                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-14-2003

Mitchell v. Horn
Precedential or Non-Precedential: Precedential

Docket 98-1932




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Recommended Citation
"Mitchell v. Horn" (2003). 2003 Decisions. Paper 777.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/777


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PRECEDENTIAL

       Filed February 14, 2003

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-1932

MARK MITCHELL,

       Appellant

v.

MARTIN F. HORN, et al.

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 98-cv-04742)
District Judge: Honorable Edmund V. Ludwig

Argued August 1, 2002

Before: ROTH, RENDELL* and AMBRO, Circuit Judges

(Filed: January 29, 2003)
_________________________________________________________________

* The Honorable Marjorie O. Rendell participated in the oral argument
and conference and joined in the decision in this case on August 1,
2002, but became recused from this matter prior to filing of the opinion.
This opinion and judgment are being entered insofar as the remaining
judges are unanimous in this decision.


       Gregg H. Levy, Esquire
       Kevin C. Newsom, Esquire (Argued)
       Covington & Burling
       1201 Pennsylvania Avenue, N.W.
       Washington, D.C. 20004

        Attorneys for Appellant

       D. Michael Fisher, Esquire
       J. Bart DeLone, Esquire (Argued)
       Calvin R. Koons, Esquire
       John G. Knorr, III, Esquire
       Office of Attorney General
       Appellate Litigation Section
       15th Floor, Strawberry Square
       Harrisburg, PA 17120

        Attorneys for Amicus
       The Commonwealth of
       Pennsylvania

ORDER AMENDING SLIP OPINION

AMBRO, Circuit Judge:
It is now ordered that the published Opinion in the above
case filed January 29, 2003 be amended as follows:

Please insert an asterisk and accompanying footnote on
the cover page caption by Judge Rendell’s name. The
associated footnote should read: "The Honorable Marjorie
O. Rendell participated in the oral argument and
conference and joined in the decision in this case on
August 1, 2002, but became recused from this matter prior
to filing of the opinion. This opinion and judgment are
being entered insofar as the remaining judges are
unanimous in this decision."

On page 7, please replace the last two sentences of the
first full paragraph (beginning with "The Commonwealth
concedes . . .") with the following: "See Miller v. Norris, 247
F.3d 736, 740 (8th Cir. 2001) ("[A] remedy that prison
officials prevent a prisoner from ‘utiliz[ing]’ is not an
‘available’ remedy under S 1997e(a) . . . .") (alterations in

                                2


original). The Commonwealth acknowledges that the
District Court incorrectly dismissed this claim because it
did not consider Mitchell’s allegations that he was denied
grievance forms."

On page 7, please replace the last sentence of the second
full paragraph with the following: "Thus, even if Mitchell
failed to exhaust his available remedies (excused if there
were a failure to provide grievance forms), the District Court
was premature in dismissing his complaint."

On page 17, please replace the first sentence of Section
IV ("Conclusion") with the following: "If Mitchell were not
provided grievance forms (a fact that needs to be
determined by the District Court on remand), he has
exhausted the available administrative remedies on his
conditions-of-confinement claim as required by S 1997e(a).
In any event, he has stated a nonfrivolous retaliation
claim."

       By the Court,

        /s/ Thomas L. Ambro
       Circuit Judge

Dated: 14 February 2003

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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