                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2006

Hill v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5312




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                                                                            BPS-243
                                                                  NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                     No. 05-5312
                                     __________

                                 DEMETRIUS HILL,
                                       Appellant

                                           v.

              JOSEPH SMITH, Warden, Lewisburg Penitentiary;
              MR. STRATTA, Associate Warden; LT. HOOPER;
               JOHN DOE, I, C.O.; JOHN DOE TWO (2), C.O.;
         MR. ADAMI, Unit Manager; JOHN DOE, Health Administrator;
                     JOHN DOE, Physician Assistant


                    Appeal From the United States District Court
                      For the Middle District of Pennsylvania
                            (D.C. Civil No. 05-cv-01724)
                    District Judge: Honorable James F. McClure
                         ____________________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)
                                  June 8, 2006

         Before: RENDELL, AMBRO and GREENBERG, Circuit Judges

                                (Filed: June 19, 2006)
                                 _________________

                             OPINION OF THE COURT
                                _________________

PER CURIAM

    Demetrius Hill, a federal prisoner, filed this civil action pro se in the United States
District Court for the Middle District of Pennsylvania pursuant to Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging that

Appellees, staff at the United States Penitentiary at Lewisburg, Pennsylvania, violated his

constitutional rights. Hill’s complaint asserted First Amendment violations stemming

from Appellees’ alleged denial of Hill’s right to access the courts, and Eighth

Amendment violations related to delays in receiving medical care and to the conditions of

confinement in the “Special Management Unit” (also known as “G-Block”) where Hill

was housed. Notably, Hill’s complaint also alleged that Appellees refused to supply him

with the forms necessary for exhausting administrative remedies in the Bureau of Prisons’

grievance system, and that Appellee Robey assaulted and threatened Hill in connection

with his attempts to exhaust his remedies.

       At the same time he filed his complaint, Hill moved for a temporary restraining

order or a preliminary injunction. Hill’s motion sought to have cameras placed in the G-

Block stairwell to deter further attacks by staff on inmates, to require all G-Block staff to

wear name tags, to be examined by a doctor, to have his cell ventilated, and to be treated

as a pre-trial detainee until he is sentenced. The District Court denied Hill’s motion for a

temporary restraining order but held a hearing on the motion for a preliminary injunction.

In a memorandum and order entered on October 19, 2005, the District Court dismissed

Hill’s suit for failure to exhaust administrative remedies.1 Hill timely appealed.


       1
        The court observed that, even if Hill had exhausted administrative remedies, his
motion for a preliminary injunction would be denied, because he had not shown a
likelihood of success on the merits of his claims.

                                              2
       We have jurisdiction pursuant to 28 U.S.C. § 1291.2 Under the Prison Litigation

Reform Act (“PLRA”), a prisoner must exhaust available administrative remedies before

bringing any action regarding prison conditions. See 42 U.S.C. § 1997e(a). As for any

decision involving statutory interpretation, we review the District Court’s exhaustion

determination de novo. See Ray v. Kertes, 285 F.3d 287, 291 (3d Cir. 2002) (internal

citations omitted).

       Exhaustion of administrative remedies under the PLRA is an affirmative defense to

be pleaded by defendants. Id. at 295. The District Court acknowledged that Appellees

did not file a formal motion to dismiss asserting the failure to exhaust defense but further

noted that both parties addressed exhaustion in their pre-hearing briefs and presented

testimony and other evidence concerning exhaustion at the hearing. See Dist. Ct. Op. at 7

n.5. After review, we agree with the District Court that the record on the exhaustion issue

was complete. Cf. Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (remanding for

further proceedings because the parties’ pleadings provided insufficient evidence on the

issue of exhaustion).

       For substantially the same reasons set forth in the District Court’s opinion, we

agree that Hill’s arguments for excusing exhaustion are unavailing. Hill’s primary

argument is that administrative remedies were not “available” to him, because Appellees


       2
       The District Court’s order did not specify whether dismissal was with or without
prejudice. Even if the dismissal was without prejudice, it may be treated as a final and
appealable decision, because Hill’s time limit for exhausting administrative remedies has
expired, rendering his claims procedurally defaulted. See Spruill v. Gillis, 372 F.3d 218,
230 (3d Cir. 2004); Mitchell v. Horn, 318 F.3d 523, 528-29 (3d Cir. 2003).

                                             3
refused to provide him with the necessary remedy forms. See 42 U.S.C. § 1997e(a);

Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (Under the PLRA, a prisoner need

only exhaust such administrative remedies as are “available.”) At the complaint stage,

Hill’s allegation would be entitled to a presumption of truthfulness and would have stated

a viable defense for failure to exhaust. See Mitchell, 318 F.3d at 529 (prison officials’

actions preventing inmate from using grievance system rendered administrative remedies

“unavailable”); Brown, 312 F.3d at 112-13 (same). However, as noted above, the District

Court did not dismiss Hill’s suit at the complaint stage. Instead, the court resolved the

factual questions pertaining to exhaustion on the basis of evidence presented before and

during the preliminary injunction hearing.

       We review the District Court’s factual findings on exhaustion for clear error,

giving “due regard to the opportunity of the trial court to judge the credibility of the

witnesses.” See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 215 F.3d 407,

409 (3d Cir. 2000) (internal quotation omitted). The parties presented conflicting

testimony as to whether Hill was denied grievance forms or had attempted informal

resolution, as required by 28 C.F.R. § 542.13. The District Court credited Appellees’

testimony over Hill’s, concluding that administrative remedies were available to Hill and

that he had failed to exhaust them. Our review reveals no basis for a challenge to the

District Court’s credibility determinations. See United States ex rel. Tillery v. Cavell,

294 F.2d 12, 22 (3d Cir. 1961) (Where testimony is in direct conflict, it is for trial judge

to determine credibility of witnesses in resolving dispute). Consequently, we find no


                                              4
ground for a challenge to the District Court’s determination that administrative remedies

were “available” to Hill.

       Hill also argues that Appellees waived their right to assert the failure to exhaust

defense when Appellee Robey assaulted him in retaliation for his attempts to exhaust his

remedies. While at least two Circuits have held that the PLRA’s exhaustion requirement

is an affirmative defense which is subject to the doctrines of estoppel and waiver, see,

e.g., Ziemba v. Wezner, 366 F.3d 161, 163 (2d Cir. 2004) (per curiam) (equitable

estoppel is possible if defendants’ actions prevented plaintiff from exhausting); Wendell

v. Asher, 162 F.3d 887, 890 (5th Cir. 1998), we have not yet so held. Even if estoppel or

waiver were available, however, neither would apply in Hill’s case, as the District Court

found Hill’s evidence insufficient to demonstrate that an assault had occurred. See Dist.

Ct. Op. at 13.

       Hill’s final contention – that exhaustion should be excused because federal

inmates’ grievances are regularly rejected – fails, because there is no futility exception to

the PLRA’s exhaustion requirement. See Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).

       As the record supports the District Court’s dismissal for failure to exhaust, we will

affirm the judgment on this basis and need not address the District Court’s denial of the

preliminary injunction. See Fairview Township v. EPA, 773 F.2d 517, 524 n.15 (3d Cir.

1985).3


       3
        This appeal was originally listed for possible dismissal under 28 U.S.C. § 1915(e).
Given the extent of the proceedings in the District Court, we find that summary
affirmance under LAR 27.4 and I.O.P. 10.6 is a more appropriate method of disposing of
this appeal.

                                              5
