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


10-7-2002

Concepcion v. Morton
Precedential or Non-Precedential: Precedential

Docket No. 01-4345




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Recommended Citation
"Concepcion v. Morton" (2002). 2002 Decisions. Paper 636.
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PRECEDENTIAL

       Filed October 7, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-4345

VICTOR CONCEPCION; ANTHONY WAYS;
RICHARD HARRINGTON

v.

WILLIS MORTON, INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS THE ADMINISTRATOR OF NEW JERSEY
STATE PRISON; ROBERT SMITH, 1-25, INDIVIDUALLY
AND IN THEIR OFFICIAL CAPACITY AS EMPLOYEES AT
N.J.S.P. (FICTITIOUS NAMES ACTUAL NAMES
PRESENTLY UNKNOWN); JOHN CELLNOW, CORRECTION
OFFICER; JOHN PHILLIPS, CORRECTION OFFICER
(FICTITIOUS NAMES, FIRST NAMES PRESENTLY
UNKNOWN), INDIVIDUALLY AND IN HIS OFFICIAL
CAPACITY AS A CORRECTION OFFICER AT THE NEW
JERSEY STATE PRISON; ROBERT COLE, SERGEANT;
JOHN DOLBY, SERGEANT; JOHN ALEIMO, SERGEANT;
JOHN RICHTER, CORRECTIONS OFFICER; JOHN
GORMAN, CORRECTIONS OFFICER; JOHN SMITH, 1-15
(FICTITIOUS NAMES OF CORRECTIONS OFFICERS AND
ADMINISTRATORS OF OTHER SUPERVISORY
PERSONNEL AT THE NEW JERSEY STATE PRISON,
NAMES CURRENTLY UNKNOWN)

Larry Cole, George Phillips, James Gorman and
Robert Richter,

       Appellants




On Appeal from the United States District Court
for the District of New Jersey

Magistrate Judge: The Honorable Freda L. Wolfson
(No. 98-cv-03681)

Argued on July 19, 2002

Before: McKEE, FUENTES, and ALDISERT, Circuit   Judges.

(Opinion Filed: October 7, 2002)

       DAVID SAMSON
       Attorney General of New Jersey

       LORI E. GRIFA (Argued)
       Deputy Attorney General

       PATRICK DeALMEDIA
       Deputy Attorney General
       Of Counsel

       DAVID M. RAGONESE
       Deputy Attorney General
       On the Brief

       R.J. Hughes Justice Complex
       P.O. Box 112
       25 Market Street
       Trenton, NJ 08625

        Counsel for Appellants

       PAUL J. HIRSH (Argued)
       Paul J. Hirsh, P.C.
       4 Campus Drive, 1S, P.O. Box 5534
       Parsippany, NJ 07054

       RODNEY D. RAY
       525 Route 73 South
       Evesham Commons, Suite 200
       Marlton, NJ 08053

        Counsel for Appellees

                                 2


OPINION OF THE COURT

FUENTES, Circuit Judge:

The Prison Litigation Reform Act of 1995 (PLRA), 110
Stat. 1321-73, as amended, 42 U.S.C. S 1997e(a), provides
that a prisoner confined in any jail, prison or correctional
facility may not bring any action under any federal law --
with respect to prison conditions -- "until such
administrative remedies as are available are exhausted."
The issue in this case is whether the PLRA’s exhaustion
requirement applies to a grievance procedure described in
an inmate handbook but not formally adopted by a state
administrative agency. We hold that it does. Accordingly,
we reverse the judgment of the District Court and we
remand the case for further proceedings consistent with
this opinion.

I.

Plaintiffs Victor Concepcion and Anthony Ways are
inmates in the custody of the New Jersey Department of
Corrections (NJDOC). They filed this S 1983 action against
various corrections officers and officials on August 6, 1998,
alleging that the defendants violated their civil rights
through the use of excessive force during two separate
incidents on August 18, 1997. We briefly describe each of
these alleged incidents in turn.

A. Concepcion Incident
During the morning of August 18, 1997, Corrections
Officer William Sellnow opened all of the cells in
Concepcion’s tier at the New Jersey State Prison (NJSP) so
that the inmates could proceed to morning breakfast. After
opening the cells, Sellnow walked down the hallway and
crossed paths with Concepcion. Because the hall was
narrow, Concepcion claims that he had to turn to the side
so that Sellnow could pass. According to Concepcion, for no
apparent reason, Sellnow rammed his shoulder into
Concepcion’s left shoulder as he walked by, and

                                3


Concepcion responded by asking, "What’s your problem?"
App. at A112-13. Concepcion claims that the two men then
started swinging at each other simultaneously.

According to Concepcion, he and Sellnow exchanged
punches for only a "couple [of] seconds." Id. at A114.
Concepcion admits that he hit Sellnow, who later received
at least four stitches in the forehead. Upon witnessing the
fray from a nearby desk, Sargeant Larry Cole called a "Code
33," which, according to Concepcion, "means there’s a
fight." Id. at A115. At this point, Concepcion claims that
approximately thirty to forty officers began running towards
him. In response, Concepcion ran in the opposite direction
and jumped over the tier railing down to the first floor.

Several officers caught and restrained Concepcion on the
first floor. Corrections Officer George Phillips testified that
it took four or five officers to place Concepcion in
handcuffs. While restraining Concepcion, Phillips suffered a
burn from a nearby boiler pipe. After he was restrained,
Concepcion claims that Cole kicked him in the face and
that Phillips stuck his nightstick in between Concepcion’s
handcuffs, lifting him off his feet and into the air.
Concepcion further claims that Phillips rammed his head
into a cement wall, and that after Concepcion was taken to
a detention cell, Phillips hit him in the forehead with a
nightstick.

As a result of the events described above, Concepcion
was charged with committing a prohibited act ("assaulting
any person") in violation of Title 10A of the New Jersey
Administrative Code, which subjects inmates to disciplinary
action and sanctions for committing certain enumerated
acts. See N.J. ADMIN. CODE tit. 10A, S 4-4.1(a)*.002 (2002).
After a disciplinary hearing, the hearing officer found
Concepcion guilty as charged and sanctioned him to 15
days detention, a 360-day loss of commutation time, and
365 days administrative segregation.

B. Ways Incident

On August 18, 1997, the same day in which the above
events took place, inmate Anthony Ways was involved in a
separate incident. After having his lunch at the prison

                                4
cafeteria, Ways proceeded towards a central rotunda, upon
which various wings of the prison converge. He alleges that,
as he approached the rotunda, there was a "commotion
going on," with "people . . . running" and"officers swinging
sticks." App. at A135. He also testified that he saw two
officers on the ground in the center of the rotunda.

After observing this commotion, Ways claims that he
attempted to get back to his wing so that he could return
to his cell. Id. at A137. According to Ways, while attempting
to return, he was approached by Corrections Officer Robert
Richter. Ways testified as follows:

       [H]e’s approaching me, so, out of instinct, my hands go
       up. He swings. As he swings, I’m trying to prevent his
       swing by pushing his shoulder away from me. . . . As
       he swings, he hits me in my jaw, and it didn’t knock
       me out, but it was enough for me. I laid on the ground
       and surrender[ed].

Id. at A139. According to Ways, after he laid down on the
ground, Richter and another officer placed his arms and
legs in handcuffs. Ways claims that, after he was
restrained, several officers stood him up and carried him
towards another wing of the prison. As he was being
carried, Ways alleges that he was dropped to the floor and
that Richter kicked him. He testified that he sustained
various injuries requiring medical treatment.

In connection with the events of that day, Ways was
charged with assaulting Richter and two other corrections
officers in violation of Title 10A of the New Jersey
Administrative Code. See N.J. ADMIN. CODE tit. 10A, S 4-
4.1(a)*.002 (2002). After a disciplinary hearing, a hearing
officer found Ways guilty on all charges and sanctioned him
to 30 days detention, a 970-day loss of commutation time,
970 days administrative segregation, and a 30-day loss of
recreation privileges. On February 19, 1999, also in
connection with what transpired on August 18, 1997, Ways
pled guilty to criminal aggravated assault in violation of
N.J. STAT. ANN. S 2C:12-1(b)(5). The aggravated assault
charge was based on the fact that Ways had punched
Corrections Officer Kimberly Bleinstein in the face, breaking
her jaw.

                                  5


C. Plaintiffs’ S 1983 Complaint

On August 6, 1998, Concepcion and Ways filed their
complaint pursuant to 42 U.S.C. S 1983, alleging that they
were the victims of excessive force in violation of their
constitutional rights on August 18, 1997. They named
seven NJSP corrections officers and officials as defendants.

On August 22, 2000, the defendants moved for summary
judgment, arguing, inter alia, that the plaintiffs had failed
to exhaust available administrative remedies pursuant to
42 U.S.C. S 1997e(a), which mandates that"[n]o action
shall be brought with respect to prison conditions under
section 1983 . . . by a prisoner . . . until such
administrative remedies as are available are exhausted."
More specifically, the defendants argued that, before
seeking redress in a federal court, the plaintiffs were
required under S 1997e(a) to follow the administrative
grievance procedure set forth in the Department of
Corrections Inmate Handbook ("Handbook"). The District
Court described that procedure as follows:

       The process begins by the inmate submitting an
       "Administrative Remedy Form" to the Administrator’s
       Office. Upon receipt, the Department Head writes a
       response on the form; this response is signed by the
       Primary Level Supervisor and the Department Head;
       and the response is finally reviewed and signed by the
       Intermediate Level Supervisor as the Administrator’s
       designee. The inmate complaint form with the
       administrative response is then placed in the inmate’s
       Classification folder and the prisoner is given a copy.
       No administrative appeal is permitted.

Concepcion v. Morton, 125 F. Supp. 2d 111, 116 (D.N.J.
2000) (citations omitted). The Handbook states that the
grievance procedure is "set up to give the inmate population
a way to bring complaints, problems, suggestions, etc. to
the attention of the Administration of New Jersey State
Prison to solve or possibly put into use." App. at A5.

Finding that the grievance procedure described in the
Handbook does not constitute an "administrative remedy"
for purposes of S 1997e(a), the District Court held that
there were no available administrative remedies for the

                                6


plaintiffs to exhaust and therefore denied defendants’
motion to dismiss the complaint for failure to address
available administrative remedies on December 21, 2000.1
Concepcion, 125 F. Supp. 2d at 121. After conducting an
analysis of the language, structure, and legislative history
of S 1997e(a), the court concluded that, in using the phrase
"administrative remedies," Congress meant"administrative
schemes promulgated by an agency." Id. at 120. Because
the prison warden and his staff, rather than the
Department of Corrections, promulgated the grievance
procedure in the Handbook, the District Court held that the
remedy was not "administrative" in nature and thus outside
the scope of S 1997e(a). See id.

Subsequent to the District Court’s decision denying
summary judgment, the United States Supreme Court
decided Booth v. Churner, 532 U.S. 731 (2001), in which
the Court held that S 1997e(a) requires exhaustion of an
administrative remedy even if that remedy cannot grant the
type of relief sought by an inmate. See id. at 734. Thus, the
prisoner in that case, who sought only money damages
under S 1983, was required to complete a prison
administrative process, even though that process could not
provide him with any monetary relief. See id. On June 11,
2001, in light of the Court’s holding in Booth , the
defendants moved for reconsideration of the District Court’s
decision. The District Court, however, denied defendants’
motion for reconsideration, explaining:

       The clear implication of Booth is that courts should not
       read futility exceptions into [S 1997e(a)’s] exhaustion
       requirement where there is an existing administrative
       procedure. Here, this Court found that there was no
       existing administrative procedure; therefore; the
_________________________________________________________________

1. The District Court did, however, grant summary judgment on Count
Seven of plaintiffs’ amended complaint, which alleged that "defendants
Willis Morton and John Smith 1-13 failed to provide adequate training
and supervision to their corrections officers in violation of plaintiffs’
Fifth, Eighth, and Fourteenth Amendment rights." Concepcion, 125 F.
Supp. 2d at 127. The court held that these claims for supervisory
liability had to be dismissed because there was no"affirmative link"
between the alleged constitutional violations and the officials sued. Id. at
128.

                                7


       teaching of Booth does not alter the Court’s original
       Opinion and Order.

App. at A28.

The defendants subsequently moved for reconsideration
of the District Court’s order denying their previous motion
for reconsideration, noting that several District Judges in
the District of New Jersey had recently issued decisions at
odds with the District Court’s holding in Concepcion. See,
e.g. In re Bayside Prison Litigation, 190 F. Supp. 2d 755,
771 (D.N.J. 2002) ("I cannot accept Concepcion’s conclusion
that an inmate handbook can never constitute an
administrative remedy . . . ."). In the alternative, the
defendants sought a stay of the proceedings and moved to
certify the question of what constitutes an "administrative
remedy" under S 1997e(a). On October 5, 2001, the District
Court denied defendants’ second motion for reconsideration
but granted their motion for certification and for a stay of
the proceedings.

The defendants then petitioned this Court, pursuant to
Rule 5 of the Federal Rules of Appellate Procedure, for
permission to appeal the question whether the exhaustion
requirement of S 1997e(a) is applicable only in those
instances in which an administrative remedy scheme is
adopted through regulations rather than through
publication and distribution of an inmate handbook. We
granted the petition on November 8, 2001.

II.
The District Court had jurisdiction under 28 U.S.C.
SS 1331 and 1343. We have jurisdiction over this
interlocutory appeal under 28 U.S.C. S 1292(b). Because we
have been asked to consider the scope of S 1997e(a)’s
applicability, which is a question of law, our review is
plenary. See Scully v. US WATS, Inc., 238 F.3d 497, 507 (3d
Cir. 2001); Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir.
1998).

III.

This appeal requires us to consider whether the term
"administrative remedies" in 42 U.S.C. S 1997e(a)

                                8


encompasses remedies not promulgated by an
administrative agency, such as the relatively informal
grievance procedure at issue in this case, a procedure
which was established by the prison administrators of the
NJSP and published in the Department of Corrections
Inmate Handbook.

To assert an action under 42 U.S.C. S 1983, plaintiffs
ordinarily need not exhaust administrative remedies first.
Porter v. Nussle, 534 U.S. 516, ___, 122 S.Ct. 983, 987
(2002) (citing Patsy v. Board of Regents of Fla. , 457 U.S.
496, 516 (1982)). However, in 1980, Congress enacted the
Civil Rights of Institutionalized Persons Act (CRIPA), 94
Stat. 352, as amended 42 U.S.C. S 1997e (1994 ed.), which
changed the rules for prisoner suits. CRIPA gave district
courts discretion to stay a prisoner’s S 1983 action "for a
period not to exceed 180 days," during which time the
prisoner would exhaust available "plain, speedy, and
effective administrative remedies." S 1997e(a)(1). The
Supreme Court described this provision as a "limited
exhaustion requirement," McCarthy v. Madigan , 503 U.S.
140, 150 (1992), as it "could be ordered only if the State’s
prison grievance system met specified federal standards,
and even then, only if, in the particular case, the court
believed the requirement ‘appropriate and in the interests of
justice,’ " Porter, 534 U.S at ___, 122 S.Ct. at 987-88 (citing
SS 1997e(a) and (b)).

Fifteen years after CRIPA became law, Congress
strengthened its exhaustion requirement by enacting the
Prison Litigation Reform Act of 1995 (PLRA), 110 Stat.
1321-73, as amended, 42 U.S.C. S 1997e(a) (1994 ed.,
Supp. V), which made exhaustion mandatory. The revised
provision states that "[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,
prison, or other correctional facility until such
administrative remedies as are available are exhausted." 42
U.S.C. S 1997e(a) (emphasis added). At issue in this case is
whether the Handbook’s grievance procedure constitutes an
available "administrative remedy" within the scope of the
revised S 1997e(a).
                                9


In construing the intended meaning of a statute, we
begin with an examination of its language. See Duncan v.
Walker, 533 U.S. 167, 172 (2001). Because Congress did
not define the term "administrative remedy" inS 1997e(a),
we give those words their ordinary meaning. See Asgrow
Seed Co. v. Winterboer, 513 U.S. 179, 187 (1995) (citing
FDIC v. Meyer, 510 U.S. 471, 476 (1994)). In applying this
interpretative principle, the District Court noted that
Black’s Law Dictionary defines "administrative remedy" to
be " ‘a nonjudicial remedy provided by an administrative
agency.’ " Concepcion, 125 F. Supp. 2d at 118 (quoting
BLACK’S LAW DICTIONARY 1296 (7th ed. 1999)). Based largely
upon this isolated definition in Black’s Law Dictionary, as
well as a reference in S 1997e(b) to "[t]he failure of a State
to adopt or adhere to an administrative grievance
procedure," the District Court found that the statute’s
language indicates that "Congress intended ‘administrative
remedy’ to refer to an administrative scheme adopted by the
state department of corrections." Concepcion , 125 F. Supp.
2d at 118-19.

While we recognize that the District Court properly
attempted to ascertain the meaning of S 1997e(a) through
examination of the statute’s own language, we have doubts
as to whether that language sufficiently supports the leap
the court took in interpreting the general term used by
Congress--administrative remedies--as including only the
relatively narrow category of remedies ultimately carved out
by the District Court, i.e., those that have been"adopted by
the state department of corrections." Nowhere inS 1997e
does Congress indicate that the manner in which a remedy
is implemented affects the applicability of the statute’s
exhaustion requirement.

Furthermore, we find that the isolated definition of
"administrative remedy" cited by the District Court hardly
lends conclusive support to its narrow interpretation, which
rests mostly on the fact that Congress used the term
"administrative remedies" rather than just the term
"remedies." The degree to which the word "administrative"
should be read to narrow the range of "remedies"
contemplated in S 1997e(a), however, appears less certain
in light of broader definitions not discussed by the District

                                10


Court. For example, another reference defines
"administrative" as "proceeding from . . . an
administration," which, in turn, is defined as"a body of
persons who are responsible for managing a business or an
institution." WEBSTER’STHIRD NEW INTERNATIONAL DICTIONARY 28
(1993). In this case, the remedy in the Handbook
"proceeded from" the prison warden and his staff, who, as
a group responsible for managing the prison, comfortably
fit within the above-quoted definition of "administration."
Just as the Supreme Court found that the single word
"remedy" in S 1997e(a) can have different meanings
"depending on where one looks," Booth, 532 U.S. at 738, we
find that the ordinary meaning of the term "administrative
remedy" is far less clear and instructive than has been
suggested by the District Court. Accordingly, we look to the
statutory history and motivating policies of S 1997e(a) for
further guidance in determining whether the Handbook’s
grievance procedure constitutes an "administrative remedy"
for purposes of the PLRA’s exhaustion requirement.

Plaintiffs liken the grievance procedure described in the
Handbook to a "suggestion box," contending that such a
remedy is not of the type contemplated by Congress in
S 1997e(a). However, as we noted in Nyhuis v. Reno, 204
F.3d 65 (3d Cir. 2000), " ‘[t]he removal of the qualifiers
"plain, speedy, and effective" from the PLRA’s mandatory
exhaustion requirement indicates that Congress no longer
wanted courts to examine the effectiveness of
administrative remedies but rather to focus solely on
whether an administrative remedy program is "available" in
the prison involved.’ " Id. at 72 (quoting Alexander v. Hawk,
159 F.3d 1321, 1326 (11th Cir. 1998)). We further
explained that it was a "justifiable assumption" that
"Congress intended to save courts from spending countless
hours, educating themselves in every case, as to the
vagaries of prison administrative processes, state or
federal." Nyhuis, 204 F.3d at 74. Along these lines, we
think it also justified to assume from the PLRA
amendments that Congress did not intend for courts to
expend scarce judicial resources examining how and by
whom a prison’s grievance procedure was implemented.
Rather, as noted above, the revisions to S 1997e(a) suggest

                                11


that Congress wanted the focus to be on the availability of
an administrative remedy program. See id. at 72; see also
Porter, 534 U.S. at ___, 122 S.Ct. at 988 (explaining that,
under S 1997e(a)’s revised exhaustion provision, "[a]ll
‘available’ remedies must now be exhausted; those remedies
need not meet federal standards, nor must they be‘plain,
speedy, and effective’ "). In this case, while the effectiveness
of the Handbook’s grievance procedure may be unclear,
there is no doubt that it is "available" to the plaintiffs.

The District Court’s narrow interpretation of the term
"administrative remedies" also seems inconsistent with
several other motivating policies and goals of the PLRA. In
Porter, a case in which the Supreme Court concluded that
the PLRA’s exhaustion requirement applies to all inmate
suits about prison life, including those involving allegations
of excessive force, the Court found that, "[b]eyond doubt,
Congress enacted S 1997e(a) to reduce the quantity and
improve the quality of prisoner suits." Id. at 988; see also
Alexander, 159 F.3d at 1326 n.11 (stating that"Congress
amended section 1997e(a) largely in response to concerns
about the heavy volume of frivolous prison litigation in the
federal courts") (citing 141 Cong. Rec. H14078-02, *H14105
(daily ed. Dec. 6, 1995)).

In Booth, the Court noted some of the practical
arguments for exhaustion, even when the administrative
remedy cannot provide the type of relief sought by an
inmate:

       [R]equiring exhaustion in these circumstances would
       produce administrative results that would satisfy at
       least some inmates who start out asking for nothing
       but money, since the very fact of being heard and
       prompting administrative change can mollify passions
       even when nothing ends up in the pocket. And one
       may suppose that the administrative process itself
       would filter out some frivolous claims and foster better-
       prepared litigation once a dispute did move to the
       courtroom, even absent formal factfinding.

532 U.S. at 737. The fact that the grievance procedure at
issue in this case was not formally adopted by the
Department of Corrections seems irrelevant to these

                                12


rationales for exhaustion. Not only does the process
outlined in the Handbook give inmates the opportunity to
inform the prison administration about any complaints, but
it also provides for a written response back to the inmates.
Furthermore, the responses of the Department Head are
subject to review by the Administrator’s Office and must be
signed both by the Department Head and by the Primary
Level Supervisor before the Intermediate Level Supervisor
gives a final formal answer. (App. at A5.) In light of the
forum and feedback provided by the Handbook’s remedy,
even if the vast majority of prisoners still remain
unsatisfied, "at least some" may be able to resolve their
concerns without resorting to litigation. For cases
ultimately brought to court, the remedy form submitted by
the inmate and the written response provided by the prison
administration could facilitate adjudication by clarifying the
contours of the controversy. See Porter, 122 S.Ct. at 988;
see also Nyhuis, 204 F.3d at 74 (noting that an
administrative remedy program " ‘often helps focus and
clarify the issues for the court’ ") (quoting Alexander, 159
F.3d at 1326 n.11).

Another policy consideration in favor of the exhaustion
requirements relates to the overall efficacy, as well as the
improvement, of the administrative process. See Nyhuis,
204 at 76 (stating that "a comprehensive exhaustion
requirement better serves the policy of granting an agency
the ‘opportunity to correct its own mistakes with respect to
the programs it administers before it is haled into federal
court’ ") (quoting McCarthy, 503 U.S. at 145). Furthermore,
if an "inmate sees his meritorious claims handled with care
by his jailers, he is more likely to respect their rules and
serve his time in a manner that is as productive as
possible." Nyhuis, 204 F.3d at 76-77. We find these goals to
be consistent with requiring the plaintiffs in this case to
comply with the remedy described in the Handbook before
allowing them to pursue their S 1983 claims in federal
court. If the administrators of the NJSP at least have the
opportunity to consider and address the grievances of
Concepcion and Ways, the possibility exists that the prison
and its administration may benefit or improve. With these
policies in mind, the fact that the Handbook’s remedy has

                                13


not been formally adopted by the NJDOC is without
significance.

IV.

For the reasons stated above, we hold that a remedy need
not be formally adopted through regulations by an agency
in order for it to be considered an "administrative remedy"
within the scope of S 1997e(a)’s exhaustion requirement.
Thus, in this case, the plaintiffs must first attempt to
address their grievances through the administrative remedy
described in New Jersey’s Department of Corrections
Inmate Handbook before they will be allowed to pursue
their S 1983 claims. Accordingly, we will reverse the
decision of the District Court and direct it to dismiss the
plaintiffs’ complaint for failure to exhaust administrative
remedies pursuant to S 1997e(a).

A True Copy:
Teste:

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

                                14
