                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 17-2632
                                       ___________

                                   TYRONE GREEN,
                                               Appellant

                                             v.

RAYMOND BURKHART; DANIEL PACK; JOHN HAGERTY; JOHN DILARA; W.D.
   COLE; OBERLANDER; J.A. HORTON; DOCTOR ABRAHAM; LT. MURIN; S.
 ZIMMER; MS. SIEGEL; SUPT. OVERMYER; MS. CROWTHERS; JOHN GILARA;
 JOHN CHILES; PAUL ENNIS, All Sued In Their Individual Capacity; CHERNOSKY;
                              C/O MILLER

                       ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 1-14-cv-00159)
                      District Judge: Honorable Arthur J. Schwab
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    March 1, 2019

       Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges

                              (Opinion filed: April 9, 2019)
                                     ___________

                                        OPINION *
                                       ___________


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM

         Tyrone Green, a prisoner proceeding pro se, appeals the District Court’s final

judgment in this 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291.

For the reasons we detail below, we will affirm in large part, but vacate the District

Court’s judgment to the extent that it dismissed one of Green’s claims for failure to

exhaust available administrative remedies and remand for further proceedings as to that

claim.

         In Green’s operative third amended complaint, he alleged that more than a dozen

prison employees violated his constitutional rights by retaliating against him in numerous

ways (primarily by destroying his property), failing to protect him from being assaulted

by other inmates, and providing him with inadequate medical care. The District Court,

approving and adopting a Magistrate Judge’s report and recommendation, granted

summary judgment to the defendants on several of the claims. See D.C. dkt. #127. Then,

after an evidentiary hearing, the Court dismissed two other claims on the ground that

Green had failed to exhaust his administrative remedies. See D.C. dkt. #171.

         The case proceeded to trial on two types of claims: (1) that defendants Stephen

Haggerty, Mark Gilara, Raymond Burkhart, and Daniel Pack retaliated against Green for

filing prison grievances by destroying or confiscating various items of his property; and

(2) that defendants Gregory Chiles and John Chernosky failed to protect him from being

assaulted. The jury found in the defendants’ favor, with one exception: it concluded that


                                              2
Haggerty had engaged in unconstitutional retaliation and it awarded Green $300 in

compensatory damages. Green now appeals, raising a variety of arguments.

         First, Green argues that the District Court violated the law-of-the-case doctrine by

declining to impose sanctions against the defendants for losing or destroying a box of his

legal materials. We are not persuaded. Early in the case, Green filed a motion for

spoliation sanctions, and, after a hearing, a Magistrate Judge granted the motion in part

and denied it in part. The Magistrate Judge generally accepted that the box had been lost

but did not attempt to identify its contents or impose a sanction. Instead, it provided that,

on a case-by-case basis throughout the action, Green could describe to the Magistrate

Judge any document that he needed that had been within the box and the Magistrate

Judge would then decide on the appropriate remedy. See D.C. dkt. #223 at 11.

         Contrary to Green’s argument, the District Court did not “fail[] to enforce” this

order, Br. at 9; instead, the Court did consider in each instance how to handle allegations

from Green that the defendants had destroyed documents that were important to his case.

While Green seems to believe that he was entitled to some blanket sanction, we conclude

that the Court acted consistently with the Magistrate Judge’s order, see generally WRS,

Inc. v. Plaza Entm’t, Inc., 402 F.3d 424, 428 (3d Cir. 2005) (we grant “great

deference . . . to a district court’s interpretation of its own order),” and did not violate

law-of-the-case principles, see generally Roberts v. Ferman, 826 F.3d 117, 126 (3d Cir.

2016).


                                               3
       Green also argues that the District Court excluded claims from trial that had

survived summary judgment. We disagree. Two of the claims he mentions—that the

defendants were deliberately indifferent to his safety and that they retaliated against him

by destroying his property—did, in fact, go to trial. See D.C. dkt. #232 (verdict sheet).

Further, at trial, Green was permitted to interrogate Gilara about an alleged false

misconduct report that he claimed facilitated the confiscation of his property. See July

18, 2017 N.T. at 91-92 (dkt. #250). Finally, we interpret the District Court’s order

granting summary judgment in part to the defendants to have covered the other claims

that Green identifies. The Court’s opinion, in trying to bring order to Green’s sprawling

complaint, identified the specific paragraphs of the complaint on which it was granting

judgment to the defendants, which included the paragraphs objecting to his cell

placement, see D.C. dkt. #127 at 5, and the alleged lack of investigation after he was

assaulted, see id. at 7. Thus, we are satisfied that the District Court properly addressed

each claim, and Green has presented no challenge to the substance of either the summary-

judgment decision or the jury’s verdict.

       Next, Green argues that the District Court erred by refusing to use his proposed

jury instructions. This argument also lacks merit. Green does not contend that the

District Court erroneously described the law. See generally Harvey v. Plains Twp. Police

Dep’t, 635 F.3d 606, 612 (3d Cir. 2011) (“A jury instruction, taken as a whole, must

inform the jury of the correct legal standard.”). Rather, he seems to believe that the Court

should have provided the jury with a more fulsome summary of the evidence that had
                                             4
been presented. However, “a trial judge has broad discretion concerning the particular

language used,” Tigg Corp. v. Dow Corning Corp., 962 F.2d 1119, 1124 (3d Cir. 1992),

and the Court did not abuse that discretion here by declining to sum up the evidence, see

Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995) (“No litigant has a right to a jury

instruction of its choice, or precisely in the manner and words of its own preference.”);

United States v. Mundy, 539 F.3d 154, 159 (2d Cir. 2008) (“Today, marshaling of

evidence is rarely practiced in federal court.”).

       Green also argues that the District Court should have sanctioned the defendants for

what he argues were misstatements that they made at trial. However, he did not ask the

District Court to sanction the defendants for these statements, and we typically refuse to

consider issues raised for the first time on appeal. See, e.g., Shell Petroleum, Inc. v.

United States, 182 F.3d 212, 219 (3d Cir. 1999); Amphastar Pharm. Inc. v. Aventis

Pharma SA, 856 F.3d 696, 708 (9th Cir. 2017). We see no reason to depart from that

general rule here both because the District Court was in the best position to determine the

proper response, see generally Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119,

137 (3d Cir. 2009), and because Green was able to make use of these matters as

impeachment, see generally Montano v. City of Chi., 535 F.3d 558, 566-67 (7th Cir.

2008). 1


1
 At the end of his brief, Green lists numerous additional alleged errors without providing
any argument or elaboration. Green has waived these issues by failing to develop them.
See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375,
398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and
                                             5
       Finally, we turn to the District Court’s ruling concerning administrative

exhaustion. Under the Prison Litigation Reform Act, a prisoner must exhaust all

“available” administrative remedies prior to bringing suit. 42 U.S.C. § 1997e(a). There

is no dispute here that Green did not fully exhaust two claims—that the defendants

retaliated against him for filing grievances by (a) not giving him copies of request slips

he requested from the library, and (b) denying him a promotional transfer—because he

did not take the necessary appeals. See Woodford v. Ngo, 548 U.S. 81, 93 (2006)

(concluding that “the PLRA exhaustion requirement requires proper exhaustion” in

compliance with the system’s procedural rules). However, Green argues that an appeal

was not “available” because he was required to submit copies of the decisions denying

the grievances and those copies were in the legal box that the defendants had destroyed.

See generally Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016) (discussing when

administrative remedies are “available”).

       The District Court rejected Green’s argument as to claim (a) concerning his

request slips because the prior-level grievance was not denied until August 13, 2014—

nearly after a month after he lost his legal box on July 17, 2014. The District Court

therefore did not err in concluding that, in these circumstances, prison officials did not

prevent Green from exhausting. See generally Small v. Camden County, 728 F.3d 265,


for those purposes a passing reference to an issue will not suffice to bring that issue
before this court.” (quotation marks, alteration omitted); Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the
same rules that apply to all other litigants”).
                                                6
270-71 (3d Cir. 2013) (discussing district courts’ authority to decide disputed factual

issues); cf. Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018) (administrative

remedies are not available because “officials in the security department of the prison

thwarted his efforts to exhaust his administrative remedies” (quoting Brown v. Croak,

312 F.3d 109, 113 (3d Cir. 2002)).

       We reach the opposite conclusion as to Green’s claim (b) concerning promotional

transfer. As the District Court acknowledged, that grievance was denied on July 14,

2014, and thus Green’s copy could, as he alleged, have been kept in his missing legal

box. The District Court nevertheless concluded that Green had not substantially

complied with the grievance procedures because, upon receiving a new copy of the

grievance during discovery in this case, he did not then attempt to file an appeal. 2

However, by the time he received this new copy—during the pendency of this case—it

was too late for him to exhaust because exhaustion must be completed before the federal

action is filed. See Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002). Thus, we

conclude that the District Court erred in concluding that an administrative appeal was

available to Green because he could have filed an appeal after instituting the federal

action. See Goebert v. Lee County, 510 F.3d 1312, 1324 (11th Cir. 2007) (“an



2
  Green did take this suggested approach for ten other grievances and filed appeals after
receiving the copies in discovery. Each of these appeals was denied as untimely. At an
evidentiary hearing, a grievance officer testified that by that time, it was far too late for
Green to obtain an extension. See D.C. dkt. #248 at 23-24.

                                               7
administrative remedy that is unavailable until after the lawsuit is filed is not an available

remedy within the meaning of § 1997e(a)’s exhaustion requirement”). 3

       Accordingly, we will affirm the District Court’s judgment in full, with one

exception: we will vacate the Court’s ruling that Green failed to exhaust his claim

concerning the defendants’ allegedly retaliatory denial of promotional transfer and will

remand that claim only for further proceedings.




3
  The District Court appears to have accepted Green’s allegations that his copy of the
grievance denial was located in his missing legal box and that he needed that copy to file
an appeal. We will likewise accept those conclusions for purposes of this appeal, but
note that our decision does not prevent the District Court from reconsidering those
issues—or considering any other defenses, whether concerning exhaustion or otherwise,
that the defendants may possess as to this claim.
                                             8
