Robert Small v. Whittick

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________

No. 11-2378
_____________

ROBERT L. SMALL,
Appellant
v.

CAMDEN COUNTY; CAMDEN COUNTY
CORRECTIONAL FACILITY; DAVID OWENS; ERIC
TAYLOR; DAVID CROSSAN; OFF. NIEVES; JOHN
VERNON; JOSEPH WHITTICK; SGT. WORLDS; SERGIO
MONROE; JOSEPH WHITTICK; CHARLES WALKER;
MELENDEZ; CROSS; COOPER; WEBSTER; LIPKA;
CATHY HENDERSON; DEFORGE; HELLENDER;
PETTIS; HARRIS; PETER FARLOW; JONES; JOSEPHINE
CURLS; STEVE SCHOFIELD; ERIC PATRACCI; JAMES;
TISBY; DANIELS; ACCETTI; SIMONS; HICKS;
HOLLIMON; WESLEY; RODRIGUEZ;ALKINS; ELLIS;
FRANCHECHINI; KIMBERLEE ADAMS; JOHN DOES 1-
9; SKILLED NURSING, INC.
______________

APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 06-cv-01363)
District Judge: Honorable Renee M. Bumb
____________

Argued: July 10, 2013
____________

Before: GREENAWAY, JR., SLOVITER and BARRY,
Circuit Judges

(Opinion Filed: August 26, 2013)
____________
Jennings F. Durand, Esq.
Carolyn M. Hazard, Esq.
Dechert LLP
Cira Centre
2929 Arch St.
Philadelphia, PA 19104
-AND-
Lauren M. Bennett* (Argued)
University of Pennsylvania Law School
3400 Chestnut St.
Philadelphia, PA 19104
*Eligible Law Student under 3d Cir. L.A.R. 46.3

Counsel for Appellant

Anne Walters, Esq. (Argued)
Cheryl L. Cooper, Esq.
Howard L. Goldberg, Esq.
Office of County Counsel
Courthouse—14th Floor
520 Market St.
Camden, NJ 08102

Counsel for Appellee Camden County

Thomas J. Decker, Esq. (Argued)
Decker & Magaw
507 Westfield Ave.
Westfield, NJ 07090

Counsel for Appellees Josephine Curls, et al

Frank Orbach, Esq.
Law Offices of Brian Granstrand
200 Schulz Drive
4th Floor, Suite 405
Red Bank, NJ 07701

Counsel for Appellee Cathy Henderson

____________

2
 OPINION OF THE COURT
____________

BARRY, Circuit Judge

Robert L. Small, an inmate at the Camden County
Correctional Facility (―CCCF‖), appeals the dismissal of his
civil rights action against Camden County, CCCF,
approximately thirty individual medical personnel and prison
officers, and nine John Does (collectively, ―Defendants‖), for
his failure to exhaust administrative remedies, as he was
required to do by the Prison Litigation Reform Act of 1995
(―PLRA‖), 110 Stat. 1321-71, as amended, 42 U.S.C.
§ 1997e(a). We will affirm in part and vacate in part.

I. Background

Small is a New Jersey state prisoner. He is a
paraplegic and confined to a wheelchair. As relevant here, at
various times between June and September 2004, and again
between May 2005 and January 2008, Small was a pretrial
detainee at CCCF. Each time, he entered CCCF with his own
wheelchair equipped with leg rests.

In March 2006, Small filed this action, pro se, under
42 U.S.C. § 1983. The District Court appointed pro bono
counsel, and a second amended complaint was filed on
January 15, 2008. In that complaint, Small asserted claims
against Defendants arising from fourteen incidents that he
alleged occurred between August 2004 and September 2006.
Those incidents involved, among other misconduct, the use of
excessive force, the denial of medical treatment, and the
confiscation of his personal wheelchair and its replacement
with one without leg rests. When left with what he alleges
was an improper replacement, he claims he was unable to
brush his teeth, shower, and on several occasions, was left to
lie for days in his own excrement.

In late 2009, after the completion of merits discovery,
Defendants moved for summary judgment, arguing, among
other things, that Small failed to exhaust his administrative
remedies pursuant to CCCF‘s grievance procedures before
3
filing suit.1 These procedures, which are set forth in CCCF‘s
inmate handbook, are reproduced in full in the Appendix to
this Opinion. In broad summary, however, they provide that
a prisoner may, within 15 days after a grievable incident, file
a formal, written grievance on a grievance form or, if a
grievance form is not available, on plain paper. Grievable
incidents include violations of civil, constitutional or statutory
rights, criminal acts, and unsafe or unsanitary conditions.
After a grievance is filed, it is reviewed by a grievance officer
who time stamps and logs it into the prison computer system.
If improperly filed, the grievance is returned to the prisoner.
If properly filed and logged in, it is forwarded to the
appropriate Shift Commander to be addressed within 72
hours. If not resolved in that time, it is returned to the
grievance officer for review and resolution within 10 days. If
the prisoner is not satisfied with the grievance officer‘s
decision, he may appeal, in writing, to the Warden (or his
designee) within 10 days. The Warden‘s decision is final.

On May 11, 2010, the District Court denied
Defendants‘ motions without prejudice and stated its intention
to hold an evidentiary hearing to decide the exhaustion issue
before reaching any of the other asserted bases for summary
judgment. Initially, the Court gave Small the option of having
an advisory jury serve as fact finder at the hearing, an option
he accepted. Shortly thereafter, however, the Court became
aware of our then-recent decision in Drippe v. Tobelinski, 604
F.3d 778 (3d Cir. 2010), which stated, albeit in dicta, that
exhaustion of administrative remedies is a question of law to
be determined by the judge. Id. at 782. The Court provided
Small with two options: (1) brief the issue further; or (2)
withdraw his request for an advisory jury. Small withdrew
his request.

On June 23 and 24, 2010, the District Court held an
evidentiary hearing to determine whether Small properly filed
a grievance and thereafter exhausted each of the fourteen
incidents of which he complained. The Court heard

1
The District Court granted Defendants‘ motions for leave to
file an amended answer adding exhaustion of administrative
remedies as an affirmative defense.
4
testimony from Small and two prison officials, Lt. Karen
Taylor and Sgt. Reginald Atkins, and reviewed the extensive
collection of documents Small submitted to demonstrate his
compliance with CCCF‘s grievance procedures. The Court
went through the grievances one by one, ultimately
concluding that Small failed to exhaust all but one of them,
and explaining at length why it had reached that conclusion.
By order entered June 25, 2010, the Court dismissed the
complaint as to all but that one, and after it eventually settled,
the Court entered the final order in the case on March 4,
2011. Small appealed. We granted Small‘s motion for
appointment of counsel on appeal.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. §§
1331, 1343(a)(3), and 1367. We have jurisdiction under 28
U.S.C. § 1291. We review the determination of a failure to
exhaust de novo, including whether that determination was
properly made by a judge rather than a jury. Spruill v. Gillis,
372 F.3d 218, 226 (3d Cir. 2004); Mitchell v. Horn, 318 F.3d
523, 529 (3d Cir. 2003). We accept the Court‘s factual
conclusions unless clearly erroneous, Pension Benefit Guar.
Corp. v. White Consol. Indus., Inc., 215 F.3d 407, 409 (3d
Cir. 2000), and will, therefore, ―upset a finding of fact . . .
only if [we have] ‗the definite and firm conviction that a
mistake has been committed.‘‖ Haines v. Liggett Grp. Inc.,
975 F.2d 81, 92 (3d Cir. 1992) (quoting United States v. U.S.
Gypsum Co., 333 U.S. 364, 395 (1948)). We must, of course,
accord respect to determinations of the credibility of
witnesses. United States v. Igbonwa, 120 F.3d 437, 441 (3d
Cir. 1997) (citing Anderson v. Bessemer City, N.C., 470 U.S.
564, 575 (1985)).

III. Analysis

In an effort to curb the number of prisoner filings in
the federal courts, Congress enacted the PLRA which, as
relevant here, mandates that prisoners exhaust internal prison
grievance procedures before filing suit. 28 U.S.C. § 1915A;
42 U.S.C. § 1997e(a); see Woodford v. Ngo, 548 U.S. 81, 84
(2006); Spruill, 372 F.3d at 222. The exhaustion provision of
5
the PLRA reads:

No action shall be brought with respect to
prison conditions under [42 U.S.C. §] 1983, 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). Failure to exhaust is an affirmative
defense the defendant must plead and prove; it is not a
pleading requirement for the prisoner-plaintiff. Jones v.
Bock, 549 U.S. 199, 212, 216–17 (2007); see 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). Furthermore, the
defendant must prove that the prisoner-plaintiff failed to
exhaust each of his claims. There is no ―total exhaustion‖
rule permitting dismissal of an entire action because of one
unexhausted claim. Jones, 549 U.S. at 220–24.

A. Exhaustion: For a Judge or a Jury?

Small argues that, under the PLRA, a jury, not a judge,
should determine factual disputes relating to the issue of
exhaustion because Seventh Amendment rights are
implicated. In Drippe, however, we stated, unconditionally
and in agreement with the Seventh Circuit‘s holding in Pavey
v. Conley, 544 F.3d 739, 740 (7th Cir. 2010), that exhaustion
is a question of law to be determined by a judge, even if that
determination requires the resolution of disputed facts.2
Drippe, 604 F.3d. at 781. At issue in Drippe were the timing
requirements for raising exhaustion as an affirmative defense,

2
The Pavey court confronted the identical question we face
here: ―whether a prisoner plaintiff in a suit for damages
governed by the Prison Litigation Reform Act 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.‖ 544 F.3d at 740.
6
and so our statement, strong as it was, was dicta. We now
hold what we so strongly signaled in Drippe, a conclusion
that has been reached as well by every one of our sister
circuits to have considered the issue.

The Seventh Amendment provides that ―[i]n Suits at
common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved.‖
U.S. Const. amend. VII. In an action under § 1983, the
parties have a right to a jury trial on the merits, City of
Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S.
687, 709 (1999), but this right does not guarantee resolution
by a jury of all factual disputes. Whether the right to a jury
trial applies depends upon ―the nature of the issue . . . rather
than the character of the overall action.‖ Ross v. Bernhard,
396 U.S. 531, 538 (1970); see Dillon v. Rogers, 596 F.3d 260,
271–72 (5th Cir. 2010).

Under the PLRA, exhaustion is a precondition for
bringing suit under § 1983. 42 U.S.C. § 1997e(a) (―No action
shall be brought with respect to prison conditions . . . until
such administrative remedies as are available are exhausted.‖
(emphasis added)). As such, just as subject-matter
jurisdiction, 3 personal jurisdiction, and venue, exhaustion is a

3
Exhaustion is a non-jurisdictional prerequisite. See
Woodford, 548 U.S. at 101. That is not to say, however, that
the nature of a jurisdictional assessment, as a threshold
inquiry, cannot provide guidance in an exhaustion inquiry.
See Dillon, 596 F.3d at 272 (―Exhaustion resembles personal
jurisdiction and venue in that it is an affirmative defense that
allows defendants to assert that plaintiffs have not invoked
the proper forum for resolving a dispute.‖); Bryant v. Rich,
530 F.3d 1368, 1374 (11th Cir. 2008) (―Even though a
failure-to-exhaust defense is non-jurisdictional, it is like a
defense for lack of jurisdiction in one important sense:
Exhaustion of administrative remedies is a ‗matter[ ] in
abatement, and ordinarily [does] not deal with the merits.‘‖
(quoting 5C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 1360 at 78 n.15 (3d ed. 2004)
(alterations in original))); see also 18 James Wm. Moore,
Moore’s Federal Practice § 131.30(3)(b) at 104 (3rd ed.
7
―threshold issue that courts must address to determine
whether litigation is being conducted in the right forum at the
right time.‖ Dillon, 596 F.3d at 272 (emphasis added); see
Pavey, 544 F.3d at 741 (―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.‖); cf. McCarthy v.
Madigan, 503 U.S. 140, 144 (1992) (likening the doctrine of
exhaustion of administrative remedies to ―abstention, finality,
and ripeness-that govern the timing of federal-court
decisionmaking‖); Myers v. Bethlehem Shipbuilding Corp.,
303 U.S. 41, 50-51 n.9 (1938) (describing exhaustion as a
―rule of judicial administration‖). Those of our sister circuits
to have considered the issue have held that a plaintiff in a
lawsuit governed by the PLRA is not entitled to a jury trial on
the issue of exhaustion. See Messa v. Goord, 652 F.3d 305,
308–09 (2d Cir. 2011); Dillon, 596 F.3d at 272; Pavey, 544
F.3d at 742; Bryant v. Rich, 530 F.3d 1368, 1373-77 (11th
Cir. 2008); Wyatt v. Terhune, 315 F.3d 1108, 1119–20 (9th
Cir. 2003). No court has held, as Small would have us hold,
that decision of that issue implicates Seventh Amendment
rights.4

2008) (noting that a determination ―that [a court] has no
subject matter jurisdiction, that personal jurisdiction of
defendants or of indispensable parties is lacking, that venue is
improper, or that plaintiff has failed to comply with some
prerequisite to filing suit, such as exhaustion of
administrative remedies . . . is not a determination of the
claim, but rather a refusal to hear it‖ (emphasis added)).
4
Small‘s comparison of exhaustion to a statute of limitations,
a non-jurisdictional affirmative defense which may be tried to
a jury as of right, is ill fitting. Exhaustion and statutes of
limitation are very different mechanisms, instituted to serve
opposite purposes. As the Second Circuit observed,
exhaustion is a key to open the courthouse door; statutes of
limitation, conversely, close that door. Messa, 652 F.3d at
310. Furthermore, unlike a statute of limitations, a failure to
exhaust is not always fatal. The prisoner-plaintiff may go
back and exhaust if not foreclosed by grievance deadlines or
if the judge has determined that the failure to exhaust was
beyond the prisoner‘s control (e.g., prison officials prevented
8
 As we have already suggested, it is of no consequence
that here, as is often the case, there are disputed facts that
must be resolved in order to determine whether the claims
were exhausted. See Bryant, 530 F.3d at 1373–74 (holding
the district court properly acted as fact finder in resolving
conflicting evidence that raised a genuine issue of material
fact about whether administrative remedies were available to
the prisoner plaintiffs); accord Messa, 652 F.3d at 309;
Dillon, 596 F.3d at 271. Matters of judicial administration
often require judges to decide factual disputes and the
Seventh Amendment is not implicated as long as the facts are
not bound up with the merits of the underlying dispute. See
Messa, 652 F.3d at 310 (―The Seventh Amendment does not
promise a jury trial on all issues that might, as a practical
matter, finally dispose of a case. Rather, it guarantees the
right to a jury‘s resolution of the merits of the ultimate
dispute.‖ (citing Markman v. Westview Instruments, 517 U.S.
370, 377 (1996) and In re Peterson, 253 U.S. 300, 309–10
(1920))); see also Alliance for Envtl. Renewal v. Pyramid
Crossgates Co., 436 F.3d 82, 87–88 (2d Cir. 2006). Small
does not suggest that the facts relating to his exhaustion of
administrative remedies or his failure to exhaust are at all
intertwined with the merits of his claims.

In sum, we agree with the Second, Fifth, Seventh,
Ninth, and Eleventh Circuits and hold that judges may resolve
factual disputes relevant to the exhaustion issue without the
participation of a jury. Accordingly, the District Court did not
err by acting as the fact finder because exhaustion constitutes
a preliminary issue for which no right to a jury trial exists.5

the prisoner from exhausting). See Pavey, 544 F.3d at 742.
5
It would make sense from an efficiency standpoint that
exhaustion determinations be made before discovery, or with
only limited discovery. See Pavey, 544 F.3d at 742 (―We
emphasize that in the ordinary case 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.‖).
9
 B. District Court’s Findings of Fact

Having determined that the District Court did not err
by serving as fact finder on the exhaustion issue, we turn our
attention to the Court‘s findings themselves, findings we must
accept unless clearly erroneous. The Court correctly placed
the burden on Defendants to prove non-exhaustion and
conducted a two-day, painstakingly thorough inquiry into the
exhaustion issue as to each of Small‘s claims. (J.A. 83–437).
The Court then carefully, and in much detail, reviewed the
testimony and documentary evidence, made credibility
determinations to which we must defer, and rendered its
decision.

i. Availability of Administrative Remedies

Although the availability of administrative remedies to
a prisoner is a question of law, Brown v. Croak, 312 F.3d 109,
111 (3d Cir. 2002) (citing Ray, 285 F.3d at 291), it
necessarily involves a factual inquiry. See Dillon, 596 F.3d at
266 (―[W]hile it is a question of law whether administrative
remedies qualify as being ‗available‘ under 42 U.S.C. §
1997e(a), availability may sometimes turn on questions of
fact.‖). ―‗Available‘ means ‗capable of use; at hand.‘‖
Brown, 312 F.3d at 113 (citing Webster’s II, New Riverside
University Dictionary 141 (1994 ed.)). Remedies that are not
reasonably communicated to inmates may be considered
unavailable for exhaustion purposes. Id.; see Dillon, 596 F.3d
at 268 (recognizing ―the importance of ensuring that inmates
have avenues for discovering the procedural rules governing
their grievances‖); Goebert v. Lee Cnty., 510 F.3d 1312, 1323
(11th Cir. 2007) (―That which is unknown and unknowable is
unavailable . . . .‖)).

The District Court found that Small received an inmate
handbook (which, as we have noted, outlines CCCF‘s
grievance procedures) upon his entry to the prison, or shortly

Here, merits discovery had been completed, although only
limited discovery would likely have been necessary on the
exhaustion issue itself.
10
thereafter,6 and, in any event, that he was aware of those
procedures. We agree that, wholly aside from whether Small
in fact was given a handbook, there was ample evidence that
he nonetheless knew of, and had access to, CCCF‘s grievance
procedures and, thus, that administrative remedies were
―available‖ to him.

Although Small continues to contend he did not
receive a handbook until 2007, and therefore was unaware
until then of the grievance procedures, we cannot help but
observe that, among other things, he properly filed his first
grievance form, fully compliant with those procedures, on
August 30, 2004. Indeed, Small testified that by that time he
knew of the procedures and the need to file a formal
grievance. He also testified that although he had access to the
law library, he never requested a copy of the handbook.
Finally, although he claims that prison officials prevented him
from accessing grievance forms, he testified that these alleged
obstructionist efforts did not prevent him from obtaining a
form, one way or another, when he needed one. In any event,
the procedures allow grievances to be filed on plain paper.

In sum, the record is clear that Small knew of, and was
able to access, CCCF‘s grievance procedures. We, thus,
conclude, that administrative remedies were available to him.

ii. Substantial Compliance with CCCF’s Grievance
Procedures

―[T]o properly exhaust administrative remedies
prisoners must ‗complete the administrative review process in
accordance with the applicable procedural rules,‘ rules that

6
For a host of reasons, the District Court did not find credible
Small‘s assertion that he did not receive a handbook before
2007, including the undisputed fact that CCCF issues a
handbook during the intake process, and so it was
unbelievable that Small never received even one despite his
several readmissions to CCCF. The Court also found that
even if Small had never been given a handbook, they were
readily available at CCCF and he could easily have obtained
one.
11
are defined not by the PLRA, but by the prison grievance
process itself.‖ Jones, 549 U.S. at 218 (citation omitted)
(quoting Woodford, 548 U.S. at 88). To ―complete the
administrative review process,‖ we have held, means
―substantial‖ compliance with the prison‘s grievance
procedures. See Spruill, 372 F.3d at 231 (citing Nyhuis v.
Reno, 204 F.3d 65, 77–78 (3d Cir. 2000)). The District Court
found, in its review of the grievances at issue before us, that
Small had not substantially complied with CCCF‘s grievance
procedures as to any of them, for different reasons specific to
each one, and had thereby failed to exhaust his administrative
remedies.7

It has been with some difficulty that we have parsed
out the who, what, where, and when regarding each of the
grievances at issue, and we applaud the District Court for its
yeoman efforts in this regard. Indeed, we agree with the
Court as to the failings of the vast majority of the grievances
and, without being as specific as the Court, we briefly explain
why. Submitting a Sick Call Request, for example, a form on
which a prisoner requests medical attention, is not a
submission in compliance with CCCF‘s grievance
procedures. As the District Court explained, ―Sick Call
Requests are prospective requests for medical services, they
are not retrospective complaints about the denial of services.‖
(J.A. 442). Moreover, any asserted belief that a medical-
related grievance was to be filed by means of a Sick Call
Request form is belied by Small‘s submission of grievance
forms complaining about deficient medical care. Beyond
even that, Small testified to the difference between a Sick
Call Request, ―a small little form that you fill out with your
information on it to request medical attention,‖ (Id. at 155),
and a grievance form, ―a much larger form that you fill out if
you have a complaint against something in the institution.‖

7
Small concedes that certain incidents were not grieved in
substantial compliance with CCCF‘s grievance procedures:
July 7, 2006, July 20, 2006, and August 14, 2006, and does
not take issue with the District Court‘s dismissal of the claims
arising from these incidents. Small also testified that he did
not wish to pursue the grievance relating to the incident of
August 16, 2004.
12
(Id. at 156).

Similarly, the District Court properly discounted letters
Small wrote that were not submitted in compliance with
CCCF‘s requirements for the proper filing of grievances (e.g.,
they were not directed to the grievance officer or any
corrections staff, were not filed within 15 days of the alleged
incident, or failed to identify the specifics of the incident);
indeed, the majority of those letters were sent to individuals
outside of prison administration, thus failing to serve the
basic purpose of the grievance filing mechanism, which is to
notify officials of a problem and provide an opportunity for
efficient correction. With respect to the grievances, the
subject of Small‘s letters and Sick Call Request forms, the
Court correctly concluded that Small‘s efforts were not
substantially compliant with CCCF‘s grievance procedures
and so could not serve as a basis for satisfying the PLRA‘s
exhaustion requirement.

We believe, however, that the District Court erred
insofar as it found that although grievances had been
submitted in compliance with CCCF‘s procedures as to the
incidents of June 18, 2005 and June 28, 2005, those
grievances should nonetheless be dismissed because Small
did not file an appeal as to either one.8 The Court concluded
that Small‘s failure to appeal rendered his efforts
noncompliant with CCCF‘s procedures and, therefore, that his
administrative remedies as to them were unexhausted. There
is no dispute, however, that there was no decision as to either
of those grievances (or, we note, any of the others now before
us), and we disagree with the Court that substantial
compliance with CCCF‘s procedures requires appealing non-
decisions. CCCF‘s procedures discuss only the appeal of a
decision with which the inmate is not satisfied, and do not
mention what must or even could be done by the inmate when
a decision is never made: ―If the inmate is not satisfied with
the grievance officer‘s decision, He/She may appeal to the
Warden . . . .‖ (J.A. 675). Thus, the Court erroneously read

8
The District Court found that certain other grievances had
not been appealed, but those grievances did not, for other
reasons, comply with CCCF‘s grievance procedures.
13
an additional requirement into CCCF‘s grievance
procedures.9

Because CCCF procedures did not contemplate an
appeal from a non-decision, when Small failed to receive
even a response to the grievances addressing the June 18 and
June 28, 2005 incidents, much less a decision as to those
grievances, the appeals process was unavailable to him. See
Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002)
(agreeing with the Eighth and Fifth Circuits that
―administrative remedies [are] exhausted when prison
officials fail to respond to inmate grievances because those
remedies ha[ve] become ‗unavailable‘‖); Jernigan v. Stuchell,
304 F.3d 1030, 1032 (10th Cir. 2002) (―[T]he failure to
respond to a grievance within the time limits contained in the
grievance policy renders an administrative remedy
unavailable‖); see also Boyd v. Corrs. Corp. of Am., 380 F.3d
989, 996 (6th Cir. 2004) (―[A]dministrative remedies are
exhausted when prison officials fail to timely respond to a
properly filed grievance‖); Powe v. Ennis, 177 F.3d 393, 394
(5th Cir. 1999) (―A prisoner‘s administrative remedies are
deemed exhausted when a valid grievance has been filed and
the state‘s time for responding thereto has expired.‖); cf.
Brown, 312 F.3d at 111 (―The PLRA does not require
exhaustion of all remedies. Rather, it requires exhaustion of
such administrative remedies as are available.‖ (internal
quotation marks omitted)). Accordingly, we will vacate the
order of the District Court dismissing those grievances and
remand for further proceedings as to them.10

9
That Small could appeal a non-decision, as the District
Court noted, was evident by his 2006 letter to Superintendent
Eric Taylor complaining about the lack of response to a
previously filed grievance, says nothing about whether he was
required to do so by virtue of a CCCF procedural requirement
to appeal a non-decision. (J.A. 153–54, 444, 841).
10
We need not reach whether the District Court should have
deemed the two remaining grievances to be part of a
―continuing violation‖ for purposes of the exhaustion
requirement. At least one incident must have been properly
grieved for the doctrine to apply assuming, of course, that the
doctrine would apply at all. In his opening brief, Small
14
 IV. Conclusion

We will vacate the order of the District Court
dismissing the grievances arising from the incidents of June
18, 2005 and June 28, 2005, and remand for further
proceedings consistent with this Opinion. We will, in all
other respects, affirm the order of the District Court
dismissing the complaint.

argues that he was ―deprived of a wheelchair with leg rests
continuously from April 13, 2006.‖ (Appellant‘s Br. 39). At
oral argument, counsel confirmed that the alleged ―continuing
violation‖ occurred from April 2006 onward, or at least from
July 2006 onward. There was, however, no properly grieved
incident on or after these dates to serve as the basis for a
continuing violation.

15
 ___________

APPENDIX
____________

INMATE GRIEVANCE PROCEDURE1

It is the policy of this Department to provide to its inmates an
internal grievance mechanism for the resolution of
Complaints arising from institutional matters, so as to reduce
the need for litigation and afford everyone the opportunity to
have input in the improvement of the facility operations.

This inmate grievance procedure is an internal administrative
means for the resolution of complaint and the identification of
potentially problematic areas. This procedure is designed to
supplement, but not replace, the informal communication
process or the institutional disciplinary procedure.

An inmate may file a grievance at any time to bring a
problem to the attention of staff or to appeal a specific action.
An inmate may file a grievance only for him/herself, although
an inmate may assist another inmate in filing a grievance.

Only one grievance may be filed at one time on a single
incident or item of concern. An inmate may withdraw a
previously filed grievance at any time.

No staff member may retaliate against an inmate for filing or
withdrawing a grievance.

A grievance may be initiated for any one the following
reasons:

 An alleged violation of civil, constitutional or statutory
right or policy

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Text reproduced from the Camden County Correctional
Facility’s inmate handbook. (J.A. 674–75). Any errors are in
the original.
 An alleged criminal or prohibited act by a staff
member
 To resolve a condition existing within the facility that
creates unsafe or unsanitary living conditions
 To appeal decisions such as restoration of lost good
time, modification of restricted visiting, correspondence or
other privileges.
 Disciplinary actions may be appealed but not grieved.

An inappropriately filed grievance or one that is directed
towards an issue that cannot be grieved will be returned to the
inmate.

Inmates are encouraged to resolve grievances informally by
voicing their grievances to any staff member. The grievances
must be voiced in a courteous, responsible and clear fashion.
When presented with an informal grievance the staff member
may initiate corrective action if the action is within the
normal scope of the employee responsibility. However, if the
inmate grievance is beyond the scope of the staff member, he
shall notify their supervisor as soon as practical. All
reasonable steps will be taken to resolve the grievances
informally within the approved discretion of the Shift
Commander. If the matter can not or should not be resolved
the inmate may initiate a formal grievance.

An inmate of the Camden County Department of Corrections
may file a formal, written grievance anytime within 15 days
after any event has occurred where a grievance may be
warranted. The inmate will be provided with a grievance
form by any staff member. However, the inmate may use
plain paper, if no grievance forms are available. If a
grievance on plain paper is received by the grievance officer.
The inmate will be supplied with grievance form with 24
hours of the date grievance was received. All staff members
will instruct the inmate on the basic requirements for filling
out the form, if requested.

All grievances will be collected daily and time stamped and
logged by the Department’s Grievance Officer. The
grievance officer will review all grievances to assure that the
complaint can be grieved.
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If the grievance meets our guidelines, it will be forwarded to
the appropriate Shift Commander for possible resolution
within 72 hours of an investigation.

If the grievance is not resolved in 72 hours it will be return to
the grievance officer for review and resolution within 10
days. If the inmate is not satisfied with the grievance
officer’s decision, He/She may appeal to the Warden (or his
designee) in 10 days in writing. The decision will be final.

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