                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 13-4205
                                       ___________

                                   ZACHARY SPADA,
                                             Appellant

                                             v.

                      DR. EDGAR ALFREDO MARTINEZ, M.D.
                      ____________________________________

                   On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                         (D.C. Civil Action No. 3-13-cv-00113)
                Magistrate Judge: Honorable Keith A. Pesto (by consent)
                     ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   August 12, 2014
            Before: CHAGARES, KRAUSE and SLOVITER, Circuit Judges

                             (Opinion filed: August 18, 2014)
                                      ___________

                                        OPINION
                                       ___________

PER CURIAM

       Zachary Spada, proceeding pro se and in forma pauperis, appeals from the order of

the Magistrate Judge, proceeding by consent, that denied his motion to alter or amend an

order dismissing his 42 U.S.C. § 1983 civil action for failure to state a claim. For the

foregoing reasons, we will vacate and remand for further proceedings.

                                             1
                                             I.

       In his complaint, Spada claimed that while he was confined in the Mental Health

Unit (“MHU”) at State Correctional Institute – Graterford (“SCI-Graterford”), Dr. Edgar

Alfredo Martinez, who was in charge of Spada’s medical care, ignored his dystonic

reaction to medication, which resulted in damage to his teeth. This incident occurred

around December 2011 and January 2012. Spada alleged that SCI-Graterford staff

refused to provide him with grievance forms.

       In February 2012, Spada was transferred to State Correctional Institute –

Houtzdale (“SCI-Houtzdale”). On May 14, 2013, Spada submitted a grievance form to

the Facility Grievance Coordinator at SCI-Houtzdale. Spada wrote on the grievance

form: “On or about December 2011- January 2012 I was denied proper medical care at

SCI-Graterford. They denied me Cogentin while I was having an Acute Distonic [sic]

Reaction to IM Haldol. It damaged my teeth and I want them fixed.” Def. Mot. to

Dismiss, Ex. A, p.2 of 8 (ECF No. 19-1 Aug. 9, 2013). The Facility Grievance

Coordinator rejected Spada’s grievance because it did not comply with prison grievance

procedures then in effect. See DC-ADM 804, § I.A.14 (effective Dec. 8, 2010)

(mandating that prisoner grievances be filed within 15 working days of the complained of

event); DC-ADM 804, § I.A.15 (effective Dec. 8, 2010) (requiring that grievances be

filed at the facility where the event occurred).1 Spada appealed the rejection of his

grievance on May 20, 2013.


1
 The grievance regulations in force during the period pertinent to Spada’s claims allowed
for waiver only in three circumstances not relevant to his case. Those regulations have
                                             2
       While that appeal was pending, Spada filed his original complaint in the District

Court on June 1, 2013. On June 12, 2013, the Superintendent at SCI-Houtzdale

concluded that the Facility Grievance Coordinator properly rejected Spada’s grievance

because it did not offer for review a “timely date or specific event occurring at SCI-

Houtzdale.” Def. Mot. to Dismiss, Ex. A, p.5 of 8. Spada submitted a final appeal on

June 27, 2013, which was denied on July 29, 2013.

       Meanwhile, Spada filed an amended complaint on July 26, 2013. Therein, Spada

revised details of his allegations and described his attempts to exhaust his administrative

remedies after his transfer to SCI-Houtzdale. Dr. Martinez filed a motion to dismiss,

arguing that Spada’s claims were unexhausted and procedurally defaulted. See Fed. R.

Civ. P. 12(b)(6). In particular, Dr. Martinez contended that Spada’s grievance was

untimely filed, was submitted to the wrong facility, and did not name Dr. Martinez. In

opposition, Spada argued, inter alia, that his complaint should not be dismissed for failure

to exhaust because SCI-Graterford staff refused to provide him with a grievance form,

thereby rendering the grievance process unavailable.

       The parties agreed to proceed before a Magistrate Judge, who granted Dr.

Martinez’s motion and dismissed the complaint pursuant to Rule 12(b)(6). The

Magistrate Judge first determined that dismissal was appropriate because the complaint

was prematurely filed. The Magistrate Judge noted that Spada filed his complaint on


since been amended to give the Facility Grievance Coordinator full discretion to extend
the time to file a grievance. See DC-ADM 804, § I.B.2.a-e (effective May 1, 2014)
(permitting a time extension for filing a grievance for enumerated reasons and “any other
reason the Facility Grievance Coordinator deems appropriate”).
                                              3
June 1, 2013, prior to submitting his final appeal in the grievance process on June 27,

2013. The Magistrate Judge determined that dismissal was also appropriate because

Spada’s grievance lacked specificity. On his grievance form Spada wrote only that

“they” denied him proper medical care. Pennsylvania Department of Corrections

regulations mandate that inmate grievances identify the individuals involved. DC-ADM

804, § I.A.11 (effective Dec. 8, 2010). Thus, the Magistrate Judge concluded that the

omission of Dr. Martinez’s name in the grievance resulted in a procedural default. The

Magistrate Judge reasoned that in light of the “premature filing” and failure to identify

Dr. Martinez in the grievance, it was unnecessary to review Spada’s argument that SCI-

Graterford staff prevented him from timely filing a grievance.

       Spada filed a timely motion pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure. In that motion, Spada argued that Dr. Martinez failed to establish that his

claims were unexhausted and procedurally defaulted because he had alleged that SCI-

Graterford staff withheld grievance forms. The Magistrate Judge found no basis to alter

the judgment and denied Spada’s motion. Spada timely appealed.2

                                             II.

       Dr. Martinez argues that Spada was required to properly “exhaust” his

administrative remedies despite SCI-Graterford officials withholding grievance forms

2
  We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Spada’s appeal of
the denial of his motion for reconsideration “brings up the underlying judgment for
review.” McAlister v. Sentry Ins. Co., 958 F.2d 550, 552-53 (3d Cir. 1992). We exercise
plenary review over the District Court’s order dismissing the complaint under Rule
12(b)(6). McTernan v. City of York, 577 F.3d 521, 526 (3d Cir. 2009). We review the
denial of a motion for reconsideration for abuse of discretion. Lazaridis v. Wehmer, 591
F.3d 666, 669 (3d Cir. 2010) (per curiam).
                                             4
during the 15-day filing period. However, we conclude that the withholding of the

grievance forms, if established, would have rendered the grievance process permanently

unavailable to Spada under the regulations then in effect. Therefore, we will vacate the

Magistrate Judge’s dismissal of Spada’s complaint and remand for further proceedings.

       The Prison Litigation Reform Act (“PLRA”) prohibits an inmate from bringing a

civil rights suit alleging specific acts of unconstitutional conduct by prison officials “until

such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a).

“Proper exhaustion of administrative remedies is necessary” to satisfy the PLRA’s

exhaustion requirement. Woodford v. Ngo, 548 U.S. 81, 84 (2006); see also Spruill v.

Gillis, 372 F.3d 218, 230 (3d Cir. 2004) (holding that the PLRA’s exhaustion

requirement contains a procedural default component). Dr. Martinez contends that the

Magistrate Judge correctly concluded that Spada’s claims were procedurally defaulted

because he initiated his civil action prior to completion of the grievance process, see

Ahmed v. Dragovich, 297 F.3d 201, 209 & n.9 (3d Cir. 2002) (holding that under the

PLRA an inmate must exhaust available remedies prior to filing suit), and because his

grievance failed to name Dr. Martinez, see DC ADM-804, § I.A.11 (2010).

       However, if a prison official thwarts a prisoner’s ability to exhaust his

administrative remedies, those remedies are not considered available within the meaning

of § 1997e. See Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002). Spada alleged in his

amended complaint that SCI-Graterford officials denied his request for a grievance form

for at least 15 days after the incident occurred, causing his grievance to become time-


                                               5
barred. See DC-ADM 804, § I.A.14 (2010); see also Spruill, 372 F.3d at 234. The

availability of administrative remedies is a question of law. See Brown, 312 F.3d at 113.

Taking as true Spada’s allegation that SCI-Graterford officials withheld grievance forms

for the duration of the 15-day period following the incident, see McTernan, 577 F.3d at

526, and given the regulations then in effect, we must conclude that the grievance process

was unavailable to Spada within the meaning of § 1997e. See, e.g., Mitchell v. Horn, 318

F.3d 523, 529 (3d Cir. 2003); Brown, 312 F.3d at 113.

       The Magistrate Judge did not review whether the grievance process was available

to Spada during the 15-day period following the incident. Dr. Martinez argues that such

review was not necessary because Spada’s complaint was “prematurely filed” and he

failed to specifically identify Dr. Martinez on the grievance form. Undeniably, Spada’s

grievance suffers from procedural deficiencies: it was untimely, see DC-ADM 804,

§ I.A.14 (2010); it was submitted to officials at SCI-Houtzdale despite alleging an

incident that occurred at SCI-Graterford, see DC-ADM 804, § 1.A.15 (2010); and Dr.

Martinez was not explicitly identified, see DC-ADM 804, § 1.A.11 (2010). But those

deficiencies have no bearing on whether the grievance process was available to Spada

when he needed it to be.

       Dr. Martinez argues that the Magistrate Judge did not need to consider whether

SCI-Graterford officials rendered the grievance process unavailable because Spada

eventually gained access to the grievance forms and conceivably could have properly

exhausted his administrative remedies with the filing of his untimely grievance. As Dr.


                                            6
Martinez notes, “the exhaustion requirement of the PLRA is satisfied by an untimely

filing of a grievance if it is accepted and decided on the merits by the appropriate prison

authority.” Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011); see also Camp v.

Brennan, 219 F.3d 279, 281 (3d Cir. 2000). Here, however, contrary to Dr. Martinez’s

assertion, Spada’s 2013 grievance was neither accepted nor decided on the merits. Cf.

Camp, 219 F.3d at 281; see also Riccardo v. Rausch, 375 F.3d 521, 524 (7th Cir. 2004)

(“[W]hen a state treats a filing as timely and resolves it on the merits, the federal

judiciary will not second-guess that action, for the grievance has served its function of

alerting the state and inviting corrective action.”).

       Dr. Martinez also contends that even if the grievance process was unavailable

during the 15-day filing period, Spada was required to exhaust his administrative

remedies once he had access to grievance forms. But Dr. Martinez has provided no basis

for concluding that Spada’s untimely grievance would have been accepted and resolved

on the merits. Notably, there was no requirement that Spada utilize the grievance process

after the 15-day period expired, which is the foundation of Dr. Martinez’s position. See,

e.g., Small v. Camden Cnty., 728 F.3d 265, 273 (3d Cir. 2013) (holding that an

administrative remedy was made unavailable after correctional officers did not respond to

a grievance and there was no regulation addressing such a situation). To be sure, some

courts have held that in certain circumstances a prisoner is required to attempt exhaustion

of a grievance even when that attempt would be untimely. See Bryant v. Rich, 530 F.3d

1368, 1378-79 (11th Cir. 2008). However, in those cases a prisoner is generally required


                                               7
to submit a grievance that would otherwise be untimely only if the time limits may be

waived. See, e.g., id. (holding that a prisoner failed to exhaust his administrative

remedies when he did not utilize grievance procedures that permitted waiver of the time

limit for “good cause”). In Pennsylvania, however, the grievance regulations that were in

effect during the relevant period permitted an extension of the time limit only if “the

reason for the delay in filing” was caused by temporary or permanent transfers, an

“Authorized Temporary Absence,” or mail-related delays. DC-ADM 804, § I.B.3.a-d

(effective Dec. 8, 2010). Those grievance regulations, in other words, included no

provision allowing for a discretionary waiver of the 15-day time limit for good cause

shown, for example, the prison staff’s withholding of grievance forms.3 Consequently,

Spada did not have to file an untimely grievance prior to proceeding with a civil

complaint. See, e.g., Brown, 312 F.3d at 111-12.

       Spada was not required to engage a process that was unavailable to him, see id. at

111-13, and his later attempt to unsuccessfully use that process does not bar him from

bringing suit. Denying Spada federal review of his complaint for failure to exhaust under

these circumstances would not further the purpose of the PLRA’s exhaustion

requirement, which is to “allow[] prison officials an opportunity to resolve disputes

concerning the exercise of their responsibilities before being haled into court.” Jones v.


3
  The fact that a discretionary waiver of the 15-day time limit was unavailable to Spada
under the now-superseded regulations is integral to our conclusion that he was not
required to file an untimely grievance. We offer no opinion as to whether, under the
current regulations, a prisoner who initially was denied a grievance form, and therefore
was unable to file timely, is required to file an untimely grievance, seek a discretionary
extension, and exhaust administrative remedies. Cf. Bryant, 530 F.3d at 1378-79.
                                                8
Bock, 549 U.S. 199, 204 (2007). In sum, a factual question exists concerning whether

SCI-Graterford officials refused to provide Spada with grievance forms, thereby

rendering the grievance process unavailable to him within the meaning of § 1997e. Thus,

the Magistrate Judge erred in dismissing his complaint.

                                            III.

       For the foregoing reasons, we will vacate the October 9, 2013 and October 16,

2013 orders of the Magistrate Judge sitting by consent and remand for further

proceedings. Spada’s motion to suppress a copy of his original complaint is denied

because that complaint is part of the District Court record.




                                             9
