                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                _____________

                    No. 15-2058
                   _____________

                BRIAN PALADINO,
                          Appellant
                       v.

K. NEWSOME; JOHN DOES 1-10; SHIRLEY STEPHENS;
     GARY M. LANIGAN; CHARLES WARREN; M.
   PERKINS; L.T. CROTHERS; D. GERDES; OFFICER
       WHITE; OFFICER PINKSTON; OFFICER
 IMPAGLIAZZO; K. NELLSEN; SGT. ANTOINELLO; J.
  ILARDI; J. DOMINGUEZ; OFFICER MAURA; JOHN
    ROES 1-10; SGT. ANDERSON; JASON HOLDER
                   _____________

    On Appeal from the United States District Court
              for the District of New Jersey
          (District Court No. 3-12-cv-02021)
     District Judge: Honorable Anne E. Thompson
                     _____________

             Argued: November 15, 2017

Before: CHAGARES, VANASKIE, and FUENTES, Circuit
                    Judges
               (Opinion filed: March 16, 2018)
                      _____________

Shannon L.C. Ammon
Rachel A.H. Horton              [ARGUED]
Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
1600 Market Street, Suite 3600
Philadelphia, PA 19103
      Counsel for Appellant

Christopher C. Josephson         [ARGUED]
Alex J. Zowin
Office of Attorney General of New Jersey
Richard J. Hughes Justice Complex
25 Market Street, P.O. Box 112
Trenton, NJ 08625
       Counsel for Appellees
                       _____________

                 OPINION OF THE COURT
                     _____________

FUENTES, Circuit Judge.

       Brian Paladino, an inmate at New Jersey State Prison
(the “Prison”), filed a section 1983 civil rights action against
various Prison employees alleging a number of constitutional
claims. The District Court granted summary judgment on
many of his claims after finding that he failed to exhaust
administrative remedies, as required by the Prison Litigation
Reform Act of 1995 (the “Act”). In so doing, the District
Court—without notifying the parties—relied on our decision




                               2
in Small v. Camden Cnty.1 to resolve the exhaustion issue
based on the record alone.

       While we affirm with respect to the majority of
Paladino’s claims, we vacate the grant of summary judgment
on Paladino’s excessive force claim based on an alleged
assault in October 2010 (the “2010 excessive force claim”)
because there existed a genuine issue of material fact
regarding whether he exhausted that claim. Although
conclusory assertions are insufficient to survive a motion for
summary judgment, such relief should be denied when there
is a genuine issue of material fact on exhaustion.

       As the District Court correctly noted, under Small,
“judges may resolve factual disputes relevant to the
exhaustion issue.”2 Nevertheless, as discussed below, we
now hold that some type of notice and an opportunity to
respond are needed before a district court elects to decide
factual disputes regarding exhaustion. Thus, we remand for
further proceedings as to whether Paladino properly
exhausted his 2010 excessive force claim.

                       I.    Background

              A.   The Prison’s Grievance Process

       Prison inmates submit grievances through the Inmate
Remedy System Form (the “form”). Generally, a form should
be processed and returned within thirty days. An inmate must

1
    728 F.3d 265 (3d Cir. 2013).
2
    Id. at 271.




                                   3
appeal within ten days if he is dissatisfied with the response.
The Administrator renders decisions on appeal. An inmate
who receives a response to his appeal has exhausted his
administrative remedies.

                B.     Paladino’s Complaint

        Paladino, then pro se, filed an initial complaint in
April 2012, and an amended complaint in June 2012
(collectively, the “Complaint”). The District Court sua
sponte dismissed several of Paladino’s claims, none of which
are at issue. However, the District Court permitted Paladino
to proceed with claims that Defendants violated his Eighth
Amendment rights by (1) using excessive force against him
on three occasions; (2) subjecting him to poor conditions of
confinement by depriving him of meals, recreation, contact
visitation, educational programs, hygiene supplies, and
cleaning supplies; and (3) providing inadequate medical care.
The District Court further allowed Paladino to pursue
Fourteenth Amendment claims for deprivation of meals, as
well as cleaning, writing, and hygiene supplies.

         C.     First Summary Judgment Motion

       In January 2013, Defendants filed a motion for
summary judgment based on Paladino’s failure to exhaust. In
support, Defendants searched the Prison’s records and
attached all forms filed by Paladino from May 2011 through
June 2012. Defendants maintained that this evidence showed
that Paladino failed to exhaust because he did not file the
required forms for many of his claims, and while he filed
forms for some of his other claims, he did not appeal the
Prison’s responses to those forms.




                              4
       Paladino responded by generally claiming that the
record was “incomplete.”3 Paladino also said that he
appealed when he received responses to the forms, however,
the Prison never responded to those appeals. Paladino further
broadly alleged that Prison employees “intentionally lie,
manipulate, improperly handle and falsify” forms.4 Paladino
did not, however, claim that the record was missing grievance
forms he had filed concerning any of the claims at issue in his
Complaint.

       In June 2013, the District Court granted Defendants’
motion in part, finding that Paladino failed to exhaust his
excessive force and medical care claims, as well as the
majority of his conditions of confinement and equal
protection claims (the “June 2013 order”). In this regard, the
District Court found that the forms Defendants submitted
were “a complete set” because Paladino did not assert that he
filed any other forms.5 Accordingly, because there were no
forms in the record for the excessive force and medical care
claims, as well as certain of the conditions of confinement
and equal protection claims, the District Court entered
summary judgment on them.

       However, the District Court denied the motion with
respect to the conditions of confinement claims regarding
hygiene supplies and recreational privileges, and the
Fourteenth Amendment claims for hygiene and writing
supplies. The District Court held there was a genuine issue of

3
    JA 432.
4
    JA 423.
5
    JA 42.




                              5
material fact regarding exhaustion of these claims because
Paladino filed forms for them and asserted that the Prison
failed to respond.

       Paladino moved for reconsideration. The District
Court granted the motion in part, finding that it erred in
granting summary judgment on the 2010 excessive force
claim because the record only contained forms from May
2011 to June 2012.

         D.    Second Summary Judgment Motion

       At the heart of this appeal is Defendants’ second
summary judgment motion on exhaustion grounds. This
time, Defendants submitted all forms filed by Paladino found
in the Prison’s records between August 2010 and May 2011.
Defendants contended that Paladino failed to exhaust his
2010 excessive force claim because the Prison’s records did
not contain a form for the underlying assault. Defendants
further argued that Paladino failed to exhaust his Eighth
Amendment conditions of confinement claims regarding
hygiene supplies and recreational privileges, as well as his
Fourteenth Amendment claim for lack of hygiene supplies,
because he did not appeal the Prison’s responses on those
claims.

       In opposition, Paladino vaguely insisted that he filed
“numerous” forms and “appealed numerous responses” that
“vanished after being properly submitted and/or filed.”6
Paladino further stated that “numerous [] grievances have


6
    JA 1047–1048.




                             6
gone missing in regards to [his] claims of excessive force.”7
Importantly, this last assertion was supported by specific
record evidence in the form of Paladino’s sworn deposition
testimony that he “submitted no less than six [] forms about
[excessive force] [and], about wanting to be placed in some
type of protective custody.”8 Indeed, when pressed during his
deposition whether he filed forms “specifically about this
allegation of excessive force,” Paladino responded “I
remember they were about that, yes.”9

       In March 2015, the District Court granted summary
judgment on Paladino’s remaining claims (the “March 2015
order”). Despite acknowledging “a factual dispute between
the parties regarding the exhaustion issue,” the District Court
did so on the record alone.10 In so doing, the District Court
noted that Paladino “point[ed] to no substantive proof to
support [his] conclusion besides his own self-serving
assertions.”11

       The District Court held that, while Paladino submitted
forms regarding a lack of hygiene supplies and recreational
privileges, he did not exhaust those claims because “he did
not appeal the initial decisions made by the [Prison].”12 Thus,
the District Court granted summary judgment on the Eighth

7
    JA 1185.
8
    JA 810.
9
    JA 810.
10
     JA 57.
11
     JA 58.
12
     JA 60.




                              7
Amendment conditions of confinement claims for inadequate
hygiene supplies and lack of recreational privileges, as well
as the Fourteenth Amendment claim for lack of hygiene
supplies.13 The District Court also held that Paladino failed to
exhaust his 2010 excessive force claim because, while he
“filed numerous [forms] relating to a variety of issues,” there
was “no evidence” that he filed a form “relating to his
allegations of an assault in October 2010.”14 In reaching this
conclusion, the District Court did not consider Paladino’s
sworn deposition testimony that he filed at least six forms for
that claim. This appeal followed.15




13
   As noted, Paladino’s remaining claims also included a
Fourteenth Amendment claim for a lack of writing supplies.
The District Court found that Paladino exhausted this claim,
but granted summary judgment to Defendants on that claim
on other grounds. Paladino does not appeal that decision.
14
     JA 59.
15
   Paladino’s notice of appeal only listed the March 2015
order. However, because he filed his notice of appeal pro se,
we will construe it to include the June 2013 order. See Gov’t
of the Virgin Islands v. Mills, 634 F.3d 746, 751 (3d Cir.
2011) (“The duty to construe appeal notices liberally is
heightened in cases involving pro se appellants.”).




                               8
                       II.     Discussion16

       The Act’s exhaustion requirement states that “[n]o
action shall be brought with respect to prison conditions
under section 1983 . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted.”17 This requirement
“applies to a grievance procedure described in an inmate
handbook but not formally adopted by a state administrative
agency.”18 “Failure to exhaust is an affirmative defense the
defendant must plead and prove; it is not a pleading
requirement for the prisoner-plaintiff.”19

              A.   The Summary Judgment Orders

       Paladino contends that the District Court erred in
granting motions for summary judgment because there were
disputed factual issues regarding exhaustion. Defendants
respond that summary judgment was warranted “[b]ecause
Paladino failed to submit anything other than self-serving
assertions” to counter the “voluminous” records they



16
   The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1343. We have jurisdiction under 28 U.S.C. §
1291. We exercise plenary review over a grant of summary
judgment. Curley v. Klem, 298 F.3d 271, 276 (3d Cir. 2002).
17
     42 U.S.C. § 1997e(a).
18
  Concepcion v. Morton, 306 F.3d 1347, 1348–49 (3d Cir.
2002).
19
     Small, 728 F.3d at 268.




                                 9
produced.20 We address the two summary judgment orders in
turn.

                  i.     The June 2013 Order

       We start with the June 2013 order granting summary
judgment on Paladino’s inadequate medical care claims—as
well as the majority of his excessive force, conditions of
confinement, and equal protection claims—for failure to
exhaust. As noted, Defendants went through the Prison’s
records and provided all forms therein filed by Paladino
between May 2011 and June 2012. Defendants argued that
because the records contained no forms for the above claims,
Paladino failed to exhaust them.

       In response, Paladino failed to assert that he filed
forms for the claims that Defendants sought to dismiss on
exhaustion grounds. Rather, Paladino vaguely claimed—
without providing any specifics—that the Prison’s records
were “incomplete” and that Prison employees purposefully
interfered with his forms.21 However, “conclusory, self-
serving affidavits are insufficient to withstand a motion for
summary judgment.”22 Instead, Paladino needed to “set forth
specific facts that reveal a genuine issue of material fact”
concerning the exhaustion of these claims.23 Because he did
not do so, we affirm the June 2013 order.

20
     Appellees’ Br. at 13–14.
21
     JA 432.
22
  Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d
156, 161 (3d Cir. 2009) (citation omitted).
23
     Id.




                                10
                  ii.    The March 2015 Order

       We begin our discussion of the March 2015 order with
the grant of summary judgment on the Eighth Amendment
conditions of confinement claims for inadequate hygiene
supplies and lack of recreational privileges, and the
Fourteenth Amendment claim for lack of hygiene supplies.
For their second summary judgment motion, Defendants
checked the Prison’s records and attached all forms submitted
by Paladino between August 2010 and May 2011.
Defendants observed that while Paladino filed forms
regarding a lack of hygiene supplies and recreational
privileges, the records established that Paladino did not
appeal the Prison’s responses to those forms. From this,
Defendants argued that Paladino failed to exhaust those
claims.

       In opposing this documentary evidence, Paladino
vaguely insisted that he “appealed numerous responses” that
“vanished after being properly submitted and/or filed.”24
Nevertheless, as mentioned above, “conclusory, self-serving
affidavits are insufficient to withstand a motion for summary
judgment.”25 As such, we affirm the District Court’s grant of
summary judgment on these claims as well.

       We now turn to the 2010 excessive force claim. Based
on its review of the summary judgment record, the District
Court held that Paladino failed to exhaust his 2010 excessive

24
     JA 1047–1048.
25
     Kirleis, 560 F.3d at 161 (citation omitted).




                                 11
force claim. In so doing, the District Court found that, while
Paladino filed forms for a number of issues, the records
submitted by the Prison did not contain any forms relating to
the alleged underlying assault.

       We disagree with the District Court’s assessment of
the record evidence.           Paladino’s sworn deposition
testimony—which the District Court did not consider—sets
forth specific facts that contradict Defendants’ evidence and
establish a genuine issue of material fact regarding whether
Paladino exhausted his 2010 excessive force claim.
Specifically, at his deposition, Paladino asserted that he
“submitted no less than six [] forms about [excessive force]
[and], about wanting to be placed in some type of protective
custody.”26 What’s more, when asked during his deposition
whether he submitted forms “specifically about this allegation
of excessive force,” Paladino responded “I remember they
were about that, yes.”27

       Defendants characterize Paladino’s testimony as a
“self-serving” statement that cannot defeat summary
judgment.28 In support, Defendants cite Kirleis v. Dickie,
McCamey & Chilcote, P.C., the only case the District Court
cited on this point. However, Kirleis clearly held that self-
serving affidavits pointing to specific facts can create a
genuine issue of material fact sufficient to survive summary
judgment.29

26
     JA 810.
27
     JA 810.
28
     Appellees’ Br. at 13.
29
     Kirleis, 560 F.3d at 161–62.




                                12
       If anything, Kirleis shows that the District Court erred
in granting summary judgment on the 2010 excessive force
claim. In Kirleis, we analyzed whether the plaintiff had
agreed to arbitrate claims against her employer law firm.30
The law firm argued that its bylaws mandated arbitration and
that the plaintiff’s “self-serving and conclusory” affidavit
contending that she never received a copy of the bylaws was
insufficient to defeat its motion to compel arbitration.31 We
disagreed and held that the affidavit was not conclusory—but
rather created a genuine issue of material fact regarding the
existence of an arbitration agreement—because it “detail[ed]
the specific circumstances that rendered the formation of an
agreement to arbitrate impossible.”32

       Similarly here, Paladino’s sworn deposition testimony
“set[s] forth specific facts that reveal a genuine issue of
material fact” regarding whether he exhausted his 2010
excessive force claim.33 Indeed, “a single, non-conclusory
affidavit or witness’s testimony, when based on personal
knowledge and directed at a material issue, is sufficient to



30
     Id. at 158.
31
   Id. at 161. While Kirleis involved a motion to compel
arbitration, the standard for whether there is a genuine issue
of material fact regarding the existence of an arbitration
agreement is the same standard for a summary judgment
motion. Id. at 159 n.3.
32
     Id.
33
     Id.




                              13
defeat summary judgment.”34 This is true even where, as
here, the information is self-serving.35

       Moreover, “[i]n considering a motion for summary
judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence.”36
Rather, “the non-moving party’s evidence ‘is to be believed
and all justifiable inferences are to be drawn in his favor.’”37
Here, while it is possible that Paladino misrepresented the
facts when he testified that he filed forms regarding the
alleged 2010 assault, it is equally possible that he did not.
Indeed, it is not unheard of for a grievance form to be lost.38




34
  Lupyan v. Corinthian Colleges, Inc., 761 F.3d 314, 320 (3d
Cir. 2014).
35
    See id. at 321 n.2 (noting that while “the testimony of a
litigant will almost always be self serving . . . that has never
meant that a litigant’s evidence must be categorically rejected
by the fact finder”).
36
   Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir.
2004); see also Horowitz v. Fed. Kemper Life Assurance Co.,
57 F.3d 300, 302 n.1 (3d Cir. 1995) (“Summary judgment is
inappropriate when a case will turn on credibility
determinations.”).
37
  Marino, 358 F.3d at 247 (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986)).
38
  See, e.g., Dole v. Chandler, 438 F.3d 804 (7th Cir. 2006)
(addressing whether a prisoner exhausted his administrative
remedies where a grievance was lost).




                              14
       Altogether, given the conflict between the Prison’s
records and Paladino’s deposition testimony, which created a
genuine issue of material fact, the District Court erred in
granting summary judgment on the 2010 excessive force
claim. As such, we vacate this part of the March 2015 order.

                      B.   Application of Small

       While summary judgment was improper on the 2010
excessive force claim, the questions remains whether, as
Paladino maintains, an evidentiary hearing was needed to
resolve the factual dispute regarding whether Paladino
exhausted that claim.

        The District Court relied on Small “to resolve the []
factual disputes between [Paladino] and Defendants regarding
whether [Paladino] properly exhausted” based on the paper
record alone.39 In Small, a state prisoner filed a civil rights
action against a correctional facility and prison officers.40
After discovery, the defendants moved for summary
judgment arguing that the plaintiff failed to exhaust.41 The
District Court denied the motion and held a two-day
evidentiary hearing on the issue of exhaustion.42 On appeal,
we held that “the District Court did not err by acting as the
fact finder because exhaustion constitutes a preliminary issue
for which no right to a jury trial exists.”43
39
     JA 58.
40
     Small, 728 F.3d at 267.
41
     Id.
42
     Id. at 267–68.
43
     Id. at 271.




                                15
        Small clearly held that “judges may resolve factual
disputes relevant to the exhaustion issue without the
participation of a jury.”44 However, while Small extolled the
“two-day, painstakingly thorough” evidentiary hearing in that
case, it left open the question of what baseline procedures are
required when a district court undertakes to serve as the fact
finder on the exhaustion issue.45 From this, some district
courts have interpreted Small as requiring an evidentiary
hearing when exhaustion is in dispute, however, other district
courts have resolved such disputes on the record alone.46

        Against this context, we hold that some form of notice
to the parties and an opportunity to respond are needed before
a district court elects to resolve factual disputes regarding
exhaustion under Small. While we leave the exact form of
the notice and opportunity to respond required to the
discretion of the district courts on a case-by-case basis, we
emphasize two items. First, as to the notice required, a
district court must—at a minimum—notify the parties that it

44
     Id.
45
     Id.
46
   Compare Romero v. Ahsan, No. 13-cv-7695, 2016 WL
7424486, at *9 (D.N.J. Dec. 22, 2016) (finding that an
evidentiary hearing was needed “to resolve the factual
disputes regarding Plaintiff’s exhaustion of his administrative
remedies”), with Werner v. Sorbin, No. 16-cv-1863, 2017 WL
3582382, at *3 (W.D. Pa. Aug. 18, 2017) (holding that while
the exhaustion issue “normally entails an evidentiary hearing
before the judge,” disputed issues of fact could be resolved on
the record).




                              16
will consider exhaustion in its role as a fact finder under
Small before doing so.          Second, with regard to the
opportunity to respond, a full-scale evidentiary hearing (i.e.
involving live testimony) is not required each time that a
prisoner claims that he exhausted his administrative remedies.
Surely some cases will need a full-scale hearing, however, we
leave that to the discretion of the district courts.
Nevertheless, before proceeding under Small, a district court
must at least provide the parties with an opportunity to submit
materials relevant to exhaustion that are not already before it.

      Applying these principles to the present dispute, we
conclude that the District Court erred by not providing notice
and an opportunity to respond once it decided to weigh
exhaustion under Small.

       In so holding, we note that the main remaining factual
issue is the discrepancy between the Prison’s records and
Paladino’s sworn deposition testimony that he submitted at
least six forms for his 2010 excessive force claim.
Defendants argue that Paladino’s testimony should be
disbelieved because, while the Prison’s records showed that
he filed forms during the relevant period, there was no record
that he submitted a form regarding the alleged underlying
assault. In essence, Defendants maintain that, because the
Prison’s records contain other forms submitted by Paladino,
the absence of any form for the 2010 excessive force claim is
dispositive of the exhaustion issue and Paladino’s testimony
should be disbelieved. However, the success of this argument
depends on the reliability of the Prison’s recordkeeping




                              17
system.47 Here, the record is bereft of evidence that the
Prison’s recordkeeping system is reliable. Without such
evidence, we cannot determine if Defendants have met their
burden to prove that Paladino “failed to exhaust each of his
claims.”48 Thus, if Defendants are unable to provide evidence
showing the reliability of the Prison’s recordkeeping on
remand, then an evidentiary hearing may be warranted to
resolve whether Paladino exhausted his administrative
remedies on his 2010 excessive force claim.49

                        III.   Conclusion

       Accordingly, we affirm the June 2013 order, affirm in
part and vacate in part the March 2015 order, and remand for
further proceedings consistent with this opinion.

47
   We note, without passing judgment, that the Prison
employs a paper-based record system, as opposed to an
electronic system, for forms filed by inmates. Cf. Dawson v.
Cook, 238 F. Supp. 3d 712, 719 (E.D. Pa. 2017) (finding that,
despite deposition testimony to the contrary, there was “no
basis . . . to conclude that Plaintiff submitted a grievance that
was not recorded” because there was “no electronic record of
the grievance” in the Philadelphia Prison System’s electronic
system).
48
     Small, 728 F.3d at 269 (emphasis in original).
49
   Paladino is correct that an inmate, who did not receive a
response to a grievance he submitted, may not have had the
Prison’s grievance process available to him, and is therefore
excused from the exhaustion requirement. However, we
cannot determine whether the grievance process was available
to Paladino based on the current record.




                                18
