                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-13-2003

Greer v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket 01-2943




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Recommended Citation
"Greer v. Smith" (2003). 2003 Decisions. Paper 747.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/747


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                                                                          NOT PRECEDENTIAL


                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT


                                           No. 01-2943


                                        LARRY L. GREER

                                            Appellant

                                                v.

 BRUCE SMITH, Deputy Super.; LINDA J. NAVROTH; KEN KERESTES; O’CONNOR, Dr.;
                                 STALLINGS, Dr.


            ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                    THE MIDDLE DISTRICT OF PENNSYLVANIA

                                 (Dist. Court No. 01-CV-00078)
                                District Court Judge: Muir, Malcolm


                                   Argued on February 10, 2003

      Before: ALITO and McKEE, Circuit Judges, and SCHWARZER, Senior District Judge*

                                 (Opinion Filed: March 10, 2003)




                                                            Mark H. Lynch
                                                            Robert J. Lundman (argued)
                                                            Covington & Burling


       *
          The Honorable William W Schwarzer, Senior District Judge for the Northern
District of California, sitting by designation.
                                                                  1201 Pennsylvania Avenue, N.W.
                                                                  Washington, D.C. 20004-2401

                                                                  Counsel for Appellant

                                                                  James M. Sheehan
                                                                  General Counsel
                                                                  Commonwealth of Pennsylvania

                                                                  Michael A. Farnan
                                                                  Chief Counsel
                                                                  Pennsylvania Department of
                                                                  Corrections

                                                                  Raymond W. Dorian (argued)
                                                                  Assistant Counsel
                                                                  Pennsylvania Department of
                                                                  Corrections
                                                                  55 Utley Drive
                                                                  Camp Hill, PA 17011

                                                                  Counsel for Appellee




                                      OPINION OF THE COURT




PER CURIAM:

        Larry L. Greer appeals from the District Court’s dismissal of his action brought

pursuant to 42 U.S.C. §1983, in which he alleged a violation of his constitutional rights. The

District Court did not address the merits of the claim but rather dismissed the suit for

failure to exhaust administrative remedies as required by the Prison Litigation Reform Act

(“PLRA”), 42 U.S.C. §1997(e)(a).

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        The relevant provision of the PLRA states that “[n]o action shall be brought with

respect to prison conditions under section 1979 of the Revised Statutes of the United States

(42 U.S.C. §1983) 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. §1997(e)(a). While the District Court concluded correctly that the PLRA

exhaustion provision applies to the plaintiff, the Court erred by granting the defendants’

motion to dismiss for failure to exhaust solely on the basis of representations made in an

affidavit submitted by the defendants. Subject to a few narrow exceptions not applicable in

this case,1 Rule 12(b) of the Federal Rules of Civil Procedure requires a District Court to

convert a motion to dismiss to a motion for summary judgment if the Court considers

materials outside the plaintiff’s pleading, such as the affidavit relied upon in this case. Camp

v. Brennan, 219 F.3d 279, 280 (3d Cir. 2000).

        The Rule directs that

        [i]f, on a motion asserting the defense numbered (6) to dismiss for failure of
        the pleading to state a claim upon which relief can be granted, matters outside
        the pleading are presented to and not excluded by the court, the motion shall
        be treated as one for summary judgment and disposed of as provided in Rule
        56, and all parties shall be given reasonable opportunity to present all material
        made pertinent to such a motion by Rule 56.


         1
          Exceptions to the general rule of conversion have been made where the materials
 considered at the dismissal stage are either public records deemed to be undisputably
 authentic or materials directly relied upon in the plaintiff’s complaint. See eg Southern
 Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426-27
 (3d Cir. 1999); City of Pittsburgh v. West Penn Power Co., 147 F.3d 256, 259 (3d Cir.
 1998); Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d
 Cir. 1993).

                                                     -3-
FED. R. CIV. P. 12(b); See also, e.g., Carter v. Stanton, 405 U.S. 669, 671 (1972). In the

present case, the District Court considered material outside of the pleadings and, therefore,

should have converted the motion for dismissal to a summary judgment motion, allowing the

plaintiff an opportunity for appropriate discovery and “a reasonable opportunity to present

all material made pertinent” to the motion. FED. R. CIV. P. 12(b).

        Accordingly, we vacate the District Court’s order dismissing the complaint without

prejudice and remand for further proceedings to determine whether the defendants sustained

their burden of proving that the plaintiff failed to exhaust all available administrative

remedies in accordance with the PLRA exhaustion requirement. See Ray v. Kertes, 285 F.3d

287 (3d Cir. 2002).




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