                                                      NOT PRECEDENTIAL

              UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT
                         __________

                             No. 13-2018
                             __________

                SHERI TRETTER, Individually and as
        Adminstratrix of the Estate of William Bender, deceased,
                                              Appellant

                                   v.

PENNSYLVANIA DEPARTMENT OF CORRECTIONS; SCI FRACKVILLE;
  PHS CORRECTIONAL HEALTHCARE; NICHOLAS SCHARFF, M.D.;
       D.O. SCOTT STERLING; D.O. ROBERT SCHORSCHINSKY;
         STANLEY STANISH, M.D.; RICHARD KOSIEROWSKI;
D.O. BRIAN SHIPTOSKI; M.D. RENATO T. DIAZ.; RNS JACK ROBINSON;
 RN DANIEL ZAREMBA; RN PATRICIA WOLFE; RN BRENDA HOUSER

                             __________

            On Appeal from the United States District Court
                for the Middle District of Pennsylvania
                       (D.C. No. 3-12-cv-00302)
             District Judge: Honorable James M. Munley

              Submitted Under Third Circuit LAR 34.1(a)
                         November 13, 2013

   BEFORE: HARDIMAN, SCIRICA, and NYGAARD, Circuit Judges

                   (Opinion Filed: March 10, 2014)
                             __________

                      OPINION OF THE COURT
                            __________
NYGAARD, Circuit Judge.
                                              I.

       While a prisoner at SCI-Frackville, William Bender filed an action against state

correctional officials and numerous prisoner health care providers, alleging civil rights

violations and medical malpractice. Four months after filing his lawsuit, Bender passed

away from testicular cancer. Pursuant to FED.R.CIV.P. 25(a), the District Court allowed

Bender’s mother, Appellant Sherri Tretter, to substitute for Bender as plaintiff. The

Defendants filed a joint motion for summary judgment, arguing that Bender had failed to

exhaust his administrative remedies prior to filing suit.

       The District Court, adopting the Magistrate Judge’s Report and Recommendation,

agreed with the Defendants. It granted the joint motion for summary judgment and

dismissed Bender’s case without prejudice. Appellant Tretter then filed an action in the

District Court in her own right and as the Administratrix of Bender’s estate.

       At this point, the Appellees diverged into two groups: the physicians and health

care professionals who treated the decedent, and, the state corrections personnel. The

physicians filed a motion to dismiss, arguing that Tretter’s complaint failed to state a

cause of action. Of note, the physician Appellees did not argue that Tretter’s complaint

was barred by res judicata and collateral estoppel.

       The corrections personnel took a different approach. They first answered Tretter’s

complaint, preserving various affirmative defenses. Then, they filed a motion for a

judgment on the pleadings, wherein they argued that Tretter’s complaint was barred by

res judicata and collateral estoppel. The District Court granted the motion to dismiss and


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the motion for judgment on the pleadings, holding that Tretter was collaterally stopped

from relitigating Bender’s failure to exhaust. Tretter timely appealed.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise a plenary

standard of review over a district court’s dismissal order, see Connelly v. Steel Valley

Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013), and over orders granting a motion for

judgment on the pleadings, see Caprio v. Healthcare Revenue Recovery Grp., LLC, 709

F.3d 142, 146 (3d Cir. 2013). We will reverse the District Court’s dismissal order and

remand the cause for further proceedings.

                                             III.

       The District Court erred by dismissing Tretter’s complaint on collateral estoppel

grounds. Indeed, all of the Appellees concede as much and we also note the obvious

error. The District Court’s misstep was in not recognizing the different status of the

Appellant when she filed her lawsuit. This new status was clearly reflected in the

complaint itself, which states that Tretter brought her suit “individually and as

Administrix of the Estate of William Bender, deceased.” By filing a separate and distinct

action against the Appellees, Tretter should not have been viewed as merely continuing

Bender’s original case, which he began while incarcerated. Instead, she had filed a new

action, prosecuting her own interests as well as those of Benders’ estate.

       The exhaustion of administrative remedies requirement is of no moment to

plaintiffs who file actions on behalf of a deceased inmate. The Prison Litigation Reform

Act’s exhaustion requirement is applicable only to “a prisoner confined in any jail, prison

                                              3
or other correctional facility . . .” 42 U.S.C. § 1997e(a). The Act further defines a

“prisoner” as “any person incarcerated or detained in any facility who is accused of, or

convicted of, sentenced for, or adjudicated delinquent for, violations of criminal law or

the terms and conditions of parole, probation, pretrial release, or diversionary program.”

42 U.S.C. § 1997e(h). This is not Tretter: she was neither incarcerated nor detained for

any crime when she filed her individual complaint. Further, Bender was deceased when

Tretter filed her lawsuit. Thus Tretter---neither individually nor as Administratrix of

Bender’s estate---cannot be considered a “prisoner” for purposes of the Act. Because the

District Court erred by holding Tretter to the requirements of the PLRA, we will reverse

the District Court’s dismissal order on those grounds and remand this matter for further

proceedings.

       Those further proceedings, however, will not include the Pennsylvania

Department of Corrections or SCI-Frackville as defendants. The Eleventh Amendment

prohibits a lawsuit in federal court against a state and/or one of its agencies, unless the

state waives immunity. Betts v. New Castle Youth Development Center, 621 F.3d 249,

255 (3d Cir. 2010). The Pennsylvania Department of Corrections is an agency of the

Commonwealth and SCI-Frackville is a part of that agency. The Commonwealth has not

waived its immunity and, therefore, Tretter’s claims against these entities are more

appropriately dismissed on that basis. Indeed, Tretter concedes as much in her brief. We

recognize that the District Court did not directly rule on Eleventh Amendment immunity

for either the Department of Corrections or SCI-Frackville. We may, however, affirm on

an alternative basis as long as that basis is supported by the record. Erie Telecomms. v.

                                              4
City of Erie, 853 F.2d 1084, 1089 n.10 (3d Cir. 1988). We do so here and affirm the

District Court’s dismissal of these two Appellees, albeit for reasons different from those

relied on by the District Court.

       We decline, however, the invitation from the remaining Appellees to affirm their

dismissal for reasons other than those relied on by the District Court. The individual

corrections Appellees (Houser, Robinson, Scharff, Wolfe and Zaremba) argue that we

should dismiss them from this case based on sovereign immunity. Tretter maintains that

she has sufficiently pleaded that the individual corrections Appellees acted with “willful

misconduct,” and are therefore not entitled to such immunity. See, e.g., Brown v.

Muhlenberg Tp., 269 F.3d 205 (3d Cir. 2001). The physician and health care Appellees

(Diaz, Kosierowski, Schorschinsky, Shiptoski, Stanish, Sterling, and PHS Correctional

Healthcare) argue that Tretter has failed to state a claim of deliberate indifference to a

serious medical need. Tretter counters that her complaint contains sufficient averments

to state such claims.

        The District Court did not address any of these alternative grounds for dismissal

and based its decision solely on collateral estoppel grounds. Although the parties have

included arguments for and against dismissal in their appellate briefs, we decline to

address these issues and will, instead, leave it to the District Court in the first instance to

address the merits of any such unresolved issues on remand. Berda v. CBS Inc., 881 F.2d

20, 28 (3d Cir. 1989) (“Generally, in the absence of ‘exceptional circumstances,’ we

decline to ‘consider an issue not passed upon below.’”).



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                                           IV.

      We will reverse the District Court’s order of dismissal, except as it applies to the

Pennsylvania Department of Corrections and SCI-Frackville. The cause will be

remanded for further proceedings in accordance with this opinion.




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