Michael Rinaldi v. United States

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_______________

No. 16-1080

_______________

MICHAEL RINALDI,

Appellant

v.

UNITED STATES OF AMERICA; HARRELL WATTS,

Central Office; J.L. Norwood, Reginal Director, B.A.

BLEDSOE, Warden, J. E. THOMAS, Warden; J.

GRONDOLSKY, Acting Warden; MR. YOUNG, Associate

Warden; MRS. REAR, Associate Warden; JOHN DOE,

Captain; MR. TAGGART; DR. MINK, Psychology; MR.

KISSELL, Case Manager; D. BAYSORE, Counselor; GEE,

Officer; MR. BINGAMAN, Officer; MR. PACKARD,

Officer; MRS. SHIVERY, Officer; B. TAUNER, Officer

_______________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(M.D. Pa. Civil Action No. 1:13-cv-00450)

Honorable Sylvia H. Rambo, U.S. District Judge

_______________

Argued: January 25, 2018

Before: KRAUSE, SCIRICA, and FUENTES, Circuit Judges

(Opinion Filed: September 12, 2018)

Tarah E. Ackerman, Esq. [Argued}

Allegheny Technologies, Inc.

1000 Six PPG Place

Pittsburgh, PA 15222

Matthew R. Divelbiss, Esq.

Jones Day

500 Grant Street

Suite 4500

Pittsburgh, PA 15219

Attorney for Plaintiff-Appellant Michael Rinaldi

Timothy S. Judge, Esq. [Argued]

Office of United States Attorney

235 North Washington Avenue

P.O. Box 309, Suite 311

Scranton, PA 18503

Attorney for Defendants-Appellees

2

_______________

OPINION OF THE COURT

_______________

KRAUSE, Circuit Judge.

Appellant Michael Rinaldi, who at all relevant times

was an inmate in custody at United States Penitentiary,

Lewisburg (“Lewisburg” or the “Institution”), appeals the

District Court’s dismissal of his complaint 1 alleging that the

1

The District Court considered the Government’s

“Motion to Dismiss or, in the alternative, Motion for Summary

Judgment,” JA 68, as one “for dismissal primarily under Rule

12(b)(6),” Rinaldi v. United States, 2015 WL 2131208, at *1

n.1 (M.D. Pa. May 7, 2015), and accepted as true the factual

allegations in Rinaldi’s complaint. In dismissing Rinaldi’s

claims and entering judgment in the Government’s favor based

on an affirmative defense, the District Court relied in part on

prison records and an affidavit and to that extent construed the

Government’s motion as one for summary judgment. Id. at *7-

8, *19. As we have observed in past cases, where a defendant

moves to dismiss based on a failure-to-exhaust defense and

“the exhaustion issue turns on [] indisputably authentic

documents related to [the inmate’s] grievances,” we may

consider those documents “without converting [a motion to

dismiss] to a motion for summary judgment,” Spruill v. Gillis,

3

conduct of various personnel violated his constitutional and

statutory rights. His appeal requires us to resolve three matters

of first impression for our Court: (1) what showing an inmate

must make to establish that administrative remedies were not

“available” within the meaning of the Prison Litigation Reform

Act (“PLRA”); (2) whether the PLRA’s exhaustion

requirement is satisfied where a prison administrator elects to

resolve a procedurally improper administrative request on the

merits; and (3) whether a prison’s housing and cellmate

assignments meet the discretionary function exception to the

Federal Tort Claims Act’s limited waiver of sovereign

immunity. For the reasons that follow, we will affirm the

District Court’s dismissal of Rinaldi’s complaint in part and

will vacate and remand in part.

I. Factual Background

Between November 2011 and 2012, while housed at

Lewisburg, Rinaldi filed a number of administrative requests,

including one related to an alleged assault and one related to

alleged retaliation. He initiated his assault claim with an

372 F.3d 218, 223 (3d Cir. 2004), although different treatment

may be warranted where the court considers other types of

evidence, see Paladino v. Newsome, 885 F.3d 203, 208 (3d Cir.

2018) (affirming order on defendant’s motion for summary

judgment for failure-to-exhaust based on prison records and an

affidavit without discussing when such a motion may be

construed as a motion to dismiss). In any event, we likewise

will accept Rinaldi’s factual allegations as true for purposes of

this appeal. See Bridge v. Phx. Bond & Indem. Co., 553 U.S.

639, 642 n.1 (2008).

4

“informal resolution,” 2 dated January 29, 2012, alleging that

he had been assaulted by a previous cellmate (Cellmate #1),

and “requesting the institution discontinue its practice of

forcing inmates to cell together [] regardless of their

compatibility.” JA 160. On February 1, after that informal

request was denied, Rinaldi filed a formal request (the “Assault

Request”), which the Institution eventually denied on the

ground that there was “no basis for [Rinaldi’s] accusations.”

JA 165.

The following day, February 2, Rinaldi was transferred

to another unit. According to Rinaldi’s complaint, Appellee

Counselor Baysore had previously warned Rinaldi that unless

he stopped filing requests, “she would have him moved to a

different unit and placed in a cell with an inmate who was

known for assaulting his cellmates,” and Appellee Officer Gee,

who conducted the transfer, told Rinaldi that the reason he was

being moved was because he “didn’t listen” to those warnings.

JA 61. Despite his protests, Rinaldi was transferred and placed

in a cell with a new cellmate (Cellmate #2), who, Rinaldi

alleges, threatened him by informing Lewisburg personnel,

including Officer Gee and Counselor Baysore, “that if Rinaldi

were placed in the cell he would kill [him].” JA 61. Over the

course of the next three weeks, Rinaldi asserts he “suffered cuts

2

As explained in greater detail below, an “informal

resolution” is the first step that must be taken by an inmate in

the Bureau of Prisons (“BOP”) as part of its 4-step grievance

process. The subsequent steps are the filing of a formal

“request” at the institution, an appeal to the BOP Regional

Director, and a final appeal to the General Counsel of the BOP.

See 28 C.F.R. §§ 542.13-.18.

5

and bruises and emotional distress” from several physical

altercations with Cellmate #2. JA 61.

Rinaldi sought administrative relief for the alleged

retaliatory transfer on February 2, but because he allegedly was

concerned about the risk of further retaliation, he opted not to

file an informal resolution or initial retaliatory transfer request

directly with the Institution. Instead, he followed the

procedure for “Sensitive” requests, filing this claim (the

“Retaliation Request”) directly with the Regional Director.

According to BOP records, the Retaliation Request was

rejected as procedurally improper with directions to first file it

at the Institution, which Rinaldi declined to do. 3

Separately, Rinaldi also sought to obtain administrative

relief for the assault by Cellmate #2. Although Rinaldi was

required to file an informal resolution and formal request with

the Institution, 4 he did not do so. Rather, as he was then poised

3

There is some ambiguity in the record as to whether

Rinaldi took a further appeal of the rejection by the Regional

Director to the General Counsel. However, the Government

does not raise and thus has waived this issue as a basis for

Rinaldi’s failure to exhaust, instead resting its argument

exclusively on Rinaldi’s failure to refile the “Sensitive” request

with the Institution. See United States v. Albertson, 645 F.3d

191, 195 (3d Cir. 2011).

4

The assault by Cellmate #2 was “unrelated” to the

assault by Cellmate #1 and thus was required to be filed as a

separate grievance. 28 C.F.R. § 542.14(c)(2); see id.

§ 542.15(b)(2).

6

to appeal the denial of his original Assault Request (concerning

Cellmate #1) to the Regional Director, he simply incorporated

allegations as to both Cellmate #1 and Cellmate #2 into his

appeal. As a result, the Regional Director could have rejected

that appeal, at least as to Cellmate #2, on procedural grounds

for failure to exhaust because his claim as to Cellmate #2 was

never presented to the Institution in the first instance. Instead,

however, he issued a decision that acknowledged that the

appeal raised claims concerning the assaults by Cellmates #1

and #2 and rejected both claims on the merits. As the Regional

Director put it:

You appeal the response from the Warden at

USP Lewisburg and claim you were forced into

a cell with another inmate who you allege

threatened to kill you prior to being placed in the

same cell. You also state you were once

assaulted by a previous cellmate and received

injuries. . . [T]here is no record of you being

assaulted by your previous or current cellmate. .

. Accordingly, your appeal is denied.

JA 168. 5

II. Procedural History

5

It appears that Rinaldi’s further appeal to the General

Counsel, though summarily denied, was also denied on the

merits because the BOP database entry indicated a status code

“DNY,” meaning a “request or appeal denied substantially in

full.” JA 170, 179.

7

Unable to obtain redress through the BOP grievance

process, Rinaldi, initially proceeding pro se, filed a complaint

in the Middle District of Pennsylvania raising three claims

relevant to this appeal: (1) a First Amendment claim based on

the retaliatory conduct alleged in the Retaliation Request; (2)

an Eighth Amendment claim based on the cell placement and

resulting attack by Cellmate #2 alleged in his appeal of the

Assault Request; and (3) a claim pursuant to the Federal Tort

Claims Act (“FTCA”), 28 U.S.C. § 1346, against the United

States for negligently placing Rinaldi with a cellmate that

prison personnel knew or should have known would assault

him. 6

6

Rinaldi also raised a claim pursuant to the Religious

Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb et

seq., based on his inability to attend congregational prayer

while housed in the Special Management Unit at Lewisburg,

as well as a claim construed as a Bivens claim based on a

violation of the Free Exercise Clause of the United States

Constitution. See Bivens v. Six Unknown Names Agents of Fed.

Bureau of Narcotics, 403 U.S. 388 (1971); Rinaldi, 2015 WL

2131208, at *10, 16-17. The District Court dismissed

Rinaldi’s RFRA claim with leave to amend, explaining to

Rinaldi that he was required to allege the personal involvement

of each defendant, but Rinaldi declined to file an amended

complaint and did not appeal the denial of his RFRA claim.

Between the District Court’s order and the filing of this appeal,

we held in Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d

Cir. 2016), that Bivens did not extend to Free Exercise claims

and Rinaldi concedes in his Reply brief in this appeal that Mack

forecloses his Bivens claim. Rinaldi also requests for the first

time in his Reply that, in view of Mack, we remand to give him

the opportunity to amend his RFRA claim—the very

8

The District Court granted the Government’s “Motion

to Dismiss or, in the alternative, Motion for Summary

Judgment,” concluding (1) the First Amendment claim was

barred by the PLRA, 42 U.S.C. § 1997e(a), because Rinaldi

had declined to file his Retaliation Request with the Institution

and thus had not exhausted the Retaliation Request; (2) the

Eighth Amendment claim covering the assault by Cellmate #2

was likewise unexhausted because Rinaldi failed to file an

initial request and raised it only in the appeal of his Assault

Request; and (3) the Court did not have jurisdiction over the

FTCA claim because cellmate assignments fall within the

discretionary function exception to the FTCA’s waiver of

sovereign immunity. 7 Rinaldi v. United States, No. 13-cv-450,

2015 WL 2131208, at *5-8 (M.D. Pa. May 7, 2015); 28 U.S.C.

§ 2680(a).

opportunity he passed up when offered by the District Court.

We will deny that request because “the courts of appeals will

not consider arguments raised on appeal for the first time in

a reply brief.” Hoxworth v. Blinder, Robinson & Co., 903 F.2d

186, 204-5 n. 29 (3d Cir. 1990) (citation omitted).

7

While the District Court concluded, based on the

discretionary function exception, that it “lack[ed] jurisdiction

over Plaintiff’s claims against the United States and all other

Defendants in their official capacity,” Rinaldi, 2015 WL

2131208, at *6, it properly concluded that it had jurisdiction

over Rinaldi’s claims against the defendants in their individual

capacities. See Jaffee v. United States, 592 F.2d 712, 717 (3d

Cir. 1979); Consejo de Desarrollo Economico de Mexicali,

A.C. v. United States, 482 F.3d 1157, 1173 (9th Cir. 2007)

(noting that a Bivens action can be maintained against a

defendant in his or her individual capacity only).

9

After appointing pro bono counsel on appeal, we

directed the parties to address, among other things, whether

Rinaldi failed to exhaust his administrative remedies regarding

his First and Eighth Amendment claims and the applicability

of the discretionary function exception to Rinaldi’s FTCA

claim.

III. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§ 1331, and we have jurisdiction under 28 U.S.C. § 1291. We

exercise plenary review over both the exhaustion

determination, Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir.

2004), and the applicability of the discretionary function

exception to the wavier of sovereign immunity, Mitchell v.

United States, 225 F.3d 361, 362 (3d Cir. 2000).

IV. Discussion

Below we consider whether Rinaldi exhausted his First

Amendment and Eighth Amendment claims before turning to

Rinaldi’s FTCA claim.

A. Exhaustion under the PLRA

Congress enacted the PLRA to reduce the “disruptive

tide of frivolous prisoner litigation.” Woodford v. Ngo, 548

U.S. 81, 97 (2006). In contrast to its precursor, the Civil Rights

of Institutionalized Persons Act, § 7, 94 Stat. 352 (1980),

which had a “weak exhaustion provision,” the PLRA

“invigorated” the administrative remedy of exhaustion,

Woodford, 548 U.S. at 84, by providing:

10

[n]o action shall be brought with respect to

prison conditions under Section 1983 of this title,

or any other Federal law, by a prisoner confined

in any jail . . . until such administrative remedies

as are available are exhausted.

42 U.S.C. § 1997e(a) (emphasis added). Exhaustion is thus a

non-jurisdictional prerequisite to an inmate bringing suit and,

for that reason, as we held in Small v. Camden County, it

constitutes a “‘threshold issue that courts must address to

determine whether litigation is being conducted in the right

forum at the right time.’” 728 F.3d 265, 270 (3d Cir. 2013)

(quoting Dillon v. Rogers, 596 F.3d 260, 272 (5th Cir. 2010)).

We make that determination by “evaluating compliance with

the prison’s specific grievance procedures,” Drippe v.

Tobelinski, 604 F.3d 778, 781 (3d Cir. 2010), and analyzing

whether the procedures were “available” to the inmate. Small,

728 F.3d at 269, 271; 42 U.S.C. § 1997e(a).

While Small made clear that factual disputes relevant to

exhaustion may be resolved by a district judge without the

participation of a jury, id. at 271, we recently clarified that,

before engaging in such fact-finding, the judge must provide

the parties with “some form of notice . . . and an opportunity to

respond,” although we left the exact form of this notice to “the

discretion of the district court [] on a case-by-case basis.”

Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018). At a

minimum, however, the court must “notify the parties that it

will consider exhaustion in its role as a fact finder under

Small,” and, although live testimony is not necessarily

required, it also “must at least provide the parties with an

11

opportunity to submit materials relevant to exhaustion that are

not already before it.” Id; see Small, 728 F.3d at 269.

1. Rinaldi’s First Amendment Retaliation

Claim

Rinaldi argues that his First Amendment claim should

not have been dismissed on exhaustion grounds because the

safety risks of filing directly with the Institution rendered that

administrative remedy unavailable. Because we must measure

whether Rinaldi exhausted his administrative remedies against

the yardstick of the grievance procedures set forth in the

relevant BOP regulations, see 28 C.F.R. §§ 542.13-.18;

Drippe, 604 F.3d at 781, we will first summarize (a) the

relevant administrative remedies under BOP regulations and

(b) the case law relevant to the availability of those remedies

under the PLRA before addressing (c) the showing an inmate

must make to prove unavailability, and (d) whether remand is

necessary to determine if Rinaldi can make that showing here.

(a) Exhaustion of BOP Administrative

Remedies

As a general matter, inmates must (1) attempt an

informal resolution with staff at the institution, id. § 542.13(a);

(2) file a formal complaint with the institution, id. § 542.14(c);

(3) file an appeal to the appropriate Regional Director if the

inmate is not satisfied with the institution’s response to the

formal complaint, id. § 542.15(a); and (4) file another appeal

to the General Counsel if the inmate is not satisfied with the

Regional Director’s response to the appeal, id. However,

12

where an inmate “reasonably believes the issue [that is the

subject of his grievance] is sensitive and the inmate’s safety or

well-being would be placed in danger if the Request became

known at the institution,” the inmate may proceed directly to

Step (3) by “submit[ing] the Request directly to the appropriate

Regional Director.” Id. § 542.14(d). The inmate must “clearly

mark ‘Sensitive’ upon the Request and explain, in writing, the

reason for not submitting the Request at the institution.” Id. If

the appropriate reviewer does not agree that the request is

“Sensitive,” the regulations provide that “the inmate shall be

advised in writing” that the “Request will not be accepted,” and

the inmate then “may pursue the matter by submitting a [] . . .

Request locally” with the institution. Id.

Here, Rinaldi considered his Retaliation Request a

“Sensitive” request and therefore filed it with the Regional

Director in the first instance. As discussed above, however,

the Regional Director rejected it on the procedural ground that

Rinaldi should have filed first with Lewisburg. 8 That tees up

8

It appears that there are two potentially applicable

regulations—and, by extension, two applicable procedures—

when a “Sensitive” request is rejected. See 28 C.F.R.

§ 542.14(d) (governing “Sensitive” requests); id. § 542.17(c)

(governing all rejections including “a rejection on the basis of

[the] exception [for ‘Sensitive’ issues]”). We will assume for

purposes of this appeal that those regulations required Rinaldi

to refile at the Institution upon receipt of the rejection because

Rinaldi himself adopts that position and raises no arguments to

the contrary. We note, however, that § 542.17(c) is not a model

of clarity, particularly when viewed together with

§ 542.14(d)(1). While § 542.14(d)(1) directs what inmates

“shall” do after a “Sensitive” request is rejected, it also states

13

the first exhaustion issue we confront today: whether Rinaldi

was required to submit his Retaliation Request to the

Institution to satisfy the PLRA’s exhaustion requirement

before filing his First Amendment claim in federal court or

whether he was relieved of that requirement because the

opportunity to file with the Institution was not “available.” 42

U.S.C. § 1997e(a).

(b) Unavailability of Administrative

Remedies

that inmates “may pursue the matter by submitting an

Administrative Remedy Request locally to the Warden,”

suggesting that refiling at the institution is a permissible

alternative to direct appeal pursuant to § 542.17(c). Id.

§ 542.14(d)(1) (emphasis added). Similarly, § 542.17(c)

provides that an “inmate may appeal [a] rejection,” and

specifically provides that the regulation covers rejections of

“Sensitive” requests. As for § 542.17(c), the only qualifier to

permission to appeal directly is that “the inmate is not given an

opportunity to correct the defect and resubmit.” Id.

§ 542.17(c). But it is not apparent what “defect” can be

“correct[ed]” when an inmate in good faith believes that the

request is indeed “Sensitive” and therefore warrants a direct

appeal. Because, “under § 1997e(a), the warden is responsible

for the grievance system . . . he or she may alter the grievance

system to require more (or less) of inmates by way of

exhaustion,” Spruill, 372 F.3d at 235, and in view of the

ambiguity in § 542.17(c), wardens and the BOP itself may

wish to provide guidance.

14

The PLRA requires only “proper exhaustion,” meaning

exhaustion of those administrative remedies that are

“available.” Woodford, 548 U.S. at 93. In its recent decision

in Ross v. Blake, the Supreme Court identified “three kinds of

circumstances in which an administrative remedy, although

officially on the books,” is not “available” because it is “not

capable of use to obtain relief”: (1) when “it operates as a

simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates”; (2) when

it is “so opaque that it becomes, practically speaking, incapable

of use,” such as when no ordinary prisoner can discern or

navigate it; or (3) when “prison administrators thwart inmates

from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” 136 S. Ct.

1850, 1859-60 (2016).

We too have encountered circumstances in which a

grievance process, though “officially on the books,” Ross, 136

S. Ct. at 1859, is in reality incapable of use such that the

PLRA’s exhaustion requirement must be deemed satisfied. In

Brown v. Croak, 312 F.3d 109 (3d Cir. 2002), for example, we

rejected the prison’s affirmative defense of failure to exhaust

where the plaintiff alleged he was given misleading filing

instructions, resulting in a procedural default, and argued

“essentially that officials in the security department of the

prison thwarted his efforts to exhaust his administrative

remedies.” Id. at 113. And more recently, in Robinson v.

Superintendent Rockview SCI, we held that the prison

“rendered its administrative remedies unavailable to [the

plaintiff] 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.” 831 F.3d 148,

15

154 (3d Cir. 2016). In such circumstances, “filing suit [was the

plaintiff’s] only method to advance his claim.” Id.

Rinaldi now asks us to recognize another circumstance

in which the grievance process is unavailable, i.e., where an

inmate is deterred from pursuing an administrative grievance

by a prison official’s serious threats of substantial retaliation—

a circumstance that Rinaldi contends falls squarely within

Ross’s third category because a prisoner’s ability to take

advantage of the grievance process has then been “thwarted”

by prison administrators “through . . . intimidation.” Ross, 136

S. Ct. at 1860.

We agree that serious threats of substantial retaliation

can trigger this third category of unavailability, and thus join

our Sister Circuits who have held, even before Ross, that

administrative remedies are not “available” under the PLRA

where a prison official inhibits an inmate from resorting to

them through serious threats of retaliation and bodily harm. 9

See McBride v. Lopez, 807 F.3d 982, 986-87 (9th Cir. 2015);

Tuckel v. Grover, 660 F.3d 1249, 1252-53 (10th Cir. 2011);

Turner v. Burnside, 541 F.3d 1077, 1084-86 (11th Cir. 2008);

Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006); Hemphill v.

New York, 380 F.3d 680, 686-87 (2d Cir. 2006), abrogated on

9

Given our conclusion that this circumstance falls

within the third category described in Ross, we do not have

occasion to address, as have some of our Sister Circuits,

whether Ross’s three categories are exhaustive or merely

illustrative. See, e.g., Andres v. Marshall, 867 F.3d 1076, 1078

(9th Cir. 2017) (describing the three categories as “non-

exhaustive”); Williams v. Corr. Officer Priatno, 829 F.3d 118,

124 (2d Cir. 2016) (same).

16

other grounds as recognized in Williams v. Correction Officer

Priatno, 829 F.3d 118, 123 (2d Cir. 2016).

As the Tenth Circuit eloquently explained in Tuckel v.

Grover, it is “difficult to accept the proposition that an

administrative remedy is available in any meaningful sense if

its use will result in serious retaliation and bodily harm.” 660

F.3d at 1252. To the contrary, threats made by prison officials

that inhibit an inmate from utilizing an administrative process

“disrupt the operation and frustrate the purposes of the

administrative remedies process enough that the PLRA’s

exhaustion requirement does not allow them” and thus lift the

exhaustion requirement as to that part of the process. Id. at

1253 (quoting Turner v. Burnside, 541 F.3d at 1085). This

approach not only is consistent with the plain language of the

PLRA, which requires only exhaustion of administrative

remedies “as are available,” 42 U.S.C. § 1997e(a), but also is

“faithful to the underlying purposes of the PLRA,” id. at 1253,

as it “reduces any incentive that prison officials otherwise

might have to use threats to prevent inmates from exhausting

their administrative remedies” and “thereby safeguards the

benefits of the administrative review process for everyone,”

Turner, 541 F.3d at 1085.

With Ross, the Supreme Court too has recognized that

“intimidation” by prison officials can “thwart inmates from

taking advantage of a grievance process” and thus render that

process “unavailable.” 136 S. Ct. at 1860. But the question

remains what showing an inmate must make to establish such

“intimidation” and defeat a failure-to-exhaust defense: Must he

show (1) that, objectively, an inmate of reasonable fortitude

would be deterred from filing a grievance; (2) that,

subjectively, he himself was deterred from filing a grievance;

17

or (3) that both an objective and subjective test have been

satisfied? To that question we now turn.

(c) The Showing Required to Prove

Unavailability

The burden to plead and prove failure to exhaust as an

affirmative defense rests on the defendant. Ray v. Kertes, 285

F.3d 287, 295 (3d Cir. 2002). But once the defendant has

established that the inmate failed to resort to administrative

remedies, the onus falls on the inmate to show that such

remedies were unavailable to him. Tuckel, 660 F.3d at 1253-

54.

To determine what showing is required to establish

unavailability based on “intimidation,” we find helpful

guidance in the reasoning of other Courts of Appeals. In

Turner v. Burnside, the Eleventh Circuit held that an inmate

must show both that “the threat actually did deter the plaintiff

inmate from lodging a grievance or pursuing a particular part

of the process”; and that “the threat is one that would deter a

reasonable inmate of ordinary firmness and fortitude from

lodging a grievance or pursuing the part of the grievance

process that the inmate failed to exhaust.” 541 F.3d at 1085.

The Tenth Circuit has also embraced the “two-prong analysis

in Turner . . . as the best model” for the “showing necessary to

defeat a failure-to-exhaust defense,” Tuckel, 660 F.3d at 1253-

54, explaining that the subjective element ensures that the

grievance process was perceived as unavailable by this

18

plaintiff, i.e., “that he was actually deterred,” while the

objective element “ensures that inmates cannot easily

circumvent the exhaustion requirement” and thus “only threats

that are sufficiently serious and retaliatory acts that are severe

enough to deter a reasonable inmate will result in an

administrative remedy becoming unavailable for PLRA

purposes,” id. at 1254. The Ninth Circuit, too, has embraced

Turner as “straightforward and conceptually simple to apply.”

See McBride, 807 F.3d at 987-88.

We also find the Turner test a sensible one. 10 The

objective component is of chief importance because it

maintains the exhaustion requirement for the vast majority of

claims and allows otherwise unexhausted claims to proceed

only in the exceptional circumstance where the facts alleged

would reasonably give rise to a substantial fear of serious harm.

As the Tuckel Court explained, the objective requirement

allows courts to easily weed out suits that attempt to

circumvent the PLRA, such as where “a threat . . . was

allegedly made years prior to the inmate’s suit” or “an inmate

is no longer held in the prison in which he experienced

retaliatory violence.” 660 F.3d at 1254. Because

“demonstrating that an official objectively chilled an inmate

from relying on administrative remedies presents a significant

challenge in any context,” the objective prong leaves “little

incentive for an inmate to assert baseless retaliation claims

rather than simply utilizing a grievance procedure,” id., and it

10

Indeed, federal courts are well accustomed to

applying tests involving both an objective and subjective

component in the prisoner litigation context. See, e.g., Hudson

v. McMilian, 503 U.S. 1, 8 (1992); Ricks v. Shover, 981 F.2d

468, 473-74 (3d Cir. 2018).

19

instead filters for those threats so serious as to lead a rational

inmate to forego the benefits of administrative review, see,

e.g., McBride, 807 F.3d at 988 (concluding that the inmate

failed to satisfy Turner’s objective prong where there was no

“basis in the record from which the district court could

determine that a reasonable prisoner of ordinary firmness

would have understood the prison official’s actions to threaten

retaliation if the prisoner chose to utilize the prison’s grievance

system”).

But the subjective component also has a role to play.

For even though a showing that an inmate of reasonable

fortitude would be deterred offers relevant circumstantial

evidence of subjective deterrence, see Hope v. Pelzer, 536 U.S.

730, 738 (2002); Kedra v. Schroeter, 876 F.3d 424, 441 (3d

Cir. 2017), a district court may conclude—based on

documents, affidavits, or live testimony if deemed warranted,

see Paladino, 885 F.3d at 211—that the subjective showing has

not been satisfied. Evidence that an inmate continued to file

substantially similar claims through the same grievance

process, for example, may be sufficiently compelling to defeat

an inmate’s assertion of subjective deterrence.

In sum, we perceive a valuable role for both the

objective and subjective components of the Turner test and

today adopt it as our own. To defeat a failure-to-exhaust

defense, an inmate must show (1) that the threat was

sufficiently serious that it would deter a reasonable inmate of

ordinary firmness and fortitude from lodging a grievance and

(2) that the threat actually did deter this particular inmate.

(d) Application to Rinaldi

20

As applied here, Rinaldi’s Retaliation Request

unquestionably satisfies the objective test for unavailability.

Accepting the allegation that Rinaldi’s continued resistance to

the grievance process is what led prison authorities to house

him with a cellmate they knew threatened to kill him, we have

little trouble concluding that “a reasonable inmate of ordinary

firmness and fortitude” would be “deter[red] . . . from lodging

a grievance or pursuing the part of the grievance process that

the inmate failed to exhaust.” Turner, 541 F.3d at 1084-85.

And the Government conceded as much at oral argument. The

Government disputes, however, whether Rinaldi was

subjectively deterred.

Because the District Court did not have the benefit of

the test we announce today and because we had not yet

clarified in Paladino what procedures are required when a

district court must resolve factual disputes relevant to

exhaustion, the District Court did not have occasion to

determine whether Rinaldi made the requisite showing of

subjective deterrence. Nonetheless, the Government urges that

we should affirm, rather than remand, because the record

reflects that Rinaldi filed a number of grievances after the

allegedly retaliatory transfer—a circumstance that the

Government contends, in effect, negates subjective deterrence

as a matter of law. We are not persuaded.

As the Seventh Circuit has observed, the “ability to take

advantage of administrative grievances is not an ‘either-or’

proposition. Sometimes grievances are clearly available;

sometimes they are not; and sometimes there is a middle

ground where, for example, a prisoner may only be able to file

grievances on certain topics.” Kaba, 458 F.3d at 685. Thus,

the court concluded, it “was unrealistic to expect [the inmate]

21

to file a grievance against the very people who were

threatening retaliation and preventing him from obtaining the

proper forms,” and the fact that an inmate files unrelated claims

“does not prove that remedies were available within the

system” for purposes of exhaustion. Id. at 685-86. That

observation holds true in this case, where Rinaldi’s willingness

to file grievances concerning unrelated and far less

inflammatory subjects like cleaning supplies is hardly

dispositive of whether he was subjectively deterred from

pursuing his Retaliation Request at the Institution. Indeed, the

Government has not identified any subsequent grievance that

can be characterized as substantially similar to his Retaliation

Request.

Accordingly, we will vacate the District Court’s

dismissal of Rinaldi’s First Amendment claim, and will

remand for the District Court to consider subjective deterrence

in the first instance.

2. Rinaldi’s Eighth Amendment Assault

Claim

Rinaldi also challenges the District Court’s dismissal of

his Eighth Amendment claim for failure to exhaust. As

explained below, even though he did not initiate a new

grievance for the assault by Cellmate #2 and raised that claim

for the first time in the appeal of his original Assault Request,

exhaustion was satisfied under our case law because the

Regional Director denied it on the merits. 11

11

The Government’s suggestion that the Assault

Request was not “fully examined” on the merits, Appellee’s

Br. 21, is refuted by the Regional Director’s decision, which

22

In Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000),

despite the fact that the inmate had not completed a necessary

step in the Department of Corrections’ grievance process, we

concluded that the prison had waived any exhaustion defense

and “judicial consideration [wa]s open to [the inmate]”

because the inmate’s “allegations [had] been fully examined

on the merits by the ultimate administrative authority,” and

therefore a “substantive determination [had been] made at the

highest level.” Id. at 281. Likewise, in Spruill, drawing on

principles from habeas and administrative law, we reasoned

that whether a prisoner had “properly exhausted” a claim must

be determined by evaluating not only “the prisoner’s

compliance with the prison’s administrative regulations

governing inmate grievances,” but also “the waiver, if any, of

such regulations by prison officials.” 372 F.3d at 222. Thus,

even though Spruill had failed to include the name of the

relevant prison official, we held that the grievance office’s

acknowledgment of which prison official was involved had

“excused any procedural defects in Spruill’s initial

grievances.” Id. at 234.

The Government contends in its briefing that our

precedent was abrogated by the Supreme Court’s decision in

addressed both assaults and concluded that the appeal was

“denied” because “there is no record of [him] being assaulted

by [his] previous or current cellmate.” JA 168 (emphasis

added). As the Government acknowledges elsewhere in its

brief, “denials” in contrast to “rejections,” are “on the merits.”

Appellee’s Br. 22-23.

23

Woodford v. Ngo, 548 U.S. 81 (2006). 12 Quite the opposite. In

Woodford, the Supreme Court resolved a split between those

Circuits that had adopted a broader interpretation of the

PLRA’s exhaustion requirement and those, like ours, that had

adopted a test of “proper exhaustion,” meaning “using all steps

that the agency holds out, and doing so properly (so that the

agency addresses the issues on the merits).” 548 U.S. at 90

(citation omitted). The Court endorsed the latter approach—

citing specifically to Spruill and even echoing our observation

in Spruill that PLRA exhaustion should mirror the “proper

exhaustion” requirements from both the habeas and

administrative law contexts. Id. at 88-89.

Although Woodford did not specifically address

whether review on the merits of an otherwise procedurally

defaulted claim constitutes “proper exhaustion,” the Court’s

reference to Spruill and its reliance on principles of habeas and

administrative law in evaluating PLRA exhaustion support that

conclusion. 13 In its habeas jurisprudence, the Court has

12

The Government appears of two minds on this point,

as it indicated at oral argument that it “is not taking the position

that . . . Spruill or Camp are called into question by Woodford

or Ross,” and that if this Court “conclude[s] that the Regional

Administrator did address [Rinaldi’s] . . . Eighth Amendment

assault claim [] on the merits that it’s properly exhausted for

purposes of Federal Court.” Tr. of Oral Arg. 42:12-22. Having

considered carefully whether Woodford and Ross alter our

approach, we conclude they do not.

13

Our dissenting colleague correctly observes that “the

Supreme Court has not imported all [habeas and administrative

law] principles” into PLRA exhaustion, and has rejected, for

24

recognized an exception to the general rule of exhaustion

“where the State has actually passed upon the claim,” even if

raised by the state court sua sponte. Castille v. Peoples, 489

U.S. 346, 351 (1989); see also Mathias v. Superintendent

Frackville SCI, 876 F.3d 462, 480 n.6 (3d Cir. 2017). In the

administrative law context, it is also well settled that “when the

agency in fact considers the issue on the merits, [the] general

exhaustion requirement can be satisfied even if the party did

not properly raise it,” Kennedy for President Comm. v. FEC,

734 F.2d 1558, 1560 n.2 (D.C. Cir. 1984)), and as Justice

Breyer expressly noted in his concurrence in Ross, the PLRA’s

exhaustion requirement “include[s] administrative law’s ‘well-

established exceptions to exhaustion.’” Ross, 136 S. Ct. at

1863 (quoting Woodford, 548 U.S. at 103) (Breyer, J.,

concurring) (citation omitted)). Woodford thus does not

require us to revisit Camp and Spruill, and, if anything,

reinforces our conclusion that where a prison disregards its

own procedures and rejects an inmate’s otherwise procedurally

defaulted complaint on the merits, the claim is “properly

exhausted” under the PLRA.

To be clear, and with sensitivity to the thoughtful

concerns raise by our dissenting colleague, we do not today

create any “broad . . . exception” to the exhaustion requirement.

example, an analogy to the Antiterrorism and Effective Death

Penalty Act’s tolling provision. Dissent at 9 & n.6. But the

Court’s rejection of analogies to habeas and administrative law

in rare and specific contexts only points up its reliance on them

as a general matter to guide its PLRA exhaustion

jurisprudence, and we see no reason to abjure that reliance

here, particularly given the Court’s approving citation to

Spruill.

25

See Dissent at 8. We simply reaffirm, as we held in Camp, that

when an inmate’s allegations “have been fully examined on the

merits” and “at the highest level,” they are, in fact, exhausted.

219 F.3d at 281. This holding also satisfies the “three

interrelated objectives” of exhaustion: “(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.” Dissent at 8 (quoting

Spruill, 372 F.3d at 230). That is, precisely because we

recognize that control over the grievance process is

appropriately vested in prison administrators and that such

administrators are best positioned to ascertain the need for

further development of the administrative record, we should

not be second-guessing their decisions on the relative

efficiencies of (a) rejecting a claim and requiring it to be re-

initiated at the institution level, versus (b) opting to research it,

to the extent needed, at the appellate level and addressing it on

the merits. And when the prison chooses the latter course, as

it did here, making clear with its merits decision what the

inevitable result would be of a re-initiated claim, then treating

the claim as exhausted does not increase “the burden on the

federal courts.” Spruill, 372 F.3d at 230. It simply avoids

subjecting prisoners and prison administrators alike to a futile

exercise and provides judicial review of the prison’s final

decision on the merits. In short, where the prison has chosen

to forgo a rejection on procedural grounds and has elected to

research, analyze, and deny a claim on the merits, both the

purposes of exhaustion—and exhaustion itself—are satisfied.

In reaching this conclusion, we are in good company.

Other Courts of Appeals too have held that merits review

26

satisfies exhaustion under the PLRA and that, because PLRA

exhaustion turns on the remedies and grievance procedures that

the particular prison has available, treating a claim as

exhausted where a prison chooses not to enforce those

procedures does not contravene the PLRA. See Reyes v. Smith,

810 F.3d 654, 657 (9th Cir. 2016); Whatley v. Warden, Ware

State Prison, 802 F.3d 1205, 1215 (11th Cir. 2015); Hammett

v. Cofield, 681 F.3d 945, 947 (8th Cir. 2012) (per curiam);

Maddox v. Love, 655 F.3d 709, 722 (7th Cir. 2011); Reed-Bey

v. Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010); Ross v.

County of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004). 14

14

The Dissent argues that “most of our sister circuits to

consider the issue addressed grievances the substance of which

had proceeded through each step of the administrative

process,” Dissent at 10, and, specifically, that the Ninth Circuit

“qualified its holding on this point.” Dissent at 11 (citing

Reyes, 810 F.3d at 658). But the fact that other Courts of

Appeals have determined that exhaustion is satisfied when an

otherwise procedurally-defaulted grievance is denied on the

merits after having been adjudicated at each step of a grievance

process does not speak to whether exhaustion is also satisfied

when such a grievance is denied on the merits at the highest

level of that grievance process. Moreover, the legal analysis

underlying those decisions—namely, their focus on whether

“[p]rison officials have had the opportunity to address the

grievance and correct their own errors,” Reyes, 810 F.3d at

657—applies here with equal force. Here too, the BOP had the

opportunity to adjudicate Rinaldi’s claim in any way it saw fit,

and opted to address it on the merits rather than direct him to

comply with all levels of its 4-Step process.

27

In sum, because Rinaldi’s Assault Request was denied

at the highest level on the merits and therefore was properly

exhausted under the PLRA, we will vacate the District Court’s

dismissal of Rinaldi’s Eighth Amendment claim.

B. Rinaldi’s FTCA Claim

The District Court construed Rinaldi’s claim that the

Government “forc[ed] him to reside with an inmate that [the

BOP] knew, or should have known, had expressed an intention

to kill [him],” Rinaldi, 2015 WL 2131208, at *5, as “essentially

a negligence” claim under the FTCA subject to dismissal on

the basis of the discretionary function exception. 15 Id. We will

affirm.

The FTCA offers a limited waiver of the federal

government’s sovereign immunity from civil liability for

negligent acts of government employees acting within the

scope of their employment. Berkovitz v. United States, 486

U.S. 531, 536 (1988); 28 U.S.C. §§ 2671–2680. However, it

excludes claims “based upon the exercise or performance or

the failure to exercise or perform a discretionary function or

15

To the extent Rinaldi argues the discretionary

function exception cannot apply because his allegations relate

to unconstitutional acts, he fails to recognize the premise of the

FTCA claim he seeks on appeal to reinstate: The FTCA only

waives sovereign immunity for torts recognized under the law

of the state in which the conduct was alleged to have occurred.

Although Rinaldi referenced the Eighth Amendment, the

District Court reasonably construed his claim as an FTCA

claim, and it is that claim that Rinaldi now argues was

erroneously dismissed. See Rinaldi, 2015 WL 2131208, at *5.

28

duty . . . whether or not the discretion involved be abused.” Id.

§ 2680(a). To determine whether a claim fails within this

discretionary function exception, we apply a two-prong test.

See United States v. Gaubert, 499 U.S. 315, 322 (1991);

Mitchell v. United States, 225 F.3d 361, 363 (3d Cir. 2000).

First, we ask whether the challenged conduct involved an

“element of judgment or choice,” which depends on whether

there is a “federal statute, regulation, or policy [that]

specifically prescribes a course of action for an employee to

follow.” Mitchell, 225 F.3d at 363 (citation omitted). Second,

if the act does involve judgment, we ask whether the judgment

involved is “the kind that the discretionary function

exception was designed to shield.” Id. (citations omitted).

Although we have not previously addressed in a

precedential opinion whether BOP housing and cellmate

assignments meet this test, other Courts of Appeals have held

uniformly that they do. See Montez ex rel. Estate of Hearlson

v. United States, 359 F.3d 392, 396–98 (6th Cir.

2004); Santana-Rosa v. United States, 335 F.3d 39, 43–44 (1st

Cir. 2003); Cohen v. United States, 151 F.3d 1338, 1342 (11th

Cir. 1998); Dykstra v. U.S. Bureau of Prisons, 140 F.3d 791,

795–96 (8th Cir. 1998); Calderon v. United States, 123 F.3d

947, 948–50 (7th Cir. 1997). 16 We now join them.

16

Cf. Ashford v. United States, 511 F.3d 501, 505 (5th

Cir. 2007) (observing that the discretionary function exception

generally applies to cellmate assignments when an inmate can

“point to no specific prison policy or regulation that

constrained prison officials’ judgment other than the prison’s

general duty to protect its prison population,” but conceding

the exception did not apply in that case because “there [was] a

29

Here, both prongs of the discretionary function test are

satisfied. At the first prong, housing and cellmate assignments

unquestionably involve an “element of judgment or choice,”

Gaubert, 499 U.S. at 322 (citation omitted), for while BOP

officials must “provide suitable quarters” and “provide for the

protection, instruction, and discipline of all” of its inmates, 18

U.S.C. § 4042(a)(2)-(3), neither that provision nor any other

“federal statute, regulation or policy” can be said to

“specifically prescribe[] a course of action” for such

assignments that BOP officials must follow. Mitchell, 225

F.3d at 363 (citation omitted). And at the second prong, “a

prison’s internal security is peculiarly a matter normally left to

the discretion of prison administrators,” Rhodes v. Chapman,

452 U.S. 337, 350 (1981), and “[p]rison administrators . . .

should be accorded wide-ranging deference in the adoption and

execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain

institutional security.” Bell v. Wolfish, 441 U.S. 520, 547

(1979). Thus, the District Court correctly concluded that

housing and cellmate assignments are “of the kind that

the discretionary function exception was designed to

shield.” Mitchell, 225 F.3d at 363 (citation omitted).

V. Conclusion

For the foregoing reasons, we will vacate and remand

for further proceedings concerning Rinaldi’s First and Eighth

Amendment claims and will affirm the District Court’s

judgment in all other respects.

specific policy in place that constrained the decision-making

ability of the prison officials”).

30

Michael Rinaldi v. USA, et al., No. 16-1080

SCIRICA, Circuit Judge, concurring in part and dissenting in

part

I join the Majority’s thoughtful analysis of Rinaldi’s

Federal Tort Claims Act claim and exhaustion of his First

Amendment claim under the Prison Litigation Reform Act

(PLRA). I write separately on the PLRA’s exhaustion

requirement, 42 U.S.C. § 1997e(a), as it relates to Rinaldi’s

Eighth Amendment claim.

Rinaldi—a federal inmate—alleges that prison officials

unconstitutionally retaliated against him by forcing him to cell

with an inmate who had threatened to kill him. See U.S. Const.

amends. I, VIII. Despite conceding his failure to comply with

applicable administrative remedy procedures as required by

§ 1997e(a), Rinaldi invokes separate reasons why his First and

Eighth Amendment claims may be deemed exhausted and

considered by the District Court. 1 As to Rinaldi’s First

1

In addition to the grievances at issue in this appeal,

Rinaldi asserts he filed over 50 administrative remedy requests

while housed at USP-Lewisburg. Based on some of these

remedy requests, Rinaldi’s complaint alleged other civil rights

violations related to his confinement, including that: his Fifth

and Eighth Amendment rights were violated when officials

denied him access to adequate recreation; the denial of his

ability to worship in congregation violated his right to religious

freedom; and being forced to have psychological review

conducted through his cell door resulted in him being denied

proper medical care and violated his right to confidentiality

with his doctor.

1

Amendment claim, I agree with my colleagues that the serious

threats of retaliation Rinaldi has alleged call into question the

availability of exhaustion. But I believe the Supreme Court’s

jurisprudence in Ross v. Blake, 136 S. Ct. 1850 (2016), and

Woodford v. Ngo, 548 U.S. 81 (2006), counsels a different

result in Rinaldi’s Eighth Amendment claim.

The Supreme Court has strictly interpreted § 1997e(a),

and the Court’s most recent analysis of exhaustion in Ross

counsels against a broad articulation of a merits exception to

proper exhaustion. I recognize the well-established exceptions

to exhaustion in habeas corpus and administrative law. But in

Ross, the Court made clear that the PLRA’s statutory

exhaustion provision “stands on different footing” from judge-

made exhaustion doctrines. 136 S. Ct. at 1857. Looking to the

history and purposes of the PLRA’s statutory exhaustion

requirement, I believe exhaustion under the PLRA requires the

substance of a grievance be considered on the merits at each

available step of the administrative review process. Because

Rinaldi failed to present his Eighth Amendment claim until

midway through the administrative review process, the District

Court was correct to dismiss the claim on exhaustion grounds.

The District Court found these claims administratively

exhausted but concluded Rinaldi had failed to state claims for

inadequate access to adequate recreation and inadequate

psychological treatment. Rinaldi does not appeal that decision.

Furthermore, as noted by the Majority, our decision in Mack v.

Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016)

forecloses Rinaldi’s Free Exercise claim and I agree Rinaldi

should not be permitted leave to amend his Religious Freedom

Restoration Act claim because this request was raised for the

first time in Rinaldi’s Reply Brief.

2

I.

As the Majority Opinion explains, the United States

Bureau of Prisons (BOP) has a multi-tiered administrative

remedy program. To exhaust administrative remedies, an

inmate must first file an informal remedy request through an

appropriate institution staff member via a BP-8 form. See 28

C.F.R. § 542.13. If the inmate is not satisfied with the informal

remedy response, he is required to address his complaint at the

institutional level with the Warden via a BP-9. See § 542.14. If

the inmate is dissatisfied with the Warden’s response, he may

then appeal to the Regional Director via a BP-10. See § 542.15.

And if dissatisfied with the Regional Director’s response, the

inmate must appeal to the General Counsel via a BP-11. See id.

Once an inmate receives a response to his appeal from the

General Counsel, after filing the administrative remedy request

at all levels, his administrative remedies are deemed

exhausted. 2 See id.

Here, Rinaldi filed an informal remedy request on

January 29, 2012, claiming to have been assaulted by a

previous cellmate. Rinaldi requested that the institution

discontinue its practice of forcing inmates to cell together

regardless of compatibility because “[f]orced double celling

creates a hostile environment and increases the incidence of

assaults.” JA 164. The informal request was denied and Rinaldi

2

An exception to the initial filing requirement at the

institutional level exists “[i]f the inmate reasonably believes

the issue is sensitive and the inmate’s safety or well-being

would be placed in danger if the Request became known at the

institution.” 28 C.F.R. § 542.14(d)(1). But this exception is

relevant only to Rinaldi’s First Amendment claim.

3

filed Request for Administrative Remedy #675165 (BP-9).

This request was denied by the Warden on the grounds that

“[a]ll inmates are screened for compatibility prior to

placement.” JA 165.

Rinaldi appealed to the Northeast Regional Office. At

this stage in the institutional review process (BP-10), Rinaldi

introduced a new claim that, on February 2, 2012, he was celled

with an inmate who had threatened to kill him. Rinaldi framed

this as evidence that the Warden’s reason for denying his

remedy request—that inmates are screened for compatibility—

was untrue, noting he had provided his case manager with the

names of other inmates he “would like to cell with.” JA 167.

The Regional Office denied his appeal, reasoning that inmate

compatibility is considered and there was “no record of

[Rinaldi] being assaulted by [his] previous or current

cellmate.” JA 168. Rinaldi then appealed to the General

Counsel, who denied the appeal and closed the case with the

code “DNY.”

Thereafter, Rinaldi filed suit in federal court,

proceeding pro se. As relevant here, Rinaldi alleged that being

forced to cell with an inmate who had threatened to kill him

violated his Eighth Amendment rights. The District Court

dismissed the claim for Rinaldi’s failure to exhaust because the

BOP’s regulations prohibit an inmate from raising issues for

the first time on appeal. See 28 C.F.R. § 542.15(b)(2). Rinaldi

was permitted 30 days to file an amended complaint but instead

filed a motion for reconsideration, which the court denied.

Upon that denial, Rinaldi filed this timely appeal.

Now represented by counsel, Rinaldi concedes

procedural error because he never presented his current claim

4

to the institution (BP-8 and BP-9 levels). 3 Indeed, Rinaldi has

never claimed that he is pursuing on appeal the claim he raised

at all levels of administrative review, namely that the

institution should screen for compatibility because forced

double celling increases the likelihood of assaults. Now,

however, Rinaldi alleges that his Eighth Amendment rights

were violated when, on February 2, 2012, he was celled with

an inmate who had threatened to kill him and appeals the

District Court’s decision that this specific allegation was not

exhausted. Rinaldi argues the District Court erred in dismissing

this claim because the Regional Director’s response (BP-10)

addressed on the merits both the allegation he was assaulted by

a previous cellmate and the allegation he was threatened by his

subsequent cellmate.

II.

My colleagues conclude Rinaldi’s Eighth Amendment

claim was exhausted because, even though he raised its factual

predicate for the first time midway through the grievance

process, his grievance was denied on the merits at the highest

level. I disagree. The Supreme Court’s most recent analysis of

the PLRA’s mandatory exhaustion requirement, in Ross, did

not decide the question we face today. But Ross did signal the

Court’s continued reluctance to tolerate broad exceptions to the

PLRA’s statutory exhaustion requirement.

Moreover, the Supreme Court explained in Ross that,

under the PLRA, the question of exhaustion “in all cases is one

3

As noted, at the BP-8 and BP-9 levels, review takes

place within the specific institution. At the BP-10 and BP-11

levels, review takes place at the regional and national level.

5

of statutory construction.” 136 S. Ct. at 1858 n.2. The statute’s

origins counsel that the substance of a grievance must be

addressed at every available level of the administrative review

process. So too does the Supreme Court’s construction of

§ 1997e(a)’s text and purpose. Woodford drew on principles of

habeas and administrative law, but, as described below, this

does not support a broad interpretation of a merits exception to

proper exhaustion. 4

A.

Central to the PLRA’s effort to “reduce the quantity and

improve the quality of prisoner suits” was its exhaustion

requirement. Porter v. Nussle, 534 U.S. 516, 524 (2002).

Applicable “irrespective of the forms of relief sought and

offered through administrative avenues,” Booth v. Churner,

532 U.S. 731, 741 n.6 (2001), the PLRA’s exhaustion

requirement was designed to strengthen the “weak” exhaustion

provision of its predecessor—the Civil Rights of

Institutionalized Persons Act (CRIPA), see Porter, 534 U.S. at

523; see also Ross, 136 S. Ct. at 1857–58 (discussing how “the

history of the PLRA underscores the mandatory nature of its

exhaustion regime”). The Supreme Court has “reject[ed] every

attempt to deviate . . . from [§ 1997e(a)’s] textual mandate.”

Ross, 136 S. Ct. at 1857.

4

Woodford’s reference to our decision in Spruill v.

Gillis, 372 F.3d 218 (3d Cir. 2004), does not support the

proposition that exhaustion is satisfied where a grievance is

addressed on the merits only at the highest level of review. The

Court was citing our first holding in Spruill—that the PLRA’s

exhaustion provision included a procedural default component.

See Woodford, 548 U.S. at 87 (citing Spruill, 372 F.3d at 230).

6

Most recently, in Ross, the Court considered a “special

circumstances” exception to the exhaustion requirement. Id. at

1856. Acting on the premise that the PLRA’s exhaustion

requirement was “not absolute,” the Fourth Circuit found a

prisoner’s failure to comply with applicable procedural

requirements could be excused where the prisoner reasonably

believed administrative remedies were exhausted. Id. The

Court rejected the special circumstances exception, explaining

that such an approach, “if applied broadly, would resurrect

CRIPA’s scheme, in which a court could look to all the

particulars of a case to decide whether to excuse a failure to

exhaust available remedies.” Id. at 1858.

In rejecting the special circumstances test, the Court

clarified that “mandatory exhaustion statutes like the PLRA

establish mandatory exhaustion regimes, foreclosing judicial

discretion.” Id. at 1857. Thus, while “an exhaustion provision

with a different text and history from § 1997e(a) might be best

read to give judges the leeway to create exceptions or to itself

incorporate standard administrative-law exceptions,” id. at

1858 n.2, courts must look only to the statute, “using ordinary

interpretive techniques,” id., when considering whether a

grievance has been exhausted. Looking to the PLRA’s history,

it appears applying broad exceptions from habeas and

administrative law to § 1997e(a) would be contrary to the

“invigorated” exhaustion scheme, see Porter, 534 U.S. at 524,

created by Congress and enforced by Supreme Court

precedent.

B.

7

Requiring a decision on the merits at each available

stage of the administrative process is, moreover, consistent

with how the Supreme Court has construed § 1997e(a)’s text

and the purposes of the PLRA’s exhaustion provision.

In Woodford, the Court interpreted § 1997e(a) to require

“proper exhaustion.” 548 U.S. at 84. This “means using all

steps that the agency holds out, and doing so properly (so that

the agency addresses the issues on the merits).” Id. at 90

(internal quotations marks and citation omitted). The Court

explained that “[t]he benefits of exhaustion can be realized

only if the prison grievance system is given a fair opportunity

to consider the grievance. The prison grievance system will not

have such an opportunity unless the grievant complies with the

system’s critical procedural rules.” Id. at 95.

This construction would appear to be inconsistent with

a broad merits exception. This is not a case where the grievance

bears some procedural defect, but the substance of the

grievance is nevertheless considered at all administrative steps

(for example, the initial filing was untimely or an appeal

deadline was missed but these errors were overlooked). In such

a case, the prisoner has used all steps the agency holds out,

complying with the agency’s “critical rules,” and the

administrative remedy system functions effectively as if no

defect were present. But here, Rinaldi raised the factual basis

for his current Eighth Amendment claim only midway through

the grievance process.

As for the PLRA, we have described the “three

interrelated objectives” of exhaustion as follows: “(1) to return

control of the inmate grievance process to prison

administrators; (2) to encourage development of an

8

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 v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004).

The Supreme Court has reasoned, in Woodford, that exhaustion

gives the agency “an opportunity to correct its own mistakes

with respect to the programs it administers,” 548 U.S. at 89,

and promotes efficiency—“[a] prisoner who does not want to

participate in the prison grievance system will have little

incentive to comply with the system’s procedural rules unless

noncompliance carries a sanction,” id. at 95. These purposes

are best served by requiring that the substance of the grievance

be addressed at every available stage of the administrative

process.

Take, for example, the goal of developing an

administrative record. If the procedural defect is that an inmate

interjects a claim at the final stage of the BOP’s remedy

process, then a denial with the code “DNY” would suffice to

have exhausted that claim on the merits. 5 In this scenario there

is no creation of an administrative record. The administrative

record is also not fully developed where, as here, a claim is

interjected midway through the BOP’s review process. As for

compliance with critical procedural rules, there is less

incentive for a prisoner to pursue separate grievances through

all stages of review if a claim (or, as here, facts supporting a

different claim) can instead potentially be added at the final

hurdle. Finally, requiring a grievance to have been considered

on the merits at all available stages of review makes it more

5

The status codes used by the BOP relating to

administrative remedies distinguish between appeals that are

closed on the merits and those that are rejected.

9

likely a particular institution will have the full opportunity to

address and correct a grievance because the institution itself

will be put on notice first. The first step of the BOP’s remedy

program is designed to allow staff an opportunity to

“informally resolve the issue before an inmate submits a

Request for Administrative Remedy.” 28 C.F.R. § 542.13(a)

(emphasis added). 6

C.

Analogies to well-established exceptions in habeas and

administrative law are useful. But the Supreme Court has not

6

The Majority asserts its approach “avoids subjecting

prisoners and prison administrators alike to a futile exercise

and provides judicial review of the prison’s final decision on

the merits.” Maj. Op. at 24. But the PLRA was enacted to

“improve the quality of prisoner suits,” Porter, 534 U.S. at

524, and its primary vehicle for doing so was to require proper

exhaustion, see Woodford, 548 U.S. at 90.

As Rinaldi concedes, his Eighth Amendment claim

should have been filed separately under the BOP’s regulations

because it involves a separate issue. See 28 C.F.R.

542.14(c)(2); 542.15(b)(2). Indeed, Rinaldi never presented his

Eighth Amendment claim at the institutional level—that is, to

the prison officials at Lewisburg. When a grievance such as

Rinaldi’s is not presented at the institutional level, prison

officials are stripped of the opportunity to address prisoner

grievances within their institution. And we—as an eventual

reviewing court—lose the benefit of the expertise and

specialized knowledge possessed by those who staff the

institution. Such an approach does not serve to “improve the

quality” of suits before us.

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imported all of these principles into the PLRA’s exhaustion

regime. 7 Further still, these exceptions are judge-made. 8 To the

extent they apply in the PLRA context, Ross requires

consideration of § 1997e(a)’s origins, text, and purpose. As

noted, I believe these considerations counsel that the substance

of a grievance must have been considered on the merits at each

available level of administrative review.

7

For example, in Woodford, the Court rejected a

comparison between the Antiterrorism and Effective Death

Penalty Act’s (AEDPA) tolling provision and the PLRA,

noting “the AEDPA and PLRA provisions deal with separate

issues: tolling in the case of the AEDPA and exhaustion in the

case of the PLRA,” 548 U.S. at 100, and further stated it was

“unrealistic to infer from the wording of the PLRA provision

that Congress framed and adopted that provision with habeas

law and not administrative law in mind,” id. at 102.

8

As we noted in Spruill, “the Supreme Court has

consistently located the procedural default component of

federal habeas law in the independent and adequate state

ground doctrine, a doctrine that, in the habeas context at least,

is grounded in concerns of comity and federalism.” 372 F.3d

at 229 (internal quotation marks and citations omitted). These

concerns apply “with greater force to defaults in state judicial

proceedings than . . . to defaults in state administrative

proceedings,” id. at 229, and this is even more true in the PLRA

context where the administrative proceedings are federal.

In the administrative law context, the D.C. Circuit has

explained exhaustion is a “judicially-created doctrine . . .

which permits courts some discretion to waive exhaustion.”

Washington Ass’n for Television & Children v. F.C.C., 712

F.2d 677, 682 (D.C. Cir. 1983).

11

III.

Notably, most of our sister circuits to consider the issue

prior to Ross addressed grievances the substance of which had

proceeded through each step of the administrative process. See,

e.g., Hill v. Curcione, 657 F.3d 116, 125 (2d Cir. 2011)

(concerning a late initial filing accepted and decided on the

merits); Maddox v. Love, 655 F.3d 709, 721 (7th Cir. 2011)

(“Maddox’s grievance was rejected on the merits at every stage

of review without any indication from prison officials that it

was procedurally deficient.”); Reed-Bey v. Pramstaller, 603

F.3d 322, 325 (6th Cir. 2010) (addressing an inmate’s failure

to name a single individual in his initial grievance); Ross v. Cty.

of Bernalillo, 365 F.3d 1181, 1186 (10th Cir. 2004) (“If a

prison accepts a belated filing, and considers it on the merits,

that step makes the filing proper.”). 9 This is also true of our

decision in Spruill. See 372 F.3d at 232 (focusing on the fact

that the prison’s initial grievance review cured the inmate’s

procedural defect).

In fact, the Ninth Circuit in Reyes v. Smith expressly

qualified its holding on this point: “we hold that a prisoner

exhausts ‘such administrative remedies as are available,’ under

the PLRA despite failing to comply with a procedural rule if

prison officials ignore the procedural problem and render a

decision on the merits of the grievance at each available step

of the administrative process.” 810 F.3d 654, 658 (9th Cir.

9

The one exception is Whatley v. Warden, Ware State

Prison, but even in Whatley, the inmate’s first informal

grievance referred back to an earlier grievance containing the

substantive allegations that later formed the basis of his appeals

and complaint. See 802 F.3d 1205, 1210 (11th Cir. 2015).

12

2016) (internal citation omitted) (emphasis added). The Eighth

Circuit also based its holding in Hammett v. Cofield on the fact

that the inmate had “pursued the[] grievances through all three

steps of the process” and his grievance appeals were denied on

the merits. 681 F.3d 945, 948 (8th Cir. 2012). The court noted

that when a grievance has proceeded through all steps,

notwithstanding an initial procedural error, “[a] complete

administrative record exists, and a reviewing court will have

the benefit of the agency’s institutional perspective.” Id. at

947–48. This reasoning does not hold true where a claim has

been added midway through the remedy process.

IV.

Exhaustion provisions, like § 1997e(a), are designed “to

give the agency a fair and full opportunity to adjudicate [party]

claims.” Woodford, 548 U.S. at 90. In the PLRA context, I

believe this requires the substance of a grievance to have been

considered at every level of available administrative review.

For this reason, Rinaldi did not exhaust his Eighth Amendment

claim and I respectfully dissent from that holding of the

Majority Opinion.

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