GLD-233                                                       NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                              _________________

                                    No. 11-2471
                                 _________________

                                JOSEPH BREELAND,
                                               Appellant

                                           v.

                              DOCTOR MARK BAKER
                                _________________

                    On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                              (D.C. Civil No. 10-cv-00070)
                    District Judge: Honorable Sean J. McLaughlin
                                  _________________

        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
                                    July 8, 2011

             Before: AMBRO, CHAGARES and COWEN, Circuit Judges

                             (Opinion filed: July 26, 2011)
                                 _________________

                                     OPINION
                                 _________________

PER CURIAM

      Joseph Breeland appeals from the District Court‟s entry of summary judgment in

favor of the defendant. We will vacate and remand for further proceedings.
                                             I.

       Breeland is a Pennsylvania state prisoner. He filed suit against his prison‟s

Medical Director, Dr. Mark Baker, alleging deliberate indifference to his medical needs

in violation of the Eighth Amendment. Breeland alleges that he has an umbilical hernia

and that Dr. Baker (1) refused to prescribe different pain medication after Breeland told

him that the Naprosyn he was prescribed was not working, and (2) refused to authorize

the use of a “hernia brace” (apparently a device necessary to keep the hernia from

protruding) while in the Restrictive Housing Unit. Breeland later filed a “supplement”

alleging that Dr. Baker refused to authorize necessary surgery, and he alleges in various

other filings that Dr. Baker refused to see him despite several sick call requests although

his hernia was in danger of erupting and leading to his death.

       Dr. Baker filed a Rule 12(b)(6) motion to dismiss arguing, among other things,

that Breeland failed to exhaust his administrative remedies. In response, Breeland

submitted various grievance-related documents. Dr. Baker then filed a “supplemental”

motion to dismiss attaching the “verification” of Melinda Adams, the prison Grievance

Coordinator. The verification states, without explanation, that Breeland has not

“exhausted the prison grievance procedures[.]”

       A Magistrate Judge recommended treating Dr. Baker‟s motion as one for summary

judgment and granting it on the ground that Breeland failed to exhaust his administrative

remedies. Breeland filed objections. By order entered February 23, 2011, the District

Court overruled them, adopted the Magistrate Judge‟s report, and entered summary
                                             2
judgment in favor of Dr. Baker. Breeland filed a timely motion for reconsideration and

several other post-judgment motions which the District Court denied by docket “text-

only” order on May 19, 2011. Breeland appeals.1

                                            II.

       The District Court properly recognized that, in order to consider Adams‟s

verification along with the other grievance-related documents, the court would have to

convert Dr. Baker‟s Rule 12(b)(6) motion into one for summary judgment. See Fed. R.

Civ. P. 12(d); Camp v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000); cf. Spruill v. Gillis,

372 F.3d 218, 223 (3d Cir. 2004) (relying only on “indisputably authentic documents

related to [plaintiff‟s] grievances”). The District Court erred, however, by doing so under

the circumstances presented here.

       Before converting a motion to dismiss into one for summary judgment, district

courts must provide notice and an opportunity to present evidence. See Rose v. Bartle,

871 F.2d 331, 342 (3d Cir. 1989). Breeland himself submitted evidence outside the

pleadings, but that fact does not show constructive notice because neither Dr. Baker‟s


   1
     We have jurisdiction under 28 U.S.C. § 1291. Breeland‟s appeal from the denial of
   his Rule 59(e) motion brings up for review the underlying summary judgment. See
   Jones v. Pittsburgh Nat‟l Corp., 899 F.2d 1350, 1352 (3d Cir. 1990). We exercise
   plenary review of both the District Court‟s decision to treat a motion to dismiss as one
   for summary judgment and the entry of summary judgment itself. See In re
   Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d 280, 287 (3d Cir. 1999). “Viewing
   the evidence in the light most favorable to the nonmovant, summary judgment is
   appropriate only if there is „no genuine issue as to any material fact [such] that the
   moving party is entitled to judgment as a matter of law.‟” Kelly v. Borough of
   Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (alteration in original) (citation omitted).
                                             3
motion nor his supplemental motion was styled as an alternative motion for summary

judgment or mentioned summary judgment in any way. See In re Rockefeller Ctr. Props.,

Inc. Sec. Litig., 184 F.3d at 288-89. And even if they had, we held before the Magistrate

Judge issued her report that district courts, before converting a motion to dismiss a pro se

prisoner‟s complaint into one for summary judgment, must provide the prisoner “with a

paper copy of the conversion Order, as well as a copy of Rule 56 and a short summary

explaining its import that highlights the utility of a Rule 56(f) affidavit.” Renchenski v.

Williams, 622 F.3d 315, 340 (3d Cir. 2010). The District Court did not follow that

procedure here.2

       The District Court‟s failure to provide notice would not require remand if the error

were harmless, see id. at 341, but it was not. Prisoners complaining of prison conditions

must exhaust their administrative remedies before filing suit. See 42 U.S.C. § 1997e(a).

This requirement demands “[p]roper exhaustion,” meaning “compliance with an agency‟s

deadlines and other critical procedural rules[.]” Woodford v. Ngo, 548 U.S. 81, 90

(2006). Proper exhaustion necessarily is determined with reference to the applicable

prison grievance procedures. See id.; Spruill, 372 F.3d at 231-32. Exhaustion is an

affirmative defense that the defendant must plead and prove. See Jones v. Bock, 549



   2
     Perhaps for this reason, Breeland‟s post-judgment motions in the District Court
   appear to reflect confusion about the status of his case. Even at that stage, he sought
   relief on the basis of his efforts to obtain discovery and submitted an affidavit from a
   fellow inmate regarding the merits of his claim. We need not address the District
   Court‟s denial of these motions given our disposition of this appeal.
                                              4
U.S. 199, 216 (2007).

       In this case, the only evidence that Dr. Baker submitted in support of his motion

was the Adams verification. That verification states that Pennsylvania‟s three-tiered

administrative grievance process requires inmates to file (1) an initial grievance, (2) an

appeal to the prison Superintendent, and then (3) a final appeal to the Secretary‟s Office

of Inmate Grievances and Appeals at the Department of Corrections‟ (“DOC”) central

office in Camp Hill, Pennsylvania. (Docket No. 23, Attach. 1, ¶ 4.) The verification

goes on to state that “[b]ased upon my review of the grievance record for inmate

Breeland, I can conclude that he has not exhausted the grievance procedures in place at

SCI-Albion with regard to [his] claims[.]” (Id. ¶ 7.) The verification, however, does not

state how or why. Dr. Baker submitted neither Breeland‟s complete grievance record nor

the applicable grievance policy itself.

       Breeland, by contrast, argued that he had indeed appealed “all the way to Camp

Hill.” He submitted an initial grievance and response as well as a first-level appeal and

response regarding his medication claim, and there is no dispute that he properly

completed the first two levels of review for that claim.3 At issue is the third level. After

Breeland‟s grievance and initial appeal were rejected, he submitted a form entitled

“Inmate‟s Request to Staff Member.” (Dist. Ct. Docket No. 22 at 8). The first line of

this submission reads: “I am writing this to appeal my grievance number 304131.” (Id.)




                                              5
Breeland addressed it to Richard S. Ellers, Director of the DOC‟s Bureau of Health

Services, at the DOC‟s central office in Camp Hill. Ellers did not expressly treat

Breeland‟s submission as an appeal, but he provided a response on the merits of

Breeland‟s claim. (Id. at 9.) Breeland argued that this submission constitutes a proper

final appeal because Ellers is “the only person who medical grievances for final review is

address [sic] and answered by.” (Dist. Ct. Docket No. 43 at 6.) He also argued that he

clearly identified his submission as an appeal and that, if Ellers was not the proper

recipient, he should have forwarded it to the appropriate person.

       The District Court rejected these arguments on the basis of the Magistrate Judge‟s

conclusion that Breeland failed to follow the proper procedure for filing a final appeal.

The only specific respect in which the District Court faulted Breeland was that his appeal

was “misdirected.” (Dist. Ct. Docket No. 42 at 7-9.) There is no evidence of record,

however, that either Breeland‟s use of the “Inmate‟s Request” form (which he clearly

identified as an appeal) or his submission of that form directly to Ellers violated any

particular administrative procedure. Indeed, there is no evidence of record concerning

the proper procedure at all.

       The District Court relied on our summary of a prior version of Policy DC-ADM

804 in Booth v. Churner, 206 F.3d 289, 293 n.2 (3d Cir. 2000), aff‟d, 532 U.S. 731

(2001), for the proposition that Pennsylvania inmates must submit a final administrative


   3
    The record does not show any attempt to exhaust the “hernia brace” claim, but we
   decline to affirm as to that claim in light of the District Court‟s erroneous conversion
                                             6
appeal to the “Central Office Review Committee,” then faulted Breeland for failing to do

so. (Dist. Ct. Docket No. 42 at 8.) That policy has since been revised and, according to

Adams‟s verification, the final administrative appeal now is taken to the Secretary‟s

Office of Inmate Grievances and Appeals. Booth thus did not address the policy

applicable to Breeland. It also did not address a “misdirected” administrative appeal even

under the former policy. Without any showing concerning the specific policy that

Breeland allegedly violated, the District Court erred in concluding that Dr. Baker met his

burden of proving that Breeland violated the policy as a matter of law.

       We will vacate the entry of summary judgment for that reason. See Brown v.

Croak, 312 F.3d 109, 112 (3d Cir. 2002). Our ruling does not preclude Dr. Baker from

raising the issue of exhaustion in a properly supported motion for summary judgment at

the appropriate time. If the District Court again considers the issue of exhaustion, it

should also consider whether Breeland substantially complied with the applicable

procedures. See Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 2000); see also Camp, 219

F.3d at 281 (deeming technically deficient attempt at exhaustion sufficient where

plaintiff‟s “allegations have been fully examined on the merits by the ultimate

administrative authority”).4



   of Dr. Baker‟s motion to one for summary judgment.
   4
     Though we do not decide the issue, we note that Breeland‟s efforts arguably would
   have been sufficient under the current policy DC-ADM 804, which became effective
   after the events in question and is available at http://www.cor.state.pa.us/portal/
   server.pt/community/department_of_corrections/4604/doc_policies/612830. The
   policy does not appear to require the use of any particular form. (DC-ADM 804 §
                                              7
       One final issue warrants discussion. Dr. Baker moved to dismiss Breeland‟s

complaint on several other grounds, including failure to state a claim. We decline to

address these arguments in the first instance except to observe that Breeland‟s allegations

at the very least would entitle him to amend his complaint before any dismissal with

prejudice. See Phillips v. County of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).

       Accordingly, we will vacate the judgment of the District Court and remand for

further proceedings.




   2.B.1.e, i.) It does require that appeals be addressed to “Chief, Secretary‟s Office of
   Inmate Grievances and Appeals” at an address in Camp Hill, Pennsylvania. (Id. §
   2.B.1.f) It further provides, however, that “[f]ailure to properly address the appeal
   will delay the process,” (id.) (emphasis added), not that it will result in rejection of the
   appeal. And the policy also permits the Secretary‟s Office to “review/refer an appeal
   with the relevant bureau (health care issues with the Bureau of Health Care Services
   . . .)[.]” (Id. § 2.B.2.d). Ellers is the Director of that bureau, Breeland sent his form to
   Ellers at the required Camp Hill address, and Ellers provided a response. Thus,
   Breeland arguably substantially complied with the current policy. We recognize that
   the policy in force at the relevant time is not of record, and we thus express no
   opinion on whether Breeland complied with that policy. Instead, we make these
   observations to emphasize why the District Court should not have concluded that
   Breeland violated the applicable policy without some showing regarding the terms of
   the policy itself.
                                              8
