Ray v. Kertes

• Decision Date: 03 April 2002
• Docket Number: No. 99-3446.,99-3446.
• Parties: Frederick T. RAY, v. C.O. KERTES; C.O. Stolz; C.O. Reed; C.O. Rogers; Lt. Nash; Lt. Hicks; Lt. A. Smith; Capt. Almanshifer; R. Norris; Tim Launtz, Frederick Ray, Appellant.
• Court: U.S. Court of Appeals — Third Circuit

285 F.3d 287

Frederick T. RAY, v. C.O. KERTES; C.O. Stolz; C.O. Reed; C.O. Rogers; Lt. Nash; Lt. Hicks; Lt. A. Smith; Capt. Almanshifer; R. Norris; Tim Launtz, Frederick Ray, Appellant.

No. 99-3446.

United States Court of Appeals, Third Circuit.

Argued September 20, 2001.

Filed April 3, 2002.

Jon Romberg, Craig T. Moran (Argued), John P. Campbell (Argued), Seton Hall Law School, Newark, NJ, Attorneys for Appellant.

D. Michael Fisher, Attorney General, J. Bart DeLone (Argued), Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Litigation Section, Office of Attorney General, Appellate Litigation Section, Harrisburg, PA, Attorneys for the Commonwealth of Pennsylvania as Amicus Curiae.

Before SLOVITER, NYGAARD and McKEE, Circuit Judges.

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Frederick Ray, a former inmate in the Pennsylvania state prison system, appeals from the order of the District Court dismissing sua sponte Ray's complaint against prison officials filed pursuant to 42 U.S.C. § 1983 (2001).¹ The District Court dismissed Ray's complaint based on its determination that Ray had not "demonstrated" that he had exhausted his administrative remedies. Section 1997e(a) of the Prison Litigation Reform Act of 1996 ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any Federal law, by a prisoner confined in any jail, prison or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a) (2001).

Ray argues that the District Court erred in dismissing his complaint for two reasons. His principal argument is that the PLRA's exhaustion requirement is an affirmative defense, to be alleged and proved by the defendants. This is a question of first impression for this court. Other courts of appeals have divided on this issue. Ray's alternate argument is that even if we were to decide that the PLRA exhaustion requirement is not an affirmative defense, the District Court erred by imposing an improperly heightened pleading standard that required Ray not only to plead but also to prove his exhaustion in the complaint.

I. FACTS AND PROCEDURAL HISTORY

In his complaint, Ray alleges that while he was a prisoner at the Pennsylvania State Correctional Institution at Huntingdon, he was twice assaulted by officers, who retaliated by filing groundless misconduct charges against him when he told them he would sue. Ray, while still a prisoner and using a printed form complaint provided to prisoners, filed a § 1983 complaint pro se in the District Court for the Middle District of Pennsylvania against the officers who allegedly assaulted him and other prison officials. In his complaint, Ray alleged that various officers and certain prison procedures violated his First, Fifth, Eighth and Fourteenth Amendment rights.

On the first page of the form complaint, under a caption entitled "Exhaustion of Administrative Remedies," the form asked "Is there a grievance procedure available at your institution?"; "Have you filed a grievance concerning the facts relating to the complaint?"; and "Is the grievance process completed?" Ray checked "Yes" in response to all three questions. App. at 4.

Shortly after Ray filed his complaint, the District Court referred it to a Magistrate Judge. The Magistrate Judge filed a report and recommendation, recommending dismissal for failure to exhaust administrative remedies. According to the Magistrate Judge, "[W]hile the plaintiff alleges that he filed various grievances with respect to the claims which he now raises in his complaint, there is no indication from the plaintiff's complaint that he took any further action to properly exhaust his administrative remedies." Supp. at 7.

Ray filed objections to the Magistrate Judge's report, alleging that he had asserted the claims of assaults by prison guards as defenses to the misconduct charges made against him which charged him with a number of violations of prison rules. Those misconduct charges stemmed from the same altercations that are the subject of his § 1983 claims.

The misconduct charges brought against Ray were brought under Pennsylvania Department of Corrections' Inmate Disciplinary and Restricted Housing Procedures, DC-ADM 801 (effective Sept. 20, 1994) ("Inmate Disciplinary Procedures"), Supp. App. at 1-11, which govern inmate violations of prison rules. The Inmate Disciplinary Procedures are distinct from the Consolidated Inmate Grievance Review System, DC-ADM 804 (effective Oct. 20, 1994) ("Inmate Grievance System"), Supp. at 45, which is designed to address inmate-initiated grievances.² In his objections to the Magistrate Judge's Report, Ray asserted that grievances may not be filed for claims related to disciplinary proceedings. App. at 16-17.

In the disciplinary proceeding against Ray, a hearing examiner had dismissed all of the charges save one. The Inmate Disciplinary Procedures provide that "[n]o appeals from a finding of not guilty are permitted." DC-ADM 801 VI(I)(1)(b), Supp. App. at 8. It is unclear whether prison officials interpret this clause to permit appeals from dismissals where no culpability determination is made, such as the dismissed misconduct charges against Ray.

Ray attached to his objections to the Magistrate Judge's Report handwritten copies of a number of the misconduct charges, along with the letter from the Chief Hearing Examiner denying Ray's appeal, which constituted the final administrative disposition of Ray's appeal of the one guilty charge. That letter notes, "I [, the Chief Hearing Examiner,] have reviewed the entire record of these misconducts; including the misconduct report, the hearing report and relevant documents, your appeal to the Program Review Committee and their response, your appeal to the Superintendent and his response." App. at 23. This litany of appeals precisely tracks the full panoply of available administrative appeals provided for by the Inmate Disciplinary Procedures. The Commonwealth does not argue otherwise.

On May 3, 1999, before the defendants were served, the District Court dismissed Ray's complaint based on its assessment that Ray had not demonstrated exhaustion of administrative remedies.³ The District Court stated that Ray had "not attached copies of [his various] grievances to his objections [to the Magistrate Judge's report]." Supp. at 3. The District Court also observed that Ray had not set forth the specific steps that he had taken to exhaust administrative remedies and concluded by noting, "[A]ny appeal from this order will be deemed frivolous, without probable cause and not taken in good faith." Supp. at 4.

II. JURISDICTION AND STANDARD OF REVIEW

The District Court dismissed Ray's complaint without prejudice. Appeal from a dismissal without prejudice is permitted under 28 U.S.C. § 1291 when a plaintiff "declares his intention to stand on his complaint or when he cannot cure the defect in his complaint." Booth v. Churner, 206 F.3d 289, 293 n. 3 (3d Cir.2000) aff'd 532 U.S. 731, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001).

Ray states that he "intends to stand on his Complaint." Br. of Appellant at 1. He also contends that he can no longer pursue administrative remedies due to the passage of time and his release from prison. We have previously exercised jurisdiction when "both parties agree that the time is long past for [the inmate-appellant] to pursue his normal administrative remedies [preventing him from] cur[ing] the defect in his complaint on which the District Court based its dismissal." Booth, 206 F.3d at 293 n. 3. Accordingly, we have jurisdiction over the appeal.

This court subjects district court decisions interpreting statutes to plenary review. Gibbs v. Cross, 160 F.3d 962, 964 (3d Cir.1998); Moody v. Sec. Pac. Bus. Credit, Inc., 971 F.2d 1056, 1063 (3d Cir. 1992). On review of a motion to dismiss, we accept as true all factual allegations in the complaint. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). The availability of administrative remedies to a prisoner is a question of law. See, e.g., Snider v. Melindez, 199 F.3d 108, 113-14 (2d Cir.1999).

III. DISCUSSION

A. Exhaustion As An Affirmative Defense

Ray argues the District Court erred in dismissing his complaint for failure to exhaust administrative remedies and in failing to recognize that the PLRA exhaustion requirement in 42 U.S.C. § 1997e(a) is an affirmative defense. Ray does not dispute that the language of § 1997e(a) requiring administrative exhaustion of claims with respect to prison conditions applies to claims of excessive force by prison guards. If there had been any question about that, it was settled by the Supreme Court's recent decision in Porter v. Nussle, 534 U.S. 516, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002), where the Court explicitly so held. Nor does Ray dispute that he must have satisfied the exhaustion requirement before he could file this action. The principal question here is not the substantive one of whether exhaustion is required but the procedural issue of which party has the burden of pleading exhaustion or its absence.⁴

In support of his argument that failure to exhaust the prison's administrative remedies is an affirmative defense that must be pleaded and proven by the defendants in a PLRA suit, Ray relies on this court's decision in Williams v. Runyon, 130 F.3d 568 (3d Cir.1997), a Title VII case, where we stated that "failure to exhaust administrative remedies is an affirmative defense in the nature of statute[s] of limitations." Id. at 573. Just as the imperative language in the PLRA's exhaustion requirement does not, of itself, act as a jurisdictional bar, neither does the mandatory phrasing determine the burden of pleading. For example, although statutes of limitations are...