                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2006

Todd v. Benning
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1805




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Todd v. Benning" (2006). 2006 Decisions. Paper 1308.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1308


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 04-1805

                           ____________________________

                                   TRACY L. TODD,
                                              Appellant

                                           v.

       L.P. BENNING, Warden; ROBERT HAMPTON; JEFFREY A. BEARD,
          Secretary of Corrections; RICHARD LILLEY; RONALD NOVAK;
                                 SCOTT NICKELSON
                      ___________________________________

                    On Appeal From the United States District Court
                       For the Western District of Pennsylvania
                              (D.C. Civ. No. 03-cv-01060)
                      District Judge: Honorable Arthur J. Schwab
                    ______________________________________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 12, 2005

            BEFORE: ROTH, McKEE and ALDISERT, CIRCUIT JUDGES

                                  (Filed April 6, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      In July 2003, Tracy Todd, a Pennsylvania state prisoner proceeding pro se, filed

the underlying complaint pursuant to 42 U.S.C. § 1983 in the United States District Court
for the Western District of Pennsylvania alleging violations of his Eighth and Fourteenth

Amendment rights. In his complaint, Todd alleged that correctional officers at SCI-

Greensburg physically and verbally assaulted him, denied him medical attention for

injuries he sustained during one such physical assault, and did “things” to his food to

make him sick. Todd asserted in his complaint that he filed inmate grievance # 47563 on

March 24, 2003. According to Todd, although he filed a timely appeal from the

grievance coordinator’s initial decision denying his grievance, the SCI-Greensburg

warden used one of his “ploys” to dismiss the appeal as untimely. Todd sought

compensatory and punitive damages, as well as a transfer to a federal prison. The

appellees subsequently filed a motion to dismiss Todd’s complaint pursuant to Federal

Rule of Civil Procedure 12(b)(6), arguing that Todd failed to exhaust his administrative

remedies prior to filing his complaint.

       On January 5, 2004, a Magistrate Judge recommended that Todd’s complaint be

dismissed, concluding that Todd failed to exhaust his administrative remedies. The

following week, Todd filed an amended complaint in the District Court seeking to add

two defendants to his action. In his amended complaint, Todd asserted that in addition to

grievance # 47563, he also filed inmate grievances # 52914 and # 63316 concerning the

underlying events.1 According to Todd, he submitted grievances # 47563 and # 52914 for




       1
         Todd conceded, however, that he did not submit grievance # 63316 for final
review to the Chief Hearing Examiner prior to filing his complaint.

                                             2
final review to the Chief Hearing Examiner. If the Chief Hearing Examiner did not

receive his appeals, Todd argued, it was because SCI-Greensburg staff tampered with his

mail. The Magistrate Judge, however, concluded that Todd’s amended complaint “did

not add anything of substance regarding the basis of his complaint.” Accordingly, the

Magistrate Judge “incorporated” the amended complaint into the January 5 report and

recommendation.

       Todd filed objections to the report and recommendation. Specifically, Todd again

argued that he exhausted his administrative remedies by submitting his “grievance to

Camp Hill for final review, and . . . that if it did not get [there], then the staff at SCI-

Greensburg are responsible for it not being sent.” Over Todd’s objections, on February

10, 2004, the District Court adopted the report and recommendation as the opinion of the

court and granted the appellees’ motion to dismiss. Todd then filed a timely motion

pursuant to Federal Rule of Civil Procedure 59(e), in which he argued that the District

Court applied the wrong legal standard in granting the motion to dismiss. The District

Court denied Todd’s motion on March 2, 2004. This timely appeal followed.

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

the District Court’s dismissal of Todd’s complaint pursuant to Fed. R. Civ. P. 12(b)(6).

Gary v. Air Group, Inc., 397 F.3d 183, 186 (3d Cir. 2005). Because we are reviewing the

grant of a motion to dismiss, we accept as true all factual allegations in the complaint and

view them in the light most favorable to Todd. Doug Grant, Inc. v. Greate Bay Casino



                                                3
Corp., 232 F.3d 173, 183 (3d Cir. 2000).

       The Prison Litigation Reform Act of 1995 (“PLRA”) prohibits an inmate from

bringing a civil rights suit alleging specific acts of unconstitutional conduct by prison

officials until the inmate has exhausted available administrative remedies. 42 U.S.C.

§ 1997e(a). The exhaustion requirement of the PLRA applies to grievance procedures

“regardless of the relief offered by the administrative procedures.” Booth v. Churner, 523

U.S. 731, 741 (2001); see also Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir. 2000). Failure of

a prisoner to exhaust administrative remedies is an affirmative defense that must be pled

and proven by the defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (holding

that failure to exhaust is an affirmative defense and finding that the District Court erred in

imposing an improperly heightened pleading standard that required the prisoner not only

to plead, but also to prove, exhaustion in the complaint); see also Mitchell v. Horn, 318

F.3d 523, 529 (3d Cir. 2003).

       In support of their motion to dismiss, the appellees submitted the declaration of

inmate records custodian Tshanna Kyler. In her declaration, Kyler stated that “by review

of the records,” Todd “never fully exhausted grievance 47563 to final review in

accordance with DC-ADM 804.” Kyler’s statement, however, does not include a factual

report describing the steps Todd did or did not take to exhaust grievance # 47563 in

compliance with DC-ADM 804. Moreover, the appellees failed to address Todd’s

contention that he submitted grievance # 52914 for final review. In addition, Todd has



                                              4
contested the information contained in Kyler’s declaration and argued consistently in the

District Court and on appeal that he timely submitted both grievances for final review.

Because this is an appeal from an order granting a motion to dismiss, we view the facts in

the light most favorable to Todd. Doug Grant, 232 F.3d at 183. Without further

discovery, we conclude that there is insufficient evidence to find that Todd failed to

exhaust his administrative remedies. See 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”). Accordingly, because the appellees did

not meet their burden of proving the affirmative defense of failure to exhaust, the District

Court erred in granting their motion to dismiss.

       Finally, Todd alleged in the District Court that prison officials thwarted his

attempts at exhaustion by dismissing his timely appeals as untimely and interfering with

his mail. Given the record before us, we express no opinion on the merits of Todd’s

argument that the formal grievance procedure required by DC-ADM 804 was not

“available” to him within the meaning of § 1997e(a).2 However, this issue should be

addressed by the District Court on remand. See Brown v. Croak, 312 F.3d 109, 111 (3d

Cir. 2002) (“The PLRA does not require exhaustion of all remedies. Rather, it requires



       2
          On November 19, 2004, we entered an order directing briefing in this case. In
the November 19 order we asked the parties to brief, inter alia, the issue of “whether the
formal grievance procedure required by DC-ADM 804 was ‘available’ to [Todd] within
the meaning of 42 U.S.C. § 1997e(a).” We note that despite this request, the appellees
failed to address the availability issue in their brief on appeal.

                                              5
exhaustion of such administrative remedies ‘as are available.’”) (quoting § 1997e(a)); see

also Mitchell, 318 F.3d at 529 (concluding that the District Court erred in failing to

consider prisoner’s claim that he was unable to submit a grievance, and therefore lacked

administrative remedies, because prison employees refused to provide him with necessary

forms); Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001) (holding remedy not

“available” where prison officials purportedly prevented prisoner from employing the

prison’s grievance system). Likewise, the District Court should consider in the first

instance the appellees’ argument on appeal that Todd’s claims are procedurally defaulted.

See Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004) (holding that administrative exhaustion

under the PLRA requires that a prisoner properly exhaust his administrative remedies

through the applicable state prison grievance system).

       For the foregoing reasons, we will vacate the order of the District Court dismissing

Todd’s complaint and remand for further proceedings. In light of our disposition, we

need not address the District Court’s denial of Todd’s motion for reconsideration.




                                              6
