312 F.3d 109 | 3rd Cir. | 2002
Before: BECKER, Chief Judge, ROTH(cid:13) and ROSENN, Circuit Judges.(cid:13) (Filed: November 27, 2002)(cid:13) Bruce P. Merenstein, Esq. (Argued)(cid:13) Nancy Winkelman, Esq.(cid:13) Schnader, Harrison, Segal &(cid:13) Lewis, LLP(cid:13) 1600 Market Street, Suite 3600(cid:13) Philadelphia, PA 19103-7286(cid:13) Counsel for Appellant(cid:13) Scott A Bradley, Esq. (Argued)(cid:13) Rodney M. Torbic, Esq.(cid:13) Office of the Attorney General(cid:13) 6th Floor, Manor Complex(cid:13) 564 Forbes Avenue(cid:13) Pittsburgh, PA 15219(cid:13) Counsel for Appellees(cid:13) OPINION OF THE COURT(cid:13) ROSENN, Circuit Judge.(cid:13) A group of prisoners in a Pennsylvania State Correctional(cid:13) Institution (SCI-Houtzdale) assaulted and injured plaintiff(cid:13) Samuel Brown, a non-smoking prisoner, because he was(cid:13) using the small, single-toilet, cafeteria bathroom when they(cid:13) wanted to smoke. Brown contends that the prison officials’(cid:13) failure to enforce their "no smoking" policy adopted in 1996(cid:13) caused his injuries. He further claims that after he(cid:13) sustained severe personal injuries, the prison officials were(cid:13) deliberately indifferent to his medical needs. He also alleges(cid:13) that they retaliated against him for filing a grievance(cid:13) asserting that the prison did not give him adequate medical(cid:13) treatment. The District Court adopted the Magistrate(cid:13) Judge’s First Report and Recommendation and dismissed(cid:13) Brown’s claims of indifference to his medical needs,(cid:13) retaliation, and all claims against Secretary Horn. However,(cid:13) the defendants concede that these claims were dismissed(cid:13) prematurely. We agree.(cid:13) The District Court also adopted the Magistrate Judge’s(cid:13) Second Report and Recommendation and dismissed(cid:13) Brown’s remaining claim that the prison violated his Eighth(cid:13) 2(cid:13) Amendment rights by failing to protect him from the(cid:13) assault. The District Court held that Brown did not exhaust(cid:13) his administrative remedies. Brown concedes that he did(cid:13) not meet the formal requirements of Pennsylvania’s(cid:13) Department of Corrections Consolidated Grievance System(cid:13) (DC-ADM 804). However, there is an unresolved factual(cid:13) question as to whether the prison officials informed Brown(cid:13) that this avenue was not available to him until the(cid:13) termination of a pre-grievance investigation and then(cid:13) indefinitely delayed completion of the investigation. We hold(cid:13) that the defendants did not carry their burden of proving(cid:13) the affirmative defense of failure to exhaust remedies under(cid:13) the Prison Reform Litigation Act (PRLA), 42 U.S.C.(cid:13) S 1997e(a). See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir.(cid:13) 2002).(cid:13) I.(cid:13) The availability of administrative remedies to a prisoner(cid:13) is a question of law. See Ray, 285 F.3d at 291. The PRLA(cid:13) does not require exhaustion of all remedies. Rather, it(cid:13) requires exhaustion of such administrative remedies"as are(cid:13) available." 42 U.S.C. S 1997e(a); Camp v. Brennan, 219 F.3d(cid:13) 279, 281 (3d Cir. 2000).(cid:13) Failure to exhaust administrative remedies is an(cid:13) affirmative defense that must be pled and proven by the(cid:13) defendant. See Ray, 285 F.3d at 295. In appropriate cases,(cid:13) failure to exhaust may be raised as the basis for a motion(cid:13) to dismiss. Id. at 295 n.8.1 Without permitting discovery,(cid:13) the District Court granted the defendant’s motion to(cid:13) dismiss or for summary judgment.(cid:13) The defendants argue that Brown failed to exhaust his(cid:13) administrative remedies because he did not even attempt to(cid:13) _________________________________________________________________(cid:13) 1. Brown’s suggestion that it may always be improper to dismiss for(cid:13) failure to exhaust remedies at the pleadings stage is without merit. Ray(cid:13) states that: "[w]e do not suggest that defendants may not raise failure to(cid:13) exhaust as the basis for a motion to dismiss in appropriate cases." Ray,(cid:13) 285 F.3d at 295 n.8. We do not reach the question of under what(cid:13) circumstances a defendant may carry its burden of proving failure to(cid:13) exhaust on the pleadings except to hold that the defendants have not(cid:13) done so here.(cid:13) 3(cid:13) file a grievance for "initial review." Under DC-ADM 804,(cid:13) Brown could have filed a grievance even if a security(cid:13) investigation was on-going.(cid:13) Brown contends in his brief that he complained(cid:13) informally to security officials who told him that he must(cid:13) "wait until this investigation was complete before filing a(cid:13) formal grievance." However, "months after he initiated this(cid:13) investigation, he still was not informed that the(cid:13) investigation was concluded." The defendants argue that(cid:13) there is no evidence in the record that Brown complained(cid:13) informally to prison officials or that security officials told(cid:13) him that he must wait until the resolution of the(cid:13) investigation before filing a formal complaint.(cid:13) We conclude that Brown’s argument in his brief is(cid:13) adequately supported by his earlier pro se affidavit. In his(cid:13) affidavit, Brown averred that he "was induced, led to(cid:13) believe, based on this policy statement [in DC-ADM 804] as(cid:13) well as by security, that [he] was required to first wait for(cid:13) their completion of the investigation and that [he] could(cid:13) then pursue a grievance in the event [he] was not satisfied(cid:13) with their findings or conclusion of the investigation"(cid:13) (emphasis added). Because this is an appeal from an order(cid:13) granting a motion to dismiss or for summary judgment, we(cid:13) view the facts in the light most favorable to Brown. See(cid:13) Leatherman v. Tarrant County Narcotics Intelligence &(cid:13) Coordination Unit, 507 U.S. 163, 164 (1993). Without(cid:13) further discovery, we conclude that there is insufficient(cid:13) evidence to find that Brown failed to exhaust his(cid:13) administrative remedies. Cf. Ray, 285 F.3d at 297(cid:13) (explaining that "[w]ithout further inquiry, the District(cid:13) Court was not in a position to reach the conclusion that(cid:13) Ray failed to exhaust his administrative remedies"); Rose v.(cid:13) Bartle, 871 F.2d 331, 342 (3d Cir. 1989) (holding that a(cid:13) District Court may not grant summary judgment without(cid:13) giving plaintiff an opportunity to submit materials(cid:13) admissible in a summary judgment proceeding or allowing(cid:13) a hearing on defendant’s motion).(cid:13) Defendants have not met their burden of proving the(cid:13) affirmative defense of failure to exhaust remedies.(cid:13) Therefore, this question may not be resolved as a matter of(cid:13) law by this Court without further discovery. See Ray, 285(cid:13) 4(cid:13) F.3d at 297. Brown’s claim that prison officials told him to(cid:13) wait is a factual question that is disputed, has not yet been(cid:13) disproved by defendants, and has not been resolved(cid:13) adequately by a trier of fact.(cid:13) II.(cid:13) The defendants concede that their failure to exhaust(cid:13) argument would have no merit if Brown was told to wait(cid:13) until the security investigation was complete before filing a(cid:13) grievance. We agree.(cid:13) Congress’ intent in passing the PRLA was to wrest control(cid:13) of prisons from lawyers and inmates and return it to prison(cid:13) administrators. See Ray, 285 F.3d at 294. The exhaustion(cid:13) provision of the PRLA is a bright-line rule. See Nyhuis, 204(cid:13) F.3d at 75. There is no futility exception to the PRLA. Id. at(cid:13) 71. In Nyhuis, we reasoned that a futility exception would(cid:13) frustrate Congress’s purpose of stemming prisoner lawsuits(cid:13) and preventing strategic circumvention of PRLA’s(cid:13) exhaustion requirement. Id. at 74.(cid:13) At its core, Brown’s argument is not based upon a futility(cid:13) rationale. Rather, Brown contends that he relied to his(cid:13) detriment on the defendants’ erroneous or misleading(cid:13) instructions that he must wait until the conclusion of an(cid:13) investigation before pursuing formal remedies. There is an(cid:13) unresolved factual question as to whether he was given(cid:13) these instructions.(cid:13) The salient questions at this stage are whether Brown(cid:13) was entitled to rely on instructions by prison officials that(cid:13) are at odds with the wording of DC-ADM 804 and whether(cid:13) these instructions rendered the formal grievance procedure(cid:13) unavailable to him within the meaning of 42 U.S.C.(cid:13) S 1997e.(cid:13) Section 1997e(a) only requires that prisoners exhaust(cid:13) such administrative remedies "as are available." Camp v.(cid:13) Brennan, 219 F.3d at 281. The availability of additional(cid:13) remedies to a prisoner is a question of law. See Ray, 285(cid:13) F.3d at 291. "Available" means "capable of use; at hand."(cid:13) See Webster’s II, New Riverside University Dictionary 141(cid:13) (1994 ed.); see also Black’s Law Dictionary 135 (6th ed.(cid:13) 5(cid:13) 1990) (defining "available" as "suitable; useable; accessible;(cid:13) obtainable; present or ready for immediate use. Having(cid:13) sufficient force or efficacy; effectual; valid."). Brown’s(cid:13) argument is essentially that officials in the security(cid:13) department of the prison thwarted his efforts to exhaust his(cid:13) administrative remedies.(cid:13) Assuming security officials told Brown to wait for the(cid:13) termination of the investigation before commencing a(cid:13) formal claim, and assuming the defendants never informed(cid:13) Brown that the investigation was completed, the formal(cid:13) grievance proceeding required by DC-ADM 804 was never(cid:13) "available" to Brown within the meaning of 42 U.S.C.(cid:13) S 1997e. Cf. Miller v. Norris, 247 F.3d 736, 740 (8th Cir.(cid:13) 2001) (holding that "a remedy that prison officials prevent(cid:13) a prisoner from ‘utilizing’ is not an ‘available’ remedy under(cid:13) S 1997e").(cid:13) III.(cid:13) The District Court’s order dismissing Brown’s claims is(cid:13) hereby vacated and the case is remanded to the District(cid:13) Court for further proceedings consistent with this opinion.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 6