NOT PRECEDENTIAL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) ___________

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

. We review the District Court’s ruling on a motion for summary judgment de novo. Barefoot Architect, Inc. v. Bunge,

(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,

(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,

, 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,

(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,

(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

3 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.,

(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.,

(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,

. 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,

(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