Paul Shifflett v. Mr. Korszniak

PRECEDENTIAL

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________

No. 17-2676
________________

PAUL SHIFFLETT,

Appellant

v.

MR. KORSZNIAK, Correctional Health Administrator,
State Correctional Institution (“SCI”) Graterford,
Collegeville, Pennsylvania;
DR. CHRISTIAN, Doctor, Correct Care Solution, et al;
DR. GOLSORKHI, Doctor, Correct Care Solution;
DR. BUKHOLDER, Dentist, Correct Care Solution;
DR. BIANCO, Dentist, Correct Care Solution;
DR. PAMELA ROEHM, Doctor;
DR. JOSEPH P. MULLIGAN, Doctor, Temple Hospital,
Philadelphia Pennsylvania

________________

Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-16-cv-06537)
District Judge: Honorable Nitza I. Quinones Alejandro
________________
 Argued May 23, 2019

Before: AMBRO, GREENAWAY, JR., and SCIRICA,
Circuit Judges

(Opinion filed: August 12, 2019)

Elana Bildner
Quinnipiac University School of Law
Civil Justice Clinic
275 Mount Carmel Avenue
Hamden CT 06518

Sebastian Brady
Elise M. Wander (Argued)
Yale Law School
127 Wall Street
P.O. Box 209090
New Haven, CT 06520

Benjamin M. Daniels (Supervising Attorney)
Tadhg Dooley
Wiggin & Dana
One Century Tower
265 Church Street
P.O. Box 1832
New Haven, CT 06508

Counsel for Appellant

Denise J. Smyler
General Counsel

2
Theron Perez
Chief Counsel
Chase M. Defelice (Argued)
Raymond W. Dorian
Assistant Counsel
Timothy A. Holmes, I
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050

Counsel for Appellee
Joseph Korszniak, Dr. Bianco,
Dr. Burkholder,

Caitlin J. Goodrich
Kenneth D. Powell, Jr.
Emily B. Ryan-Fiore (Argued)
Weber Gallagher Simpson Stapleton First & Newby
2000 Market Street, Suite 1300
Philadelphia, PA 19103

Counsel for Appellee
Dr. Muhammad Golsorkhi

Teresa F. Sachs
Carol A. VanderWoude (Argued)
Marshall Dennehey Warner Coleman & Goggin
2000 Market Street, Suite 2300
Philadelphia, PA 19103

Counsel for Appellee
Dr. Pamela Roehm

3
Sarah M. Baker
Ava M. Plakins (Argued)
Bonner Kiernan Trebach & Crociata
1801 Market Street
Ten Penn Center, Suite 770
Philadelphia, PA 19103

Counsel for Appellee
Dr. Joseph P. Mulligan

________________

OPINION OF THE COURT
________________

AMBRO, Circuit Judge
Paul Shifflett was an inmate in the Pennsylvania prison
system when he was set upon by fellow inmates who broke his
jaw. This was only the beginning of his troubles: the surgery
on his jaw went badly, causing him intense pain for the better
part of a year. His efforts to seek treatment from the prison
medical system bore only the most frustrating of fruit: he
alleges he was denied adequate pain medication and given the
run-around by different providers, each saying it was someone
else’s responsibility. Shifflett claims he had still not received
fully adequate corrective surgery over eight months later when
he filed this complaint in the Eastern District of Pennsylvania,
naming seven prison officials and outside doctors as
defendants and asserting causes of action under 42 U.S.C.
§ 1983 for deliberate indifference to severe medical need in
violation of the Eighth Amendment and retaliation in violation
of the First Amendment.

4
 The District Court dismissed all of Shifflett’s claims,
principally because it found he had not exhausted his
administrative remedies within the prison system as required
by the Prison Litigation Reform Act of 1996 (“PLRA”), 42
U.S.C. § 1997e. The Court also found the substance of
Shifflett’s allegations insufficient and denied him leave to
amend, concluding that amendment could not cure his failure
to exhaust.

We disagree. In Robinson v. Superintendent Rockview
SCI, 831 F.3d 148, 153–55 (3d Cir. 2016), we strongly implied,
though we did not hold outright, that a prisoner exhausts his
administrative remedies as soon as the prison fails to respond
to a properly submitted grievance in a timely fashion. Today
we finish what Robinson started and adopt this as a rule.
Shifflett exhausted his remedies and acquired the right to come
into federal court when the prison did not decide the initial
appeal of his grievances within the time limits specified by the
grievance policy. Thus we reverse the District Court and
remand with instructions to appoint counsel under Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993), and to allow Shifflett to file
an amended complaint with the assistance of counsel.

I. Background

The following facts are taken largely from the
complaint, as well as certain attached documents. They are
lengthy, but necessary.

Shifflett was an inmate at SCI Graterford in Skippack,
Pennsylvania when he was attacked by fellow inmates on April
6, 2016. The attack broke his jaw, and the next day he was
taken to Temple University Hospital for treatment. On April
8, Dr. Pamela Roehm—an ear, nose, and throat specialist at
Temple—operated on Shifflett’s jaw, and he was placed on
Norco (hydrocodone and acetaminophen) for ten days. Two

5
weeks later he returned to Temple for a follow-up appointment
with Dr. Roehm, during which she removed the stitches from
the outside of his face and told him that those on the inside of
his mouth would dissolve on their own. Shifflett complained
of intense pain in his jaw, but Dr. Roehm did not put him on
any further pain medication.

On May 4, 2016, Shifflett filed Grievance No. 625021
through the prison grievance system (“Grievance No. 1”). It
asserted chiefly that he was not being treated for the pain in his
jaw and that his numerous “sick call” request slips had been
ignored. It also stated that a contract doctor at SCI Graterford,
Dr. Ferdinand Christian, had told him that there was no other
option but to deal with the pain, and that Shifflett was receiving
his medication only twice a day rather than three times a day
as prescribed.

Shifflett filed a second grievance against Dr. Christian,
No. 626028, on May 11, 2016 (“Grievance No. 2”). This one
alleged that Shifflett had submitted several additional “sick
call” request forms since his previous grievance, and that Dr.
Christian eventually came to visit him on the 11th but said
there was nothing he could do to help. Eventually Dr. Christian
agreed to send Shifflett to the hospital for another follow-up
appointment, but he left before Shifflett could discuss his other
medical concerns, which included his pain medication and his
need for allergy medication. The same day, Shifflett submitted
a dental request form stating that he continued to be in extreme
pain and requesting another examination of his jaw.

The following day, Shifflett was taken back to the
hospital for another appointment with Dr. Roehm. In response
to Shifflett’s statement that he was in excruciating pain, that
there was swelling in his face, and that his teeth felt misaligned,
Dr. Roehm increased his dose of Motrin (ibuprofen).

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 On May 24, 2016, Shifflett saw Dr. Muhammad
Golsorkhi, a medical doctor at SCI Graterford. He requested
an increase in his pain medicine, which Dr. Golsorkhi refused
because a higher dose of Motrin could cause long-term harm.
Shifflett asked for a stronger pain medicine instead, but was
refused. Dr. Golsorkhi suggested that Shifflett speak to
“dental” about his concerns, and the following day he did just
that, submitting a dental sick call request.

Dr. Ronald J. Burkholder, a contract dentist at SCI
Graterford, saw Shifflett on May 26 and took an x-ray of his
jaw. Dr. Burkholder opined that Shifflett’s pain was the result
of a incorrectly performed surgery and that Dr. Roehm should
have inserted plates on both sides of Shifflett’s jaw rather than
two plates on the left side, and should have removed a wisdom
tooth on the left side of his mouth before inserting the plates.
Shifflett asked Dr. Burkholder for pain medication but was told
that the issue was medical rather than dental in nature.

Later that same day, Shifflett submitted Grievance No.
628368 (“Grievance No. 3”). It recounted his meeting with Dr.
Burkholder and noted that the medical and dental professionals
at SCI Graterford had each disclaimed responsibility for his
treatment, saying his problems were in the other’s area of
practice. Thus he requested to be seen by an external doctor
but not at Temple University Hospital. He also reiterated his
complaints of continued pain and sick call requests being
ignored.
On May 27, 2016, the Corrections Health Care
Administrator at SCI Graterford, Joseph C. Korszniak, issued
the Initial Review Responses to Grievance Nos. 1 and 2.
Korszniak stated that Shifflett was not being neglected, as he
had been prescribed medication for his condition; that some
delays in the delivery of medication were beyond the nursing
staff’s control; that “[p]ain is very difficult to treat since most

7
individual[s] perceive pain differently[, as s]ome have a very
high tolerance and some have a low or no tolerance;” and that
pain management was in the discretion of the health care
providers. He did, however, state that he would schedule
Shifflett to visit the pain management clinic.
Over the following days Shifflett submitted further sick
call requests, one “medical” on May 29 and one “dental” on
the 30th. Those requests complained of continuing severe pain
as well as bleeding in his mouth, and sought increased pain
medication and re-examination of his mouth. On May 30
Shifflett also submitted Grievance No. 628417 (“Grievance
No. 4”), which reiterated many of his prior complaints and
added a few new details, notably that Drs. Christian and
Golsorkhi would not give him adequate pain medication
because he was “in the hole” [i.e., in solitary confinement] and
therefore did not deserve proper treatment. That same day he
was seen again by Dr. Christian, who refused to treat him. The
next day a prison guard told Shifflett that he had a pass to see
a dentist but was not taken to his appointment. On June 1,
2016, Grievance Nos. 3 and 4 were rejected as duplicative of
Grievance No. 1. On June 2, 2016, Shifflett was again
informed by a guard that he had a pass to see a dentist, and
again he was not taken to the appointment.

On June 7, Shifflett filed a staff request complaining
that the responses to Grievance Nos. 1 and 2 were overdue.
Korszniak’s responses to these grievances had been signed on
May 27 and were marked “RECEIVED” on May 30, but it
appears that Shifflett had not yet received a copy of either. The
next day he submitted another dental request form, noting that
he was developing an infection in his mouth, and he appealed
the denial of Grievance Nos. 3 and No. 4, which he noted did
not concern the same subject matter as Grievance No. 1. It
does not appear that there was any response to these appeals.

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 On June 12, 2016, Shifflett filed appeals of the denial of
Grievance Nos. 1 and No. 2. He also submitted a request for a
peer review of his treatment and for a “dental hold,” both under
the terms of the prison’s policies. In the following days he
again submitted sick call requests to both dental and medical.
On June 16, he was seen by Dr. Michael J. Bianco, a contract
dentist at SCI Graterford, who placed Shifflett on a soft diet
and prescribed penicillin to deal with his infection. Dr. Bianco
reviewed Shifflett’s x-ray from May 26, concluding that there
were hairline fractures in Shifflett’s jaw and that screws might
have been drilled into his wisdom tooth. He also ordered a CT
scan and arranged for Shifflett to see a Dr. Samee, an oral
specialist from Temple University Hospital, on June 22, which
never took place. (The complaint does not state Dr. Samee’s
full name.)

Shifflett was transferred to SCI Mahanoy on June 21.
This transfer is what his request for a dental hold had been
intended to prevent, as he had upcoming follow-up
appointments at Temple University Hospital. On June 27,
Shifflett had an appointment at Geisinger Hospital for a CT
scan. Three days later, he was seen by a Dr. Kaz, evidently on
the medical staff at SCI Mahanoy (we again do not have a full
name), who ordered that he see an oral specialist in late July,
renewed his order of Motrin, and prescribed amoxicillin.
Shifflett was seen again by Dr. Kaz on July 7, when he renewed
both of Shifflett’s medications, stated that he believed
Shifflett’s initial surgery would need to be corrected, and stated
that he would continue seeing Shifflett—and treating the
infection in his mouth—until he could see a specialist. Shifflett
had further appointments with Dr. Kaz on July 14 and 19, and
was told he would see a specialist on July 28.

Meanwhile, on July 27 the Facility Manager at SCI
Graterford, Cynthia Link, issued an appeal response as to
Grievance Nos. 1 and No. 2. Link upheld the denial of the

9
grievances, noting that she was not qualified to dictate or
overrule the decisions of trained medical professionals and
recommending that Shifflett continue working with the
medical staff to treat his symptoms. The responses
acknowledged that they were late (under prison policy a
response to Shifflett’s appeal was due within 15 working days,
i.e., on July 1—almost a month before the actual response) but
stated that this would not affect his appeal rights.

On July 28, Shifflett saw Dr. Joseph P. Mulligan, a
dentist from Temple University Hospital. Dr. Mulligan
declined to opine on Shifflett’s various medical problems,
stating that doing so would make him an expert witness in any
future legal proceedings and that Shifflett could not afford him.
Instead he renewed the Motrin order, prescribed clindamycin,
and reiterated that Shifflett would need corrective surgery. The
following day Shifflett met with the Corrections Health Care
Administrator for SCI Mahanoy, John Steinhart, who told him
that he was being transferred back to SCI Graterford for an
appointment at Temple University Hospital. Shifflett replied
that he did not want to go back to that hospital, but Steinhart
stated that Temple would “have to correct its mistake.” (In fact
Shifflett was transferred to SCI Chester, not SCI Graterford.)

Shifflett was again seen by Dr. Roehm at Temple
University Hospital on August 3. He argued with Dr. Roehm
over her intent to take a CT scan, as she seemingly was
unaware of his CT scan from June 27. Shifflett took issue with
Dr. Roehm’s assumption that the hardware in his mouth—
which Dr. Roehm planned to remove—was the cause of his
pain. She said she would schedule an appointment for a CT
scan and perform the surgery thereafter. Shifflett was taken
back to SCI Chester and continued to receive clindamycin.

Eventually, after another month of submitting numerous
sick call requests and seeing various prison doctors, Shifflett

10
was taken back to Temple University Hospital for his surgery
on September 6, 2016. One of the two plates in his mouth was
removed, and he was told that the other had not been removed
because the plate and screws were hitting his wisdom tooth,
which was causing complications. His discharge from the
hospital was somewhat rushed, such that he had trouble
urinating upon his return to SCI Chester. Two days later he
was released from the infirmary, but his face was “swollen as
if he had a grapefruit in his mouth.” He received no treatment
for this swelling or for his continued pain.

Shifflett returned to Dr. Roehm on September 14, and
was told he would see an oral specialist to remove his wisdom
teeth. Shifflett saw Dr. Samee on September 27, and was
informed that one wisdom tooth needed to be removed but that
Dr. Samee could not perform the surgery yet due to the sorry
state of Shifflett’s jaw after his recent surgery.

That same day he finally received a copy of the
responses to his grievance appeals for Nos. 1 and 2. On
October 12—15 days after he received a copy of the appeal
responses—Shifflett submitted a second set of appeals to the
Chief Secretary of Inmate Grievance and Appeals. They were
rejected on October 20 using a form that checked off two
reasons for the rejection: the appeals were not submitted within
15 days after the decisions being appealed and Shifflett had not
attached all of the required documentation to his appeals. He
had several more appointments with various doctors
throughout November 2016, but still did not receive the
surgery to remove his wisdom teeth as of December 15, 2016.
Shifflett filed this complaint in the District Court for the
Eastern District of Pennsylvania on December 19, 2016. He
named Dr. Bianco, Dr. Burkholder, Dr. Christian, Dr.
Golsorkhi, Korszniak, Dr. Roehm, and Dr. Mulligan as
defendants and brought claims under 42 U.S.C. § 1983 for

11
violations of the Eighth Amendment (deliberate indifference to
severe medical need) and First Amendment (retaliation for
engaging in protected expression by filing complaints).
Defendants Bianco, Burkholder, and Korszniak (referred to as
the “Corrections Defendants”) filed one motion to dismiss on
March 8, 2017. Dr. Mulligan filed a separate motion to dismiss
on March 21, followed by a motion from Dr. Roehm on March
22 and one from Dr. Golsorkhi on March 28. The Corrections
Defendants filed certificates of concurrence as to the other
defendants’ motions to dismiss. (It does not appear that
Christian was ever served, and he did not participate in the
litigation.)

For the most part, these motions to dismiss asserted that
Shifflett had not alleged any deliberate indifference to his
severe medical needs adequate to create liability under the
Eighth Amendment. Some made other contentions—for
instance, the Corrections Defendants made some arguments
specific to Korszniak, whose supervisory role placed him in a
different position, and Dr. Mulligan argued that the complaint
did not describe any First Amendment retaliation on his part.
Only Dr. Golsorkhi’s motion made any mention of
administrative exhaustion. He alleged that Shifflett failed to
exhaust his administrative remedies as required by the PLRA
because his secondary appeals of Grievance Nos. 1 and 2 were
not filed within 15 days after the Facility Manager’s decision
on July 27, 2016. Dr. Golsorkhi had also subpoenaed the entire
case file for these grievances, which to him demonstrated that
the appeals were rejected not only as untimely but because he
failed to attach the full grievance record. Failure to comply
with the grievance appeal procedures thus meant that Shifflett
had not properly exhausted his administrative remedies.

The District Court granted all of the motions to dismiss,
both because Shifflett failed to exhaust his administrative
remedies and because he had not stated a valid merits claim.

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See Shifflett v. Korszniak, 2017 WL 2986331 (E.D. Pa. 2017).
The opinion noted that in their motions to dismiss “Moving
Defendants argue several grounds for dismissal,” including
failure to exhaust, but it did not address that only one of the
motions to dismiss had actually mentioned exhaustion. Id. at
*5.

The Court’s analysis began by noting that Shifflett’s last
appeal was dismissed as procedurally defective. Then, in a
footnote, it considered and rejected his arguments why this
should not foreclose his suit. As to Shifflett’s point that the
prison failed to follow its own policies when it did not decide
his first appeals in a timely fashion, the Court observed that the
response to those appeals stated that the delay would not affect
his appellate rights. And although Shifflett noted that he filed
his secondary appeals within 15 days of the date when he first
received notice of the decision on the first appeals, the Court
observed that the language of the prison policy required him to
submit his final appeal within 15 days of the date of the
decision itself, not from when he received a copy of it. The
opinion concluded that “[Shifflett’s] claims against Moving
Defendants are barred for failure to exhaust all administrative
remedies and, therefore, are dismissed.” Id. at *6.

The Court went on to consider the merits of the
defendants’ Rule 12(b)(6) arguments. It held that Shifflett had
alleged at most negligence or malpractice but not deliberate
indifference as required under the Eighth Amendment, as “it is
undisputed[] that medical decisions were made and treatment
provided to [Shifflett], which necessarily indicates that
Defendant Doctors did not consciously disregard a risk to [his]
health.” Id. at *7. As to the First Amendment claim, the Court
observed that Shifflett had not alleged any personal
involvement by any of the defendants in the decision to transfer
him. It rejected his argument that Korszniak retaliated against
him by failing to place a medical hold on the transfer, as

13
Shifflett had requested. Id. at *9. Finally, the Court denied
Shifflett leave to amend, noting that this would be futile
because he had failed to exhaust his administrative remedies
and was therefore barred from suit by the PLRA. Id. at *10.
Shifflett filed a timely notice of appeal that mentioned
five of the defendants but not Dr. Mulligan.1

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction per 28 U.S.C. § 1291.

We review anew the District Court’s grant of a motion
to dismiss under Federal Rule of Civil Procedure 12(b)(6), as
well as its interpretation of the PLRA’s exhaustion
requirement. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.
2004). We review the decision to deny leave to amend for
abuse of discretion. Renchenski v. Williams, 622 F.3d 315,
324–25 (3d Cir. 2010).

III. Analysis

A. Exhaustion

The principal issue before us is whether Shifflett
exhausted his administrative remedies. The PLRA states that
“[n]o action shall be brought with respect to prison conditions
under [§ 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.”

1
On appeal, Shifflett was represented pro bono by students in
Yale Law School’s Appellate Litigation Project, supervised by
lawyers from Wiggin & Dana. We thank them for their able
and zealous work representing Shifflett.

14
42 U.S.C. § 1997e(a). Exhaustion is considered separately for
each claim brought by an inmate, and if a complaint includes
both exhausted and unexhausted claims, courts will dismiss the
latter but not the former. See Jones v. Bock, 549 U.S. 199, 219–
20 (2007). The Supreme Court has held that the PLRA requires
what is known as “proper exhaustion,” meaning that inmates
must comply with the rules and procedures of prison
administrative systems. See Woodford v. Ngo, 548 U.S. 81,
90–91 (2006) (“Proper exhaustion demands compliance with
an agency’s deadlines and other critical procedural rules
because no adjudicative system can function effectively
without imposing some orderly structure on the course of its
proceedings.”). We have held that these procedural
requirements are drawn from the policies of the prison in
question rather than from any free-standing federal law.
Spruill, 372 F.3d at 231. Thus we look to the grievance policy
at SCI Graterford to determine whether Shifflett has properly
exhausted his remedies as required by the PLRA. See Inmate
Grievance System—DC-ADM 804, Pa. Dep’t. of Corr. (May 1,
2015) (“DC-ADM 804”), available at
https://www.cor.pa.gov/About%20Us/Documents/DOC%20P
olicies/804%20Inmate%20Grievances.pdf.

Of course, exhaustion applies only when administrative
remedies are “available.” Under certain circumstances, a
nominally extant prison grievance policy is not truly an
“available” remedy. Ross v. Blake, 136 S. Ct. 1850 (2016).
This applies when the procedure “operates as a simple dead
end—with officers unable or consistently unwilling to provide
any relief to aggrieved inmates,” where it is “so opaque that it
becomes, practically speaking, incapable of use,” or “when
prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation,
or intimidation.” Id. at 1859–60.

15
 Shifflett argues that his administrative appeals were
rendered unavailable when the prison failed to respond in a
timely manner to his first appeal of Grievance Nos. 1 and 2.
For this claim he relies on Robinson v. Superintendent
Rockview SCI, 831 F.3d 148 (3d Cir. 2016). There, a prisoner
submitted a grievance and received no response within the
period prescribed by the grievance policy. Id. at 151. He filed
an action in federal court roughly three months after a response
was due from the prison, and only another six weeks thereafter
received a response to his initial grievance. Id. at 152. We
noted that “[f]ive of our sister courts have held that a prison’s
failure to timely respond to an inmate’s properly filed
grievance renders its remedies ‘unavailable’ under the PLRA,”
id. at 153, and quoted approvingly language from the Fifth
Circuit stating that “[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.” Id.
(quoting Powe v. Ennis, 177 F.3d 393, 394 (5th Cir. 1999) (per
curiam)). We then held that,

[c]onsistent with Small [v. Camden Co., 728 F.3d
265 (3d Cir. 2013)] and the unanimous view of
the Courts of Appeals that have spoken on the
matter, . . . SCI Rockview rendered its
administrative remedies unavailable to
[Robinson] when it failed to timely (by its own
procedural rules) respond to his grievance and
then repeatedly ignored his follow-up requests
for a decision on his claim.

Id. at 154.
Dr. Golsorkhi seeks to distinguish Robinson, arguing
that it concerned extreme facts not present in this case. It is
true that our holding there, strictly viewed, rested in part on
those facts, and therefore Robinson itself did not establish a

16
bright-line rule. Its discussion of the relevant legal principles
left little doubt, however, that our Court considers such a rule
appropriate. The PLRA requires that prisoners comply with
the procedural demands of a system created by their jailors. No
less must prisons comply with the demands of the system they
created. Hence we hold that as soon as a prison fails to respond
to a properly submitted grievance or appeal within the time
limits prescribed by its own policies, it has made its
administrative remedies unavailable and the prisoner has fully
discharged the PLRA’s exhaustion requirement.

Applying this rule to Shifflett’s case, and taking the
allegations in his complaint as true, it is clear that he exhausted
his remedies as to the matters addressed in Grievance Nos. 1
and 2 on July 1, 2016. The prison grievance policy requires
the Facility Manager to respond to appeals within 15 working
days after they are filed (here, July 1). See DC-ADM 804,
§ 2.A.2.d(1) (“The Facility Manager/designee shall notify the
inmate . . . of his/her decision within 15 working days of
receiving the appeal.”). Shifflett filed his appeals on June 12,
and received no response within the specified time limit. At
that moment he obtained the right to come into federal court.
We need not consider the contention, urged by Dr. Golsorkhi
and adopted by the District Court, that Shifflett was required
under the policy to file his secondary appeal prior to the
moment when he actually received a copy of the Facility
Manager’s decision on his first appeal. Nor does it matter
whether Shifflett failed to attach the proper documents to his
secondary appeal. His decision to continue working through
the prison’s internal system in good faith did not waive or
negate his successful exhaustion of remedies as required by the
PLRA.2

2
Although the District Court did not mention Grievance Nos.
3 and 4 in its opinion, it appears from the record before us that

17
 This does not apply, however, to Shifflett’s First
Amendment retaliation claim, which was not the subject of any
grievance he submitted. Retaliation is a separate claim, see
White v. Napoleon, 897 F.2d 103, 111–12 (3d Cir. 1990), and
therefore must be separately grieved. And although in rare
cases prisoners will not be required to file a grievance for a
retaliation claim if they fear further retaliation, see Rinaldi v.
United States, 904 F.3d 257, 267 (3d Cir. 2018), that is not the
case here. Shifflett does not specifically allege that he feared
further retaliation, and the extreme facts of Rinaldi—overt
threats of violent retribution—are not present here. Moreover,
Shifflett continued to litigate his various disputes with the
prison system after the transfer he claims was retaliatory. This
weighs heavily against the notion that the fear of further
reprisal deterred him from submitting a grievance for his
retaliation claim. Thus, although we reverse the District
Court’s dismissal of Shifflett’s Eighth Amendment claims as
unexhausted, we affirm the dismissal with prejudice of his First
Amendment claim.

B. Leave to Amend

Because we conclude the District Court should not have
dismissed Shifflett’s Eighth Amendment claims for failure to
exhaust, we vacate as well its refusal to allow leave to amend
as to those claims. As noted, the only stated basis for that
refusal was the impossibility of curing the exhaustion defect
through re-pleading. On appeal the Corrections Defendants, as
well as Dr. Roehm, argue that amendment would be futile for
substantive reasons. They suggest that the allegations in
Shifflett’s complaint make clear that no constitutional
violations occurred. Thus, even if we were to reverse the

the prison never responded to Shifflett’s initial appeals of these
grievances. Both of these grievances should be addressed by
the District Court on remand.

18
District Court on exhaustion, they would ask us to review the
substance of Shifflett’s allegations and, finding them lacking,
affirm the dismissal with prejudice.

This is not convincing. Federal Rule of Civil Procedure
15(a)(2) states that the Court “should freely give leave [to
amend] when justice so requires.” This certainly includes
amendment to cure defective allegations. See 6 Wright &
Miller, Federal Practice and Procedure: Civil § 1474 (3d ed.
2019) (“A . . . common use of Rule 15(a) amendments is to
correct insufficiently stated claims or defenses. Typically,
amendments of this character involve either adding a necessary
allegation in order to state a claim for relief or correcting a
misnomer of a party to the action.”). Thus even if defendants
are correct that the facts alleged in the initial complaint do not
describe any Eighth Amendment violations, Shifflett is free to
add by amendment new allegations or to alter some of his
existing allegations.

C. Remand

Having vacated the dismissal with prejudice of
Shifflett’s Eighth Amendment claims, we remand to the
District Court to allow Shifflett to file an amended complaint
and to appoint counsel for him. Under Tabron v. Grace, 6 F.3d
147 (3d Cir. 1993), counsel should be appointed where an
indigent plaintiff with a potentially meritorious claim is not
fully able to prosecute his or her own case in light of the overall
complexity of the case. See id. at 155–56. Of particular note,
this case involves numerous different defendants, each subject
to different allegations, and may well require medical expert
testimony to establish deliberate indifference at trial. See id. at
156 (noting the complexity of legal issues and the need for
expert testimony as two key factors favoring appointment of
counsel).

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 Though we do not rule on the merits of the existing
complaint, we do offer comment on the legal standards we
believe relevant on remand. First, administrative exhaustion is
not a pleading requirement but rather an affirmative defense.
Jones v. Bock, 549 U.S. 199, 216 (2007). Moreover, it appears
that the PLRA’s exhaustion requirement would not apply to
any amended complaint Shifflett might file at this point
because he is no longer incarcerated. See Ahmed v. Dragovich,
297 F.3d 201, 210 (3d Cir. 2002) (the PLRA’s exhaustion
requirement does not apply to suits brought by former
prisoners concerning their conditions of confinement while
incarcerated); see also id. at 210 n.10 (citing Harris v. Garner,
216 F.3d 970, 979–80 (11th Cir. 2000) (en banc) (suggesting
that, where a prisoner’s suit is brought during his incarceration
but he is subsequently released, any dismissal for failure to
exhaust should be without prejudice to refiling)).

Second, that some treatment has been provided does not
automatically defeat an Eighth Amendment deliberate-
indifference claim. The failure to provide adequate treatment
can also amount to deliberate indifference. See Rouse v.
Plantier, 182 F.3d 192, 197–98 (3d Cir. 1999) (prison officials
act with deliberate indifference when they, among other things,
“persist[] in a particular course of treatment in the face of
resultant pain and risk of permanent injury”) (internal
quotation marks omitted).

This is not to say that Shifflett’s deliberate indifference
claims are adequate as they stand. Nor do we prejudge whether
on remand the eventual amended complaint will adequately
state a valid claim or claims. That determination will be made
in the first instance by the District Court. We seek only to
clarify principles that relate to that endeavor.

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IV. Conclusion
What is good for the goose is good for the gander. The
PLRA requires strict compliance by prisoners seeking redress
of their grievances, and by the same token we hold that it
requires strict compliance by prison officials with their own
policies. Whenever a prison fails to abide by those procedural
rules, its administrative remedies have become unavailable,
and inmates are deemed to have successfully exhausted their
remedies for purposes of the PLRA. In this case, according to
the complaint, Shifflett met that standard when the Facility
Manager at SCI Graterford did not respond to his first appeals
within the specified 15 days. Thus we affirm in part (as to
Shifflett’s First Amendment claims) and reverse in part (as to
his Eighth Amendment claims), and remand for the District
Court to allow Shifflett to file an amended complaint and to
appoint counsel for him under Tabron.3

3
Relying on Federal Rule of Appellate Procedure 3, Dr.
Mulligan argues that we lack appellate jurisdiction over him
because Shifflett’s notice of appeal failed to name him and
failed to “refer specifically to the Order on [Dr. Mulligan’s]
Motion to Dismiss as being one of the orders that [Shifflett] is
appealing.” Mulligan Br. 17. We disagree. Federal Rule of
Appellate Procedure 3 does not require that appellees be named
in the notice of appeal; the rule only requires that the notice of
appeal name the appellants. Fed. R. App. P. 3(c)(1)(A) (“The
notice of appeal must . . .specify the party or parties taking the
appeal . . . .”). Regarding the order identified in the notice of
appeal, the District Court issued only one order granting all of
the motions to dismiss. As such, by identifying that single
order, we conclude that Shifflett complied with the
requirement of Federal Rule of Appellate Procedure 3(c)(1)(B)

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to “designate the judgment, order, or part thereof being
appealed” in the notice of appeal.

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