                                       PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                _______________

                     No. 16-1080
                   _______________

                 MICHAEL RINALDI,
                                        Appellant

                           v.

 UNITED STATES OF AMERICA; HARRELL WATTS,
   Central Office; J.L. Norwood, Reginal Director, B.A.
     BLEDSOE, Warden, J. E. THOMAS, Warden; J.
GRONDOLSKY, Acting Warden; MR. YOUNG, Associate
  Warden; MRS. REAR, Associate Warden; JOHN DOE,
 Captain; MR. TAGGART; DR. MINK, Psychology; MR.
KISSELL, Case Manager; D. BAYSORE, Counselor; GEE,
  Officer; MR. BINGAMAN, Officer; MR. PACKARD,
 Officer; MRS. SHIVERY, Officer; B. TAUNER, Officer
                     _______________

     On Appeal from the United States District Court
         for the Middle District of Pennsylvania
       (M.D. Pa. Civil Action No. 1:13-cv-00450)
     Honorable Sylvia H. Rambo, U.S. District Judge
                   _______________

               Argued: January 25, 2018
Before: KRAUSE, SCIRICA, and FUENTES, Circuit Judges

            (Opinion Filed: September 12, 2018)

Tarah E. Ackerman, Esq. [Argued]
Allegheny Technologies, Inc.
1000 Six PPG Place
Pittsburgh, PA 15222

Matthew R. Divelbiss, Esq.
Jones Day
500 Grant Street
Suite 4500
Pittsburgh, PA 15219

Attorney for Plaintiff-Appellant Michael Rinaldi

Timothy S. Judge, Esq. [Argued]
Office of United States Attorney
235 North Washington Avenue
P.O. Box 309, Suite 311
Scranton, PA 18503

Attorney for Defendants-Appellees




                              2
                       ______________

                 OPINION OF THE COURT
                     _______________

KRAUSE, Circuit Judge.

       Appellant Michael Rinaldi, who at all relevant times
was an inmate in custody at United States Penitentiary,
Lewisburg (“Lewisburg” or the “Institution”), appeals the
District Court’s dismissal of his complaint 1 alleging that the

       1
          The District Court considered the Government’s
“Motion to Dismiss or, in the alternative, Motion for Summary
Judgment,” JA 68, as one “for dismissal primarily under Rule
12(b)(6),” Rinaldi v. United States, 2015 WL 2131208, at *1
n.1 (M.D. Pa. May 7, 2015), and accepted as true the factual
allegations in Rinaldi’s complaint. In dismissing Rinaldi’s
claims and entering judgment in the Government’s favor based
on an affirmative defense, the District Court relied in part on
prison records and an affidavit and to that extent construed the
Government’s motion as one for summary judgment. Id. at *7-
8, *19. As we have observed in past cases, where a defendant
moves to dismiss based on a failure-to-exhaust defense and
“the exhaustion issue turns on [] indisputably authentic
documents related to [the inmate’s] grievances,” we may
consider those documents “without converting [a motion to
dismiss] to a motion for summary judgment,” Spruill v. Gillis,
372 F.3d 218, 223 (3d Cir. 2004), although different treatment
may be warranted where the court considers other types of
evidence, see Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir.
2018) (affirming order on defendant’s motion for summary
judgment for failure-to-exhaust based on prison records and an




                               3
conduct of various personnel violated his constitutional and
statutory rights. His appeal requires us to resolve three matters
of first impression for our Court: (1) what showing an inmate
must make to establish that administrative remedies were not
“available” within the meaning of the Prison Litigation Reform
Act (“PLRA”); (2) whether the PLRA’s exhaustion
requirement is satisfied where a prison administrator elects to
resolve a procedurally improper administrative request on the
merits; and (3) whether a prison’s housing and cellmate
assignments meet the discretionary function exception to the
Federal Tort Claims Act’s limited waiver of sovereign
immunity. For the reasons that follow, we will affirm the
District Court’s dismissal of Rinaldi’s complaint in part and
will vacate and remand in part.

I.     Factual Background

       Between November 2011 and 2012, while housed at
Lewisburg, Rinaldi filed a number of administrative requests,
including one related to an alleged assault and one related to
alleged retaliation. He initiated his assault claim with an
“informal resolution,” 2 dated January 29, 2012, alleging that


affidavit without discussing when such a motion may be
construed as a motion to dismiss). In any event, we likewise
will accept Rinaldi’s factual allegations as true for purposes of
this appeal. See Bridge v. Phx. Bond & Indem. Co., 553 U.S.
639, 642 n.1 (2008).
       2
         As explained in greater detail below, an “informal
resolution” is the first step that must be taken by an inmate in
the Bureau of Prisons (“BOP”) as part of its 4-step grievance
process. The subsequent steps are the filing of a formal




                               4
he had been assaulted by a previous cellmate (Cellmate #1),
and “requesting the institution discontinue its practice of
forcing inmates to cell together [] regardless of their
compatibility.” JA 160. On February 1, after that informal
request was denied, Rinaldi filed a formal request (the “Assault
Request”), which the Institution eventually denied on the
ground that there was “no basis for [Rinaldi’s] accusations.”
JA 165.

       The following day, February 2, Rinaldi was transferred
to another unit. According to Rinaldi’s complaint, Appellee
Counselor Baysore had previously warned Rinaldi that unless
he stopped filing requests, “she would have him moved to a
different unit and placed in a cell with an inmate who was
known for assaulting his cellmates,” and Appellee Officer Gee,
who conducted the transfer, told Rinaldi that the reason he was
being moved was because he “didn’t listen” to those warnings.
JA 61. Despite his protests, Rinaldi was transferred and placed
in a cell with a new cellmate (Cellmate #2), who, Rinaldi
alleges, threatened him by informing Lewisburg personnel,
including Officer Gee and Counselor Baysore, “that if Rinaldi
were placed in the cell he would kill [him].” JA 61. Over the
course of the next three weeks, Rinaldi asserts he “suffered cuts
and bruises and emotional distress” from several physical
altercations with Cellmate #2. JA 61.

        Rinaldi sought administrative relief for the alleged
retaliatory transfer on February 2, but because he allegedly was


“request” at the institution, an appeal to the BOP Regional
Director, and a final appeal to the General Counsel of the BOP.
See 28 C.F.R. §§ 542.13-.18.




                               5
concerned about the risk of further retaliation, he opted not to
file an informal resolution or initial retaliatory transfer request
directly with the Institution. Instead, he followed the
procedure for “Sensitive” requests, filing this claim (the
“Retaliation Request”) directly with the Regional Director.
According to BOP records, the Retaliation Request was
rejected as procedurally improper with directions to first file it
at the Institution, which Rinaldi declined to do. 3

        Separately, Rinaldi also sought to obtain administrative
relief for the assault by Cellmate #2. Although Rinaldi was
required to file an informal resolution and formal request with
the Institution, 4 he did not do so. Rather, as he was then poised
to appeal the denial of his original Assault Request (concerning
Cellmate #1) to the Regional Director, he simply incorporated
allegations as to both Cellmate #1 and Cellmate #2 into his
appeal. As a result, the Regional Director could have rejected
that appeal, at least as to Cellmate #2, on procedural grounds

       3
         There is some ambiguity in the record as to whether
Rinaldi took a further appeal of the rejection by the Regional
Director to the General Counsel. However, the Government
does not raise and thus has waived this issue as a basis for
Rinaldi’s failure to exhaust, instead resting its argument
exclusively on Rinaldi’s failure to refile the “Sensitive” request
with the Institution. See United States v. Albertson, 645 F.3d
191, 195 (3d Cir. 2011).
       4
         The assault by Cellmate #2 was “unrelated” to the
assault by Cellmate #1 and thus was required to be filed as a
separate grievance. 28 C.F.R. § 542.14(c)(2); see id.
§ 542.15(b)(2).




                                6
for failure to exhaust because his claim as to Cellmate #2 was
never presented to the Institution in the first instance. Instead,
however, he issued a decision that acknowledged that the
appeal raised claims concerning the assaults by Cellmates #1
and #2 and rejected both claims on the merits. As the Regional
Director put it:

       You appeal the response from the Warden at
       USP Lewisburg and claim you were forced into
       a cell with another inmate who you allege
       threatened to kill you prior to being placed in the
       same cell. You also state you were once
       assaulted by a previous cellmate and received
       injuries. . . [T]here is no record of you being
       assaulted by your previous or current cellmate. .
       . Accordingly, your appeal is denied.

JA 168. 5

II.    Procedural History

       Unable to obtain redress through the BOP grievance
process, Rinaldi, initially proceeding pro se, filed a complaint
in the Middle District of Pennsylvania raising three claims
relevant to this appeal: (1) a First Amendment claim based on
the retaliatory conduct alleged in the Retaliation Request; (2)
an Eighth Amendment claim based on the cell placement and

       5
         It appears that Rinaldi’s further appeal to the General
Counsel, though summarily denied, was also denied on the
merits because the BOP database entry indicated a status code
“DNY,” meaning a “request or appeal denied substantially in
full.” JA 170, 179.




                                7
resulting attack by Cellmate #2 alleged in his appeal of the
Assault Request; and (3) a claim pursuant to the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 1346, against the United
States for negligently placing Rinaldi with a cellmate that
prison personnel knew or should have known would assault
him. 6


       6
         Rinaldi also raised a claim pursuant to the Religious
Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb et
seq., based on his inability to attend congregational prayer
while housed in the Special Management Unit at Lewisburg,
as well as a claim construed as a Bivens claim based on a
violation of the Free Exercise Clause of the United States
Constitution. See Bivens v. Six Unknown Names Agents of Fed.
Bureau of Narcotics, 403 U.S. 388 (1971); Rinaldi, 2015 WL
2131208, at *10, 16-17. The District Court dismissed
Rinaldi’s RFRA claim with leave to amend, explaining to
Rinaldi that he was required to allege the personal involvement
of each defendant, but Rinaldi declined to file an amended
complaint and did not appeal the denial of his RFRA claim.
Between the District Court’s order and the filing of this appeal,
we held in Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d
Cir. 2016), that Bivens did not extend to Free Exercise claims
and Rinaldi concedes in his Reply brief in this appeal that Mack
forecloses his Bivens claim. Rinaldi also requests for the first
time in his Reply that, in view of Mack, we remand to give him
the opportunity to amend his RFRA claim—the very
opportunity he passed up when offered by the District Court.
We will deny that request because “the courts of appeals will
not consider arguments raised on appeal for the first time in
a reply brief.” Hoxworth v. Blinder, Robinson & Co., 903 F.2d
186, 204-5 n. 29 (3d Cir. 1990) (citation omitted).




                               8
        The District Court granted the Government’s “Motion
to Dismiss or, in the alternative, Motion for Summary
Judgment,” concluding (1) the First Amendment claim was
barred by the PLRA, 42 U.S.C. § 1997e(a), because Rinaldi
had declined to file his Retaliation Request with the Institution
and thus had not exhausted the Retaliation Request; (2) the
Eighth Amendment claim covering the assault by Cellmate #2
was likewise unexhausted because Rinaldi failed to file an
initial request and raised it only in the appeal of his Assault
Request; and (3) the Court did not have jurisdiction over the
FTCA claim because cellmate assignments fall within the
discretionary function exception to the FTCA’s waiver of
sovereign immunity. 7 Rinaldi v. United States, No. 13-cv-450,
2015 WL 2131208, at *5-8 (M.D. Pa. May 7, 2015); 28 U.S.C.
§ 2680(a).

       After appointing pro bono counsel on appeal, we
directed the parties to address, among other things, whether
Rinaldi failed to exhaust his administrative remedies regarding
his First and Eighth Amendment claims and the applicability


       7
         While the District Court concluded, based on the
discretionary function exception, that it “lack[ed] jurisdiction
over Plaintiff’s claims against the United States and all other
Defendants in their official capacity,” Rinaldi, 2015 WL
2131208, at *6, it properly concluded that it had jurisdiction
over Rinaldi’s claims against the defendants in their individual
capacities. See Jaffee v. United States, 592 F.2d 712, 717 (3d
Cir. 1979); Consejo de Desarrollo Economico de Mexicali,
A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)
(noting that a Bivens action can be maintained against a
defendant in his or her individual capacity only).




                               9
of the discretionary function exception to Rinaldi’s FTCA
claim.

III.   Jurisdiction and Standard of Review

       The District Court had jurisdiction under 28 U.S.C.
§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We
exercise plenary review over both the exhaustion
determination, Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.
2004), and the applicability of the discretionary function
exception to the wavier of sovereign immunity, Mitchell v.
United States, 225 F.3d 361, 362 (3d Cir. 2000).

IV.    Discussion

      Below we consider whether Rinaldi exhausted his First
Amendment and Eighth Amendment claims before turning to
Rinaldi’s FTCA claim.

       A.     Exhaustion under the PLRA

       Congress enacted the PLRA to reduce the “disruptive
tide of frivolous prisoner litigation.” Woodford v. Ngo, 548
U.S. 81, 97 (2006). In contrast to its precursor, the Civil Rights
of Institutionalized Persons Act, § 7, 94 Stat. 352 (1980),
which had a “weak exhaustion provision,” the PLRA
“invigorated” the administrative remedy of exhaustion,
Woodford, 548 U.S. at 84, by providing:

       [n]o action shall be brought with respect to
       prison conditions under Section 1983 of this title,
       or any other Federal law, by a prisoner confined
       in any jail . . . until such administrative remedies
       as are available are exhausted.




                               10
42 U.S.C. § 1997e(a) (emphasis added). Exhaustion is thus a
non-jurisdictional prerequisite to an inmate bringing suit and,
for that reason, as we held in Small v. Camden County, it
constitutes a “‘threshold issue that courts must address to
determine whether litigation is being conducted in the right
forum at the right time.’” 728 F.3d 265, 270 (3d Cir. 2013)
(quoting Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010)).
We make that determination by “evaluating compliance with
the prison’s specific grievance procedures,” Drippe v.
Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010), and analyzing
whether the procedures were “available” to the inmate. Small,
728 F.3d at 269, 271; 42 U.S.C. § 1997e(a).

       While Small made clear that factual disputes relevant to
exhaustion may be resolved by a district judge without the
participation of a jury, id. at 271, we recently clarified that,
before engaging in such fact-finding, the judge must provide
the parties with “some form of notice . . . and an opportunity to
respond,” although we left the exact form of this notice to “the
discretion of the district court [] on a case-by-case basis.”
Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018). At a
minimum, however, the court must “notify the parties that it
will consider exhaustion in its role as a fact finder under
Small,” and, although live testimony is not necessarily
required, it also “must at least provide the parties with an
opportunity to submit materials relevant to exhaustion that are
not already before it.” Id; see Small, 728 F.3d at 269.




                               11
              1.      Rinaldi’s First Amendment Retaliation
                      Claim

       Rinaldi argues that his First Amendment claim should
not have been dismissed on exhaustion grounds because the
safety risks of filing directly with the Institution rendered that
administrative remedy unavailable. Because we must measure
whether Rinaldi exhausted his administrative remedies against
the yardstick of the grievance procedures set forth in the
relevant BOP regulations, see 28 C.F.R. §§ 542.13-.18;
Drippe, 604 F.3d at 781, we will first summarize (a) the
relevant administrative remedies under BOP regulations and
(b) the case law relevant to the availability of those remedies
under the PLRA before addressing (c) the showing an inmate
must make to prove unavailability, and (d) whether remand is
necessary to determine if Rinaldi can make that showing here.

                      (a)    Exhaustion of BOP Administrative
                             Remedies

        As a general matter, inmates must (1) attempt an
informal resolution with staff at the institution, id. § 542.13(a);
(2) file a formal complaint with the institution, id. § 542.14(c);
(3) file an appeal to the appropriate Regional Director if the
inmate is not satisfied with the institution’s response to the
formal complaint, id. § 542.15(a); and (4) file another appeal
to the General Counsel if the inmate is not satisfied with the
Regional Director’s response to the appeal, id. However,
where an inmate “reasonably believes the issue [that is the
subject of his grievance] is sensitive and the inmate’s safety or
well-being would be placed in danger if the Request became
known at the institution,” the inmate may proceed directly to
Step (3) by “submit[ing] the Request directly to the appropriate




                                12
Regional Director.” Id. § 542.14(d). The inmate must “clearly
mark ‘Sensitive’ upon the Request and explain, in writing, the
reason for not submitting the Request at the institution.” Id. If
the appropriate reviewer does not agree that the request is
“Sensitive,” the regulations provide that “the inmate shall be
advised in writing” that the “Request will not be accepted,” and
the inmate then “may pursue the matter by submitting a [] . . .
Request locally” with the institution. Id.

       Here, Rinaldi considered his Retaliation Request a
“Sensitive” request and therefore filed it with the Regional
Director in the first instance. As discussed above, however,
the Regional Director rejected it on the procedural ground that
Rinaldi should have filed first with Lewisburg. 8 That tees up

       8
          It appears that there are two potentially applicable
regulations—and, by extension, two applicable procedures—
when a “Sensitive” request is rejected. See 28 C.F.R.
§ 542.14(d) (governing “Sensitive” requests); id. § 542.17(c)
(governing all rejections including “a rejection on the basis of
[the] exception [for ‘Sensitive’ issues]”). We will assume for
purposes of this appeal that those regulations required Rinaldi
to refile at the Institution upon receipt of the rejection because
Rinaldi himself adopts that position and raises no arguments to
the contrary. We note, however, that § 542.17(c) is not a model
of clarity, particularly when viewed together with
§ 542.14(d)(1). While § 542.14(d)(1) directs what inmates
“shall” do after a “Sensitive” request is rejected, it also states
that inmates “may pursue the matter by submitting an
Administrative Remedy Request locally to the Warden,”
suggesting that refiling at the institution is a permissible
alternative to direct appeal pursuant to § 542.17(c). Id.
§ 542.14(d)(1) (emphasis added). Similarly, § 542.17(c)




                               13
the first exhaustion issue we confront today: whether Rinaldi
was required to submit his Retaliation Request to the
Institution to satisfy the PLRA’s exhaustion requirement
before filing his First Amendment claim in federal court or
whether he was relieved of that requirement because the
opportunity to file with the Institution was not “available.” 42
U.S.C. § 1997e(a).

                     (b)    Unavailability of Administrative
                            Remedies

        The PLRA requires only “proper exhaustion,” meaning
exhaustion of those administrative remedies that are
“available.” Woodford, 548 U.S. at 93. In its recent decision
in Ross v. Blake, the Supreme Court identified “three kinds of
circumstances in which an administrative remedy, although
officially on the books,” is not “available” because it is “not


provides that an “inmate may appeal [a] rejection,” and
specifically provides that the regulation covers rejections of
“Sensitive” requests. As for § 542.17(c), the only qualifier to
permission to appeal directly is that “the inmate is not given an
opportunity to correct the defect and resubmit.”              Id.
§ 542.17(c). But it is not apparent what “defect” can be
“correct[ed]” when an inmate in good faith believes that the
request is indeed “Sensitive” and therefore warrants a direct
appeal. Because, “under § 1997e(a), the warden is responsible
for the grievance system . . . he or she may alter the grievance
system to require more (or less) of inmates by way of
exhaustion,” Spruill, 372 F.3d at 235, and in view of the
ambiguity in § 542.17(c), wardens and the BOP itself may
wish to provide guidance.




                               14
capable of use to obtain relief”: (1) when “it operates as a
simple dead end—with officers unable or consistently
unwilling to provide any relief to aggrieved inmates”; (2) when
it is “so opaque that it becomes, practically speaking, incapable
of use,” such as when no ordinary prisoner can discern or
navigate it; or (3) when “prison administrators thwart inmates
from taking advantage of a grievance process through
machination, misrepresentation, or intimidation.” 136 S. Ct.
1850, 1859-60 (2016).

        We too have encountered circumstances in which a
grievance process, though “officially on the books,” Ross, 136
S. Ct. at 1859, is in reality incapable of use such that the
PLRA’s exhaustion requirement must be deemed satisfied. In
Brown v. Croak, 312 F.3d 109 (3d Cir. 2002), for example, we
rejected the prison’s affirmative defense of failure to exhaust
where the plaintiff alleged he was given misleading filing
instructions, resulting in a procedural default, and argued
“essentially that officials in the security department of the
prison thwarted his efforts to exhaust his administrative
remedies.” Id. at 113. And more recently, in Robinson v.
Superintendent Rockview SCI, we held that the prison
“rendered its administrative remedies unavailable to [the
plaintiff] 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.” 831 F.3d 148,
154 (3d Cir. 2016). In such circumstances, “filing suit [was the
plaintiff’s] only method to advance his claim.” Id.

       Rinaldi now asks us to recognize another circumstance
in which the grievance process is unavailable, i.e., where an
inmate is deterred from pursuing an administrative grievance
by a prison official’s serious threats of substantial retaliation—




                               15
a circumstance that Rinaldi contends falls squarely within
Ross’s third category because a prisoner’s ability to take
advantage of the grievance process has then been “thwarted”
by prison administrators “through . . . intimidation.” Ross, 136
S. Ct. at 1860.

       We agree that serious threats of substantial retaliation
can trigger this third category of unavailability, and thus join
our Sister Circuits who have held, even before Ross, that
administrative remedies are not “available” under the PLRA
where a prison official inhibits an inmate from resorting to
them through serious threats of retaliation and bodily harm. 9
See McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015);
Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011);
Turner v. Burnside, 541 F.3d 1077, 1084-86 (11th Cir. 2008);
Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Hemphill v.
New York, 380 F.3d 680, 686-87 (2d Cir. 2006), abrogated on
other grounds as recognized in Williams v. Correction Officer
Priatno, 829 F.3d 118, 123 (2d Cir. 2016).

        As the Tenth Circuit eloquently explained in Tuckel v.
Grover, it is “difficult to accept the proposition that an
administrative remedy is available in any meaningful sense if
its use will result in serious retaliation and bodily harm.” 660

       9
           Given our conclusion that this circumstance falls
within the third category described in Ross, we do not have
occasion to address, as have some of our Sister Circuits,
whether Ross’s three categories are exhaustive or merely
illustrative. See, e.g., Andres v. Marshall, 867 F.3d 1076, 1078
(9th Cir. 2017) (describing the three categories as “non-
exhaustive”); Williams v. Corr. Officer Priatno, 829 F.3d 118,
124 (2d Cir. 2016) (same).




                              16
F.3d at 1252. To the contrary, threats made by prison officials
that inhibit an inmate from utilizing an administrative process
“disrupt the operation and frustrate the purposes of the
administrative remedies process enough that the PLRA’s
exhaustion requirement does not allow them” and thus lift the
exhaustion requirement as to that part of the process. Id. at
1253 (quoting Turner v. Burnside, 541 F.3d at 1085). This
approach not only is consistent with the plain language of the
PLRA, which requires only exhaustion of administrative
remedies “as are available,” 42 U.S.C. § 1997e(a), but also is
“faithful to the underlying purposes of the PLRA,” id. at 1253,
as it “reduces any incentive that prison officials otherwise
might have to use threats to prevent inmates from exhausting
their administrative remedies” and “thereby safeguards the
benefits of the administrative review process for everyone,”
Turner, 541 F.3d at 1085.

        With Ross, the Supreme Court too has recognized that
“intimidation” by prison officials can “thwart inmates from
taking advantage of a grievance process” and thus render that
process “unavailable.” 136 S. Ct. at 1860. But the question
remains what showing an inmate must make to establish such
“intimidation” and defeat a failure-to-exhaust defense: Must he
show (1) that, objectively, an inmate of reasonable fortitude
would be deterred from filing a grievance; (2) that,
subjectively, he himself was deterred from filing a grievance;
or (3) that both an objective and subjective test have been
satisfied? To that question we now turn.




                              17
                     (c)     The Showing Required to Prove
                             Unavailability

       The burden to plead and prove failure to exhaust as an
affirmative defense rests on the defendant. Ray v. Kertes, 285
F.3d 287, 295 (3d Cir. 2002). But once the defendant has
established that the inmate failed to resort to administrative
remedies, the onus falls on the inmate to show that such
remedies were unavailable to him. Tuckel, 660 F.3d at 1253-
54.

        To determine what showing is required to establish
unavailability based on “intimidation,” we find helpful
guidance in the reasoning of other Courts of Appeals. In
Turner v. Burnside, the Eleventh Circuit held that an inmate
must show both that “the threat actually did deter the plaintiff
inmate from lodging a grievance or pursuing a particular part
of the process”; and that “the threat is one that would deter a
reasonable inmate of ordinary firmness and fortitude from
lodging a grievance or pursuing the part of the grievance
process that the inmate failed to exhaust.” 541 F.3d at 1085.
The Tenth Circuit has also embraced the “two-prong analysis
in Turner . . . as the best model” for the “showing necessary to
defeat a failure-to-exhaust defense,” Tuckel, 660 F.3d at 1253-
54, explaining that the subjective element ensures that the
grievance process was perceived as unavailable by this
plaintiff, i.e., “that he was actually deterred,” while the
objective element “ensures that inmates cannot easily
circumvent the exhaustion requirement” and thus “only threats
that are sufficiently serious and retaliatory acts that are severe
enough to deter a reasonable inmate will result in an
administrative remedy becoming unavailable for PLRA
purposes,” id. at 1254. The Ninth Circuit, too, has embraced




                               18
Turner as “straightforward and conceptually simple to apply.”
See McBride, 807 F.3d at 987-88.

        We also find the Turner test a sensible one. 10 The
objective component is of chief importance because it
maintains the exhaustion requirement for the vast majority of
claims and allows otherwise unexhausted claims to proceed
only in the exceptional circumstance where the facts alleged
would reasonably give rise to a substantial fear of serious harm.
As the Tuckel Court explained, the objective requirement
allows courts to easily weed out suits that attempt to
circumvent the PLRA, such as where “a threat . . . was
allegedly made years prior to the inmate’s suit” or “an inmate
is no longer held in the prison in which he experienced
retaliatory violence.”       660 F.3d at 1254.           Because
“demonstrating that an official objectively chilled an inmate
from relying on administrative remedies presents a significant
challenge in any context,” the objective prong leaves “little
incentive for an inmate to assert baseless retaliation claims
rather than simply utilizing a grievance procedure,” id., and it
instead filters for those threats so serious as to lead a rational
inmate to forego the benefits of administrative review, see,
e.g., McBride, 807 F.3d at 988 (concluding that the inmate
failed to satisfy Turner’s objective prong where there was no
“basis in the record from which the district court could
determine that a reasonable prisoner of ordinary firmness
would have understood the prison official’s actions to threaten

       10
          Indeed, federal courts are well accustomed to
applying tests involving both an objective and subjective
component in the prisoner litigation context. See, e.g., Hudson
v. McMilian, 503 U.S. 1, 8 (1992); Ricks v. Shover, 981 F.2d
468, 473-74 (3d Cir. 2018).




                               19
retaliation if the prisoner chose to utilize the prison’s grievance
system”).

        But the subjective component also has a role to play.
For even though a showing that an inmate of reasonable
fortitude would be deterred offers relevant circumstantial
evidence of subjective deterrence, see Hope v. Pelzer, 536 U.S.
730, 738 (2002); Kedra v. Schroeter, 876 F.3d 424, 441 (3d
Cir. 2017), a district court may conclude—based on
documents, affidavits, or live testimony if deemed warranted,
see Paladino, 885 F.3d at 211—that the subjective showing has
not been satisfied. Evidence that an inmate continued to file
substantially similar claims through the same grievance
process, for example, may be sufficiently compelling to defeat
an inmate’s assertion of subjective deterrence.

        In sum, we perceive a valuable role for both the
objective and subjective components of the Turner test and
today adopt it as our own. To defeat a failure-to-exhaust
defense, an inmate must show (1) that the threat was
sufficiently serious that it would deter a reasonable inmate of
ordinary firmness and fortitude from lodging a grievance and
(2) that the threat actually did deter this particular inmate.

                      (d)    Application to Rinaldi

         As applied here, Rinaldi’s Retaliation Request
unquestionably satisfies the objective test for unavailability.
Accepting the allegation that Rinaldi’s continued resistance to
the grievance process is what led prison authorities to house
him with a cellmate they knew threatened to kill him, we have
little trouble concluding that “a reasonable inmate of ordinary
firmness and fortitude” would be “deter[red] . . . from lodging




                                20
a grievance or pursuing the part of the grievance process that
the inmate failed to exhaust.” Turner, 541 F.3d at 1084-85.
And the Government conceded as much at oral argument. The
Government disputes, however, whether Rinaldi was
subjectively deterred.

        Because the District Court did not have the benefit of
the test we announce today and because we had not yet
clarified in Paladino what procedures are required when a
district court must resolve factual disputes relevant to
exhaustion, the District Court did not have occasion to
determine whether Rinaldi made the requisite showing of
subjective deterrence. Nonetheless, the Government urges that
we should affirm, rather than remand, because the record
reflects that Rinaldi filed a number of grievances after the
allegedly retaliatory transfer—a circumstance that the
Government contends, in effect, negates subjective deterrence
as a matter of law. We are not persuaded.

       As the Seventh Circuit has observed, the “ability to take
advantage of administrative grievances is not an ‘either-or’
proposition. Sometimes grievances are clearly available;
sometimes they are not; and sometimes there is a middle
ground where, for example, a prisoner may only be able to file
grievances on certain topics.” Kaba, 458 F.3d at 685. Thus,
the court concluded, it “was unrealistic to expect [the inmate]
to file a grievance against the very people who were
threatening retaliation and preventing him from obtaining the
proper forms,” and the fact that an inmate files unrelated claims
“does not prove that remedies were available within the
system” for purposes of exhaustion. Id. at 685-86. That
observation holds true in this case, where Rinaldi’s willingness
to file grievances concerning unrelated and far less




                               21
inflammatory subjects like cleaning supplies is hardly
dispositive of whether he was subjectively deterred from
pursuing his Retaliation Request at the Institution. Indeed, the
Government has not identified any subsequent grievance that
can be characterized as substantially similar to his Retaliation
Request.

        Accordingly, we will vacate the District Court’s
dismissal of Rinaldi’s First Amendment claim, and will
remand for the District Court to consider subjective deterrence
in the first instance.

              2.     Rinaldi’s Eighth Amendment Assault
                     Claim

       Rinaldi also challenges the District Court’s dismissal of
his Eighth Amendment claim for failure to exhaust. As
explained below, even though he did not initiate a new
grievance for the assault by Cellmate #2 and raised that claim
for the first time in the appeal of his original Assault Request,
exhaustion was satisfied under our case law because the
Regional Director denied it on the merits. 11

       11
           The Government’s suggestion that the Assault
Request was not “fully examined” on the merits, Appellee’s
Br. 21, is refuted by the Regional Director’s decision, which
addressed both assaults and concluded that the appeal was
“denied” because “there is no record of [him] being assaulted
by [his] previous or current cellmate.” JA 168 (emphasis
added). As the Government acknowledges elsewhere in its
brief, “denials” in contrast to “rejections,” are “on the merits.”
Appellee’s Br. 22-23.




                               22
       In Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000),
despite the fact that the inmate had not completed a necessary
step in the Department of Corrections’ grievance process, we
concluded that the prison had waived any exhaustion defense
and “judicial consideration [wa]s open to [the inmate]”
because the inmate’s “allegations [had] been fully examined
on the merits by the ultimate administrative authority,” and
therefore a “substantive determination [had been] made at the
highest level.” Id. at 281. Likewise, in Spruill, drawing on
principles from habeas and administrative law, we reasoned
that whether a prisoner had “properly exhausted” a claim must
be determined by evaluating not only “the prisoner’s
compliance with the prison’s administrative regulations
governing inmate grievances,” but also “the waiver, if any, of
such regulations by prison officials.” 372 F.3d at 222. Thus,
even though Spruill had failed to include the name of the
relevant prison official, we held that the grievance office’s
acknowledgment of which prison official was involved had
“excused any procedural defects in Spruill’s initial
grievances.” Id. at 234.

      The Government contends in its briefing that our
precedent was abrogated by the Supreme Court’s decision in
Woodford v. Ngo, 548 U.S. 81 (2006). 12 Quite the opposite. In

       12
            The Government appears of two minds on this point,
as it indicated at oral argument that it “is not taking the position
that . . . Spruill or Camp are called into question by Woodford
or Ross,” and that if this Court “conclude[s] that the Regional
Administrator did address [Rinaldi’s] . . . Eighth Amendment
assault claim [] on the merits that it’s properly exhausted for
purposes of Federal Court.” Tr. of Oral Arg. 42:12-22. Having




                                23
Woodford, the Supreme Court resolved a split between those
Circuits that had adopted a broader interpretation of the
PLRA’s exhaustion requirement and those, like ours, that had
adopted a test of “proper exhaustion,” meaning “using all steps
that the agency holds out, and doing so properly (so that the
agency addresses the issues on the merits).” 548 U.S. at 90
(citation omitted). The Court endorsed the latter approach—
citing specifically to Spruill and even echoing our observation
in Spruill that PLRA exhaustion should mirror the “proper
exhaustion” requirements from both the habeas and
administrative law contexts. Id. at 88-89.

       Although Woodford did not specifically address
whether review on the merits of an otherwise procedurally
defaulted claim constitutes “proper exhaustion,” the Court’s
reference to Spruill and its reliance on principles of habeas and
administrative law in evaluating PLRA exhaustion support that
conclusion. 13 In its habeas jurisprudence, the Court has


considered carefully whether Woodford and Ross alter our
approach, we conclude they do not.
       13
          Our dissenting colleague correctly observes that “the
Supreme Court has not imported all [habeas and administrative
law] principles” into PLRA exhaustion, and has rejected, for
example, an analogy to the Antiterrorism and Effective Death
Penalty Act’s tolling provision. Dissent at 9 & n.6. But the
Court’s rejection of analogies to habeas and administrative law
in rare and specific contexts only points up its reliance on them
as a general matter to guide its PLRA exhaustion
jurisprudence, and we see no reason to abjure that reliance
here, particularly given the Court’s approving citation to
Spruill.




                               24
recognized an exception to the general rule of exhaustion
“where the State has actually passed upon the claim,” even if
raised by the state court sua sponte. Castille v. Peoples, 489
U.S. 346, 351 (1989); see also Mathias v. Superintendent
Frackville SCI, 876 F.3d 462, 480 n.6 (3d Cir. 2017). In the
administrative law context, it is also well settled that “when the
agency in fact considers the issue on the merits, [the] general
exhaustion requirement can be satisfied even if the party did
not properly raise it,” Kennedy for President Comm. v. FEC,
734 F.2d 1558, 1560 n.2 (D.C. Cir. 1984)), and as Justice
Breyer expressly noted in his concurrence in Ross, the PLRA’s
exhaustion requirement “include[s] administrative law’s ‘well-
established exceptions to exhaustion.’” Ross, 136 S. Ct. at
1863 (quoting Woodford, 548 U.S. at 103) (Breyer, J.,
concurring) (citation omitted)). Woodford thus does not
require us to revisit Camp and Spruill, and, if anything,
reinforces our conclusion that where a prison disregards its
own procedures and rejects an inmate’s otherwise procedurally
defaulted complaint on the merits, the claim is “properly
exhausted” under the PLRA.

        To be clear, and with sensitivity to the thoughtful
concerns raise by our dissenting colleague, we do not today
create any “broad . . . exception” to the exhaustion requirement.
See Dissent at 8. We simply reaffirm, as we held in Camp, that
when an inmate’s allegations “have been fully examined on the
merits” and “at the highest level,” they are, in fact, exhausted.
219 F.3d at 281. This holding also satisfies the “three
interrelated objectives” of exhaustion: “(1) to return control of
the inmate grievance process to prison administrators; (2) to
encourage development of an administrative record, and
perhaps settlements, within the inmate grievance process; and
(3) to reduce the burden on the federal courts by erecting




                               25
barriers to frivolous prisoner lawsuits.” Dissent at 8 (quoting
Spruill, 372 F.3d at 230). That is, precisely because we
recognize that control over the grievance process is
appropriately vested in prison administrators and that such
administrators are best positioned to ascertain the need for
further development of the administrative record, we should
not be second-guessing their decisions on the relative
efficiencies of (a) rejecting a claim and requiring it to be re-
initiated at the institution level, versus (b) opting to research it,
to the extent needed, at the appellate level and addressing it on
the merits. And when the prison chooses the latter course, as
it did here, making clear with its merits decision what the
inevitable result would be of a re-initiated claim, then treating
the claim as exhausted does not increase “the burden on the
federal courts.” Spruill, 372 F.3d at 230. It simply avoids
subjecting prisoners and prison administrators alike to a futile
exercise and provides judicial review of the prison’s final
decision on the merits. In short, where the prison has chosen
to forgo a rejection on procedural grounds and has elected to
research, analyze, and deny a claim on the merits, both the
purposes of exhaustion—and exhaustion itself—are satisfied.

        In reaching this conclusion, we are in good company.
Other Courts of Appeals too have held that merits review
satisfies exhaustion under the PLRA and that, because PLRA
exhaustion turns on the remedies and grievance procedures that
the particular prison has available, treating a claim as
exhausted where a prison chooses not to enforce those
procedures does not contravene the PLRA. See Reyes v. Smith,
810 F.3d 654, 657 (9th Cir. 2016); Whatley v. Warden, Ware
State Prison, 802 F.3d 1205, 1215 (11th Cir. 2015); Hammett
v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (per curiam);
Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011); Reed-Bey




                                 26
v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010); Ross v.
County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004). 14

       In sum, because Rinaldi’s Assault Request was denied
at the highest level on the merits and therefore was properly
exhausted under the PLRA, we will vacate the District Court’s
dismissal of Rinaldi’s Eighth Amendment claim.

       B.     Rinaldi’s FTCA Claim

      The District Court construed Rinaldi’s claim that the
Government “forc[ed] him to reside with an inmate that [the

       14
          The Dissent argues that “most of our sister circuits to
consider the issue addressed grievances the substance of which
had proceeded through each step of the administrative
process,” Dissent at 10, and, specifically, that the Ninth Circuit
“qualified its holding on this point.” Dissent at 11 (citing
Reyes, 810 F.3d at 658). But the fact that other Courts of
Appeals have determined that exhaustion is satisfied when an
otherwise procedurally-defaulted grievance is denied on the
merits after having been adjudicated at each step of a grievance
process does not speak to whether exhaustion is also satisfied
when such a grievance is denied on the merits at the highest
level of that grievance process. Moreover, the legal analysis
underlying those decisions—namely, their focus on whether
“[p]rison officials have had the opportunity to address the
grievance and correct their own errors,” Reyes, 810 F.3d at
657—applies here with equal force. Here too, the BOP had the
opportunity to adjudicate Rinaldi’s claim in any way it saw fit,
and opted to address it on the merits rather than direct him to
comply with all levels of its 4-Step process.




                               27
BOP] knew, or should have known, had expressed an intention
to kill [him],” Rinaldi, 2015 WL 2131208, at *5, as “essentially
a negligence” claim under the FTCA subject to dismissal on
the basis of the discretionary function exception. 15 Id. We will
affirm.

        The FTCA offers a limited waiver of the federal
government’s sovereign immunity from civil liability for
negligent acts of government employees acting within the
scope of their employment. Berkovitz v. United States, 486
U.S. 531, 536 (1988); 28 U.S.C. §§ 2671–2680. However, it
excludes claims “based upon the exercise or performance or
the failure to exercise or perform a discretionary function or
duty . . . whether or not the discretion involved be abused.” Id.
§ 2680(a). To determine whether a claim fails within this
discretionary function exception, we apply a two-prong test.
See United States v. Gaubert, 499 U.S. 315, 322 (1991);
Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000).
First, we ask whether the challenged conduct involved an
“element of judgment or choice,” which depends on whether
there is a “federal statute, regulation, or policy [that]
specifically prescribes a course of action for an employee to

       15
           To the extent Rinaldi argues the discretionary
function exception cannot apply because his allegations relate
to unconstitutional acts, he fails to recognize the premise of the
FTCA claim he seeks on appeal to reinstate: The FTCA only
waives sovereign immunity for torts recognized under the law
of the state in which the conduct was alleged to have occurred.
Although Rinaldi referenced the Eighth Amendment, the
District Court reasonably construed his claim as an FTCA
claim, and it is that claim that Rinaldi now argues was
erroneously dismissed. See Rinaldi, 2015 WL 2131208, at *5.




                               28
follow.” Mitchell, 225 F.3d at 363 (citation omitted). Second,
if the act does involve judgment, we ask whether the judgment
involved is “the kind that the discretionary function
exception was designed to shield.” Id. (citations omitted).

       Although we have not previously addressed in a
precedential opinion whether BOP housing and cellmate
assignments meet this test, other Courts of Appeals have held
uniformly that they do. See Montez ex rel. Estate of Hearlson
v. United States, 359 F.3d 392, 396–98 (6th Cir.
2004); Santana-Rosa v. United States, 335 F.3d 39, 43–44 (1st
Cir. 2003); Cohen v. United States, 151 F.3d 1338, 1342 (11th
Cir. 1998); Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791,
795–96 (8th Cir. 1998); Calderon v. United States, 123 F.3d
947, 948–50 (7th Cir. 1997). 16 We now join them.

        Here, both prongs of the discretionary function test are
satisfied. At the first prong, housing and cellmate assignments
unquestionably involve an “element of judgment or choice,”
Gaubert, 499 U.S. at 322 (citation omitted), for while BOP
officials must “provide suitable quarters” and “provide for the
protection, instruction, and discipline of all” of its inmates, 18
U.S.C. § 4042(a)(2)-(3), neither that provision nor any other

       16
          Cf. Ashford v. United States, 511 F.3d 501, 505 (5th
Cir. 2007) (observing that the discretionary function exception
generally applies to cellmate assignments when an inmate can
“point to no specific prison policy or regulation that
constrained prison officials’ judgment other than the prison’s
general duty to protect its prison population,” but conceding
the exception did not apply in that case because “there [was] a
specific policy in place that constrained the decision-making
ability of the prison officials”).




                               29
“federal statute, regulation or policy” can be said to
“specifically prescribe[] a course of action” for such
assignments that BOP officials must follow. Mitchell, 225
F.3d at 363 (citation omitted). And at the second prong, “a
prison’s internal security is peculiarly a matter normally left to
the discretion of prison administrators,” Rhodes v. Chapman,
452 U.S. 337, 350 (1981), and “[p]rison administrators . . .
should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are
needed to preserve internal order and discipline and to maintain
institutional security.” Bell v. Wolfish, 441 U.S. 520, 547
(1979). Thus, the District Court correctly concluded that
housing and cellmate assignments are “of the kind that
the discretionary     function exception was       designed     to
shield.” Mitchell, 225 F.3d at 363 (citation omitted).

V.     Conclusion

       For the foregoing reasons, we will vacate and remand
for further proceedings concerning Rinaldi’s First and Eighth
Amendment claims and will affirm the District Court’s
judgment in all other respects.




                               30
SCIRICA, Circuit Judge, concurring in part and dissenting in
part

       I join the Majority’s thoughtful analysis of Rinaldi’s
Federal Tort Claims Act claim and exhaustion of his First
Amendment claim under the Prison Litigation Reform Act
(PLRA). I write separately on the PLRA’s exhaustion
requirement, 42 U.S.C. § 1997e(a), as it relates to Rinaldi’s
Eighth Amendment claim.

       Rinaldi—a federal inmate—alleges that prison officials
unconstitutionally retaliated against him by forcing him to cell
with an inmate who had threatened to kill him. See U.S. Const.
amends. I, VIII. Despite conceding his failure to comply with
applicable administrative remedy procedures as required by
§ 1997e(a), Rinaldi invokes separate reasons why his First and
Eighth Amendment claims may be deemed exhausted and
considered by the District Court. 1 As to Rinaldi’s First

       1
          In addition to the grievances at issue in this appeal,
Rinaldi asserts he filed over 50 administrative remedy requests
while housed at USP-Lewisburg. Based on some of these
remedy requests, Rinaldi’s complaint alleged other civil rights
violations related to his confinement, including that: his Fifth
and Eighth Amendment rights were violated when officials
denied him access to adequate recreation; the denial of his
ability to worship in congregation violated his right to religious
freedom; and being forced to have psychological review
conducted through his cell door resulted in him being denied
proper medical care and violated his right to confidentiality
with his doctor.
      The District Court found these claims administratively
exhausted but concluded Rinaldi had failed to state claims for




                                1
Amendment claim, I agree with my colleagues that the serious
threats of retaliation Rinaldi has alleged call into question the
availability of exhaustion. But I believe the Supreme Court’s
jurisprudence in Ross v. Blake, 136 S. Ct. 1850 (2016), and
Woodford v. Ngo, 548 U.S. 81 (2006), counsels a different
result in Rinaldi’s Eighth Amendment claim.

       The Supreme Court has strictly interpreted § 1997e(a),
and the Court’s most recent analysis of exhaustion in Ross
counsels against a broad articulation of a merits exception to
proper exhaustion. I recognize the well-established exceptions
to exhaustion in habeas corpus and administrative law. But in
Ross, the Court made clear that the PLRA’s statutory
exhaustion provision “stands on different footing” from judge-
made exhaustion doctrines. 136 S. Ct. at 1857. Looking to the
history and purposes of the PLRA’s statutory exhaustion
requirement, I believe exhaustion under the PLRA requires the
substance of a grievance be considered on the merits at each
available step of the administrative review process. Because
Rinaldi failed to present his Eighth Amendment claim until
midway through the administrative review process, the District
Court was correct to dismiss the claim on exhaustion grounds.



inadequate access to adequate recreation and inadequate
psychological treatment. Rinaldi does not appeal that decision.
Furthermore, as noted by the Majority, our decision in Mack v.
Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016)
forecloses Rinaldi’s Free Exercise claim and I agree Rinaldi
should not be permitted leave to amend his Religious Freedom
Restoration Act claim because this request was raised for the
first time in Rinaldi’s Reply Brief.




                               2
                               I.

        As the Majority Opinion explains, the United States
Bureau of Prisons (BOP) has a multi-tiered administrative
remedy program. To exhaust administrative remedies, an
inmate must first file an informal remedy request through an
appropriate institution staff member via a BP-8 form. See 28
C.F.R. § 542.13. If the inmate is not satisfied with the informal
remedy response, he is required to address his complaint at the
institutional level with the Warden via a BP-9. See § 542.14. If
the inmate is dissatisfied with the Warden’s response, he may
then appeal to the Regional Director via a BP-10. See § 542.15.
And if dissatisfied with the Regional Director’s response, the
inmate must appeal to the General Counsel via a BP-11. See id.
Once an inmate receives a response to his appeal from the
General Counsel, after filing the administrative remedy request
at all levels, his administrative remedies are deemed
exhausted. 2 See id.

       Here, Rinaldi filed an informal remedy request on
January 29, 2012, claiming to have been assaulted by a
previous cellmate. Rinaldi requested that the institution
discontinue its practice of forcing inmates to cell together
regardless of compatibility because “[f]orced double celling
creates a hostile environment and increases the incidence of
assaults.” JA 164. The informal request was denied and Rinaldi

       2
          An exception to the initial filing requirement at the
institutional level exists “[i]f the inmate reasonably believes
the issue is sensitive and the inmate’s safety or well-being
would be placed in danger if the Request became known at the
institution.” 28 C.F.R. § 542.14(d)(1). But this exception is
relevant only to Rinaldi’s First Amendment claim.




                               3
filed Request for Administrative Remedy #675165 (BP-9).
This request was denied by the Warden on the grounds that
“[a]ll inmates are screened for compatibility prior to
placement.” JA 165.

        Rinaldi appealed to the Northeast Regional Office. At
this stage in the institutional review process (BP-10), Rinaldi
introduced a new claim that, on February 2, 2012, he was celled
with an inmate who had threatened to kill him. Rinaldi framed
this as evidence that the Warden’s reason for denying his
remedy request—that inmates are screened for compatibility—
was untrue, noting he had provided his case manager with the
names of other inmates he “would like to cell with.” JA 167.
The Regional Office denied his appeal, reasoning that inmate
compatibility is considered and there was “no record of
[Rinaldi] being assaulted by [his] previous or current
cellmate.” JA 168. Rinaldi then appealed to the General
Counsel, who denied the appeal and closed the case with the
code “DNY.”

        Thereafter, Rinaldi filed suit in federal court,
proceeding pro se. As relevant here, Rinaldi alleged that being
forced to cell with an inmate who had threatened to kill him
violated his Eighth Amendment rights. The District Court
dismissed the claim for Rinaldi’s failure to exhaust because the
BOP’s regulations prohibit an inmate from raising issues for
the first time on appeal. See 28 C.F.R. § 542.15(b)(2). Rinaldi
was permitted 30 days to file an amended complaint but instead
filed a motion for reconsideration, which the court denied.
Upon that denial, Rinaldi filed this timely appeal.

      Now represented by counsel, Rinaldi concedes
procedural error because he never presented his current claim




                               4
to the institution (BP-8 and BP-9 levels). 3 Indeed, Rinaldi has
never claimed that he is pursuing on appeal the claim he raised
at all levels of administrative review, namely that the
institution should screen for compatibility because forced
double celling increases the likelihood of assaults. Now,
however, Rinaldi alleges that his Eighth Amendment rights
were violated when, on February 2, 2012, he was celled with
an inmate who had threatened to kill him and appeals the
District Court’s decision that this specific allegation was not
exhausted. Rinaldi argues the District Court erred in dismissing
this claim because the Regional Director’s response (BP-10)
addressed on the merits both the allegation he was assaulted by
a previous cellmate and the allegation he was threatened by his
subsequent cellmate.

                              II.

        My colleagues conclude Rinaldi’s Eighth Amendment
claim was exhausted because, even though he raised its factual
predicate for the first time midway through the grievance
process, his grievance was denied on the merits at the highest
level. I disagree. The Supreme Court’s most recent analysis of
the PLRA’s mandatory exhaustion requirement, in Ross, did
not decide the question we face today. But Ross did signal the
Court’s continued reluctance to tolerate broad exceptions to the
PLRA’s statutory exhaustion requirement.

       Moreover, the Supreme Court explained in Ross that,
under the PLRA, the question of exhaustion “in all cases is one

       3
          As noted, at the BP-8 and BP-9 levels, review takes
place within the specific institution. At the BP-10 and BP-11
levels, review takes place at the regional and national level.




                               5
of statutory construction.” 136 S. Ct. at 1858 n.2. The statute’s
origins counsel that the substance of a grievance must be
addressed at every available level of the administrative review
process. So too does the Supreme Court’s construction of
§ 1997e(a)’s text and purpose. Woodford drew on principles of
habeas and administrative law, but, as described below, this
does not support a broad interpretation of a merits exception to
proper exhaustion. 4

                               A.

        Central to the PLRA’s effort to “reduce the quantity and
improve the quality of prisoner suits” was its exhaustion
requirement. Porter v. Nussle, 534 U.S. 516, 524 (2002).
Applicable “irrespective of the forms of relief sought and
offered through administrative avenues,” Booth v. Churner,
532 U.S. 731, 741 n.6 (2001), the PLRA’s exhaustion
requirement was designed to strengthen the “weak” exhaustion
provision of its predecessor—the Civil Rights of
Institutionalized Persons Act (CRIPA), see Porter, 534 U.S. at
523; see also Ross, 136 S. Ct. at 1857–58 (discussing how “the
history of the PLRA underscores the mandatory nature of its
exhaustion regime”). The Supreme Court has “reject[ed] every
attempt to deviate . . . from [§ 1997e(a)’s] textual mandate.”
Ross, 136 S. Ct. at 1857.

       4
         Woodford’s reference to our decision in Spruill v.
Gillis, 372 F.3d 218 (3d Cir. 2004), does not support the
proposition that exhaustion is satisfied where a grievance is
addressed on the merits only at the highest level of review. The
Court was citing our first holding in Spruill—that the PLRA’s
exhaustion provision included a procedural default component.
See Woodford, 548 U.S. at 87 (citing Spruill, 372 F.3d at 230).




                               6
       Most recently, in Ross, the Court considered a “special
circumstances” exception to the exhaustion requirement. Id. at
1856. Acting on the premise that the PLRA’s exhaustion
requirement was “not absolute,” the Fourth Circuit found a
prisoner’s failure to comply with applicable procedural
requirements could be excused where the prisoner reasonably
believed administrative remedies were exhausted. Id. The
Court rejected the special circumstances exception, explaining
that such an approach, “if applied broadly, would resurrect
CRIPA’s scheme, in which a court could look to all the
particulars of a case to decide whether to excuse a failure to
exhaust available remedies.” Id. at 1858.

        In rejecting the special circumstances test, the Court
clarified that “mandatory exhaustion statutes like the PLRA
establish mandatory exhaustion regimes, foreclosing judicial
discretion.” Id. at 1857. Thus, while “an exhaustion provision
with a different text and history from § 1997e(a) might be best
read to give judges the leeway to create exceptions or to itself
incorporate standard administrative-law exceptions,” id. at
1858 n.2, courts must look only to the statute, “using ordinary
interpretive techniques,” id., when considering whether a
grievance has been exhausted. Looking to the PLRA’s history,
it appears applying broad exceptions from habeas and
administrative law to § 1997e(a) would be contrary to the
“invigorated” exhaustion scheme, see Porter, 534 U.S. at 524,
created by Congress and enforced by Supreme Court
precedent.

                              B.




                               7
       Requiring a decision on the merits at each available
stage of the administrative process is, moreover, consistent
with how the Supreme Court has construed § 1997e(a)’s text
and the purposes of the PLRA’s exhaustion provision.

       In Woodford, the Court interpreted § 1997e(a) to require
“proper exhaustion.” 548 U.S. at 84. This “means using all
steps that the agency holds out, and doing so properly (so that
the agency addresses the issues on the merits).” Id. at 90
(internal quotations marks and citation omitted). The Court
explained that “[t]he benefits of exhaustion can be realized
only if the prison grievance system is given a fair opportunity
to consider the grievance. The prison grievance system will not
have such an opportunity unless the grievant complies with the
system’s critical procedural rules.” Id. at 95.

        This construction would appear to be inconsistent with
a broad merits exception. This is not a case where the grievance
bears some procedural defect, but the substance of the
grievance is nevertheless considered at all administrative steps
(for example, the initial filing was untimely or an appeal
deadline was missed but these errors were overlooked). In such
a case, the prisoner has used all steps the agency holds out,
complying with the agency’s “critical rules,” and the
administrative remedy system functions effectively as if no
defect were present. But here, Rinaldi raised the factual basis
for his current Eighth Amendment claim only midway through
the grievance process.

        As for the PLRA, we have described the “three
interrelated objectives” of exhaustion as follows: “(1) to return
control of the inmate grievance process to prison
administrators; (2) to encourage development of an




                               8
administrative record, and perhaps settlements, within the
inmate grievance process; and (3) to reduce the burden on the
federal courts by erecting barriers to frivolous prisoner
lawsuits.” Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004).
The Supreme Court has reasoned, in Woodford, that exhaustion
gives the agency “an opportunity to correct its own mistakes
with respect to the programs it administers,” 548 U.S. at 89,
and promotes efficiency—“[a] prisoner who does not want to
participate in the prison grievance system will have little
incentive to comply with the system’s procedural rules unless
noncompliance carries a sanction,” id. at 95. These purposes
are best served by requiring that the substance of the grievance
be addressed at every available stage of the administrative
process.

        Take, for example, the goal of developing an
administrative record. If the procedural defect is that an inmate
interjects a claim at the final stage of the BOP’s remedy
process, then a denial with the code “DNY” would suffice to
have exhausted that claim on the merits. 5 In this scenario there
is no creation of an administrative record. The administrative
record is also not fully developed where, as here, a claim is
interjected midway through the BOP’s review process. As for
compliance with critical procedural rules, there is less
incentive for a prisoner to pursue separate grievances through
all stages of review if a claim (or, as here, facts supporting a
different claim) can instead potentially be added at the final
hurdle. Finally, requiring a grievance to have been considered
on the merits at all available stages of review makes it more

       5
         The status codes used by the BOP relating to
administrative remedies distinguish between appeals that are
closed on the merits and those that are rejected.




                               9
likely a particular institution will have the full opportunity to
address and correct a grievance because the institution itself
will be put on notice first. The first step of the BOP’s remedy
program is designed to allow staff an opportunity to
“informally resolve the issue before an inmate submits a
Request for Administrative Remedy.” 28 C.F.R. § 542.13(a)
(emphasis added). 6
                                C.

      Analogies to well-established exceptions in habeas and
administrative law are useful. But the Supreme Court has not

       6
        The Majority asserts its approach “avoids subjecting
prisoners and prison administrators alike to a futile exercise
and provides judicial review of the prison’s final decision on
the merits.” Maj. Op. at 24. But the PLRA was enacted to
“improve the quality of prisoner suits,” Porter, 534 U.S. at
524, and its primary vehicle for doing so was to require proper
exhaustion, see Woodford, 548 U.S. at 90.

        As Rinaldi concedes, his Eighth Amendment claim
should have been filed separately under the BOP’s regulations
because it involves a separate issue. See 28 C.F.R.
542.14(c)(2); 542.15(b)(2). Indeed, Rinaldi never presented his
Eighth Amendment claim at the institutional level—that is, to
the prison officials at Lewisburg. When a grievance such as
Rinaldi’s is not presented at the institutional level, prison
officials are stripped of the opportunity to address prisoner
grievances within their institution. And we—as an eventual
reviewing court—lose the benefit of the expertise and
specialized knowledge possessed by those who staff the
institution. Such an approach does not serve to “improve the
quality” of suits before us.




                               10
imported all of these principles into the PLRA’s exhaustion
regime. 7 Further still, these exceptions are judge-made. 8 To the
extent they apply in the PLRA context, Ross requires
consideration of § 1997e(a)’s origins, text, and purpose. As
noted, I believe these considerations counsel that the substance
of a grievance must have been considered on the merits at each
available level of administrative review.

       7
          For example, in Woodford, the Court rejected a
comparison between the Antiterrorism and Effective Death
Penalty Act’s (AEDPA) tolling provision and the PLRA,
noting “the AEDPA and PLRA provisions deal with separate
issues: tolling in the case of the AEDPA and exhaustion in the
case of the PLRA,” 548 U.S. at 100, and further stated it was
“unrealistic to infer from the wording of the PLRA provision
that Congress framed and adopted that provision with habeas
law and not administrative law in mind,” id. at 102.
       8
         As we noted in Spruill, “the Supreme Court has
consistently located the procedural default component of
federal habeas law in the independent and adequate state
ground doctrine, a doctrine that, in the habeas context at least,
is grounded in concerns of comity and federalism.” 372 F.3d
at 229 (internal quotation marks and citations omitted). These
concerns apply “with greater force to defaults in state judicial
proceedings than . . . to defaults in state administrative
proceedings,” id. at 229, and this is even more true in the PLRA
context where the administrative proceedings are federal.
       In the administrative law context, the D.C. Circuit has
explained exhaustion is a “judicially-created doctrine . . .
which permits courts some discretion to waive exhaustion.”
Washington Ass’n for Television & Children v. F.C.C., 712
F.2d 677, 682 (D.C. Cir. 1983).




                               11
                               III.

        Notably, most of our sister circuits to consider the issue
prior to Ross addressed grievances the substance of which had
proceeded through each step of the administrative process. See,
e.g., Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011)
(concerning a late initial filing accepted and decided on the
merits); Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011)
(“Maddox’s grievance was rejected on the merits at every stage
of review without any indication from prison officials that it
was procedurally deficient.”); Reed-Bey v. Pramstaller, 603
F.3d 322, 325 (6th Cir. 2010) (addressing an inmate’s failure
to name a single individual in his initial grievance); Ross v. Cty.
of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (“If a
prison accepts a belated filing, and considers it on the merits,
that step makes the filing proper.”). 9 This is also true of our
decision in Spruill. See 372 F.3d at 232 (focusing on the fact
that the prison’s initial grievance review cured the inmate’s
procedural defect).

       In fact, the Ninth Circuit in Reyes v. Smith expressly
qualified its holding on this point: “we hold that a prisoner
exhausts ‘such administrative remedies as are available,’ under
the PLRA despite failing to comply with a procedural rule if
prison officials ignore the procedural problem and render a
decision on the merits of the grievance at each available step
of the administrative process.” 810 F.3d 654, 658 (9th Cir.

       9
         The one exception is Whatley v. Warden, Ware State
Prison, but even in Whatley, the inmate’s first informal
grievance referred back to an earlier grievance containing the
substantive allegations that later formed the basis of his appeals
and complaint. See 802 F.3d 1205, 1210 (11th Cir. 2015).




                                12
2016) (internal citation omitted) (emphasis added). The Eighth
Circuit also based its holding in Hammett v. Cofield on the fact
that the inmate had “pursued the[] grievances through all three
steps of the process” and his grievance appeals were denied on
the merits. 681 F.3d 945, 948 (8th Cir. 2012). The court noted
that when a grievance has proceeded through all steps,
notwithstanding an initial procedural error, “[a] complete
administrative record exists, and a reviewing court will have
the benefit of the agency’s institutional perspective.” Id. at
947–48. This reasoning does not hold true where a claim has
been added midway through the remedy process.

                              IV.

       Exhaustion provisions, like § 1997e(a), are designed “to
give the agency a fair and full opportunity to adjudicate [party]
claims.” Woodford, 548 U.S. at 90. In the PLRA context, I
believe this requires the substance of a grievance to have been
considered at every level of available administrative review.
For this reason, Rinaldi did not exhaust his Eighth Amendment
claim and I respectfully dissent from that holding of the
Majority Opinion.




                               13
