CLD-336                                                           NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                         No. 15-3749
                                         ___________

                                     ROBERT L. SMALL,
                                                 Appellant

                                               v.

                    GARY M. LANIGAN; RALPH WOODWARD;
                      GREG BARTKOWSKI; PAULA AZARA;
                        CATHY TRILLO; UNIVERSITY OF
                MEDICINE & DENTISTRY OF NEW JERSEY, UMDNJ;
              ABU AHSAN; IHUOMA MWACHUKWA; DONIQUE IVERY;
                            MARGARET COCUZZA
                     ____________________________________

                       On Appeal from the United States District Court
                                 for the District of New Jersey
                                  (D.C. Civil No. 11-cv-02565)
                        District Judge: Honorable Anne E. Thompson
                        ____________________________________

      Submitted on a Motion to Proceed In Forma Pauperis, a Motion to Reopen, and for
                Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
            Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                       July 7, 2016
                Before: FISHER, JORDAN and VANASKIE, Circuit Judges

                                 (Opinion filed July 19, 2016)
                                         _________

                                           OPINION*

*
    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
                                        _________

PER CURIAM

       Robert Small filed a notice of appeal from the final judgment of the United States

District Court for the District of New Jersey in his civil rights action. The appeal was

dismissed for failure to pay the filing fee. Small has now filed a motion to proceed in

forma pauperis (“IFP”) and a motion to reopen the appeal. We hereby reopen the appeal

and grant his motion to proceed IFP. Because no substantial question is presented by the

appeal, we will summarily affirm the District Court’s judgment. See LAR 27.4 and

I.O.P. 10.6.

       Small, who is confined at New Jersey State Prison, filed a complaint in the District

Court against numerous Defendants associated with the prison, complaining about his

medical treatment and the Defendants’ failure to provide him with a safe and operable

wheelchair. The District Court dismissed Small’s claims for monetary relief against the

Defendants in their official capacities and later appointed counsel for Small. Small filed

an amended complaint, through counsel. Certain Defendants then filed motions to

dismiss for failure to provide an affidavit of merit, as required by New Jersey law. The

District Court granted those motions in part and denied them in part, finding that those of

Small’s claims that did not require expert testimony could go forward.




constitute binding precedent.
                                             2
       The Defendants, with the exception of Cathy Trillo, then filed motions for

summary judgment, claiming that Small had failed to exhaust administrative remedies

before filing his complaint. The District Court agreed, and granted the motions for

summary judgment.1 Small and Trillo later filed a “Stipulation of Voluntary Dismissal,”

and the District Court entered a final, appealable order. Small timely appealed.2

       We have jurisdiction under 28 U.S.C. § 1291, and we exercise plenary review of a

district court decision dismissing a complaint for failure to state a claim. Allah v.

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). A complaint fails to state a claim if,

accepting all well-pled factual allegations as true, the allegations do not “plausibly give

rise to an entitlement to relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012)

(quoting Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009)). We also exercise plenary review

over the District Court’s order granting summary judgment. See Giles v. Kearney, 571

F.3d 318, 322 (3d Cir. 2009). A district court may grant summary judgment only when

the record “shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). We will examine the

orders dismissing Small’s claims in turn.


1
 Small filed a premature notice of appeal, which we dismissed because the District Court
had not yet resolved claims against Trillo. See C.A. No. 14-4256.
2
 Small has not responded to our invitation to submit argument in support of his appeal.
As a precaution, we will assume that he wishes to challenge each order that dismissed
any of his claims.

                                              3
       First, we will affirm the District Court’s order dismissing Small’s claims for

monetary relief against the state actor Defendants in their official capacities. The

Defendants were entitled to Eleventh Amendment immunity with regard to such claims.

See Betts v. New Castle Youth Dev. Ctr., 621 F.3d 249, 254 (3d Cir. 2010); see also Port

Auth. Police Benevolent Ass’n, Inc. v. Port Auth., 819 F.2d 413, 418 (3d Cir. 1987)

(New Jersey has not waived its immunity in federal court), abrogated on other grounds by

Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30 (1994).

       Second, we will affirm the District Court’s order dismissing certain of Small’s

medical claims for failure to submit an affidavit of merit. The New Jersey affidavit of

merit statute requires the plaintiff in a malpractice action to provide the defendant, within

sixty days after the answer is filed (or 120 days if the court grants an extension for good

cause), with “an affidavit of an appropriate licensed person that there exists a reasonable

probability” that the care which is the subject of the complaint falls outside acceptable

professional standards. N.J. Stat. Ann. § 2A:53A-27; cf. Chamberlain v. Giampapa, 210

F.3d 154, 157 (3d Cir. 2000) (affidavit of merit statute must be applied by federal courts

sitting in diversity). In lieu of an affidavit, the plaintiff may provide a sworn, written

statement that, after written request, the defendant failed to provide the plaintiff with

records that have a substantial bearing on the preparation of the affidavit. N.J. Stat. Ann.

§ 2A:53A-28. Failure to provide either the affidavit or the sworn statement warrants

dismissal for “failure to state a cause of action.” N.J. Stat. Ann. § 2A:53A-29. Here, the

                                              4
District Court correctly dismissed those claims in Small’s complaint that would require

expert testimony because Small failed to submit an affidavit of merit.3

       Finally, we will affirm the District Court’s order granting summary judgment.

Under 42 U.S.C. § 1997e(a), a prisoner must exhaust all of his administrative remedies

before filing a lawsuit. See Booth v. Churner, 532 U.S. 731, 734 (2001). “[E]xhaustion

of administrative remedies under the PLRA is a question of law to be determined by the

judge.” Drippe v. Tobelinski, 604 F.3d 778, 782 (3d Cir. 2010). Exhaustion is

determined by answering two questions. First, a court examines whether a prisoner has

literally exhausted his administrative remedies, such that no further steps are available

within the prison remedy system. See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).

Here, the New Jersey Department of Corrections has a two-step administrative remedy

process for prisoners; the prisoner must file an Inmate Remedy System Form (“IRSF”)

through prison staff, see Dkt. # 115-3 at 14-16 of 29, and after receiving a response, must

appeal the determination in order to exhaust administrative remedies, see id. at 15-16.

       If a prisoner has not properly exhausted available remedies, a court then examines

whether procedural default applies. Spruill, 372 F.3d at 232. For procedural default

purposes, a prisoner has properly exhausted his claims if he has complied with the

prison’s regulations that govern inmate grievances, or if prison officials have waived


3
 The District Court also properly allowed certain medical claims to proceed, i.e., those
for which expert testimony would not be required. See Hubbard v. Reed, 774 A.2d 495,
499-500 (N.J. 2001) (no affidavit of merit need be filed in “common knowledge”
                                             5
those regulations. Id. at 222. We have excused the failure to exhaust under limited

circumstances when it is clear that a prison’s administrative remedy is unavailable to the

prisoner. See Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002). While the

determination of whether administrative remedies were available is a question of law, it

may involve a subsidiary factual inquiry. See Small v. Camden Cnty., 728 F.3d 265, 271

(3d Cir. 2013).4 For example, determining whether prison officials thwarted an inmate’s

efforts to file requisite forms, thus rendering administrative remedies unavailable, can

require a factual inquiry. Brown, 312 F.3d at 113.

       Although the allegations of Small’s Amended Complaint suggested that prison

employees might have been thwarting Small’s efforts to exhaust his remedies,5 following

discovery it became clear that Small had not attempted to file appeals through proper

channels as to any of his grievances. See Dkt. #127-4, ¶¶ 18-42 (conceding that Small




malpractice cases).
4
  This was an earlier case involving Small’s complaints about conditions in another New
Jersey prison.
5
 Small’s Amended Complaint stated that in the case of at least four of his grievances, his
IRSF forms were returned unanswered, that he had not received final administrative
decisions, and that his letters seeking assistance were also unanswered. Dkt. #79 at
¶¶ 45-47. Defendants noted that Small’s contentions were factually incorrect, see Dkt.
#115-4 at 21-22, and Small later conceded that he received responses to his grievances
and to some of his letters, see Dkt. #127-4, ¶¶ 18-42; Dkt. #127-main at 4-5.

                                             6
had received responses for all but one of his relevant grievances,6 but had not filed

appeals).

       In Small’s earlier case cited above, we noted that submission of sick leave requests

followed by complaint letters to various prison officials and others did not constitute

substantial compliance with the prison’s grievance procedures. Small, 728 F.3d at 272-

73. Similarly here, although Small submitted IRSF forms and received a response for

each one, he did not appeal any of those grievances. See Dkt. #127-4, ¶¶ 18-42. Instead,

he wrote letters to various prison officials, some of which were answered. See Dkt.

#127-main at 4-5, 6-7.

       We agree with the District Court’s legal conclusion that the fact that some letters

were answered does not mean that the prison was condoning a parallel procedure for

exhaustion. Indeed, Small did not write to the same person each time, and there is no

indication in the record that he was advised to appeal via letter rather than by submitting

the IRSF form through the appeal process.

       For the foregoing reasons, we will affirm the District Court’s judgment.




6
  Small conceded that when he filed his initial complaint (docketed on May 5, 2011), he
had not yet received a response for an IRSF submitted on April 6, 2011. As to that
grievance, his administrative remedies indisputably were not exhausted at the time he
filed his complaint.
                                             7
