Drippe v. Tobelinski

• Decision Date: 17 May 2010
• Docket Number: No. 08-4616.,08-4616.
• Citation: 604 F.3d 778
• Parties: Jeffrey Allen DRIPPE, Appellantv.Officer TOBELINSKI, a/k/a “Ski”; Ralph Gototweski.
• Court: U.S. Court of Appeals — Third Circuit

604 F.3d 778

Jeffrey Allen DRIPPE, Appellantv.Officer TOBELINSKI, a/k/a “Ski”; Ralph Gototweski.

No. 08-4616.

United States Court of Appeals, Third Circuit.

Argued Nov. 17, 2009.

Opinion Filed May 17, 2010.

Janine Vinci (Argued), Philadelphia, PA, Neil E. Botel, Upper Darby, PA, for Appellant.

Barbara Adams, General Counsel, Suzanne N. Hueston, Chief Counsel, Timothy A. Holmes, Assistant Counsel (Argued), Pennsylvania Department of Corrections, Office of Chief Counsel, Camp Hill, PA, for Appellee.

Before: AMBRO, ALDISERT and ROTH, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

Jeffrey Allen Drippe, an inmate in an institution of the Pennsylvania Department of Corrections, appeals the order of the United States District Court for the Middle District of Pennsylvania granting summary judgment in favor of Officer Ralph Gototweski because Drippe failed to exhaust his administrative grievance remedies before filing suit pursuant to 42 U.S.C. § 1983, as required by the Prison Litigation Reform Act (“PLRA”).¹ 42 U.S.C. § 1997e(a). Drippe first argues that by the terms of the PLRA Gototweski waived the defense of failure to exhaust, asking our Court to hold as a matter of law that the PLRA imposes a strict timing requirement on institutional defendants. We decline to do so. In the alternative, Drippe argues that the District Court's entertainment of Gototweski's oral motion for summary judgment, on the eve of trial, violated Rule 6(b) of the Federal Rules of Civil Procedure and merits reversal. We agree and will remand to the District Court to permit Gototweski to file the appropriate motion under Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure.²

I.

A.

Drippe alleges that on August 1, 2004, he was forced to shower in a dirty shower area without proper footwear and by August 4, he had become extremely sick with flu-like symptoms and a swollen leg. (App.³ 3.) Drippe alleges Gototweski came to his cell door, inquired after his welfare, stated “that looks really bad” and informed Drippe that the Unit Sergeant would be notified. (App. 3.) Drippe was not transported to the Medical Department until August 7. He was ultimately diagnosed with cellulitis. (App. 3.)

The Department of Corrections Grievance System provides a multi-step administrative grievance process as follows: (1) inmates file grievances with the institution's Grievance Coordinator; (2) if unsatisfied with the first step “Initial Review,” inmates may file an “Appeal” of the decision with the Institution's Facility Manager (Superintendent); (3) after receiving the decision of the Superintendent, inmates may seek “Final Review” through the Chief Grievance Coordinator. (App. 95, 102, 107-110.) The Grievance Policy requires that “[t]he inmate shall include a statement of the facts relevant to the claim,” and “[t]he inmate should identify any persons who may have information that could be helpful in resolving the grievance.” (Appellee's Br. 14.)

Drippe filed at least five grievances while incarcerated. (App. 103, 113, 115, 122, 137.) Grievance # 95193 concerned medical care at SCI-Frackville; it did not specifically refer to a corrections officer. Final appeal was filed. (App. 132, 135, 138-143.) Grievances # 211023 and # 124157 concerned medical care at SCI-Graterford. (App. 111, 113.) Final appeal was filed for grievance # 211023. (App. 108, 119-121.) Gototweski has not worked at SCI-Graterford. Grievance # 239321 concerned medical care received at SCI-Graterford. (App.122.) Drippe also filed grievance # 133607, challenging his sentence calculation, under a different inmate number. (App. 137.)

B.

Drippe filed suit in the District Court for the Middle District of Pennsylvania under 42 U.S.C. § 1983 for denial of prompt medical treatment. He first filed a complaint against an “Officer Tobelinski” on May 31, 2006. (App. 1.) He filed an amended complaint naming Officer Gototweski on December 15, 2006. (App. 5-7.) The complaint alleged that on August 4, 2004, Gototweski observed Drippe's injured leg and failed to notify the appropriate authority. (App. 5-7.) Gototweski filed an answer to the amended complaint, raising failure to exhaust as an affirmative defense. (App. 8, 12.)

The magistrate judge issued a scheduling order, requiring discovery to be concluded by February 1, 2008 and dispositive motions to be submitted by March 3, 2008. (App. II, at 1.) Gototweski filed a motion for summary judgment on October 25, 2007, which was denied by the magistrate judge. (App. 17.) Gototweski filed another motion for summary judgment prior to the pre-trial conference, arguing failure to exhaust because none of the grievances reached Final Review. (App. 89.) During the pre-trial conference, Gototweski's attorney provided recently discovered exhibits regarding the grievances. These documents were filed under Drippe's previous inmate number and indicated that at least two grievances had properly been pursued to Final Review. ( See App. 135-137.) Subsequently, the District Court entertained a third motion for summary judgment, presented orally, on the eve of trial. (App. 203.) The District Court sustained Gototweski's defense of failure to exhaust and dismissed the case, holding that the grievance “cannot fairly be said to have given prison officials notice of the person claimed here to be guilty of wrongdoing, nor the conduct that constituted the alleged constitutional violation.” (App. II, at 28-31.) Although it acknowledged the motion was untimely, the Court reasoned that the affirmative defense of exhaustion raised a question of law that must be resolved by the Court prior to proceeding to trial on the merits. (App. II, at 28-31.) Notice of appeal was filed on November 21, 2008. (App. II, at 32.)

II.

We decline to read a strict timing requirement into the PLRA for prosecution of the affirmative defense of failure to exhaust. We exercise plenary review over questions of statutory construction. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.2004).

The PLRA provides in relevant part:

No action shall be brought with respect to prison conditions under section 1983 of this title, or any other 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) (emphasis added). In Woodford v. Ngo, 548 U.S. 81, 93, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006), the Supreme Court resolved a circuit split, holding that “the PLRA exhaustion requirement requires proper exhaustion.” This accords with our previous 2004 decision in Spruill, that the PLRA includes a procedural default component and the determination whether a prisoner properly exhausted a claim is made by evaluating compliance with the prison's specific grievance procedures.

Drippe urges us to adopt his construction of Pavey v. Conley, 544 F.3d 739, 740 (7th Cir.2008), a case from the Court of Appeals for the Seventh Circuit, resolving the question of “whether a prisoner plaintiff in a suit for damages governed by the [PLRA] is entitled by the Seventh Amendment to a jury trial on any debatable factual issues relating to the defense of failure to exhaust administrative remedies.” Under Pavey, a prisoner plaintiff is not entitled to a jury trial on the factual issues of exhaustion, which the court determined is a question to be resolved by the trial judge. “Juries decide cases, not issues of judicial traffic control. Until the issue of exhaustion is resolved, the court cannot know whether it is to decide the case or the prison authorities are to.” Id. at 741. Pavey analogized the issue of exhaustion to subject matter jurisdiction, observing that not every factual issue that arises during litigation is triable to a jury as a matter of right. Id. Under Pavey, a district court must comply with a specific approach to exhaustion questions. The district court must first hold a hearing to address exhaustion, then order exhaustion-related discovery, and finally, the district court must resolve the question of exhaustion before commencing merits-based pre-trial discovery. Id. at 742. The decision concludes with an admonition that the question of exhaustion must be decided before merits discovery commences:

We emphasize that discovery with respect to the merits should be deferred until the issue of exhaustion is resolved. If merits discovery is allowed to begin before that resolution, the statutory goal of sparing federal courts the burden of prisoner litigation until and unless the prisoner has exhausted his administrative remedies will not be achieved[.]

Id. Drippe reads this language in isolation and argues that, as a necessary corollary, the defense of exhaustion is waived if it is not prosecuted by the deadline imposed by the Court for dispositive motions. He urges us to read this requirement into the PLRA in order to effectuate the dual purposes of the PLRA-to return control to prison administrators and to provide for the early and efficient resolution of disputes, thereby reducing the burden on the federal court system. He argues that the defense tests not the right to proceed to trial but the right to file suit, and as such it no longer serves the purposes of the PLRA once litigation has proceeded past the stages of discovery and pre-trial motions.⁴

Exhaustion of administrative remedies is an affirmative defense that need not be specially pleaded by the inmate or demonstrated in the complaint. Jones v. Bock, 549 U.S. 199, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). In Jones, the Court overturned the imposition, by the Court of Appeals for the Sixth Circuit, of a series of procedural restrictions allegedly gleaned from the PLRA-namely that inmates must specifically plead exhaustion and identify defendants in grievances. These requirements were not found in the prison's grievance policy, but were read into the PLRA by the Court of Appeals. The Supreme Court held that the PLRA's screening requirement “does not-explicitly...