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


12-4-2002

Brown v. Croak
Precedential or Non-Precedential: Precedential

Docket No. 01-1207




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Recommended Citation
"Brown v. Croak" (2002). 2002 Decisions. Paper 791.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/791


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PRECEDENTIAL

       Filed November 27, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1207

SAMUEL E. BROWN,
       Appellant

v.

PAUL CROAK, Food Service Manager II; DONALD
SHARPP, Food Service Manager I; MR. BALLOCK, CFSS;
MR. DROSS, CFSS; JOHN MCCULLOUGH,
Superintendent, SCI Houtzdale; WILLIAM E. SPECK,
Deputy Superintendent for Facility Management; J.
BARRY JOHNSON, Deputy Superintendent for Central
Services; DEAN A. KYLER, Major; HENRY A. TATUM,
Major; MARTIN F. HORN, Secretary of the Pa. Dept. of
Corrections; MELANIE TINSMAN, Corrections Health Care
Administrator; JOHN DOE, Physician Assistant; JOHN
DOE, Doctor; JOHN DOE, Health Care Agency

Appeal from the United States District Court
For the Western District of Pennsylvania
D.C. No.: 00-cv-00005J
District Judge: Honorable D. Brooks Smith

Argued: October 15, 2002

Before: BECKER, Chief Judge, ROTH
and ROSENN, Circuit Judges.

(Filed: November 27, 2002)




       Bruce P. Merenstein, Esq. (Argued)
       Nancy Winkelman, Esq.
       Schnader, Harrison, Segal &
        Lewis, LLP
       1600 Market Street, Suite 3600
       Philadelphia, PA 19103-7286

        Counsel for Appellant

       Scott A Bradley, Esq. (Argued)
       Rodney M. Torbic, Esq.
       Office of the Attorney General
       6th Floor, Manor Complex
       564 Forbes Avenue
       Pittsburgh, PA 15219

        Counsel for Appellees

OPINION OF THE COURT
ROSENN, Circuit Judge.

A group of prisoners in a Pennsylvania State Correctional
Institution (SCI-Houtzdale) assaulted and injured plaintiff
Samuel Brown, a non-smoking prisoner, because he was
using the small, single-toilet, cafeteria bathroom when they
wanted to smoke. Brown contends that the prison officials’
failure to enforce their "no smoking" policy adopted in 1996
caused his injuries. He further claims that after he
sustained severe personal injuries, the prison officials were
deliberately indifferent to his medical needs. He also alleges
that they retaliated against him for filing a grievance
asserting that the prison did not give him adequate medical
treatment. The District Court adopted the Magistrate
Judge’s First Report and Recommendation and dismissed
Brown’s claims of indifference to his medical needs,
retaliation, and all claims against Secretary Horn. However,
the defendants concede that these claims were dismissed
prematurely. We agree.

The District Court also adopted the Magistrate Judge’s
Second Report and Recommendation and dismissed
Brown’s remaining claim that the prison violated his Eighth

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Amendment rights by failing to protect him from the
assault. The District Court held that Brown did not exhaust
his administrative remedies. Brown concedes that he did
not meet the formal requirements of Pennsylvania’s
Department of Corrections Consolidated Grievance System
(DC-ADM 804). However, there is an unresolved factual
question as to whether the prison officials informed Brown
that this avenue was not available to him until the
termination of a pre-grievance investigation and then
indefinitely delayed completion of the investigation. We hold
that the defendants did not carry their burden of proving
the affirmative defense of failure to exhaust remedies under
the Prison Reform Litigation Act (PRLA), 42 U.S.C.
S 1997e(a). See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.
2002).

I.

The availability of administrative remedies to a prisoner
is a question of law. See Ray, 285 F.3d at 291. The PRLA
does not require exhaustion of all remedies. Rather, it
requires exhaustion of such administrative remedies"as are
available." 42 U.S.C. S 1997e(a); Camp v. Brennan, 219 F.3d
279, 281 (3d Cir. 2000).

Failure to exhaust administrative remedies is an
affirmative defense that must be pled and proven by the
defendant. See Ray, 285 F.3d at 295. In appropriate cases,
failure to exhaust may be raised as the basis for a motion
to dismiss. Id. at 295 n.8.1 Without permitting discovery,
the District Court granted the defendant’s motion to
dismiss or for summary judgment.
The defendants argue that Brown failed to exhaust his
administrative remedies because he did not even attempt to
_________________________________________________________________

1. Brown’s suggestion that it may always be improper to dismiss for
failure to exhaust remedies at the pleadings stage is without merit. Ray
states that: "[w]e do not suggest that defendants may not raise failure to
exhaust as the basis for a motion to dismiss in appropriate cases." Ray,
285 F.3d at 295 n.8. We do not reach the question of under what
circumstances a defendant may carry its burden of proving failure to
exhaust on the pleadings except to hold that the defendants have not
done so here.

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file a grievance for "initial review." Under DC-ADM 804,
Brown could have filed a grievance even if a security
investigation was on-going.

Brown contends in his brief that he complained
informally to security officials who told him that he must
"wait until this investigation was complete before filing a
formal grievance." However, "months after he initiated this
investigation, he still was not informed that the
investigation was concluded." The defendants argue that
there is no evidence in the record that Brown complained
informally to prison officials or that security officials told
him that he must wait until the resolution of the
investigation before filing a formal complaint.

We conclude that Brown’s argument in his brief is
adequately supported by his earlier pro se affidavit. In his
affidavit, Brown averred that he "was induced, led to
believe, based on this policy statement [in DC-ADM 804] as
well as by security, that [he] was required to first wait for
their completion of the investigation and that [he] could
then pursue a grievance in the event [he] was not satisfied
with their findings or conclusion of the investigation"
(emphasis added). Because this is an appeal from an order
granting a motion to dismiss or for summary judgment, we
view the facts in the light most favorable to Brown. See
Leatherman v. Tarrant County Narcotics Intelligence &
Coordination Unit, 507 U.S. 163, 164 (1993). Without
further discovery, we conclude that there is insufficient
evidence to find that Brown failed to exhaust his
administrative remedies. Cf. Ray, 285 F.3d at 297
(explaining that "[w]ithout further inquiry, the District
Court was not in a position to reach the conclusion that
Ray failed to exhaust his administrative remedies"); Rose v.
Bartle, 871 F.2d 331, 342 (3d Cir. 1989) (holding that a
District Court may not grant summary judgment without
giving plaintiff an opportunity to submit materials
admissible in a summary judgment proceeding or allowing
a hearing on defendant’s motion).

Defendants have not met their burden of proving the
affirmative defense of failure to exhaust remedies.
Therefore, this question may not be resolved as a matter of
law by this Court without further discovery. See Ray, 285

                                4


F.3d at 297. Brown’s claim that prison officials told him to
wait is a factual question that is disputed, has not yet been
disproved by defendants, and has not been resolved
adequately by a trier of fact.

II.

The defendants concede that their failure to exhaust
argument would have no merit if Brown was told to wait
until the security investigation was complete before filing a
grievance. We agree.

Congress’ intent in passing the PRLA was to wrest control
of prisons from lawyers and inmates and return it to prison
administrators. See Ray, 285 F.3d at 294. The exhaustion
provision of the PRLA is a bright-line rule. See Nyhuis, 204
F.3d at 75. There is no futility exception to the PRLA. Id. at
71. In Nyhuis, we reasoned that a futility exception would
frustrate Congress’s purpose of stemming prisoner lawsuits
and preventing strategic circumvention of PRLA’s
exhaustion requirement. Id. at 74.

At its core, Brown’s argument is not based upon a futility
rationale. Rather, Brown contends that he relied to his
detriment on the defendants’ erroneous or misleading
instructions that he must wait until the conclusion of an
investigation before pursuing formal remedies. There is an
unresolved factual question as to whether he was given
these instructions.

The salient questions at this stage are whether Brown
was entitled to rely on instructions by prison officials that
are at odds with the wording of DC-ADM 804 and whether
these instructions rendered the formal grievance procedure
unavailable to him within the meaning of 42 U.S.C.
S 1997e.

Section 1997e(a) only requires that prisoners exhaust
such administrative remedies "as are available." Camp v.
Brennan, 219 F.3d at 281. The availability of additional
remedies to a prisoner is a question of law. See Ray, 285
F.3d at 291. "Available" means "capable of use; at hand."
See Webster’s II, New Riverside University Dictionary 141
(1994 ed.); see also Black’s Law Dictionary 135 (6th ed.

                                5


1990) (defining "available" as "suitable; useable; accessible;
obtainable; present or ready for immediate use. Having
sufficient force or efficacy; effectual; valid."). Brown’s
argument is essentially that officials in the security
department of the prison thwarted his efforts to exhaust his
administrative remedies.
Assuming security officials told Brown to wait for the
termination of the investigation before commencing a
formal claim, and assuming the defendants never informed
Brown that the investigation was completed, the formal
grievance proceeding required by DC-ADM 804 was never
"available" to Brown within the meaning of 42 U.S.C.
S 1997e. Cf. Miller v. Norris, 247 F.3d 736, 740 (8th Cir.
2001) (holding that "a remedy that prison officials prevent
a prisoner from ‘utilizing’ is not an ‘available’ remedy under
S 1997e").

III.

The District Court’s order dismissing Brown’s claims is
hereby vacated and the case is remanded to the District
Court for further proceedings consistent with this opinion.

A True Copy:
Teste:

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

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