                                                             NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                          ___________

                              No. 09-1177
                              ___________

                        DAWN MARIE BALL,

                                             Appellant

                                      v.

         SCI MUNCY; SGT. WINDER; LT. HUMMEL; LT. GRIDLEY;
              NURSE DILLELA; LT. CRAVER; DR. FAMIGLIO;
          SCI MUNCY MEDICAL DEPARTMENT; CO LAMBERT;
         CO MOON; CO MR. CHARLES; CO RITCHIE; CO KAZAAR;
    CO JANIS; NURSE GREEN; CO MR. JOHNSON; CAPT. SCHNLEITNER;
LT. NOONAN; SUPT. CHAMBERLAIN; DEPUTY SHEPLER; DEPUTY TORMA;
       PA HIMMELSBACH; LT. BOYER; LT. CURHAM; LT. BLESSING,

                                      Appellees.
                              ___________

             On Appeal from the United States District Court
                                 for the
                    Middle District of Pennsylvania
                       (D.C. Civ. No. 08-00391)
                      District Judge: Yvette Kane

                         Argued May 19, 2010

         Before: FUENTES, WEIS, and NYGAARD, Circuit Judges.

                    (Opinion Filed:        June 30, 2010 )




                                   -1-
Adrian N. Roe
Amie A. Thompson *           (ARGUED)
Duquesne University School of Law
Bill of Rights – Civil Rights Litigation Clinic
600 Forbes Avenue
Pittsburgh, PA 15282
Counsel for Appellant Dawn Marie Ball

J. Bart DeLone
M. Abbegael Giunta
John G. Knorr, III         (ARGUED)
Pennsylvania Office of Attorney General
15th Floor, Strawberry Square
Harrisburg, PA 17120
Counsel for Appellees SCI Muncy, et al.

Kathryn M. Kenyon          (ARGUED)
Pietragallo, Gordon, Alfano, Bosick & Raspanti, LLP
One Oxford Centre, 38th Floor
301 Grant Street
Pittsburgh, PA 15219
Counsel for Appellees Dr. Famiglio and P.A. Himmelsbach




                               OPINION OF THE COURT




FUENTES, Circuit Judge:

       Plaintiff Dawn Marie Ball brings this civil rights action, pursuant to 42 U.S.C. §

1983, against the State Correctional Institution in Muncy, Pennsylvania and a group of

individual defendants. The District Court granted the Defendants’ motions to dismiss,



*
 Ms. Thompson is an eligible law student permitted to enter an appearance pursuant to
Local Appellate Rule 46.3. The Court commends her advocacy and appreciates the
participation of the Duquesne University School of Law in this matter pro bono.

                                             -2-
pursuant to Federal Rule of Civil Procedure 12(b)(6), on the grounds of failure to exhaust

administrative remedies. We agree with the District Court’s decision and accordingly

affirm the dismissal of Ball’s claims.

                                             I.

       Because we write primarily for the parties, we only discuss the facts and

proceedings to the extent necessary for resolution of this case. Ball is an inmate at SCI

Muncy. She filed a Complaint, on March 6, 2008, alleging violations of her civil rights

by state prison officials. She named two groups of Defendants, two “Medical

Defendants” (Dr. Famiglio and P.A. Himmelsbach) and a group of twenty-one “Non-

Medical Defendants.” Ball alleges – in seven hand-written pages – a range of

misconduct, including, inter alia, sexual assault, denial of medical treatment, and other

physical mistreatment, on the part of prison officials. Ball requests relief including

transfer to a New Jersey state prison, ten million dollars in compensatory damages, the

return of unspecified property, a videotape of the events alleged, and unspecified policy

changes.

       Ball’s Complaint was filed using a standard form provided to her by prison

officials. The form’s first page contains a section entitled “Exhaustion of Administrative

Remedies.” It includes three questions, to which the prisoner must check “yes” or “no.”

The questions are: (1) “Is there a grievance procedure available at your institution?;” (2)

“Have you filed a grievance concerning the facts relating to this complaint?;” and (3) “Is




                                             -3-
the grievance process completed?” (App. 16.) Ball checked “yes” for the first two

questions and “no” for the third question.

       The Medical Defendants moved, on May 13, 2008, to dismiss Ball’s Complaint for

failure to state a claim and failure to exhaust administrative remedies, as required by the

Prison Litigation Reform Act. The Non-Medical Defendants filed their own motion to

dismiss on June 2, 2008. The District Court entered a Memorandum and Order on

December 10, 2008, dismissing Ball’s Complaint on the basis of her failure to exhaust the

grievance process. The District Court found that “[i]t is clear that Plaintiff’s claims are

not properly before this Court and must be dismissed.” Thereafter, Ball filed this appeal.

                                              II.

       The District Court had subject matter jurisdiction over Ball’s Section 1983 claims

pursuant to 28 U.S.C. §§ 1331 and 1343. We have jurisdiction under 28 U.S.C. § 1291.

The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), provides 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.” In Ray v. Kertes, 285 F.3d

287 (3d Cir. 2002), we held that, in a Prison Litigation Reform Act suit, the “failure to

exhaust is an affirmative defense to be pleaded by the defendant.” Id. at 295. We have

also held that “[i]n appropriate cases, failure to exhaust may be raised as the basis for a

motion to dismiss.” Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).

                                              III.

                                              -4-
       Ball conceded, on the face of her Complaint, that she had not completed the

grievance process at the prison and, therefore, had not exhausted her claim. However, she

contends that other portions of the Complaint contradict this concession, or at least create

ambiguity. Ball also claims that the District Court erred by failing to consider her

assertions that prison officials obstructed her attempts to exhaust the grievance process.

       There are two key problems with Ball’s arguments. First, the material she cites in

her Complaint, which she claims contradicts the check mark stating that she completed

the grievance process, does not present a conflict or even any ambiguity. The Complaint

states that Ball is “terrified after all the retaliation I been through for reporting what he

did to me.” It refers to an “investigation” by prison officials of her claim of sexual

assault. Another portion states “I have been severely retaliated on. This investigation

isn’t even over yet . . . .” These statement are not in tension with the check mark

indicating that the grievance process was not completed. At most they indicate a

grievance was filed and an investigation begun, but provide no indication it was

completed.

       Second, Ball relies upon materials outside of her Complaint as evidence that prison

officials obstructed her attempts to file a grievance. A district court ruling on a motion to

dismiss generally “relies on the complaint, attached exhibits, and matters of public

record.” Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007). Where, as here, the

District Court based its decision solely on the complaint, our review is limited to

examining the contents of the complaint.      Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d

                                               -5-
Cir. 1992); see also Fagin v. Gilmartin, 432 F.3d 276, 286 (3d Cir. 2005). Hence the

additional materials relied upon by Ball are irrelevant to our review.

       Finally, to the extent Ball relies upon our decision in Mitchell v. Horn, 318 F.3d

523 (3d Cir. 2003), which held that a failure to exhaust would be excused when the forms

necessary to file a grievance were not made available, id. at 529, we find that decision

quite distinguishable. The district court dismissed Mitchell’s complaint sua sponte on the

date it was filed, in part for failure to exhaust, without requiring service on the

defendants. Id. at 526. Mitchell expressly stated in his complaint that he had sought to

file a grievance but prison officials denied him the grievance form. Id. at 527. Moreover,

the Commonwealth acknowledged “that the District Court incorrectly dismissed this

claim because it did not consider Mitchell’s allegations that he was denied grievance

forms.” Id. at 529. Here, unlike in Mitchell, the Defendants have pled lack of exhaustion.

Even more importantly, Ball’s Complaint does not contain any allegations that she was

obstructed from filing a grievance.

       For the foregoing reasons, we will affirm the District Court.




                                              -6-
WEIS, Circuit Judge, Dissenting.

              “[I]n ruling on a motion to dismiss, a district court relies on the complaint,

attached exhibits, and matters of public record.” Sands v. McCormick, 502 F.3d 263, 268

(3d Cir. 2007). Here, plaintiff sent a number of letters to the Court and filed two

additional complaints while this matter was pending, reiterating her problems with the

prison staff and her inability to fully prosecute her claims. In my view, more

consideration should have been given to these documents in deciding the motion to

dismiss.

              In these matters of record, plaintiff asserts that she was physically abused

and sexually assaulted by various defendants; denied basic hygienic needs, medical

treatment and medication; confined to a psychiatric observation cell; denied access to her

mail and legal papers; and subjected to other forms of mistreatment. Particularly

noteworthy are the allegations in these filings that she had “psychological disorders.” In a

letter to the District Court dated April 29, 2008, she wrote, “I suffer from psychological

pro[ ]blems & I don’t comprehend & understand.” Similarly, on June 17, 2008, she

advised the Court: “I’m a[n] inmate w/ psychological pro[ ]blems & don’t understand

legal jargon & I’m always confused. I requested several times for an attorney & my

letters, requests, & motions go unanswered.”




                                              1
              In a letter to the district judge dated June 15, 2008, plaintiff described her

difficulties in more detail, stating that she had again been placed in the “strip cell just for

arguing w/ inmates. . . . Muncy keeps stripping me for reasons not being suicidal to

prevent me now from doing my lawsuits. I need lawyers for my cases. . . . I have

psychological pro[ ]blems & am on medications which make me confused & unable to

understand things.” She sent a letter to the Clerk of the District Court that same day,

reiterating that she did “not understand the standing practice orders you sent because” of

her mental condition and the effects of her medications.

              The plaintiff’s complaint in a related case, filed on May 5, 2008 and

assigned to the same judge who presided over this matter, alleged that certain “psych

[doctors] refused to order correct meds, I wasn’t stable for a long time, had severe major

breakdowns & still have problems.” 1 In another related case, filed on April 14, 2008 and

also before the same district judge, she asked for an attorney, stating, “I have cognitive

dysfunctions & I can not understand things.” 2

              Plaintiff also informed the Court that she was unable to properly or

effectively litigate this matter because the prison staff had removed her paperwork and

did not return it. In a letter filed September 12, 2008, she wrote,


              1
              Amended Complaint at 3, Ball v. SCI-Muncy Med. Dep’t, No. 08-cv-700
(M.D. Pa. May 5, 2008).
              2
                  Complaint at 4, Ball v. SCI-Muncy, No. 08-cv-701 (M.D. Pa. April 4,
2008).

                                               2
              “I never got any order you claim you sent 5/28/08
              . . . . [T]hey lost all the motions & briefs and other legal
              paper work you all sent me. . . . [T]hey took all my property &
              legal work on these cases & other cases, [and] they claim they
              can’t find it. What am I suppose[d] to do? Please do not
              dismiss my case.”


              Many of these allegations have support in the record, in that plaintiff was

treated by physicians and detained for some time in the prison’s psychiatric unit. Her

assertions of mental disability, therefore, had some foundation. See, e.g., Funk v.

Comm’r, 163 F.2d 796, 800-01 (3d Cir. 1947) (whether a court may judicially notice

other proceedings depends on the subject matter to be noticed and the circumstances of

the instant case). At a minimum, the claims warranted some inquiry on the part of the

District Court to determine whether plaintiff understood the grievance process and was

capable of completing it without assistance. Cf. Mitchell v. Horn, 318 F.3d 523, 529 (3d

Cir. 2003) (acknowledging that administrative remedies were not truly “available” where

prisoner was unable to pursue them).

              Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6), arguing

that the plaintiff failed to exhaustive her administrative remedies. In granting the motion,

the District Court observed that the plaintiff’s brief in opposition to the medical

defendants’ motion did not dispute the fact that she had failed to exhaust administrative

remedies. The District Court also noted that plaintiff did not file a brief contesting the


                                              3
non-medical defendants’ motion and, therefore, treated that motion as uncontested. The

opinion did not, however, discuss the plaintiff’s allegations, raised throughout the course

of this litigation and in two related matters, of her mental disability, her need for an

attorney, or the loss of her court documents resulting from the defendants’ failure to

preserve her records – all of which may explain her noncompliance with the prison

grievance procedures.

              I am very much aware of the heavy burden placed on the courts by pro se

inmate complaints, most of which are frivolous and unfairly delay consideration of

arguably meritorious grievances. I also recognize that manipulation is often the correct

diagnosis of a prisoner’s allegations of mental disability. However, it appears that this

case is one that requires a more searching review. See Mitchell, 318 F.3d at 529 (“the

District incorrectly dismissed this claim because it did not consider” the plaintiff’s

allegation that he was unable to exhaust administrative remedies).

              It is understandable that Congress wished to stem the flow of frivolous

prisoner claims by requiring initial recourse to administrative remedies. However, I do

not believe that its intention was to bar judicial review when the inmate is incapable,

because of mental disability, to understand and complete the prison grievance process.

The plaintiff’s claims arguably fall into this category and on the record here merit inquiry

before dismissal.

              I dissent from the grant of judgment in favor of defendants at this stage.



                                               4
