                                         PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ___________

                   No. 14-2994
                   ___________

              MARK A. ROBINSON,

                             Appellant

                        v.

       SUPERINTENDENT ROCKVIEW SCI; BRIAN
 THOMPSON; ROBERT MARSH, Deputy Superintendent;
    MELINDA SMITH, CCPM; JEFFREY RACKOVAN,
       Superintendent Assistant; LIEUTENANT FINK;
  LIEUTENANT SUTTON; LIEUTENANT KENSINGER;
     SERGEANT HOOVER; OFFICER LIEDHECKER;
         OFFICER NWANTA; JOHN DOE, Officer;
OFFICER HURLEY; SERGEANT BRYANT; GRANLUND,
   Unit Manager; HARPSTER, Unit Manager; CAPTAIN
    EATON; OFFICER TAYLOR; OFFICER ANGELO;
    OFFICER FLECK; WILLIAM WILLIAMS, CHCA;
   DOCTOR GROSS; BURKE, Doctor; NAPHIA, Doctor;
    PARSON, Doctor; PA PENGIERO; BIANNA, Nurse;
        DORINA VARNER, Chief Hearing Examiner;
      THE CENTRAL OFFICE INMATE DISABILITY
        ACCOMODATION COMMITTEE; OTHER
   INDIVIDUALS & POSITIONS TO BE NAMED AT A
 LATER DATE AS IDENTIFIED; DAVID KUHN, Hearing
   Examiner SCI Rockview; LIEUTENANT KERNS;
 OFFICER STAL; OFFICER HAHN; OFFICER PORTER
                    __________

      On Appeal from the United States District Court
          for the Middle District of Pennsylvania
                 (D.C. No. 3-10-cv-00272)
       District Judge: Honorable Robert D. Mariani
                       ___________

              Argued: January 20, 2016
 Before: JORDAN, HARDIMAN, and GREENAWAY, JR.,
                   Circuit Judges.

                   (Filed: July 27, 2016)

John L. Jacobus (Argued)
Linda C. Bailey
Timothy Work
Steptoe & Johnson
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
             Attorneys for Appellant

Kathleen G. Kane
Howard G. Hopkirk (Argued)
John G. Knorr, III
J. Bart DeLone
Office of Attorney General of Pennsylvania
Strawberry Square, 14th Floor
Harrisburg, PA 17120
              Attorneys for Appellee




                             2
                        ____________

                 OPINION OF THE COURT
                      ____________

HARDIMAN, Circuit Judge.

        Mark Robinson, an inmate in the custody of
Pennsylvania’s Department of Corrections (DOC) at the State
Correctional Institution at Rockview (SCI Rockview), appeals
the District Court’s summary judgment in favor of Lieutenant
Charles Fink on his excessive force claim. The District Court
held that Robinson failed to exhaust administrative remedies
prior to filing suit as required by the Prison Litigation Reform
Act (PLRA). Because we agree with Robinson that his
attempts to avail himself of SCI Rockview’s administrative
processes and the prison’s noncompliance with its own
deadline satisfied the PLRA, we will vacate and remand.1

                               I

       On October 9, 2009, Lieutenant Fink escorted
Robinson from the prison showers to his cell. Upon removing
his handcuffs, Fink allegedly twisted Robinson’s left arm
“real hard” and said, “since today is my last day, I wanted to
leave you with a present.” App. 312. Robinson felt pain in his
arm and shoulder and submitted a sick call request the next
day. Robinson was prescribed medication but continued to
experience pain in the months that followed.


       1
        We thank John Jacobus, Linda Bailey, and Timothy
Work of Steptoe & Johnson for their pro bono representation
of Robinson in this appeal.



                               3
       At the time of Robinson’s injury, the DOC had two
policies in place governing the reporting of abuse by inmates:
the Inmate Abuse Allegation Monitoring Policy (Abuse
Policy) and the Inmate Grievance System Policy (Grievance
Policy). Under the Abuse Policy, an inmate could raise a
dispute in one of three ways:

     (1) “report it verbally or in writing to any staff
member”

       (2) “file a grievance in accordance with [the Grievance
Policy]” or

       (3) “report it in writing to the Department’s Office of
Professional Responsibility (OPR).”

App. 391. In other words, Robinson could have brought his
complaint to the attention of prison authorities either by
reporting it to a staff member or the OPR (and remain under
the strictures of the Abuse Policy), or by filing a grievance in
accordance with the Grievance Policy. As we shall explain,
Robinson pursued both administrative channels.

                               A

       At the time Robinson filed his claims, the DOC’s
Abuse Policy provided that once an inmate reported abuse, all
subsequent procedures were to be conducted at the initiative
of the prison administration. The Abuse Policy also stated
that when a complaint of abuse is received, a prison staff
member “shall complete” Form DC-121 (Report of
Extraordinary Occurrence – Part 3, Employee Report of
Incident). App. 394. That form then must be distributed to a
supervisor and the facility’s Security Office. Once the form is




                               4
received by the Security Office, the incident “shall be
investigated and an investigative report shall be compiled” for
submission to OPR. App. 395. OPR is tasked with reviewing
the Security Office’s findings for integrity and thoroughness,
and remanding the matter to the Facility Manager if further
investigation is required. If the matter is remanded, the
Facility Manager has 30 days to conduct a follow-up
investigation, address OPR’s concerns, and resubmit the
report. Once OPR accepts the matter, it has 30 working days
to complete its own review and respond to the inmate in
writing.

        The record shows that Robinson filed two written
reports to staff members detailing his excessive force claim
against Fink in accordance with the Abuse Policy. On
October 9, he submitted Form DC-135A (Inmate’s Request to
Staff Member) in which he described the incident, indicated
that his shoulder was injured, and asked the Unit Manager to
investigate the matter. On October 10, he filed a Sick Call
Request in which he again described the incident and
requested medical attention. Other than confirming that
Robinson received a medical assessment and medication, the
record fails to show that anyone at SCI Rockview timely
followed up on Robinson’s written reports or responded to
either complaint of abuse.

                              B

       The DOC’s Grievance Policy was more formal than its
Abuse Policy and provided the following process. To initiate
a claim, an inmate must file Form DC-804, Part 1 with the
Facility Grievance Coordinator within 15 working days of an
incident. The inmate must sign and date the form and include




                              5
a short description of the incident and other basic
information.

       The Facility Grievance Coordinator “shall assign a
tracking number” and, if the form is compliant, must
“designate[] a staff member to serve as the Grievance
Officer” for its resolution. App. 402–03. “When the
Grievance Officer submits the grievance for formal
resolution, he/she shall provide a written response to the
inmate within 10 working days of receipt of the grievance.”
App. 403 (emphasis removed). If the investigation requires
more time, the Facility Manager may authorize a 10-day
extension, in which case “the inmate shall be advised in
writing.” App. 404.

       If the grievance is denied, the inmate may appeal to the
Facility Manager within 10 working days of the date he
received his written response. The inmate cannot appeal prior
to receiving a response, however. If the appeal is denied, the
inmate may appeal a second time to the Secretary’s Office of
Inmate Grievances and Appeals (SOIGA) within 15 working
days. SOIGA must then respond with a final resolution.

       The record shows that Robinson filed Form DC-804,
Part 1 on October 21 (12 days after his alleged injury).
Robinson described the incident, noted that he was injured by
Fink, requested relief, and mentioned that he had submitted
an earlier report pursuant to the Abuse Policy. He also signed
and dated the form.

       Facility Grievance Coordinator Jeffrey Rackovan
received the form, signed it on October 27, assigned it
Grievance Number 294032, and made two notations: “Capt.
Eaton 11/3” and “Due 11/10.” App. 312. Consistent with the




                              6
Grievance Policy, these notations indicate that Captain Lynne
Eaton was to serve as Robinson’s Grievance Officer and that
she had to respond by November 10.

      November 10 came and went and Robinson received
no response. After hearing nothing from Eaton during
November or December, on January 8, 2010, Robinson
submitted Form DC-135A to Rackovan, informing him that:
he had not received a response; he knew it “was due
November 10, 2009;” and he was “in need of a response for
administrative exhaustion.” App. 98.

       After 10 more days passed without word from the
prison, Robinson submitted another DC-135A to Rackovan,
stating that he took SCI Rockview’s failure to respond “as a
sign that [the prison was] refusing to process” his grievance
and that he would “proceed to the next level of appeal.” App.
88.

       A week later, in a final attempt to spur a response from
the prison, Robinson submitted another Form DC-135A—this
time to Eaton. Therein Robinson referenced his grievances,
noted that Eaton had missed the November 10 deadline, and
stated “[i]f I do not receive a response to each Grievance or
this request slip by you, by the date of February 1, 2010, I
will consider that a denial of the two Grievances. And I shall
proceed from there.” App. 86. Robinson received no response
by February 1.

                              II

      On February 5, 2010, Robinson filed a complaint in
the United States District Court for the Middle District of
Pennsylvania asserting several claims against approximately




                              7
30 prison officials, including his excessive force claim against
Fink.

                               A

       On March 17, 2010—more than four months after
Eaton’s November 10 deadline and roughly six weeks after
Robinson filed suit—SCI Rockview responded to Robinson’s
grievance against Fink.2 In that response, Eaton denied
Robinson’s claim, but her findings referenced a different
incident from the arm-twisting episode of which he had
complained.3

       That same day, Robinson submitted another Form DC-
135A, this time appealing Eaton’s denial to the Facility
Manager. He noted that: her response was submitted “far
beyond” her November 10 deadline; he was “never
interviewed or examined” by Eaton during the course of her
investigation; and “her response reference[d] a totally
different matter,” indicating a lack of “due diligence.” App.
314. On March 24, Robinson’s appeal was denied by SCI
Rockview’s Superintendent.

       2
          In their briefing, counsel for Appellee does not
provide any explanation or justification for the protracted
delay in responding to Robinson’s grievance and complaints
of abuse.
       3
           The response discussed an incident in which
Robinson “attempt[ed] to commit suicide” and was “removed
from [his] cell” and “placed in the processing area . . . to be
assessed by medical.” App. 313. It concluded that “Lt. Fink
denies using any excessive force and there is no evidence to
indicate otherwise.” Id.




                               8
       Robinson timely appealed to SOIGA. SOIGA
remanded the matter and Rackovan provided a revised
response. Rackovan again denied Robinson’s claim, however,
citing Fink’s denial of the allegations and the fact that
Robinson’s medical report indicated no visible injury and that
pain medication was provided to him.

       Robinson appealed again to SOIGA, which issued a
Final Appeal Decision on July 26 upholding the denial of his
grievance.

                              B

       On January 16, 2014, the District Court adopted the
Magistrate Judge’s Report and Recommendation dismissing
almost all of Robinson’s claims. However, the Court
overruled the Magistrate Judge’s dismissal of his excessive
force claim against Fink, finding that “neither Defendants nor
[the Magistrate Judge] addressed it.” App. 23. The Court
remanded the matter for further consideration, asking the
parties to brief the issue of “whether [Robinson] exhausted
his administrative remedies” with regard to his claim against
Fink. App. 24.

        The Magistrate Judge issued a second Report and
Recommendation on May 6, 2014. He concluded that
Robinson had not exhausted his administrative remedies prior
to filing suit with respect to his excessive force claim since
“Robinson elected to bring [his suit] before receiving a final
decision on his grievance.” App. 7. The Magistrate Judge
reasoned:

      Regarding Grievance No. 294032, Robinson
      received responses to this grievance, and was in




                              9
      the process of pursuing appeals of unfavorable
      rulings during and after the time he initiated this
      lawsuit. Although there may have been some
      delays at the institutional level in the processing
      of Robinson’s grievances, we do not find that
      the grievance process was essentially rendered
      unavailable to Robinson and, therefore, disagree
      with Robinson’s assertion that he should be
      excused from the PLRA’s exhaustion
      requirements with respect to his claims against
      Lieutenant Fink.

App. 20–21. The District Court adopted the Magistrate
Judge’s second report and Robinson filed this timely appeal.

                              III

       The District Court had jurisdiction under 28 U.S.C. §§
1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo the District Court’s determination that
Robinson failed to exhaust administrative remedies. Mitchell
v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). In doing so, we
accept the Court’s factual findings unless clearly erroneous,
Small v. Camden Cty., 728 F.3d 265, 268 (3d Cir. 2013), and
are mindful that failure to exhaust is an affirmative defense
that Fink must plead and prove, Jones v. Bock, 549 U.S. 199,
212 (2007).

                              IV

      The question presented is whether the District Court
erred in concluding that Robinson failed to exhaust his
administrative remedies under the PLRA prior to filing suit.
The answer to this question depends on whether SCI




                              10
Rockview’s repeated failure to respond to Robinson’s
grievance—even after its own deadline had passed and
multiple follow-up requests were made—rendered the
prison’s administrative remedies “unavailable” to Robinson
under the PLRA.

       The PLRA requires inmates to exhaust prison
grievance procedures before suing in court. 42 U.S.C. §
1997e(a). “[T]o properly exhaust administrative remedies
prisoners must ‘complete the administrative review process in
accordance with the applicable procedural rules,’ rules that
are defined not by the PLRA, but by the prison grievance
process itself.” Jones, 549 U.S. at 218 (quoting Woodford v.
Ngo, 548 U.S. 81, 88 (2006)).

       In Brown v. Croak, we noted that the PLRA requires
exhaustion of “available” administrative remedies and
defined such remedies as those that are “capable of use; at
hand.” 312 F.3d 109, 113 (3d Cir. 2002) (internal quotation
marks omitted) (quoting Webster’s II, New Riverside
University Dictionary 141 (1994 ed.)). Accordingly, we held
that when prison officials “thwart[] [a prisoner’s] efforts to
exhaust his administrative remedies,” they render them
“unavailable.” Id. The Supreme Court recently confirmed our
view. Ross v. Blake, 2016 WL 3128839, at *7 (U.S. June 6,
2016) (“[A]n inmate is required to exhaust those, but only
those, grievance procedures that are ‘capable of use’ to obtain
‘some relief for the action complained of.’”) (quoting Booth
v. Churner, 532 U.S. 731, 738 (2001)).

       In this case, the District Court adopted the Magistrate
Judge’s conclusion that Robinson’s efforts to obtain remedies
were not thwarted because “[he] received responses to [his]
grievance, and was in the process of pursuing appeals of



                              11
unfavorable rulings during and after the time he initiated [his]
lawsuit.” App. 20. The Court also agreed that any “delays at
the institutional level” were not substantial enough to render
Robinson’s administrative remedies “unavailable.” Id.

        Five of our sister courts have held that a prison’s
failure to timely respond to an inmate’s properly filed
grievance renders its remedies “unavailable” under the
PLRA. See, e.g., Boyd v. Corr. Corp. of Am., 380 F.3d 989,
996 (6th Cir. 2004) (“Following the lead of the [10th, 7th,
8th, and 5th] circuits . . . we conclude that administrative
remedies are exhausted when prison officials fail to timely
respond to a properly filed grievance.”). For example, in
Powe v. Ennis, the Fifth Circuit vacated the District Court’s
dismissal of a prisoner’s claim based on failure to exhaust
when the prison did not provide a timely response to his
grievance. 177 F.3d 393 (5th Cir. 1999) (per curiam). The
Court succinctly held: “A prisoner’s administrative remedies
are deemed exhausted when a valid grievance has been filed
and the state’s time for responding thereto has expired.” Id. at
394. The same reasoning drove the result in Foulk v.
Charrier, in which the Eighth Circuit held that an inmate was
not required to file a grievance in order to exhaust
administrative remedies when the prison failed to respond to
an informal review request that was a prerequisite to his
ability to file a grievance. 262 F.3d 687, 698 (8th Cir. 2001).

       Our most relevant opinion is in line with these
precedents. In Small v. Camden County, an inmate submitted
two grievances “in compliance with [the prison’s]
procedures,” but “no decision” was rendered on either of
them and prison rules required inmates to wait for a decision
before filing an appeal. 728 F.3d at 273. We reasoned that
“[b]ecause [the prison’s] procedures did not contemplate an



                              12
appeal from a non-decision, when [the inmate] failed to
receive even a response to the grievances . . . much less a
decision as to those grievances, the appeals process was
unavailable to him.” Id.

        Consistent with Small and the unanimous view of the
Courts of Appeals that have spoken on the matter, we agree
with Robinson that SCI Rockview rendered its administrative
remedies unavailable to him when it failed to timely (by its
own procedural rules) respond to his grievance and then
repeatedly ignored his follow-up requests for a decision on
his claim.

        The record reveals that Robinson pursued his claim
correctly at every step. He filed his claim under the Grievance
Policy on the proper form; he included a brief, legible, and
appropriate description of the incident; he signed and dated
the form; and he submitted it to the proper prison staff
member within 15 working days of his injury. Despite this,
SCI Rockview failed to respond by its self-imposed deadline.
Even worse, the prison refused to update Robinson on the
status of his grievance after receiving three requests in
January asking for a response and threatening suit as a last
resort. As in Small, filing suit was Robinson’s only method to
advance his claim since SCI Rockview prohibited inmates
from filing appeals prior to receiving a decision. App. 404
(“The Initial Review decision from the Grievance Officer
must be received by the inmate before any appeal to the
Facility Manager can be sought.”).

       The District Court concluded that SCI Rockview’s
March 17, 2010, response to Robinson—which was provided
more than four months late and six weeks after Robinson
filed suit, and did not even address the correct incident—



                              13
rendered the prison’s administrative remedies “available” to
him under the PLRA. We disagree. Robinson’s decision to
accept that response in good faith and pursue his claim
through the remainder of a belated administrative process
does not rectify the prison’s errors. Cf. Goebert v. Lee Cty.,
510 F.3d 1312, 1323 (11th Cir. 2007) (“If we allowed jails
and prisons to play hide-and-seek with administrative
remedies, they could keep all remedies under wraps until after
a lawsuit is filed and then uncover them and proclaim that the
remedies were available all along.”).4

       Although SCI Rockview did not play hide-and-seek
with its administrative processes, it did violate those
processes by failing to respond to Robinson’s grievance until
more than four months after its own deadline and then
repeatedly ignoring his requests for a decision. “Operating at
its best, which it admittedly sometimes does not, a prison
administrative grievance procedure will afford an inmate with
a sense of respect. If prison officials treat his claims with
      4
          It is worth noting that had Robinson missed his own
procedural deadline—for example, by failing to file his
grievance until 16 days after the alleged incident with Fink—
he might have found himself barred from seeking a judicial
remedy since it could be argued that he failed to exhaust the
prison’s administrative procedures. See Woodford v. Ngo, 548
U.S. 81, 90 (2006) (“Proper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules
. . .”). Therefore, it would have been risky for Robinson to
ignore the prison’s late-filed response and proceed solely in
federal court. Rather than take that risk, he sensibly decided
to pursue his grievance when SCI Rockview finally
responded to it. We reject the prison’s invitation to hold
Robinson’s diligence against him.



                             14
seriousness and care, they may well discover that he can be
easily satisfied.” Nyhuis v. Reno, 204 F.3d 65, 76 (3d Cir.
2000). But the converse is also true. If prisons ignore
grievances or fail to fully investigate allegations of abuse,
prisoners will feel disrespected and come to believe that
internal grievance procedures are ineffective. If prisoners do
not believe they will get a response from prison
administration, they will be more likely either to bypass
internal procedures entirely and file a complaint in federal
court or use a federal lawsuit to prod prison officials into a
response, thus taxing the judicial resources that Congress
meant to conserve by passing the PLRA. Accordingly, we
hope that the events that transpired in this case are not
reflective of the way in which SCI Rockview responds to
inmate grievances generally.

       On these facts, we hold that SCI Rockview rendered
its administrative remedies “unavailable” to Robinson under
the PLRA. Consequently, the District Court erred when it
held that Robinson failed to exhaust his administrative
remedies.

                              V

       For the reasons stated, we will vacate the District
Court’s summary judgment in favor of Fink on Robinson’s
excessive force claim and remand for further proceedings
consistent with this opinion.




                             15
