2010 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

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w . v i l l a no v a . e du/thir dc ir c uit_2010/144NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 0 9

- 2070

_____________ CARLO E. CEROME, Ap pellant

v. MOSHANNON VALLEY CORRECTIONAL CENTER/ CORNELL COMPANIES, INC.; W. JONES, Captain; OFFICER MANN, Correctional Officer (C.O.); MR. M. MILLWARD, Warden; C. ROHRBACKER, C.O.;

OFFICER CRIBB, C.O.

_______________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. Action No. 0 7

- cv - 000 77 ) District Judge: Honorable Kim R. Gibson

_______________ Submitted Under Third Circuit LAR 34.1(a)

October 2 0 , 2010

_______________ Before: FISHER , GREENAWAY, JR., and NYGAARD, Circuit Judges

(Opinion Filed: December 7, 2010 )

_______________ OPINION

________________ GREENAWAY, JR., Circuit Judge2

Appellant Carlo E. Cerome (“Cerome”) appeal s the dismissal of his complaint by the U nited States District Court for the Western District of Pennsylvania

. 1 The District Court adopted the Magistrate Judge ’s Report and Recommendation (“R & R”) and granted the defendants’ motion to dismiss, pursuant to F ED
. R. C IV
. P . 12(b)(6 )

. We disagree. For the following reasons, we will reverse the District Court = s j udgment and remand for further proceedings consistent with this opinion

. I. B ACKGROUND We write solely for the benefit of the parties, and therefore recount only the essenti al facts

. In 2006 and 2007, Cerome was incarcerated at MVCC in Phillipsburg, Pennsylvania

. MVCC is a privately owned and operated facility pursuant to a contract with the Federal Bureau of Prisons. In his pro se Complaint , 2 Cerome alleges that the Hispanic inmates targeted and threatened him and other Black prisoners because of their

race . 3 Cerome also alleges that the MVCC guards allowed the Hispanic inmates to intimidate, attack and brutalize him and other black inmates. On one occasion , Cerome alleges that o n February 6, 2007, at approximately 4:00 a.m. , he awakened to find a

1 The defendants include the Moshannon Valley Correctional Center/Cornell Companies, Inc. (“MVCC”), Warden Millward, Captain Jones, Officer Mann, Officer Cribb, and Officer Rohrbacker. 2 The 9

- page Complaint, dated December 18, 2007, is found at J.A. Vol. II 27

- 35. Accompanying the Complaint is Cerome’s Brief in Support of the Complaint and an Affidav it from Cerome. Cerome also included a Motion for Service of Process. 3 According to Cerome, the Hispanic inmates were of Mexican and Latin American heritage, and made up the majority of the prison population. (J.A. Vol. II 61

- 99.)3

Hispanic gang leader in his cell , b rought the re by correctional officers

. As a result of this encounter, Cerome claimed to have suffered a mild stroke. On Febru ary 28, 2007, Cerome filed his first grievance at MVCC , an Inmate Informal Resolution Form, describing his alleged problems with racial violence , and request ing a tra nsfer to protective custody. On April 4, 2007, Cerome filed , in the District Court, a Motion for Leave to Proceed I n Forma Pauperis . Included in that motion was a section labeled “ the Complaint ” , (J.A. Vol. II 27

- 35 ), a pro se Brief in Support of his Complaint , an d affidavit s describing the factual allegations in fur ther detail

. The Complaint contained four counts. 4 On April 17, 2007, Cerome filed his second grievanc e , an Inmate Request to Staff Member . H e requested 2 or 3 minutes of a staff member ’s time to discuss his situation

. On Decem

ber 18, 2007, Magistrate Judge Pesto ordered that Cerome ’s motion to proceed In Forma Pauperis be granted and that Cerome’s pro se Complaint be filed in the Dis trict Court

. 5 On November 14, 2008, D efendants collectively moved to dismiss Cerome ’s
C omplaint , pursuant to F ED
. R. C IV
. P. 1 2 (b)(6), stating that : (1) he failed to state a claim

4 The Table of Contents in the Joint Appendix lists the Complaint as J.A. Vol. II 61

- 70; however, those pages are not identified by Cerome as the Complaint. For the purposes of our analysis, J.A. Vol. II 27

- 35 and 61

- 70 shall be considered Cerome’s Complaint. 5 Cerome alleged violations of the Eighth Amendment under 42 U.S.C. § 1983, violations of his right to privacy under 18 U.S.C. § 1801, and failure to provide4

upon which relief could be granted; (2) he presented claims which were not actionable because they were based on prospective harm and emotional injury without any showing

o f a prior physical injury; and (3) he failed to exha ust his administrative remedies

. On December 11 , 2008, Cerome filed o ppo sition to the Motion to Dismiss , asserting that he had fully exhausted the administrative remedies available to him at MVCC and that he had not been required by MVCC authorities to choose alternative remedies

. The District Court referred disposition of the motion to dismiss to the Magistrate Judge. On March 6, 2009, the Magistrate Judge filed a n R & R , recommend ing that
D efendan ts’ M otion to D ismiss be granted for lack of exhaustio n of administrative remedies. On March 15, 2009, Cerome filed a M otion for an E xtension of T ime to File
O bjections to the R & R , stating that he received the R & R on March 10, 2010, and that “due to the quasi inaccessibility to the law library” where he was incarcerated, he “would not be able to comply with the deadline to file the objections.” 6
On March 27 , 2009, the District Court denied Cerome’s Motion for an Extension
of Time to File Objections to the R & R

. In the same Memorandum Order, the District

protection, safekeeping and care during his incarceration under 18 U.S.C. § 4042. 6 Pursuant to 28 U.S.C . § 636(b)(1), the parties had 10 days to file written objections to the R & R, due on March 16, 2009.5

Court adopted the Magistrate Judge’s R & R

. Also o n March 2 7 , 2009, Cerome filed his Objections to the R & R

. 7 On April 13, 2009, Cerome fi led a timely Notice of Appeal

. II. JURISDICTION AND STANDARD OF REVIEW The District Court had jurisdiction under 18 U.S.C. ' 3231 . W e have jurisdiction pursuant to 28 U.S.C. ' 1291. Under F ED
. R. C IV
. P. 12(b)(6 ), we exercise plenary review over a district court’s grant of a motion to dismiss. Gri er v. Klem , 591 F.3d 672, 676 (3d Cir. 2010) ; Ballentine v. United States , 486 F.3d 806, 808 (3d Cir. 2007). To withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal , --- U.S.

---- , 129 S. Ct. 1937, 1949 (2009) (internal quotation marks omitted). “In deciding a motion to dismiss, all well

- pleaded allegations of the complaint must be taken as true and interpreted in the light most favorable to the plaintiffs, and all inferences must be drawn in favor of them.” McTernan v. City of York , 577 F.3d 521 , 526 (3d Cir. 2009).
I II . ANALYSIS Failure to exhaust administrative remedies is an affirmative defense that defendants bear the burden to plead and prove. Jones v. Bock , 549 U.S. 199, 216 (2007); Mitchell v. Horn , 318 F.3d 523, 529 (3d Cir. 2003). The District Court erroneously

7 Cerome’s Objections were filed out of time and were not considered in the R & R.6

shifted to Cerome the burden of proving that he had exhausted the available administrative remedies. W e will reverse the District Court = s dismissal of Cerome’s
C omplaint for failure to exhaust administrative remedies, and remand this case to the District Court for further proceedings consistent with this opinion. The C omplaint here generally alleges violations of the Eighth Amendment under 42 U.S.C. § 1983, violations of his right to privacy under 18 U.S.C. § 1801, and failure to provide protection, safekeeping and care during his incarceration under 18 U.S.C. § 4042. (J.A. Vol. II 27

- 35 .)
A ppellees contend that Cerome “voluntarily introduced the issue of exhaustion of administrative remedies in his C omplaint, and then launched into a justification of why he was not required to exhaust the remedies.” (Appellees’ Br

. 7

. ) Specifically, Appel lees assert that Cerome made this reference on page 23 of the Joint Appendix

. However,
p age 23 of the Joint Appendix contains information taken from the Brief in Support of the Complaint, not from the C omplaint itself. Appellees’ argument is based on a misapprehension of what Cerome argues is his Complaint. Cerome ’s Complaint was accepted for filing on December 18, 2007. As noted earlier, the Complaint appears at J.A. Vol. II 27

- 35. The parties note in the Table of Contents that the Complaint appears at J.A. Vol. II 61

- 70. This Court, for purposes of this analysis, need not resolve whether either is the correct iteration of the Complaint. Our jurisprudence requires that we construe the Complaint liberally; therefore, we shall7

consider both iterations to be Cerome’s Complaint.
T his Court , having reviewed the Complaint, finds no mention of exhaustion of administrative remedies. Cerome’s assertions are brief and straightforward. More important ly , neither he, nor inmate complainants generally, are required to specifically plead or demonstrate exhaustion of administrative remedies in their complaints. Bock , 549 U.S. at 216. The Magistrate Judge focuses his R & R on the issue of exhaus tion of administrative remedies, recommend ing that the District Court grant Appellees’ motion to dismiss Cerome’s C omplaint , pursuant to F ED
. R. C IV
. P . 12(b)(6 ). 8 We disagree with the Magistrate Judge’s recommendation for a number of reasons. First, t he C ompla int itself contains no reference to exhaustion of administrative remedies , nor does it need to

. See Ray v. Kertes , 285 F.3d 287 (3d Cir. 2002) (holding that a prisoner plaintiff has no obligation to allege in his complaint that he has exhausted his administrative remedies.) The docket sheet, the timing of the filing, and the wording of the Complaint lend no support to the notion that Appellant concedes he ha s not exhausted his administrative remedies. Second, the analysis of the R & R focuses on submissions outside of the C omplaint . Although a pro se plaintiff’s pleadings are to be reviewed liberally , Haines v. Kerner , 404 U.S. 519 (1972) , it would be an om a lous for all

8 In addition, the Magistrate Judge’s R & R did not state whether dis missal was with or without prejudice. As such, the recommendation for dismissal is assumed to be with prejudice. F ED
. R. C IV
. P. 41(a)(b); Shane et al. v. Fauver et al. , 213 F.3d 113, 115 (3d8

of Cerome’s papers to be viewed as his C omplaint, when he has clearly delineated otherwise. Generally, a district court may not c onsider matters outside of the C omplaint when ruling on a motion to dismiss. Under F ED
. R. C IV
. P. 12(d), if , on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56

. However, “ an exception to the general rule is that a document integral to or explicitly relied upon in the complaint may be considered without converting the motion [to dismiss] into one for summary judgment. ” In re Burlington Coat Factory Sec. Litig. , 11 4 F.3d 1410, 1426 (3d Cir. 1997) (citation and internal quotation marks omitted). T he Magistrate Judge reviewed documents outside of the Complaint and, without notice to Cerome , essentially converted the motion to dismiss in to a summary judgment motion. 9 Reviewing all of Cerome’s papers as his Comp l ai n t is inconsistent with 12(b)(6) and Cerome’s intent. The burden of proving exhaustion of administrative remedies is on the Appellees. The Supreme Court has noted that the exact requirement of the grievance process varies from system to system, and prison officials are best able to describe the grievance
process. Bock , 549 U.S. at 218

. Appellees did not meet that burden, and did not

Cir. 2000). 9 Appellees admit that the Magistrate Judge loo ked outside the Complaint and relied on certain attachments in Cerome’s Brief. (Appellees’ Brief at 8.)9

pro vide the court with information on the procedures Cerome did or did not follow in the grievance process of MVCC. Appellants’ Brief did not clarify whether MVCC has a grievance policy, the terms of that policy or how Cerome has met or failed to meet the
te rms of that policy. (J.A. Vol. II 129

- 61.) Because Appellees bore the burden of proving lack of exhaustion of administrative remedies, the Magistrate Judge should never have reached the question of whether Cerome exhaust ed the administrative remedies

. 10
IV. CONCLUSION We find that the District Court erred when it placed the burden on Cerome to prove exhaustion of administrative remedies

. T his Court sha ll reverse the District Court’s dismissal of Cerome’s C omplaint , and remand this case to the District Court for further proceedings consistent with this opinion

.

10 Appellees also suggest that this Court dismiss Cerome’s Complaint on other grounds. While it is true that an appellate court has the power to affir m a lower court’s decision, even if on different grounds, Erie Telecomms. v. Erie , 853 F.2d 1084, 1089, n.10 (3d Cir. 1988) (“An appellate court may affirm a correct decision by a lower court on grounds different than those used by the lower court in reach ing its decision.”) (internal citations omitted), it is within the Court’s discretion not to do so. Since the Magistrate Judge’s R & R did not address the substance of the pleading, we believe the District Court should likewise resolve, on remand, the iss ue of the appropriate parties to the action, going forward.