                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-3-2002

Ray v. Kertes
Precedential or Non-Precedential:

Docket No. 99-3446




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PRECEDENTIAL

       Filed April 3, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 99-3446

FREDERICK T. RAY

v.

C.O. KERTES; C.O. STOLZ; C.O. REED;
C.O. ROGERS; LT. NASH; LT. HICKS;
LT. A. SMITH; CAPT. ALMANSHIFER;
R. NORRIS; TIM LAUNTZ

FREDERICK RAY,
       Appellant

On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 99-cv-00396)
District Judge: Hon. Malcolm Muir

Argued September 20, 2001

Before: SLOVITER, NYGAARD and McKEE, Circuit Judges

(Filed: April 3, 2002)




       Jon Romberg
       Craig T. Moran (Argued)
       John P. Campbell (Argued)
       Seton Hall Law School
       Newark, NJ 07102

        Attorneys for Appellant

       D. Michael Fisher
        Attorney General
       J. Bart DeLone (Argued)
        Deputy Attorney General
       Calvin R. Koons
        Senior Deputy Attorney General
       John G. Knorr, III
        Chief Deputy Attorney General
        Chief, Appellate Litigation Section
       Office of Attorney General
       Appellate Litigation Section
       Harrisburg, PA l7l20

        Attorneys for Appellees

OPINION OF THE COURT
SLOVITER, Circuit Judge.

Frederick Ray, a former inmate in the Pennsylvania state
prison system, appeals from the order of the District Court
dismissing sua sponte Ray’s complaint against prison
officials filed pursuant to 42 U.S.C. S 1983 (2001).1 The
District Court dismissed Ray’s complaint based on its
determination that Ray had not "demonstrated" that he had
exhausted his administrative remedies. Section 1997e(a) of
_________________________________________________________________

1. Ray’s notice of appeal was filed pro se. This court sought
representation for Ray from Professor Jon Romberg, Associate Director of
the Center for Social Justice at Seton Hall University School of Law.
Ray’s appeal was handled by John P. Campbell and Craig T. Moran, who
were at the time of briefing students at Seton Hall Law School under the
supervision of Professor Romberg. Mr. Campbell and Mr. Moran had
graduated by the time they argued before us, both capably, and we
extend our appreciation to them and to Professor Romberg.

                                2


the Prison Litigation Reform Act of 1996 ("PLRA") provides
that "[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any Federal
law, by a prisoner confined in any jail, prison or other
correctional facility until such administrative remedies as
are available are exhausted." 42 U.S.C. S 1997e(a) (2001).

Ray argues that the District Court erred in dismissing his
complaint for two reasons. His principal argument is that
the PLRA’s exhaustion requirement is an affirmative
defense, to be alleged and proved by the defendants. This is
a question of first impression for this court. Other courts of
appeals have divided on this issue. Ray’s alternate
argument is that even if we were to decide that the PLRA
exhaustion requirement is not an affirmative defense, the
District Court erred by imposing an improperly heightened
pleading standard that required Ray not only to plead but
also to prove his exhaustion in the complaint.

I.

FACTS AND PROCEDURAL HISTORY

In his complaint, Ray alleges that while he was a prisoner
at the Pennsylvania State Correctional Institution at
Huntingdon, he was twice assaulted by officers, who
retaliated by filing groundless misconduct charges against
him when he told them he would sue. Ray, while still a
prisoner and using a printed form complaint provided to
prisoners, filed a S 1983 complaint pro se in the District
Court for the Middle District of Pennsylvania against the
officers who allegedly assaulted him and other prison
officials. In his complaint, Ray alleged that various officers
and certain prison procedures violated his First, Fifth,
Eighth and Fourteenth Amendment rights.
On the first page of the form complaint, under a caption
entitled "Exhaustion of Administrative Remedies," the form
asked "Is there a grievance procedure available at your
institution?"; "Have you filed a grievance concerning the
facts relating to the complaint?"; and "Is the grievance
process completed?" Ray checked "Yes" in response to all
three questions. App. at 4.

                                3


Shortly after Ray filed his complaint, the District Court
referred it to a Magistrate Judge. The Magistrate Judge filed
a report and recommendation, recommending dismissal for
failure to exhaust administrative remedies. According to the
Magistrate Judge, "[W]hile the plaintiff alleges that he filed
various grievances with respect to the claims which he now
raises in his complaint, there is no indication from the
plaintiff’s complaint that he took any further action to
properly exhaust his administrative remedies." Supp. at 7.

Ray filed objections to the Magistrate Judge’s report,
alleging that he had asserted the claims of assaults by
prison guards as defenses to the misconduct charges made
against him which charged him with a number of violations
of prison rules. Those misconduct charges stemmed from
the same altercations that are the subject of hisS 1983
claims.

The misconduct charges brought against Ray were
brought under Pennsylvania Department of Corrections’
Inmate Disciplinary and Restricted Housing Procedures,
DC-ADM 801 (effective Sept. 20, 1994) ("Inmate
Disciplinary Procedures"), Supp. App. at 1-11, which govern
inmate violations of prison rules. The Inmate Disciplinary
Procedures are distinct from the Consolidated Inmate
Grievance Review System, DC-ADM 804 (effective Oct. 20,
1994) ("Inmate Grievance System"), Supp. at 45, which is
designed to address inmate-initiated grievances. 2 In his
objections to the Magistrate Judge’s Report, Ray asserted
that grievances may not be filed for claims related to
disciplinary proceedings. App. at 16-17.

In the disciplinary proceeding against Ray, a hearing
examiner had dismissed all of the charges save one. The
Inmate Disciplinary Procedures provide that "[n]o appeals
from a finding of not guilty are permitted." DC-ADM 801
VI(I)(1)(b), Supp. App. at 8. It is unclear whether prison
officials interpret this clause to permit appeals from
dismissals where no culpability determination is made,
such as the dismissed misconduct charges against Ray.
_________________________________________________________________

2. Both the Inmate Disciplinary Procedures and the Inmate Grievance
System have since been modified.

                                4


Ray attached to his objections to the Magistrate Judge’s
Report handwritten copies of a number of the misconduct
charges, along with the letter from the Chief Hearing
Examiner denying Ray’s appeal, which constituted the final
administrative disposition of Ray’s appeal of the one guilty
charge. That letter notes, "I [, the Chief Hearing Examiner,]
have reviewed the entire record of these misconducts;
including the misconduct report, the hearing report and
relevant documents, your appeal to the Program Review
Committee and their response, your appeal to the
Superintendent and his response." App. at 23. This litany
of appeals precisely tracks the full panoply of available
administrative appeals provided for by the Inmate
Disciplinary Procedures. The Commonwealth does not
argue otherwise.

On May 3, 1999, before the defendants were served, the
District Court dismissed Ray’s complaint based on its
assessment that Ray had not demonstrated exhaustion of
administrative remedies.3 The District Court stated that Ray
had "not attached copies of [his various] grievances to his
objections [to the Magistrate Judge’s report]." Supp. at 3.
The District Court also observed that Ray had not set forth
the specific steps that he had taken to exhaust
administrative remedies and concluded by noting,"[A]ny
appeal from this order will be deemed frivolous, without
probable cause and not taken in good faith." Supp. at 4.

II.

JURISDICTION AND STANDARD OF REVIEW

The District Court dismissed Ray’s complaint without
prejudice. Appeal from a dismissal without prejudice is
permitted under 28 U.S.C. S 1291 when a plaintiff "declares
his intention to stand on his complaint or when he cannot
cure the defect in his complaint." Booth v. Churner, 206
F.3d 289, 293 n.3 (3d Cir. 2000) aff’d 532 U.S. 731 (2001).
_________________________________________________________________

3. Although the defendants in the action below made no appearance
before this court, the Commonwealth of Pennsylvania appeared as an
amicus curiae, filing a brief in support of the District Court’s decision.
A deputy attorney general ably argued the case.

                                5


Ray states that he "intends to stand on his Complaint."
Br. of Appellant at 1. He also contends that he can no
longer pursue administrative remedies due to the passage
of time and his release from prison. We have previously
exercised jurisdiction when "both parties agree that the
time is long past for [the inmate-appellant] to pursue his
normal administrative remedies [preventing him from]
cur[ing] the defect in his complaint on which the District
Court based its dismissal." Booth, 206 F.3d at 293 n.3.
Accordingly, we have jurisdiction over the appeal.

This court subjects district court decisions interpreting
statutes to plenary review. Gibbs v. Cross, 160 F.3d 962,
964 (3d Cir. 1998); Moody v. Sec. Pac. Bus. Credit, Inc., 971
F.2d 1056, 1063 (3d Cir. 1992). On review of a motion to
dismiss, we accept as true all factual allegations in the
complaint. Leatherman v. Tarrant County Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 164 (1993).
The availability of administrative remedies to a prisoner is
a question of law. See, e.g., Snider v. Melindez, 199 F.3d
108, 113-14 (2d Cir. 1999).

III.

DISCUSSION

A. Exhaustion As An Affirmative Defense

Ray argues the District Court erred in dismissing his
complaint for failure to exhaust administrative remedies
and in failing to recognize that the PLRA exhaustion
requirement in 42 U.S.C. S 1997e(a) is an affirmative
defense. Ray does not dispute that the language of
S 1997e(a) requiring administrative exhaustion of claims
with respect to prison conditions applies to claims of
excessive force by prison guards. If there had been any
question about that, it was settled by the Supreme Court’s
recent decision in Porter v. Nussle, 122 S. Ct. 983 (2002),
where the Court explicitly so held. Nor does Ray dispute
that he must have satisfied the exhaustion requirement
before he could file this action. The principal question here
is not the substantive one of whether exhaustion is

                                6


required but the procedural issue of which party has the
burden of pleading exhaustion or its absence.4

In support of his argument that failure to exhaust the
prison’s administrative remedies is an affirmative defense
that must be pleaded and proven by the defendants in a
PLRA suit, Ray relies on this court’s decision in Williams v.
Runyon, 130 F.3d 568 (3d Cir. 1997), a Title VII case,
where we stated that "failure to exhaust administrative
remedies is an affirmative defense in the nature of
statute[s] of limitations." Id. at 573. Just as the imperative
language in the PLRA’s exhaustion requirement does not, of
itself, act as a jurisdictional bar, neither does the
mandatory phrasing determine the burden of pleading. For
example, although statutes of limitations are very often
phrased in mandatory language, see, e.g., Jackson, 89 F.
Supp. 2d 48, 56-57 (D.D.C. 2000), they are quite clearly
affirmative defenses, see e.g., Fed. R. Civ. Proc. 8(c) (listing
the statute of limitation as an affirmative defense); Gruber
v. Price Waterhouse, 911 F.2d 960, 963 (3d Cir. 1990).

Courts in addition to this one have treated the
exhaustion requirements of Title VII and the Age
Discrimination in Employment Act (ADEA) as affirmative
defenses. See, e.g., Wyatt v. Terhune , No. 00-16568, 2002
U.S. App. LEXIS 2217, at *19-20 (9th Cir. Feb. 12, 2002)
(discussing exhaustion requirements in the Title VII and
ADEA context); Bowden v. United States, 106 F.3d 433, 437
(D.C. Cir. 1997) (discussing exhaustion requirement in the
Title VII context); Daugherity v. Traylor Bros., Inc., 970 F.2d
348, 352-53 (7th Cir. 1992) (discussing exhaustion
requirement in the ADEA context).

Ray argues that the purposes for the exhaustion
requirement in Title VII suits are similar to those for the
exhaustion requirement in PLRA suits and therefore the
_________________________________________________________________

4. Neither the District Court nor the Commonwealth has suggested that
the mandatory language of S 1997e(a) --"no action shall be brought"
(emphasis added) -- makes the exhaustion requirement a jurisdictional
one. As this court held in Nyhuis v. Reno, 204 F.3d 65, 69 n.4 (3d Cir.
2000), "[W]e agree with the clear majority of courts that 1997e(a) is not
a jurisdictional requirement, such that failure to comply with the section
would deprive federal courts of subject matter jurisdiction."

                                7


same pleading requirement should follow. We have, in
another context, described the purposes that underlie a
statutory requirement of exhaustion of administrative
remedies. In Heywood v. Cruzan Motors, Inc., 792 F.2d 367,
370 (3d Cir. 1986), we listed the following as the purposes
of the exhaustion doctrine:

       1) promotes administrative efficiency by "preventing
       premature interference with the agency processes,"

       2) respects executive autonomy by allowing an agency
       the "opportunity to correct its own errors,"

       3) facilitates judicial review by affording courts the
       benefit of the agency’s experience and expertise, and

       4) serves judicial economy by having the agency or
       other tribunal rather than the district court, compile
       the factual record.

Id. at 370 (quoting Cerro Metal Prods. v. Marshall, 620 F.2d
964, 970 (3d Cir. 1980)).

Ray notes that in Nyhuis v. Reno, 204 F.3d 65 (3d Cir.
2000), we ascribed similar reasons for the exhaustion
requirement in the PLRA. Indeed, in Nyhuis we did discuss,
as underlying the exhaustion requirement of S 1997e(a), the
concern with the heavy volume of frivolous prison litigation
in the federal courts and the concomitant burden of
expending significant and scarce judicial resources to
review and refine legal claims which are "untidy, repetitious
and redolent of legal language." Id. at 74. These reasons are
not dissimilar from those discussed in Heywood .

Although this is the first time we have faced how the
PLRA’s exhaustion requirement should be pled,5 six other
_________________________________________________________________
5. In its brief, Pennsylvania suggests this circuit confronted the
procedural characterization of the PLRA’s exhaustion requirement in
Booth v. Churner, 206 F.3d 289 (3d Cir. 2000), and Nyhuis. In both
Booth and Nyhuis the plaintiff-prisoners explicitly conceded their failure
to exhaust administrative remedies. Booth, 206 F.3d at 293 n.2 ("Booth
concedes that he did not avail himself of either the intermediate or final
review process."); Nyhuis, 204 F.3d at 66 (stating plaintiff "argues that
he did not avail himself of the administrative process because it could
not provide him with two of the three forms of relief that he seeks in the
present action"). Both dismissals would thus fall within a district court’s
inherent power to dismiss sua sponte a complaint which facially violates
a bar to suit.

                                8


circuits have considered the issue.6 The Second, Seventh,
Ninth and D.C. Circuits have held that the exhaustion
requirement is an affirmative defense, akin to a statute of
limitations. See, e.g., Wyatt, 2002 U.S. App. LEXIS 2217, at
*18; Jackson v. District of Columbia, 254 F.3d 262, 267
(D.C. Cir. 2001); Massey v. Wheeler, 221 F.3d 1030, 1034
(7th Cir. 2000); Snider v. Melindez, 199 F.3d 108, 111-12
(2d Cir. 1999); Massey v. Helman, 196 F.3d 727, 734-35
(7th Cir. 1999); Perez v. Wis. Dept. of Corr. , 182 F.3d 532,
536 (7th Cir. 1999) ("Defendants may waive or forfeit
reliance on S 1997e(a), just as they may waive or forfeit the
benefit of a statute of limitations."); Jenkins v. Haubert, 179
F.3d 19, 28-29 (2d Cir. 1999) ("[U]nder the PLRA, . . . a
defendant . . . may also assert as an affirmative defense the
plaintiff’s failure to comply with the PLRA’s [exhaustion]
requirement[ ]."); see also Jackson , 89 F. Supp. 2d at 56-
58; 5 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure S 1271, at 76 (Supp. 2001); Kathryn
F. Taylor, Note, The Prison Litigation Reform Act’s
Administrative Exhaustion Requirement: Closing the Money
Damages Loophole, 78 Wash. U. L.Q. 955, 965 & n.73
(describing the different practices, and arguing in favor of
characterizing exhaustion as an affirmative defense). Some
dicta in the Fifth Circuit supports this view. Wendell v.
Asher, 162 F.3d 887, 890 (5th Cir. 1998) ("Rather, the
amended statute imposes a requirement, rather like a
statute of limitations, that may be subject to certain
defenses such as waiver, estoppel, or equitable tolling.").

The Commonwealth relies on the contrary position held
_________________________________________________________________

6. The district courts in this circuit are divided on whether the PLRA
exhaustion requirement is an affirmative defense or some form of
heightened pleading. Compare cases putting pleading burden on
defendant, see, e.g., Santiago v. Fields , 170 F. Supp. 2d 453, 458 (D.
Del. 2001); Gregory v. PHS, Inc., No. 00-467, 2001 U.S. Dist. LEXIS
15765, at *7-10 (D. Del. Sept. 21, 2001), with those that hold it is
plaintiff’s burden, see, e.g., Bensinger v. Hollandhull, No. 00-CV-5037,
2001 U.S. Dist. LEXIS 21014, at *8 (E.D. Pa. Dec. 18, 2001); Rivera v.
Whitman, 161 F. Supp. 2d 337, 343 (D.N.J. 2001); Payton v. Horn, 49 F.
Supp. 2d 791, 797 (E.D. Pa. 1999) (citing Brown v. Toombs, 139 F.3d
1102, 1004 (6th Cir 1998)); White v. Fauver, 19 F. Supp. 2d 305, 312
(D.N.J. 1998).
                                9


by the Sixth Circuit. In Brown v. Toombs, 139 F.3d 1102
(6th Cir. 1998), that court read the "plain mandatory
language of the [PLRA] regarding exhaustion of remedies,
the legislative purpose underlying the plain language, and
the sound policy on which it is based, [as] requir[ing] that
prisoners filing S 1983 cases involving prison conditions
. . . allege and show that they have exhausted all available
state administrative remedies." Id. at 1104. The court
further stated that "[a] prisoner should attach to his S 1983
complaint the administrative decision, if it is available,
showing the administrative disposition of his complaint." Id.
Thereafter, in Knuckles El v. Toombs, 215 F.3d 640, 642
(6th Cir. 2000), the court held that a prisoner was required
to "plead his claims with specificity and show that they
have been exhausted by attaching a copy of the applicable
administrative dispositions to the complaint, or, in the
absence of written documentation, describe with specificity
the administrative proceeding and its outcome." See also
Scarborough v. Morgan, 21 Fed. Appx. 279, 280 (6th Cir.
2001).7

Although we agree with the Brown court that the plain
language of the PLRA requiring that prisoners exhaust their
administrative remedies before filing suit reflects the
Congressional policy underlying the PLRA, the pleading rule
Brown adopted does not necessarily follow. Congress
appears to have had two primary concerns in enacting
S 1997e(a). First, Congress expressed a desire to lessen the
_________________________________________________________________

7. The position of the Eighth Circuit is not clearly defined. In McAlpin v.
Morgan, 216 F.3d 680, 682 (8th Cir. 2000), the court, after citing Brown,
dismissed the prisoner’s complaint, noting he failed to attach evidence of
exhaustion. See also Jarrett v. Norris, 12 Fed. Appx. 438, 439 (8th Cir.
2001) ("Although Jarrett submitted numerous grievances regarding his
medical care, he did not present proof that he fully exhausted as to all
of the claims in his complaint."); Gill v. Herndon, 8 Fed. Appx. 585, 586
(8th Cir. 2001) ("Gill failed to attach to his complaint any proof of
administrative exhaustion. In fact, Gill did not even attach proof of his
initial grievances that were embodied in administrative records.").
Recently, however, in Foulk v. Charrier, 262 F.3d 687, 697 (8th Cir.
2001), the court stated, without citation to Brown or McAlpin, that "we
recognize that reliance upon the PLRA exhaustion requirement is an
affirmative defense under Fed. R. Civ. P. 8(c)" and cited the Seventh
Circuit’s decision in Massey.

                                10


burden frivolous prison claims placed on federal courts.
See, e.g., 141 Cong. Rec. 26,548 (1995) ("Frivolous lawsuits
filed by prisoners tie up the courts, waste valuable legal
resources, and affect the quality of justice enjoyed by law-
abiding citizens.") (statement of Sen. Dole); see also Nyhuis,
204 F.3d at 73 (observing " ‘Congress amended section
1997e(a) largely in response to concerns about the heavy
volume of frivolous prison litigation in the federal courts’ ")
(quoting Alexander v. Hawk, 159 F.3d 1321, 1326 n.11
(11th Cir. 1998)) (citing 141 Cong. Rec. H14078-02 (daily
ed. Dec. 6, 1995)). Second, Congress wished to reinforce the
power of prison administrators to control prison problems,
minimizing the "interference" of federal courts in matters of
prison administration. See, e.g., Alexander, 159 F.3d at
1326 n.11 ("Congress desired ‘to wrest control of our
prisons from the lawyers and the inmates and return that
control to the competent administrators appointed to look
out for society’s interests as well as the legitimate needs of
prisoners.’ ") (quoting 141 Cong. Rec. 26,553 (1995)
(statement of Sen. Kyl)); see also Taylor, supra at 964
(stating purpose behind the administrative exhaustion
requirement is to give "prison administrators . .. an
opportunity to correct the inmate’s problem on their own.")
(citing 141 Cong. Rec. 14,573 (1995) (statement of Sen.
Kyl)).

These policies are not inconsistent with construing the
exhaustion requirement of S 1997e(a) as an affirmative
defense. Under S 1997e(c)(1) and (2), courts have the power
to dismiss frivolous lawsuits sua sponte, handily fulfilling
the first congressional policy and making it unnecessary to
view S 1997e(a) as authorizing the same action. The second
policy, that of giving prison administrators the opportunity
to control the situation within the prison, is addressed by
the exhaustion requirement itself. The rules of pleading and
proof do not bear on that issue. In fact, an opinion by
Judge Easterbrook of the Seventh Circuit suggests that
prison officials may choose to waive exhaustion,
presumably so that they can secure judicial imprimatur for
some intractable disputes. See, e.g., Perez, 182 F.3d at 536
("Filing suit before exhausting prison remedies therefore is
not the sort of defect that judges must notice even if the
defendant is happy to contest the suit on the merits.").

                                11


We return therefore to our decision in Williams holding
that defendants must plead and prove failure to exhaust as
an affirmative defense. See Williams, 130 F.3d at 573.
Although we recognize that the substance of the PLRA is
different from that of Title VII, we note that Williams was
relied on by the Seventh Circuit when it held lack of
exhaustion to be an affirmative defense in the PLRA
context, Massey v. Helman, 196 F.3d 727, 735 (7th Cir.
1999). We see no good reason not to do the same,
particularly because of the similar policies underlying both
exhaustion requirements.

In their discussion of categorizing affirmative defense,
Wright and Miller recommend resort to "considerations of
policy [and] fairness." Wright & Miller, supra, S 1271, at
444. According to those authors,

       "[f]airness" probably should be viewed as a shorthand
       expression reflecting the judgment that all or most of
       the relevant information on a particular element of a
       claim is within the control of one party or that one
       party has a unique nexus with the issue in question
       and therefore that party should bear the burden of
       affirmatively raising the matter.

Id. at 445. Applying this consideration to the exhaustion
requirement, it appears that it is considerably easier for a
prison administrator to show a failure to exhaust than it is
for a prisoner to demonstrate exhaustion. "[P]rison officials
are likely to have greater legal expertise and, as important,
superior access to prison administrative records in
comparison to prisoners." Wyatt, 2002 U.S. App. LEXIS
2217, at *20. Prison officials and their attorneys can also
readily provide the court with clear, typed explanations,
including photocopies of relevant administrative
regulations. Pro se prisoners will often lack even such
rudimentary resources.

We thus join the many other circuits that have held that
failure to exhaust is an affirmative defense to be pleaded by
the defendant.8
_________________________________________________________________

8. We do not suggest that defendants may not raise failure to exhaust as
the basis for a motion to dismiss in appropriate cases. The issue is not

                                12


B. The District Court’s Pleading Requirements

In addition to holding that failure to exhaust is an
affirmative defense, we find that the District Court erred in
dismissing the complaint for failure to meet the heightened
pleading requirement it imposed and in doing so sua
sponte. The District Court’s sua sponte dismissal is
inconsistent with the statutory structure of the PLRA.
Subsection (c) of S 1997e, entitled "Dismissal," provides for
sua sponte dismissal by a district court for certain
enumerated reasons. The section provides:

       (c) Dismissal

       (1) The court shall on its own motion or on the
       motion of a party dismiss any action brought with
       respect to prison conditions under section 1983 of this
       title, or any other Federal law, by a prisoner confined in
       any jail, prison, or other correctional facility if the court
       is satisfied that the action is frivolous, malicious, fails
       to state a claim upon which relief can be granted, or
       seeks monetary relief from a defendant who is immune
       from such relief.

       (2) In the event that a claim is, on its face, frivolous,
       malicious, fails to state a claim upon which relief can
       be granted, or seeks monetary relief from a defendant
       who is immune from such relief, the court may dismiss
       the underlying claim without first requiring the
       exhaustion of administrative remedies.
42 U.S.C. S 1997e(c).

Availing here is an application of the principle of
expressio unius est exclusio alterius -- when a statute
specifically enumerates some categories, it impliedly
excludes others. See, e.g., Leatherman v. Tarant County
Narcotics Intelligence & Coordination Unit, 507 U.S. 163,
_________________________________________________________________

raised by this case, and neither party has stated its position. See, e.g.,
Flight Sys., Inc. v. Elec. Data Sys. Corp., 112 F.3d 124, 127 (3d Cir.
1997) (observing affirmative defenses may be considered on a Rule
12(b)(6) motion if the defense would "present[ ] an insuperable barrier to
recovery by the plaintiff").

                                13


168 (1993). Section 1997e(c) explicitly provides for sua
sponte dismissals in four instances: if the court is satisfied
that the action is (1) frivolous, (2) malicious, (3) fails to
state a claim upon which relief can be granted, or (4) seeks
monetary relief from a defendant who is immune from such
relief. In S 1997e(c), Congress demonstrated a capacity to
clearly authorize sua sponte dismissal when it so desired.
Notably absent from the list is any reference to failure to
exhaust. The final sentence in S 1997e(c)(2) that "the court
may dismiss the underlying claim [for the four specified
reasons] without first requiring the exhaustion of
administrative remedies" shows that Congress had not
forgotten about the need for exhaustion, but chose not to
include failure to exhaust among the grounds for which the
court could dismiss sua sponte.9 Inasmuch as the omission
of failure to exhaust from the categories explicitly
permitting sua sponte dismissal is found in S 1997e, the
same section of the PLRA that sets out the exhaustion
requirement, the inference is inescapable that Congress did
not intend to include failure to exhaust among the
categories justifying sua sponte dismissal.10
_________________________________________________________________

9. The statutory structure also belies any possibility that a failure to
exhaust is included in (c)(1)’s broad rubric of"failure to state a claim
upon which relief can be granted." As one court observed:

       Any argument that Congress intended the broad categories in
       Section 1997e(c)(1) to include dismissal for failure to exhaust is
       demolished by Section 1997e(c)(2), which grants the court power to
       dismiss sua sponte without requiring exhaustion of administrative
       remedies. It makes little sense to permit dismissal for failure to
       exhaust and then state the court may dismiss without"first
       requiring the exhaustion of administrative remedies."

Jackson, 89 F. Supp. 2d at 57 (quoting 42 U.S.C.S 1997e(c)(2)); see also
Snider, 199 F.3d at 112 (" ‘[F]ail[ure] to state a claim,’ as used in
Sections 1997e(c) . . . of the PLRA, does not include failure to exhaust
administrative remedies.").

10. Moreover, failure to exhaust was not included when the PLRA
amended the provision authorizing prisoner in forma pauperis suits to
provide explicitly for sua sponte dismissal for certain specified reasons,
see 28 U.S.C. S 1915(e)(2) (2001) (amended by Pub. L. 104-134, 110
Stat. 1321-74 (1996)) (permitting dismissals "at any time" for falsely
alleging poverty, or because, inter alia, the action is frivolous or

                                14


As a general proposition, sua sponte dismissal is
inappropriate unless the basis is apparent from the face of
the complaint. See, e.g., Rycoline Prods., Inc. v. C & W
Unlimited, 109 F.3d 883, 886 (3d Cir. 1997); see also
Snider, 199 F.3d at 111-13 (discussing extensively sua
sponte dismissals in the S 1997e(a) context). Ray’s failure to
exhaust was not apparent from the complaint or other
documents before the District Court. On the first page of
his complaint, under a caption entitled "Exhaustion of
Administrative Remedies," Ray alleged that the grievance
process had been completed. Also, Ray’s objections to the
Magistrate Judge’s Report and Recommendation were filed
in the District Court. In those objections, Ray again noted
his exhaustion, this time with more particularity, stating
"Plaintiff did exhaust administrative remedies by
exhausting the appeal process for all misconduct
mentioned in the complaint." App. at 11. Ray also attached
to his objections copies of several misconduct charges, and
a handwritten copy of the final disposition of the sole
misconduct of which he was found guilty. Without further
inquiry, the District Court was not in a position to reach
the conclusion that Ray failed to exhaust his administrative
remedies.

The District Court also stated that Ray’s complaint was
deficient because "Ray has not demonstrated that he has
exhausted administrative remedies," Supp. at 2 (emphasis
added). In so stating, the court imposed the additional
requirement that a prisoner must demonstrate compliance
with the exhaustion requirement. We view that holding as
inconsistent with the Supreme Court’s teachings in
Leatherman, where the Court explained that courts should
narrowly interpret statutory language to avoid heightened
pleadings standards. 507 U.S. at 168. As the Court pointed
out, heightened pleading standards are inconsistent with
the "liberal system of ‘notice pleading’ set up by the federal
_________________________________________________________________

malicious), and also instituted a screening process for prisoner suits
against governmental entities and their employees, see 28 U.S.C.
S 1915A(a)-(b) (directing dismissal "before docketing, if feasible" for,
among other grounds, claims which seek monetary relief from
defendants immune from such redress).

                                15


rules." Id.; see also Brader v. Allegheny Gen. Hosp., 64 F.3d
869, 876-77 (3d Cir. 1995). In Crawford-El v. Britton, 523
U.S. 574 (1998), the Supreme Court applied the same
rationale in the PLRA context, criticizing "the creation of
new rules by federal judges." Id. at 596. The Court pointed
out that "Congress has already fashioned special rules [in
the PLRA]," concluding that "[i]f there is a compelling need
to frame new rules of law . . . , presumably Congress either
would have dealt with the problem in the [PLRA], or will
respond to it in future legislation." Id. at 596-97.

Most recently, in Swierkiewicz v. Sorema, No. 00-1853,
70 USLW 4152 (Feb. 26, 2002), the Court, in a unanimous
opinion, reiterated that courts may not require greater
particularity in pleading than the Federal Rules require. As
Justice Thomas wrote:

       Rule 8(a)’s simplified pleading standard applies to all
       civil actions, with limited exceptions. Rule 9(b), for
       example, provides for greater particularity in all
       averments of fraud or mistake. This Court, however,
       has declined to extend such exceptions to other
       contexts.

Id. at 4154 (footnote omitted). As we previously noted, no
provision of the PLRA requires pleading exhaustion with
particularity.

Ray asks us to use this occasion to clarify that a
Pennsylvania inmate may satisfy his or her exhaustion
obligation in the course of the proceedings charging the
inmate with misconduct under the Inmate Disciplinary
Procedures. We decline to so hold. That issue should be
considered in the first instance by the District Court
because it may require information regarding how prison
administrators interpret the scope of the Inmate
Disciplinary Procedures, the Inmate Grievance System, and
the interaction between them.

IV.

CONCLUSION

For the reasons set forth, we will reverse the decision of
the District Court dismissing Ray’s complaint.

                                16


A True Copy:
Teste:

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

                                17
