                                                               NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT


                                    No. 09-3104


                               CLAY CALDWELL,
                                         Appellant
                                      v.

                        SUPERINTENDENT LOUIS FOLINO;
                            LIEUTENANT M. A. PRICE;
                                  SGT. GAGNON;
                                  C.O. J. MILLER;
                          C.O. LUKACHYK; C.O. TOPKA;
                         C.O. SOKOL; JEFFARY A. BEARD,
                               Secretary of Corrections;
                                    LT. NORMAN


           APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Civil No. 08-cv-00122)
               Magistrate Judge: Honorable Amy Reynolds Hay


                    Submitted Under Third Circuit LAR 34.1(a)
                               September 17, 2010


              Before: SLOVITER, BARRY and SMITH, Circuit Judges

                         (Opinion Filed: September 17, 2010)


                                     OPINION



BARRY, Circuit Judge.
       Clay Caldwell, a Pennsylvania prisoner, appeals from the dismissal of his civil

rights complaint. We will remand for further proceedings.

                                      I. Background

       On February 19, 2008, Caldwell filed a pro se civil rights complaint against seven

corrections officers from SCI-Greene, the prison superintendent, and the Pennsylvania

Secretary of Corrections. He alleged that, inter alia, his constitutional rights were

violated when he was touched in a sexual manner during pat-down searches; false

disciplinary charges were filed against him; his personal property was wrongfully

destroyed; he was handcuffed too tightly; and he was required to obtain a permit for his

Native American religious items and corrections officers mishandled these items and

made derogatory remarks about his religion.

       The Magistrate Judge, presiding with the parties’ consent, dismissed the complaint

in an order entered on July 1, 2009. With respect to Caldwell’s Eighth Amendment claim

relating to sexual harassment during pat-down searches, she concluded, sua sponte, that

Caldwell had not exhausted this claim through the prison’s grievance procedures, and

dismissed the remainder of the claims for failure to state a claim. See Fed. R. Civ. P.

12(b)(6). Caldwell filed a motion for appointment of counsel and motion for leave to file

an amended complaint, both of which were denied in an order dated July 8, 2009. The

order stated that the motions “are dismissed as moot inasmuch as the case was dismissed

and marked closed by the Clerk of Court on July 1, 2009.” (JA at 33.) On July 17, 2009,

Caldwell filed a timely notice of appeal “from the Order entered in this matter on the 8th

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day of July 2009” and attached a copy of the July 8th order denying his motions for

counsel and for leave to file an amended complaint. (Id. at 1-4.) Caldwell never filed a

notice of appeal specifying the July 1st order in which the Magistrate Judge dismissed his

complaint.

         We appointed pro bono counsel for Caldwell, who argues on appeal that: (1) the

Magistrate Judge improperly dismissed his Eighth Amendment claim based on her sua

sponte finding of lack of exhaustion; and (2) the Magistrate Judge erred by failing to

address his Equal Protection claim relating to religious discrimination.

                                        II. Discussion

A. Notice of Appeal

         We first address whether we have jurisdiction to consider the two issues Caldwell

presses on appeal. Neither of these issues was addressed in the July 8th order, which is

the only order specified in Caldwell’s notice of appeal.1 Federal Rule of Appellate

Procedure 3 requires appellants to “designate the judgment, order, or part thereof being

appealed.” Fed. R. App. P. 3(c)(1)(B). Although Rule 3 contains non-waivable

jurisdictional requirements, we construe it liberally. Benn v. First Judicial Dist. of Pa.,

426 F.3d 233, 237 (3d Cir. 2005); see also Foman v. Davis, 371 U.S. 178, 181-82 (1962)

(rejecting the notion that “decisions on the merits [may] be avoided on the basis of . . .

mere technicalities”). We may exercise appellate jurisdiction if we conclude that the



   1
       Caldwell’s notice of appeal was timely as to both the July 1st and July 8th orders.
                                              -3-
appellant filed the “‘functional equivalent’ of a proper notice.” Benn, 426 F.3d at 237

(quoting Torres v. Oakland Scavenger Co., 487 U.S. 312, 316-17 (1988)). “[W]e can

exercise jurisdiction over orders not specified in the Notice of Appeal if: (1) there is a

connection between the specified and unspecified orders; (2) the intention to appeal the

unspecified order is apparent; and (3) the opposing party is not prejudiced and has a full

opportunity to brief the issues.” Sulima v. Tobyhanna Army Depot, 602 F.3d 177, 184 (3d

Cir. 2010) (internal quotation marks and citation omitted).

       Caldwell argues that these requirements are satisfied here. His intention to appeal

the July 1st order has been apparent from the outset, and appellees do not contend that

they have been prejudiced by the deficient notice of appeal or denied a fair opportunity to

respond to the issues on the merits. The primary issue is whether the July 1st and July 8th

orders are sufficiently connected so that we may exercise jurisdiction over the issues

relating to the July 1st order. “When an appeal is taken from a specified judgment only . .

. the court of appeals acquires thereby no jurisdiction to review other judgments or

portions thereof not so specified or otherwise fairly to be inferred from the notice as

intended to be presented for review on the appeal.” Elfman Motors, Inc. v. Chrysler

Corp., 567 F.2d 1252, 1254 (3d Cir. 1977) (per curiam) (emphasis added). In Elfman, we

specifically noted that an appeal from an order denying leave to file an amended

complaint “has been held to bring up for review the prior order dismissing the complaint

for failure to state a cause of action.” Id. (citing Vigil v. United States, 430 F.2d 1357

(10th Cir. 1970)). In Lusardi v. Xerox Corp., 975 F.2d 964, 972 (3d Cir. 1992), we

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explained that “[w]here a connection between the unspecified and specified orders has

been found, the link has been clear and direct” as, for example, where “the specified order

. . . was predicated upon the unspecified order.”

       Here, the July 8th order specifically references the July 1st order (which was in

fact the basis – mootness – of the denial of Caldwell’s motions) and clearly part of the

same line of proceedings, involving the same parties, and the same subject of litigation.

Moreover, Caldwell’s notice of appeal was filed pro se, and “we have traditionally given

pro se litigants greater leeway where they have not followed the technical rules of

pleading and procedure.” Tabron v. Grace, 6 F.3d 147, 153 n.2 (3d Cir. 1993).

Accordingly, we conclude that we have jurisdiction to review Caldwell’s claims.2

B. Eighth Amendment Claim

       The Magistrate Judge concluded, sua sponte, that Caldwell admitted he had not

exhausted, through the prison’s grievance procedures, his Eighth Amendment claim that

he had been sexually harassed and inappropriately touched during pat-down searches.

Appellees concede that this was error.

       In his complaint, Caldwell stated: “Now mind you I have a grievance in the central

office of appeals in on C.O. Sokol because of his harassment of a sexual nature.” (JA at

47.) Later in the form complaint, however, Caldwell checked the box indicating that he



   2
    We have jurisdiction pursuant to 28 U.S.C. § 1291, and our review of the Magistrate
Judge’s order dismissing Caldwell’s complaint is plenary. Grier v. Klem, 591 F.3d 672,
676 (3d Cir. 2010).
                                           -5-
had pursued his complaint through the grievance procedure and that his grievance had

been denied. (Id. at 57.) He also attached documents to the complaint that indicated that

his grievance relating to the alleged sexual harassment was dismissed for failure to

provide required documentation. (Id. at 80.)

       The exhaustion requirement in the Prison Litigation Reform Act (“PLRA”), 42

U.S.C. § 1997e(a), is an affirmative defense that must be pleaded and proven by the

defendant(s). Jones v. Bock, 549 U.S. 199, 211-12 (2007); Ray v. Kertes, 285 F.3d 287,

295 (3d Cir. 2002). As a general matter, sua sponte dismissal based on failure to exhaust

“is inappropriate unless the basis is apparent from the face of the complaint.” Ray, 285

F.3d at 297. Here, given the conflicting information as to whether the grievance is still

pending, it was not facially apparent from Caldwell’s complaint that he had failed to

exhaust his claim. Therefore, the Magistrate Judge erred by sua sponte dismissing the

Eighth Amendment claim on this basis.3

C. Equal Protection Claim

       Caldwell alleged in his complaint:

       And for the religious discrimination by Sgt. Gagnon and C.O. Lukachyk,
       where I’m told I have to have a permit in order to have my medicine bag
       and prayer feather in my cell. The [Department of Corrections] does not


   3
     Although appellees concede this point, they contend, for the first time, that we should
affirm because it is apparent from the complaint’s exhibits that Caldwell procedurally
defaulted this claim by not providing the required documentation during the grievance
process. See Woodford v. Ngo, 548 U.S. 81, 93 (2006) (holding that the PLRA requires
proper exhaustion or claims are procedurally defaulted). We decline to address this
argument in the first instance on appeal.
                                            -6-
       tell the Christian and the Muslim communities this for their prayer rugs,
       [unintelligible], rossory [sic] beads, crosses, Star of David so on. But as an
       American Indian I need a permit for my scared [sic] items, of my way of
       life + beliefs. This is religious + belief discrimination . . . .

(JA at 56.) The Magistrate Judge’s decision dismissing the complaint did not address this

claim, and so we will remand, as appellees concede we must, for further proceedings.

                                     III. Conclusion

       For the reasons set forth above, we will vacate the Magistrate Judge’s July 1st and

July 8th orders only insofar as they address the two issues before us, and remand for

further proceedings consistent with this opinion.




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