Quintez Talley v. Major Clark

                                      PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ____________

                     No. 19-3797
                    ____________

                QUINTEZ TALLEY,
                           Appellant

                          v.

 MAJOR CLARK; LAURA BANTA; M. NASH; THOMAS
GRENEVICH; GEORGE ANDRAKA; SGT. WORTH; SGT.
BISSELL; C/O BANGGERT; C/O MARTIN; C/O HAYES;
 C/O MARTINEZ; C/O VOURHEES; C/O BROWN; SGT
     RIVERA; C/O WEST; C/O CHOI; UNKNOWN
  CORRECTIONS OFFICERS; PA. DEPARTMENT OF
CORRECTIONS; DR. RICHARD DOYLE; R. LADDNNE;
    MHM; CHIEF SAFETY & ENVIRONMENTAL
        PROTECTION DIVISION; J. WETZEL
                  ____________

    On Appeal from the United States District Court
       for the Eastern District of Pennsylvania
               (D.C. No. 2-19-cv-00253)
     District Judge: Honorable Timothy J. Savage
                     ____________

               Argued on June 4, 2024
   Before: HARDIMAN, PORTER, and AMBRO, Circuit
                      Judges.

                   (Filed: August 1, 2024)

Quintez Talley
Camp Hill SCI
P.O. Box 8837
2500 Lisburn Road
Camp Hill, PA 17001

Pro Se Appellant

Craig Castiglia
Vernon L. Francis
Deckert
2929 Arch St.
18th Floor, Cira Centre
Philadelphia, PA 19104

Zhixin Han [Argued]
University of Pennsylvania School of Law
3400 Chestnut Steet
Philadelphia, PA 19104

Counsel for Court-Appointed Amici Curiae in Support of
Appellant

Michelle A. Henry
Claudia M. Tesoro [Argued]
J. Bart DeLone
Office of the Attorney General of Pennsylvania
1600 Arch Street, Suite 300




                             2
Philadelphia, PA 19103

Counsel for Appellees Major Clark, Laura Banta, M. Nash,
Thomas Grenevich, George Ondrejka, Sgt. Worth, Sgt. Bissell,
C/O Barreto, C/O Bangert, C/O Martin, C/O Hayes, C/O
Martinez, C/O Voorhees, C/O Brown, Sgt. Haines, Sgt. Rivera,
C/O West, C/O Choi, Pa. Department of Corrections, R.
Ladonne, J. Wetzel

Cassidy L. Neal [Argued]
Frank X. Petrini, III
Baum O’Connor Cullen Chmiel
912 Fort Duquesne Boulevard
Pittsburgh, PA 15222

Counsel for Appellee Dr. Richard Doyle

                         ___________

                 OPINION OF THE COURT
                      ____________


HARDIMAN, Circuit Judge.

        Quintez Talley, a Pennsylvania inmate, appeals the
District Court’s order dismissing his federal civil rights claims
for failure to exhaust administrative remedies as required by
the Prison Litigation Reform Act (PLRA). Talley alleged he
was unable to exhaust because he lacked access to grievance
forms and writing implements while he was held in restrictive
custody. The District Court held that Talley should have
requested permission to file a late grievance under the state




                               3
prison system’s written policy. Because Talley’s failure to do
so rendered his federal claims unexhausted, we will affirm.1

                                 I

       Talley suffers from mental illness and has been
incarcerated in Pennsylvania prisons for over a decade. His suit
focuses on actions allegedly taken against him from about
January 4 to January 8, 2018, while he was imprisoned at the
Pennsylvania State Correctional Institution at Graterford.

        On January 6, 2018, while confined in the restricted
housing unit at SCI-Graterford, Talley attempted to commit
suicide by setting fire to his cell. After receiving medical
attention, Talley was placed on suicide watch and confined in
a psychiatric observation cell from January 6, 2018 through
February 8, 2018, first at SCI Graterford and then after being
transferred to SCI Fayette. During this time, Talley had no
access to the grievance forms or writing implements needed to
file a grievance. At some point on February 9, 2018, Talley
regained access to the materials needed to file a grievance but
did not do so. Instead he filed this pro se action in federal court
under 

, alleging a congeries of claims against
numerous defendants and seeking leave to proceed in forma
pauperis.



1
  The Court thanks Vernon L. Francis, Esq. and Craig J.
Castiglia, Esq. for their service in this appeal as Court-
appointed pro bono amici curiae on behalf of Appellant. We
also thank Zhixin Han, a recent graduate of the University of
Pennsylvania Carey Law School admitted under Third Circuit
Local Appellate Rule 46.3, for her service.




                                4
       Pursuant to its screening obligation under 28 U.S.C.
§ 1915A, the District Court dismissed with prejudice some of
Talley’s federal claims against the Pennsylvania Department
of Corrections (DOC) and individual defendants. It then
granted Talley’s motion to proceed in forma pauperis and
ordered Talley to provide waiver of service and summons
forms for each defendant.

       Counsel for the Commonwealth filed waiver of service
forms and entered appearances on behalf of all but three
defendants: Robert McSurdy, then Chief of the Safety and
Environmental Protection Division, private mental health
contractor MHM, and Dr. Richard Doyle. On September 3,
2019, Commonwealth counsel filed a motion to dismiss on
behalf of the then-appearing DOC Defendants, who waived
service. Talley did not oppose the motion to dismiss. Instead,
he moved for a default judgment against the appearing DOC
defendants, which the District Court denied. After Talley
served the additional DOC defendant, McSurdy,
Commonwealth Counsel appeared on his behalf and filed a
motion to dismiss joining in the earlier unopposed motion to
dismiss. Talley yet again chose not to file any opposition.

         On November 20, 2019, the District Court dismissed
Talley’s complaint as to all Defendants. The District Court first
observed that, by local rule, it could have granted the motions
to dismiss because Talley failed to oppose them. Talley v.
Clark, 

, at *1 n.5 (E.D. Pa. Nov. 20, 2019).
The Court then held that Talley’s failure to exhaust
administrative remedies as required by the PLRA barred his
federal claims. 

. It included the non-moving defendants
in its dismissal order because “the claims against all defendants
[were] ‘integrally related’ [and] . . . the non-moving defendants
[were] in a similar position to the moving defendants.” 

 at




                               5
*1 n.4 (emphasis added) (quoting Bonny v. Soc’y of Lloyd’s, 

 (7th Cir. 1993)). See also Silverton v. Dep’t of
Treasury, 

, 1345 (9th Cir. 1981) (dismissing
action against party not yet appearing on basis that the
defendant was in same position as moving defendant); accord
Rosser v. Chrysler Corp., 

 (7th Cir. 1988)
(observing “substantial merit in [this] practice followed in
other circuits” and adopting it). After determining it would
dismiss the federal claims with prejudice, the District Court
declined to exercise supplemental jurisdiction over the state
law claims and dismissed them as well. Talley, 

, at *5.

       Talley appealed the District Court’s order on November
27, 2019, and Dr. Doyle was later served with a summons and
the Complaint. Service apparently was never made on MHM.

                                II

       The District Court had jurisdiction over this federal civil
rights action and related state law claims under 

 and 1367(a). We have jurisdiction under 

.

       We review de novo the District Court’s order
dismissing the federal claims for failure to exhaust under the
PLRA, Spruill v. Gillis, 

 (3d Cir. 2004), and
we may affirm for any basis evident in the record, see Shark
River Cleanup Coal. v. Twp. of Wall, 

 (3d Cir.
2022). We review for abuse of discretion the District Court’s
decision to decline supplemental jurisdiction over the state law
claims once the federal claims had been dismissed. Hedges v.
Musco, 

, 123–24 (3d Cir. 2000).




                                6
                               III

       Talley challenges the order dismissing his complaint on
both procedural2 and substantive grounds. He first argues that
dismissal was improper under Rule 12(b)(6) of the Federal
Rules of Civil Procedure because exhaustion is an affirmative
defense. Second, he contends his complaint against Dr. Doyle
and MHM should not have been dismissed because they never
appeared or moved to dismiss. Finally, Talley maintains that
he had no need to exhaust because administrative remedies
were not available to him from January 6, 2018 through
February 8, 2018, and that he regained access to grievance
forms and writing implements only on February 9, 2018, after
the time to file a grievance had expired.

                               A

       The PLRA, 42 U.S.C. § 1997e(a), provides: “No action
shall be brought with respect to prison conditions under

2
  Talley also challenges the District Court’s October 3, 2019
order denying his motion for default judgment. He argues that
he was entitled to a default judgment against the Defendants
who waived service and filed the first motion to dismiss. We
disagree for several reasons. Those Defendants had responded
to the Complaint prior to Talley’s request for a default
judgment, there was no Clerk’s entry of default under Rule
55(a) of the Federal Rules of Civil Procedure, and they had
viable defenses. Thus, the District Court did not err in refusing
to enter a default judgment in favor of Talley. See Chamberlain
v. Giampapa, 

 (3d Cir. 2000) (applying abuse
of discretion standard); United States v. $55,518.05 in U.S.
Currency, 

 (3d Cir. 1984) (default judgments
are disfavored).




                               7
section 1983 of this title, 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.” The exhaustion mandate is a “centerpiece” of the
statute, see Woodford v. Ngo, 

 (2006), that
serves three important statutory goals: “(1) to return control of
the inmate grievance process to prison administrators; (2) to
encourage development of an administrative record, and
perhaps settlements, within the inmate grievance process; and
(3) to reduce the burden on the federal courts by erecting
barriers to frivolous prisoner lawsuits,” Spruill, 

. The PLRA requires “proper exhaustion,” Woodford, 

, which means “complet[ing] the administrative
review process in accordance with the applicable procedural
rules,” Downey v. Pa. Dep’t of Corr., 

 (3d
Cir. 2020) (quoting Woodford, 

). The only limit
on § 1997e(a)’s mandate is that “administrative remedies must
be available to the prisoner” as both a formal and practical
matter. Id. (citing Ross v. Blake, 

, 641–42 (2016)).

       The phrase “with respect to prison conditions” in
§ 1997e(a) encompasses a wide range of conditions and actions
to which a prisoner is subjected. It covers challenges to
everything from generally applicable prison policies to single
incidents of mistreatment, including “excessive force or some
other wrong” committed against the plaintiff-prisoner alone.
Porter v. Nussle, 

 (2002). All of Talley’s
federal claims challenge his prison conditions, so he was
required to properly exhaust them through the prison’s
grievance process.




                               8
                              B

        To exhaust under the PLRA, a prisoner must complete
the administrative review process in accordance with the
prison’s grievance policies. Downey, 

. So we
consider what the prison’s procedures required. 

; see
Shifflet v. Korszniak, 

, 364–65 (3d Cir. 2019). The
Pennsylvania DOC has an “Inmate Grievance System” by
which prisoners can “seek resolution of problems or other
issues of concern arising during the course of confinement.”
DC-ADM 804 (policy 804).3 Policy 804’s “general grievance
procedures” are meant to handle a wide variety of grievances.
Downey, 

.

       Policy 804 § 1.A.5 and 1.A.8 instruct that “the inmate
must submit his[] grievance to the Facility Grievance
Coordinator/designee using the DC-804, Part 1 [form] . . .
within 15 working days after the event upon which the claim is
based.” Id. (emphasis removed). Critical to this appeal, as to
the stated “15 working days” deadline, policy 804 § 1.C.2
provides:

      A time extension for filing a grievance will be
      considered on a case-by-case basis. The inmate
      must      notify    the    Facility   Grievance
      Coordinator/designee of the reason for the delay.
      The Facility Grievance Coordinator/designee
      will consider the reason given and also consider
      if the delay was caused by: . . .



3
 Pennsylvania DOC policies effective as of May 1, 2015 are
available at https://perma.cc/YE6X-SJV5.




                              9
       e. any other reason the Facility Grievance
       Coordinator/designee deems appropriate.

       NOTE: If it is determined that a delay was
       caused by a circumstance listed above, a
       reasonable extension of time for filing shall be
       permitted.

If the inmate pursuing a grievance receives an unfavorable
decision, policy 804 § 2 provides two levels of appeals that an
inmate must pursue to complete the grievance process.

       Talley averred that because he had no access to
grievance forms or writing implements in the psychiatric
observation cell, he had no duty to exhaust administrative
remedies under policy 804. But in view of policy 804 § 1.C.2,
we appointed Amici Curiae and asked them to brief the
following issue: “For purposes of administrative exhaustion,
must a prisoner in the Pennsylvania state prison system who
had been impeded from filing a grievance seek an extension of
time to file such a grievance once the impediment is gone?”
ECF No. 98. Amici were constrained to conclude that he must.
See Amici Br. 5–7. And the District Court so ruled. Talley,

, at *4. We agree.4


4
  At least one of our sister courts has weighed in on grievance
extensions and likewise concluded that if an extension request
is an available remedy, an inmate must pursue it to exhaust. In
Harper v. Jenkins, 

, 1312 (11th Cir. 1999) (per
curiam), the Eleventh Circuit explained that the state prison
grievance process in Georgia had a procedure allowing
prisoners, on a showing of good cause, to seek a waiver of the




                              10
        Requiring Pennsylvania prisoners to seek an extension
to file a grievance pursuant to policy 804 § 1.C.2 serves the
important goals of exhaustion. Crucially, § 1.C.2 is no less an
administrative remedy than the grievance itself, the other filing
requirements in § 1 with which prisoners must comply, and the
appeals process they must pursue under § 2. Because a request
to extend or be excused from the 15-day deadline for filing a
grievance is explicitly included as part of the Pennsylvania
DOC’s grievance procedures, a prisoner must request
permission to file an untimely grievance under § 1.C.2 just as
he must pursue the grievance itself. To hold otherwise would
render § 1.C.2 of no value in derogation of the PLRA’s
exhaustion requirement.

       In his pro se brief, Talley points to a panel opinion of
this Court, West v. Emig, 

, 813 (3d Cir. 2019).
According to Talley, his failure to file a grievance is excused
because he did not have access to a pen. We disagree.

       It is true that administrative remedies were temporarily
“unavailable” while Talley was on suicide watch without
access to writing materials, but that does not excuse his failure
to request an extension once he was released and able to
complete the necessary forms. Talley’s reliance on West is
unpersuasive. At issue in that case was Delaware’s “unofficial
verbal grievance policy” regarding extensions of time to file
grievances. 787 F. App’x at 816 (emphasis added). Here, the



time period to file a grievance. Because the prisoner failed to
seek the waiver for his untimely filing, the court concluded he
failed to exhaust. Id.




                               11
Pennsylvania DOC has a formal written policy for extensions
to which Talley had recourse.5

                               C

       We agree with Talley that exhaustion of prison
administrative remedies is an affirmative defense, which of
course applies with equal force to Pennsylvania’s request-for-
extension procedure. The Supreme Court has explained that the
ordinary pleading rule—that a plaintiff need not plead the
absence of an affirmative defense or otherwise plead around
it—applies in the PLRA context. Jones v. Bock, 

 (2007). Nevertheless, “[w]hether a particular ground for
opposing a claim may be the basis for dismissal for failure to
state a claim depends on whether the allegations in the
complaint suffice to establish that ground.” 

.
Accordingly, where a prisoner’s failure to exhaust under the
PLRA is “apparent from the face of the complaint,” a district
court may dismiss it on that basis. Ray v. Kertes, 

 (3d Cir. 2002).

       Though not required, Talley’s complaint contains a
section he labeled “Exhaustion of Administrative Remedies.”
Amicus Supp App. 14 (capitalization omitted). In it, he
contends that due to his confinement in a psychiatric
observation cell after attempting suicide on January 6, 2018,
he lacked access to grievance forms and writing utensils, and
“he didn’t get approved to possess either paper/grievance(s)
and/or a writing utensil until February 9th, 2018.” 

 Talley
explains further that he did not file a grievance because his
“[p]sychiatric    commitments      made      these   remedies

5
 See, e.g., Ross, 

 (discussing the availability
of grievance procedures that are “officially on the books”).




                              12
‘Unavailable’ (within the fifteen (15) working days timeframe
to address them.” 

 (emphasis in original). Taking Talley’s
assertions at face value, Defendants’ exhaustion defense is
manifest in Talley’s complaint.

        Amici acknowledge that an extension for filing a
grievance is an administrative remedy provided by the
Pennsylvania DOC grievance process. They also acknowledge
that, if otherwise available, a prisoner must comply with that
grievance procedure. Yet Amici nonetheless urge that we must
remand for the District Court to consider whether Talley was
impeded from filing his grievance on a basis other than
temporary lack of forms and a pen—i.e., threats to thwart him
from filing a grievance. Amici explain we should do so to
“contextualize[]” his pro se pleadings. Amici Br. 10.

        Threats made by prison officials that “inhibit an inmate
from utilizing an administrative process . . . lift the exhaustion
requirement” from the administrative process. Rinaldi v.
United States, 

 (3d Cir. 2018). See also Ross,
578 U.S. at 643–44 (“[A]n administrative remedy, although
officially on the books, is not capable of use to obtain relief” if
“prison administrators thwart inmates from taking advantage
of [it] . . . through . . . intimidation.”). Talley’s complaint
contains allegations of harassment, including that officials
“very high in the DOC chain” and the “DOC itself” were upset
that Talley had previously sued them. Compl. ¶ 24
(capitalization omitted). But as amici admit, Talley maintains
the reason he did not pursue a grievance was because he
believed it would be untimely due to his lack of access to forms
and writing implements during the 15-day time period for
filing—not because he was “thwarted” by threats, harassment,
or fear of reprisal. See Amici Br. 9.




                                13
        For that reason, we decline to remand for Talley to
pursue amici’s newly suggested reason to excuse Talley’s
failure to exhaust. He offered just one justification for failing
to file a grievance, and he did not proffer any other
explanations in response to the defendants’ motions to dismiss.
Under these circumstances, further proceedings on the
availability of administrative remedies because of other
possible exceptions to exhaustion would contravene Talley’s
position.

       Requests to extend the 15-day deadline are part of the
Pennsylvania prison administrative remedial scheme. Talley’s
scenario falls within policy 804 § 1.C.2.e’s broad provision of
an administrative avenue for relief from the grievance deadline
on “any basis.” Talley was thus required to pursue this remedy
when the impediment no longer existed on February 9, 2018.
Because Talley did not do so, he failed to exhaust as required
by the PLRA. To hold otherwise would vitiate the exhaustion
requirement whenever a prisoner’s severe illness or placement
in restrictive confinement for safety concerns temporarily
precludes access to the grievance process, which is not an
uncommon impediment for Talley. See, e.g., Talley v.
Constanzo, 

, at *2 (3d Cir. Dec. 1, 2022);
Talley v. Clark, 

, 307 (3d Cir. 2021). In sum,
the PLRA requires “the inmate [to] err on the side of
exhaustion,” Ross, 

, and Talley did not do so
here.

                               D

       Talley separately challenges the District Court’s order
as to Dr. Doyle and MHM. Citing Mitchell v. Horn, 

 (3d Cir. 2003), Talley argues that because defendants
ordinarily must plead and prove the affirmative defense of




                               14
failure to exhaust, Dr. Doyle and MHM failed to do so because
they had not even been served when the District Court
dismissed the case. According to Talley, we must view the
District Court as having improperly raised and ruled on the
matter sua sponte as to Dr. Doyle and MHM.

       We disagree because Talley’s case is in a different
posture than Mitchell. Here, the failure to exhaust required by
the PLRA appears in Talley’s complaint. And the District
Court addressed the exhaustion issue in the context of notice to
Talley that he had to respond to motions against him; notice to
him by service of the motions to dismiss; his choice not to
oppose the motions; and the District Court’s decision to
dismiss all Defendants because his failure to exhaust applied
identically to all Defendants. On these facts, remand as to Dr.
Doyle and MHM would be an idle exercise.

        Likewise, we need not address the merits of the
differing bases on which the District Court dismissed some of
the federal claims when it screened the complaint. Because the
Court could have dismissed all of Talley’s federal claims for
failure to exhaust, we will affirm its initial dismissal order on
this alternative basis.6


6
   A district court “may decline to exercise supplemental
jurisdiction over [state] claim[s]” under 

(c).
As the District Court explained, however, where it dismisses
the federal claims prior to trial or at the early stages of the
litigation, it “must decline” to exercise jurisdiction over the
state law claims “unless considerations of judicial economy,
convenience, and fairness” justify retaining that jurisdiction.
Hedges, 

 (3d Cir. 2000) (cleaned up); see




                               15
                       *      *      *

       Pennsylvania’s written prison grievance procedure
requires prisoners to request an extension of the 15-day
deadline to file a grievance. Talley’s lack of access to
grievance forms and writing implements in time to meet the
15-day deadline did not obviate his duty to request an
extension of the deadline when his access was restored. His
failure to pursue an extension rendered his federal claims
unexhausted under the PLRA. So we will affirm the District
Court’s order dismissing the complaint.




Talley, 

, at *4. The District Court found that
none of these justifications applied. 

. We perceive no
abuse of discretion in its decision to dismiss the state law
claims on this basis.




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