                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2007

Kinlaw v. Foster
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3446




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Recommended Citation
"Kinlaw v. Foster" (2007). 2007 Decisions. Paper 1443.
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ALD-156                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 06-3446
                               ________________

                         CHRISTOPHER M. KINLAW, SR.

                                         Appellant

                                            v.

          BYRON M. FOSTER, Warden; ROBERT BROTHERS, Captain;
     ROBERT ACKERMAN, Sgt.; WARREN COUNTY CORRECTIONAL CENTER
                           ADMINISTRATION

                    ____________________________________

                  On Appeal From the United States District Court
                            For the District of New Jersey
                             (D.C. Civ. No. 05-cv-03408)
                  District Judge: Honorable Garrett E. Brown, Jr.
                  _______________________________________


Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
                   Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                  March 15, 2007

    Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES

                              (Filed March 21, 2007)

                           _______________________

                                   OPINION
                           _______________________
PER CURIAM

          Christopher Kinlaw appeals following entry of orders by the United States District

Court for District of New Jersey dismissing his civil rights complaint with regard to some

claims and ultimately granting summary judgment in favor the defendants.1 We will

affirm.

                                               I.

          According to Kinlaw’s complaint and amended complaint, “for quite some time”

officials at the Warren County Correctional Center have been opening his legal mail

outside of his presence, violating his constitutional rights and the applicable state

regulation concerning the opening of prisoner mail.

          On August 11, 2005, the District Court entered an order granting Kinlaw in forma

pauperis status pursuant to 28 U.S.C. § 1915(a)-(b). The District Court construed

Kinlaw’s complaint as raising an access-to-the-courts claim, a First Amendment

challenge to the Center’s mail policy, and “a due process claim with respect to any failure

to respect [Kinlaw’s] privacy rights in his legal and personal mail.” In the same order,

the District Court dismissed the complaint for failure to state a claim upon which relief

may be granted under § 1915(e)(2)(B)(ii) and § 1915A(b)(1) with regard to the access-to-

the-courts and due process claims, and indicated that the First Amendment challenge to




  1
      Kinlaw also appeals the District Court’s denial of his application for pro bono counsel.


                                               2
the mail policy could proceed. The District Court also dismissed the complaint as to

Warren County Correctional Center, as it is not a “person” subject to suit under § 1983.

       The remaining defendants filed a motion for summary judgment, arguing, among

other things, that Kinlaw failed to exhaust administrative remedies. The District Court

granted the motion on that ground. The District Court also affirmed the magistrate

judge’s order denying Kinlaw’s application for pro bono counsel. Kinlaw appealed and

filed a motion for appointment of counsel in this Court.

                                            II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing an order

dismissing claims under § 1915(e)(2)(B)(ii), we accept as true all factual allegations in

the complaint, and all reasonable inferences that can be drawn from them. See Ransom

v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). With regard to the decision to grant

summary judgment, we must determine whether the record, when viewed in the light most

favorable to Kinlaw, shows that there is no genuine issue of material fact and that the

defendants were entitled to judgment as a matter of law. See Torres v. Fauver, 292 F.3d

141, 145 (3d Cir. 2002); Fed. R. Civ. P. 56. We can affirm the District Court’s orders on

any ground supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir. 1999).

       A Plaintiff with IFP status whose complaint fails to state a cause of action

generally is entitled to amend his complaint. See Grayson v. Mayview State Hospital,



                                             3
293 F.3d 103, 111 (3d Cir. 2002); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.

2004) (if complaint is vulnerable to dismissal for failure to state claim, District Court

must first permit plaintiff curative amendment). Dismissal without leave to amend is

justified only on the grounds of bad faith, undue delay, prejudice, or futility. See Alston,

363 F.3d at 236. Because there is no indication in the record of bad faith, undue delay, or

prejudice, we can affirm only if it would have been futile for the District Court to allow

Kinlaw to amend his complaint.

       Though we agree in part with the District Court’s August 2005 order, we cannot

conclude that it would have been futile for Kinlaw to amend his complaint with regard to

any access-to-the-courts claim. The District Court dismissed this claim because Kinlaw

failed to allege that he was hindered in his pursuit of a legal claim – an omission Kinlaw

potentially could have cured in an amendment. Accordingly, the District Court erred.

However, for the reasons explained below, this is not an error warranting a remand, as we

agree that Kinlaw has failed to exhaust administrative remedies in this matter.

       Under 42 U.S.C. § 1997e(a), prisoners are required to exhaust available

administrative remedies before bringing a civil rights action concerning prison

conditions, regardless of whether these remedies can provide the inmate with the relief

sought. See Booth v. Churner, 532 U.S. 731, 741 (2001). We have interpreted this

provision to require, not only that an inmate have no further process available to him, but

also that an inmate must have engaged in “proper exhaustion,” that is, the inmate must


                                              4
have timely sought relief at every level available to him. Spruill v. Gillis, 372 F.3d 218,

227-30 (3d Cir. 2004).

       Despite Kinlaw’s assertion in his complaint that he had exhausted his

administrative remedies, Defendants’ affidavits in support of their summary judgment

motion show that he clearly did not follow the Center’s grievance procedure as provided

in the inmate handbook. The defendants offered a thorough description of the efforts

that Kinlaw did make and the ways in which he failed to comply with the grievance

requirements. Kinlaw filed no opposition to the defendants’ summary judgment motion.

On this record, we must agree with the District Court that no issue of material fact exists

as to whether Kinlaw exhausted his claims.2

       Accordingly, we will affirm the judgment of the District Court.3 The mo tion for

appointment of counsel is denied.




                                          5


  2
    Thus, even assuming that Kinlaw could make the required representation in order to
state a claim that he was denied access to the courts, that claim would suffer the same
defect. All of Kinlaw’s allegations involve the prison’s mail procedures and practices,
and he failed to properly grieve any aspect of these claims.
  3
   Our affirmance because of failure to exhaust does not mean that we would reject
Kinlaw’s claim on the merits. See Jones v. Brown, 461 F.3d 353 (3d Cir. 2006).
