CLD-075                                                         NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                       No. 10-3650
                                       ___________

                                  ROBERT R. OLESON,
                                      Appellant

                                             v.

               BUREAU OF PRISONS; MR. SPALDING; MS. BROWN;
                 MR. THOMPSON; MR. DONAHUE; MR. SILVER;
                MR. HEFFRON; MR. SCARBOUROUGH (phonetic);
                   MR. ESPANOZA (phonetic); MR. CASTILLO
                    ____________________________________

                       Appeal from the United States District Court
                               for the District of New Jersey
                               (D.C. Civil No. 09-cv-05706)
                        District Judge: Honorable Noel L. Hillman
                       ____________________________________

         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
                                  December 22, 2010

              Before: RENDELL, FUENTES and SMITH, Circuit Judges.

                             (Opinion filed: January 6, 2011)
                                       _________

                               OPINION OF THE COURT
                                     _________

PER CURIAM

       Robert Oleson, a prisoner at the Federal Correctional Institute at Fort Dix, appeals

from an order of the District Court dismissing sua sponte this pro se civil rights action for
failure to exhaust administrative remedies. For the reasons that follow, we will vacate the

order of the District Court and remand for further proceedings.

       On November 9, 2009, Oleson filed a complaint pursuant to Bivens v. Six

Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He

named several prison officials as defendants and alleged that they (1) refused to replace

his wheelchair, (2) refused to relocate him to a unit with a first-floor meeting room, (3)

removed items from his cell, (4) required him to wait outside in the rain for his turn to

enter the dining building, and (5) deleted visitors from his visitor log. The District Court

sua sponte dismissed the complaint for failure to exhaust. Oleson filed a motion for

reconsideration, attaching documents that he thought demonstrated that he had exhausted

his remedies. The District Court granted the motion, but again dismissed the complaint

for failure to exhaust. The defendants were never served. Oleson appealed. 1

       “[E]xhaustion is mandatory under the [Prison Litigation Reform Act, 42 U.S.C.

1997e et seq.] and [. . .] unexhausted claims cannot be brought in court.” Jones v. Bock,

549 U.S. 199, 919-19 (2007). However, as we made clear in Ray v. Kertes, 285 F.3d

287, 295 (3d Cir. 2002), “failure to exhaust is an affirmative defense to be pleaded by the

defendant.” In some limited circumstances, it may be appropriate for the District Court

to sua sponte dismiss a complaint for failure to exhaust, such as when the plaintiff


       1
          We have jurisdiction to hear this appeal. 42 U.S.C. § 1291. Our review of a
district court’s dismissal for failure to exhaust is plenary. Spruill v. Gillis, 372 F.3d 218,
226 (3d Cir. 2004). Summary action is warranted if an appeal presents no substantial

                                              2
expressly concedes that he or she has failed to exhaust a claim. See Id. at 293 n.5.

Oleson made no such concession. To the contrary, he claims to have exhausted his

administrative remedies. Nor is Oleson’s failure to exhaust “apparent from the face of

the complaint” or his other filings. Id. at 297. It may be—a question we do not reach—

that the documents Oleson submitted to the District Court do not prove that he exhausted

available remedies; however, as in Ray, see Id., they do not prove that he did not exhaust,

either. To dismiss on this basis improperly places the burden on Oleson, instead of on the

defendants.

       Accordingly, we will summarily vacate the District Court and remand for further

proceedings. Appellant’s motion for a court order directing prison staff to provide him

with new wheelchair castors is denied.




question. LAR 27.4; I.O.P. 10.6.

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