of the court, but was in any event moot because the
original complaint was to be dismissed. Rowann appealed. 2
Our first task is to determine what issues are properly before us. It is well settled
that an appellant’s failure raise a particular issue in his opening brief results in waiver of
that issue. See Free Speech Coalition, Inc. v. Att’y Gen., 677 F.3d 519, 545 (3d Cir.
2012). We have not yet decided, in a precedential opinion, whether this rule applies with
1
See Fed. R. Civ. P. 15(d); Owens-Illinois, Inc. v. Lake Shore Land Co., 610 F.2d 1185,
1188 (3d Cir. 1979).
2
Exercising jurisdiction under 28 U.S.C. § 1291, see Frederico v. Home Depot, 507 F.3d
188, 192 (3d Cir. 2007), we conduct plenary review of the dismissal of the complaint.
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000).
2
full force to pro se litigants, who are otherwise afforded courtesies not extended to their
represented counterparts, such as liberal construction of pleadings. See, e.g., Henderson
v. Fisher, 631 F.2d 1115, 1117 (3d Cir. 1980) (per curiam). Other courts have held that it
does so apply. See, e.g., Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per
curiam).
In his opening, informal brief, Rowann insists that he was the victim of retaliation
and that he was unable to file grievances because of interference by prison officials. He
fails, however, to address the salient question in this case, to which his attention was
specifically drawn in the briefing order: did the District Court erroneously dismiss his
supplemental complaint as moot? Arguing the facts of the supplemental complaint is
unavailing, because those factual contentions were never properly before the District
Court and were not the basis of its ruling. We conclude that when a pro se appellant
declines to brief a matter that he was explicitly instructed to raise, he has waived the issue
in question unless extraordinary circumstances affected his compliance. No such
circumstances are apparent here.
Rowann’s alternative grievance argument is also unsuccessful. Rowann submitted
evidence in District Court to support his contention that efforts to exhaust his
administrative remedies were frustrated. See, e.g., ECF No. 38-2. Problematically, his
submissions dated from after the initiation of the suit; in other words, they bolstered,
rather than undermined, the District Court’s conclusion that he had impermissibly
pursued federal litigation before even attempting to exhaust his administrative remedies,
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a course prohibited by the PLRA. See Johnson v. Jones, 340 F.3d 624, 627 (8th Cir.
2003); Neal v. Goord, 267 F.3d 116, 122 (2d Cir. 2001).
Having determined that the procedural question is waived, and finding no merit in
Rowann’s attempt to excuse compliance with the PLRA’s exhaustion requirement, we
will affirm the District Court’s judgment. 3 Our decision today is without prejudice to
Rowann’s filing a new suit based on the facts he would have alleged in his supplemental
complaint, assuming he first exhausts his administrative remedies and complies with all
other procedural requirements; we stress that we have not evaluated the merits of the
allegations contained therein.
3
To the extent that Rowann argues that the District Court failed to properly consider a
request for injunctive relief, any such error was harmless, as Rowann failed to show that
he was likely to succeed on the merits of his complaint. See Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Similarly, although a District Court should
generally not raise sua sponte the affirmative defense of failure to exhaust, see Jones v.
Bock, 549 U.S. 199, 216 (2007), it may do so if the defense is apparent from the face of
the complaint. See Ray v. Kertes, 285 F.3d 287, 296 (3d Cir. 2002). In this case, a filing
date mere days after the complained-of incident satisfies the Kertes standard; and, in any
event, Rowann was given an opportunity to explain himself after being put on notice of
the defect in his complaint, but failed to do so.
4