Small v. Camden County, No. 11-2378; Third Circuit; opinion by Barry, U.S.C.J.; filed August 26, 2013. Before Judges Greenaway, Sloviter and Barry. On appeal from the District of New Jersey, No. 06-cv-01363. [Sat below: Judge Bumb.] DDS No. 46-8-1209 [18 pp.]

Robert Small, an inmate at the Camden County Correctional Facility (CCCF), appeals from the dismissal of his civil rights action against Camden County, CCCF, approximately 30 individual medical personnel and prison officers, and nine John Does, for his failure to exhaust administrative remedies pursuant to the Prison Litigation Reform Act of 1995 (PLRA).

Small is a New Jersey state prisoner. He is a paraplegic and confined to a wheelchair. At various times between June and September 2004, and again between May 2005 and January 2008, Small was a pretrial detainee at CCCF. Each time, he entered CCCF with his own wheelchair equipped with leg rests.

In March 2006, Small filed this action, pro se, under 42 U.S.C. § 1983. The district court appointed pro bono counsel, and a second amended complaint was filed on Jan. 15, 2008. Small asserted claims against defendants arising from 14 incidents that he alleged occurred between August 2004 and September 2006. Those incidents involved, among other misconduct, the use of excessive force, the denial of medical treatment, and the confiscation of his personal wheelchair and its replacement with one without leg rests. When left with what he alleges was an improper replacement, he claims he was unable to brush his teeth, shower, and on several occasions, was left to lie for days in his own excrement.

In late 2009, after the completion of merits discovery, defendants moved for summary judgment, arguing, among other things, that Small failed to exhaust his administrative remedies pursuant to CCCF's grievance procedures before filing suit. These procedures are set forth in CCCF's inmate handbook.

The district court denied defendants' motions without prejudice following an evidentiary hearing. The court went through the grievances one by one, ultimately concluding that Small failed to exhaust all but one of them, and explaining at length why it had reached that conclusion. The court dismissed the complaint as to all but that one, and after it eventually settled, the court entered the final order in the case. Small appealed.

Held: Whether an inmate failed to exhaust administrative remedies pursuant to the Prison Litigation Reform Act is a question of law to be determined by the judge, even if that determination requires the resolution of disputed facts.

The PLRA mandates that prisoners exhaust internal prison grievance procedures before filing suit. Small argues that, under the PLRA, a jury, not a judge, should determine factual disputes relating to the issue of exhaustion because Seventh Amendment rights are implicated. In Drippe v. Tobelinski, the Third Circuit, in dicta, stated that exhaustion of administrative remedies is a question of law to be determined by the judge. Here, the circuit panel holds that exhaustion is a question of law to be determined by a judge, even if that determination requires the resolution of disputed facts.

Under the PLRA, exhaustion is a precondition for bringing suit under § 1983. Thus, exhaustion is a threshold issue. A plaintiff in a lawsuit governed by the PLRA is not entitled to a jury trial on the issue of exhaustion. No court has held that decision of that issue implicates Seventh Amendment rights. It is of no consequence that here, as is often the case, there are disputed facts that must be resolved in order to determine whether the claims were exhausted. Because the circuit panel concludes that judges may resolve factual disputes relevant to the exhaustion issue without the participation of a jury, the district court did not err by acting as the fact finder.

Remedies that are not reasonably communicated to inmates may be considered unavailable for exhaustion purposes. The district court found that Small received an inmate handbook (which outlines CCCF's grievance procedures) on his entry to the prison and that he was aware of those procedures. There was ample evidence that Small knew of, and had access to, CCCF's grievance procedures and, thus, that administrative remedies were available to him.

The district court found, in its review of the grievances at issue, that Small had not substantially complied with CCCF's grievance procedures, for different reasons specific to each one, and had thereby failed to exhaust his administrative remedies. The circuit panel agrees with the court as to the failings of the majority of the grievances.

The circuit panel believes, however, that the district court erred insofar as it found that although grievances had been submitted in compliance with CCCF's procedures as to the incidents of June 18 and 28, 2005, those grievances should nonetheless be dismissed because Small did not file an appeal. The court concluded that Small's failure to appeal rendered his efforts noncompliant with CCCF's procedures and, therefore, that his administrative remedies as to them were unexhausted. However, there was no decision as those grievances. CCCF's procedures do not mention what must or even could be done by the inmate when a decision is never made. Thus, the court erroneously read an additional requirement into CCCF's grievance procedures. Because CCCF procedures did not contemplate an appeal from a nondecision, when Small failed to receive even a response to the grievances addressing the June 18 and 28, 2005, incidents, much less a decision, the appeals process was unavailable to him.

The circuit panel vacates the order of the district court dismissing those grievances and remands. The panel, in all other respects, affirms the order of the district court dismissing the complaint.

For appellant — Jennings F. Durand and Carolyn M. Hazard (Dechert); and Lauren M. Bennett (University of Pennsylvania Law School). For appellees: Camden County — Anne Walters, Cheryl L. Cooper and Howard L. Goldberg (Office of County Counsel); Curls et al. — Thomas J. Decker (Decker & Magaw); Henderson — Frank Orbach (Brian Granstrand).