NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-3200
__________
CHARLES EDWARD BROWN,
Appellant
v.
WILLIAM D. SPRENKLE; TANYA BRANDT; SUPERINTENDENT MICHAEL D.
KLOPOTOSKI; VINCENT MOONEY; JEROME WALSH; LORI LYONS
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 03-10-cv-02612)
District Judge: Honorable A. Richard Caputo
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 4, 2020
Before: JORDAN, BIBAS and PHIPPS, Circuit Judges
(Opinion filed September 17, 2020)
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OPINION*
___________
PER CURIAM
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Charles Edward Brown appeals from an order of the United States District Court
for the Middle District of Pennsylvania, which granted the Defendants’ second summary
judgment motion. We will affirm the District Court’s judgment.
In 2010, Charles E. Brown, a Pennsylvania state prisoner, filed a complaint in the
District Court alleging a conspiracy and claiming that he was transferred to a different
prison facility in retaliation for filing institutional grievances. In 2015, the Court granted
in part and denied in part the Defendants’ motion to dismiss and permitted Brown to
amend his complaint as to his claims that were dismissed without prejudice. Brown then
filed an amended complaint. The Court denied the Defendants’ first motion for summary
judgment in 2017, determining that there was a genuine issue of fact regarding whether
Brown exhausted his retaliatory transfer claim. After denying the Defendants’ motion to
file a second summary judgment motion, the Court granted the Defendants’ motion to
reconsider. The Defendants filed a second motion for summary judgment, arguing that
Brown had not exhausted his administrative remedies. Brown also filed a motion for
summary judgment. The Court granted the Defendants’ motion, agreeing that Brown had
not exhausted available remedies. Brown timely appealed.1
1
We have jurisdiction under 28 U.S.C. § 1291. We review the District Court’s ruling on
a motion for summary judgment de novo. Barefoot Architect, Inc. v. Bunge, 632 F.3d
822, 826 (3d Cir. 2011). Summary judgment is proper when, viewing the evidence in the
light most favorable to the nonmoving party and drawing all inferences in favor of that
party, there is no genuine dispute over any material fact and the moving party is entitled
to judgment as a matter of law. Fed. R. Civ. P. 56(a); United States v. Care Alternatives,
952 F.3d 89, 95 (3d Cir. 2020).
2
The Prison Litigation Reform Act (PLRA) requires an inmate to exhaust “such
administrative remedies as are available” before suing under § 1983 to challenge prison
conditions. Ross v. Blake, 136 S. Ct. 1850, 1854–55 (2016) (quoting 42 U.S.C.
§ 1997e(a)). In Pennsylvania, inmate grievances are handled according to the
Department of Corrections’ Inmate Grievance System Policy DC-ADM 804, which
requires completion of a three-part procedure: initial review, appeal, and final appeal.
See Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004).
The sole substantive question in this appeal is whether administrative remedies
were “unavailable” to Brown, so that the District Court should have considered the merits
of his complaint. See Ross, 136 S. Ct. at 1855 (noting the PLRA’s “built-in exception to
the exhaustion requirement: A prisoner need not exhaust remedies if they are not
‘available’”). Brown claims that he did not receive an Initial Review Response to
Grievance #259990. He notes that the grievance procedure provides that an inmate may
not appeal to the next level until he has “received” the Initial Review Response. DC-
ADM 804, Part VI.C.1.a.
Brown raises other issues related to the availability question: (1) whether the
District Court erred in allowing the Defendants to file a second summary judgment
motion; (2) whether the District Court should have found that the Chief Grievance
Officer committed perjury concerning Brown’s exhaustion of remedies; (3) whether the
District Court “overlooked” Brown’s declaration stating that he did not receive the
Grievance Officer’s Initial Review Response of Grievance #259990; and (4) whether the
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District Court erred in determining that the Defendants did not interfere with Brown’s
attempts to exhaust administrative remedies. We address these issues first.
The District Court did not err in allowing the Defendants to file a second motion
for summary judgment. As the District Court noted in its order granting the Defendants’
motion for reconsideration, exhaustion of administrative remedies is a threshold issue that
the District Court must address before it can reach the merits of a prisoner’s complaint.
Order at 2, Dkt. #134 (citing Small v. Camden Cnty., 728 F.3d 265, 269-70 (3d Cir.
2013)). Second, we agree with the District Court that the Chief Grievance Officer’s
initial declaration did not contain false statements. The declaration concerned only
whether a different grievance filed by Brown (#282036) was a true and accurate copy,
and whether Brown had exhausted his administrative remedies as to that grievance.
Declaration of Dorina Varner at 3-4, Dkt. #84-3.2 Contrary to Brown’s representation,
the Declaration did not state that Grievance #282036 was the only grievance that Brown
filed about his transfer.
We are confident that the District Court did not “overlook” docket #144, Brown’s
Declaration. Notably, the District Court referenced the document in its final opinion.
Dist. Ct. Mem. at 4, Dkt. #162. And the District Court did not err in determining that the
Defendants did not interfere in Brown’s attempts to exhaust his administrative remedies,
as we explain in greater detail below. See Small v. Camden Cnty., 728 F.3d 265, 271 (3d
2
Brown does not dispute that Grievance #282036 was rejected as untimely.
4
Cir. 2013) (stating that a District Court may resolve factual issues regarding exhaustion
of administrative remedies).
Brown is correct that an inmate may not appeal to the next level until he has
“received” the Initial Review Response. DC-ADM 804, Part VI.C.1.a. And it is also true
that administrative remedies are considered unavailable “when prison administrators
thwart inmates from taking advantage of a grievance process through machination,
misrepresentation, or intimidation.” Ross, 136 S. Ct. at 1860. But here, even crediting
Brown’s assertion that he did not receive the Initial Review Response, Brown admits that
on March 3, 2009, he received a communication from the Chief Grievance officer, which
stated, among other things, that “an initial review response [to Grievance 259990] was
completed on February 23, 2009.” Plaintiff’s Affidavit at 2, Dkt. #35; Plaintiff’s
Appendix at 30, Dkt. #145. Thus, this was not a case in which the prison thwarted
Brown’s attempts to exhaust administrative remedies or misled him as to how to exhaust
his administrative remedies. Cf. Hardy v. Shaikh, 959 F.3d 578 (3d Cir. 2020)
(establishing test for determining when an inmate’s use of a grievance process has been
thwarted by misrepresentation). We agree with the District Court that, once Brown knew
that an Initial Response had been issued, he should have informed the prison that he had
not received it, and he should have requested, if necessary, an extension of time to file an
appeal.
Because Brown did not exhaust his administrative remedies, we will affirm the
District Court’s order granting the Defendants’ second summary judgment motion.
5