NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2632
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TYRONE GREEN,
Appellant
v.
RAYMOND BURKHART; DANIEL PACK; JOHN HAGERTY; JOHN DILARA; W.D.
COLE; OBERLANDER; J.A. HORTON; DOCTOR ABRAHAM; LT. MURIN; S.
ZIMMER; MS. SIEGEL; SUPT. OVERMYER; MS. CROWTHERS; JOHN GILARA;
JOHN CHILES; PAUL ENNIS, All Sued In Their Individual Capacity; CHERNOSKY;
C/O MILLER
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 1-14-cv-00159)
District Judge: Honorable Arthur J. Schwab
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
March 1, 2019
Before: GREENAWAY, JR., RESTREPO and FUENTES, Circuit Judges
(Opinion filed: April 9, 2019)
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OPINION *
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PER CURIAM
Tyrone Green, a prisoner proceeding pro se, appeals the District Court’s final
judgment in this 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291.
For the reasons we detail below, we will affirm in large part, but vacate the District
Court’s judgment to the extent that it dismissed one of Green’s claims for failure to
exhaust available administrative remedies and remand for further proceedings as to that
claim.
In Green’s operative third amended complaint, he alleged that more than a dozen
prison employees violated his constitutional rights by retaliating against him in numerous
ways (primarily by destroying his property), failing to protect him from being assaulted
by other inmates, and providing him with inadequate medical care. The District Court,
approving and adopting a Magistrate Judge’s report and recommendation, granted
summary judgment to the defendants on several of the claims. See D.C. dkt. #127. Then,
after an evidentiary hearing, the Court dismissed two other claims on the ground that
Green had failed to exhaust his administrative remedies. See D.C. dkt. #171.
The case proceeded to trial on two types of claims: (1) that defendants Stephen
Haggerty, Mark Gilara, Raymond Burkhart, and Daniel Pack retaliated against Green for
filing prison grievances by destroying or confiscating various items of his property; and
(2) that defendants Gregory Chiles and John Chernosky failed to protect him from being
assaulted. The jury found in the defendants’ favor, with one exception: it concluded that
2
Haggerty had engaged in unconstitutional retaliation and it awarded Green $300 in
compensatory damages. Green now appeals, raising a variety of arguments.
First, Green argues that the District Court violated the law-of-the-case doctrine by
declining to impose sanctions against the defendants for losing or destroying a box of his
legal materials. We are not persuaded. Early in the case, Green filed a motion for
spoliation sanctions, and, after a hearing, a Magistrate Judge granted the motion in part
and denied it in part. The Magistrate Judge generally accepted that the box had been lost
but did not attempt to identify its contents or impose a sanction. Instead, it provided that,
on a case-by-case basis throughout the action, Green could describe to the Magistrate
Judge any document that he needed that had been within the box and the Magistrate
Judge would then decide on the appropriate remedy. See D.C. dkt. #223 at 11.
Contrary to Green’s argument, the District Court did not “fail[] to enforce” this
order, Br. at 9; instead, the Court did consider in each instance how to handle allegations
from Green that the defendants had destroyed documents that were important to his case.
While Green seems to believe that he was entitled to some blanket sanction, we conclude
that the Court acted consistently with the Magistrate Judge’s order, see generally WRS,
Inc. v. Plaza Entm’t, Inc., 402 F.3d 424, 428 (3d Cir. 2005) (we grant “great
deference . . . to a district court’s interpretation of its own order),” and did not violate
law-of-the-case principles, see generally Roberts v. Ferman, 826 F.3d 117, 126 (3d Cir.
2016).
3
Green also argues that the District Court excluded claims from trial that had
survived summary judgment. We disagree. Two of the claims he mentions—that the
defendants were deliberately indifferent to his safety and that they retaliated against him
by destroying his property—did, in fact, go to trial. See D.C. dkt. #232 (verdict sheet).
Further, at trial, Green was permitted to interrogate Gilara about an alleged false
misconduct report that he claimed facilitated the confiscation of his property. See July
18, 2017 N.T. at 91-92 (dkt. #250). Finally, we interpret the District Court’s order
granting summary judgment in part to the defendants to have covered the other claims
that Green identifies. The Court’s opinion, in trying to bring order to Green’s sprawling
complaint, identified the specific paragraphs of the complaint on which it was granting
judgment to the defendants, which included the paragraphs objecting to his cell
placement, see D.C. dkt. #127 at 5, and the alleged lack of investigation after he was
assaulted, see id. at 7. Thus, we are satisfied that the District Court properly addressed
each claim, and Green has presented no challenge to the substance of either the summary-
judgment decision or the jury’s verdict.
Next, Green argues that the District Court erred by refusing to use his proposed
jury instructions. This argument also lacks merit. Green does not contend that the
District Court erroneously described the law. See generally Harvey v. Plains Twp. Police
Dep’t, 635 F.3d 606, 612 (3d Cir. 2011) (“A jury instruction, taken as a whole, must
inform the jury of the correct legal standard.”). Rather, he seems to believe that the Court
should have provided the jury with a more fulsome summary of the evidence that had
4
been presented. However, “a trial judge has broad discretion concerning the particular
language used,” Tigg Corp. v. Dow Corning Corp., 962 F.2d 1119, 1124 (3d Cir. 1992),
and the Court did not abuse that discretion here by declining to sum up the evidence, see
Douglas v. Owens, 50 F.3d 1226, 1233 (3d Cir. 1995) (“No litigant has a right to a jury
instruction of its choice, or precisely in the manner and words of its own preference.”);
United States v. Mundy, 539 F.3d 154, 159 (2d Cir. 2008) (“Today, marshaling of
evidence is rarely practiced in federal court.”).
Green also argues that the District Court should have sanctioned the defendants for
what he argues were misstatements that they made at trial. However, he did not ask the
District Court to sanction the defendants for these statements, and we typically refuse to
consider issues raised for the first time on appeal. See, e.g., Shell Petroleum, Inc. v.
United States, 182 F.3d 212, 219 (3d Cir. 1999); Amphastar Pharm. Inc. v. Aventis
Pharma SA, 856 F.3d 696, 708 (9th Cir. 2017). We see no reason to depart from that
general rule here both because the District Court was in the best position to determine the
proper response, see generally Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119,
137 (3d Cir. 2009), and because Green was able to make use of these matters as
impeachment, see generally Montano v. City of Chi., 535 F.3d 558, 566-67 (7th Cir.
2008). 1
1
At the end of his brief, Green lists numerous additional alleged errors without providing
any argument or elaboration. Green has waived these issues by failing to develop them.
See Laborers’ Int’l Union of N. Am., AFL-CIO v. Foster Wheeler Corp., 26 F.3d 375,
398 (3d Cir. 1994) (“An issue is waived unless a party raises it in its opening brief, and
5
Finally, we turn to the District Court’s ruling concerning administrative
exhaustion. Under the Prison Litigation Reform Act, a prisoner must exhaust all
“available” administrative remedies prior to bringing suit. 42 U.S.C. § 1997e(a). There
is no dispute here that Green did not fully exhaust two claims—that the defendants
retaliated against him for filing grievances by (a) not giving him copies of request slips
he requested from the library, and (b) denying him a promotional transfer—because he
did not take the necessary appeals. See Woodford v. Ngo, 548 U.S. 81, 93 (2006)
(concluding that “the PLRA exhaustion requirement requires proper exhaustion” in
compliance with the system’s procedural rules). However, Green argues that an appeal
was not “available” because he was required to submit copies of the decisions denying
the grievances and those copies were in the legal box that the defendants had destroyed.
See generally Ross v. Blake, 136 S. Ct. 1850, 1859-60 (2016) (discussing when
administrative remedies are “available”).
The District Court rejected Green’s argument as to claim (a) concerning his
request slips because the prior-level grievance was not denied until August 13, 2014—
nearly after a month after he lost his legal box on July 17, 2014. The District Court
therefore did not err in concluding that, in these circumstances, prison officials did not
prevent Green from exhausting. See generally Small v. Camden County, 728 F.3d 265,
for those purposes a passing reference to an issue will not suffice to bring that issue
before this court.” (quotation marks, alteration omitted); Mala v. Crown Bay Marina,
Inc., 704 F.3d 239, 245 (3d Cir. 2013) (noting that pro se litigants “must abide by the
same rules that apply to all other litigants”).
6
270-71 (3d Cir. 2013) (discussing district courts’ authority to decide disputed factual
issues); cf. Rinaldi v. United States, 904 F.3d 257, 267 (3d Cir. 2018) (administrative
remedies are not available because “officials in the security department of the prison
thwarted his efforts to exhaust his administrative remedies” (quoting Brown v. Croak,
312 F.3d 109, 113 (3d Cir. 2002)).
We reach the opposite conclusion as to Green’s claim (b) concerning promotional
transfer. As the District Court acknowledged, that grievance was denied on July 14,
2014, and thus Green’s copy could, as he alleged, have been kept in his missing legal
box. The District Court nevertheless concluded that Green had not substantially
complied with the grievance procedures because, upon receiving a new copy of the
grievance during discovery in this case, he did not then attempt to file an appeal. 2
However, by the time he received this new copy—during the pendency of this case—it
was too late for him to exhaust because exhaustion must be completed before the federal
action is filed. See Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir. 2002). Thus, we
conclude that the District Court erred in concluding that an administrative appeal was
available to Green because he could have filed an appeal after instituting the federal
action. See Goebert v. Lee County, 510 F.3d 1312, 1324 (11th Cir. 2007) (“an
2
Green did take this suggested approach for ten other grievances and filed appeals after
receiving the copies in discovery. Each of these appeals was denied as untimely. At an
evidentiary hearing, a grievance officer testified that by that time, it was far too late for
Green to obtain an extension. See D.C. dkt. #248 at 23-24.
7
administrative remedy that is unavailable until after the lawsuit is filed is not an available
remedy within the meaning of § 1997e(a)’s exhaustion requirement”). 3
Accordingly, we will affirm the District Court’s judgment in full, with one
exception: we will vacate the Court’s ruling that Green failed to exhaust his claim
concerning the defendants’ allegedly retaliatory denial of promotional transfer and will
remand that claim only for further proceedings.
3
The District Court appears to have accepted Green’s allegations that his copy of the
grievance denial was located in his missing legal box and that he needed that copy to file
an appeal. We will likewise accept those conclusions for purposes of this appeal, but
note that our decision does not prevent the District Court from reconsidering those
issues—or considering any other defenses, whether concerning exhaustion or otherwise,
that the defendants may possess as to this claim.
8