NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 19-2650

__________

QUINTEZ TALLEY,

Appellant

v.

C/O CONSTANZO; C/O BROCCOLIER; DEPT. OF CORRECTIONS; LT. REBER

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 2:18-cv-05416)

District Judge: Honorable Timothy J. Savage

____________________________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

October 13, 2022

Before: GREENAWAY, JR., PORTER, and NYGAARD, Circuit Judges

(Opinion filed: December 1, 2022)

___________

OPINION*

___________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not 

constitute binding precedent.
2

PER CURIAM

Pennsylvania state prisoner Quintez Talley appeals pro se from the District

Court’s order granting the defendants’ motion to dismiss Talley’s complaint for failure to

exhaust his administrative remedies. For the reasons that follow, we will modify that

order and affirm it as modified.

I.

In December 2018, Talley filed a pro se civil rights complaint in the District Court

against the Pennsylvania Department of Corrections (“DOC”) and three DOC employees

— Corrections Officers Kyle Bruccoliere and Jonathan Costanzo, and Lieutenant Andrew

Reber.

1 The complaint alleged as follows.

In early July 2017, when Talley was incarcerated at SCI-Graterford, Bruccoliere

agreed to obtain extra commissary items for Talley — beyond what was permitted by the

prison — in exchange for Bruccoliere’s keeping a percentage of that excess. Costanzo

was involved in this scheme, too. In the weeks that followed, Talley’s relationship with

Bruccoliere and Costanzo “soured.” (Compl. 3.) The two corrections officers apparently

took a larger percentage of Talley’s commissary items than they were supposed to, and

Costanzo “openly denied [Talley] his dinner tray” on August 22, 2017. (Id.) Two days

later, Talley gave Reber, who was a security officer at SCI-Graterford, “an oral and

written statement . . . regarding the coercion and/or extortion” committed by Bruccoliere

and Costanzo. (Id. at 4.)

1 Talley’s complaint misspelled the surnames of two of the defendants. Although the 

case caption mirrors the complaint, we use the correct spelling in this opinion.
3

After Talley made those statements to Reber, Talley experienced “an entirely new

degree of harassment” at the hands of Bruccoliere and Costanzo. (Id.) The two

corrections officers stole four of Talley’s books and other property, told people that

Talley was a “rat” and a “snitch,” (id.), and “made comments about wishing [Talley] was

dead so much that they’d poison [him],” (id. at 5). Additionally, Costanzo “engaged in

racially motivated harassment” when he laughed at another corrections officer’s racist

remarks and behavior. (Id.) As for Reber, he was reassigned shortly after receiving

Talley’s statements, and Talley never received a response to them.

In light of these allegations, Talley raised claims under the United States

Constitution, certain federal statutes, and Pennsylvania state law. He sought damages, as

well as declaratory and injunctive relief. He claimed to have exhausted his administrative

remedies, though he also alleged that, “at the timeframes that fall outside of [his] report

to Lt. Reber, [Talley] was on close/suicide watch . . . and hadn’t be[en] cleared to possess

any form of writing utensil.” (Id. at 6.)

The defendants (hereinafter “Appellees”) moved to dismiss Talley’s complaint

pursuant to Federal Rule of Civil Procedure 12(b)(6). That motion did not address the

complaint’s merits; instead, it argued that the complaint was subject to dismissal based on

Talley’s failure to exhaust his administrative remedies. In support of this argument,

Appellees filed a copy of each prison grievance that Talley had submitted pursuant to the

DOC’s Inmate Grievance System, DC-ADM 804, while incarcerated at SCI-Graterford.

None of those grievances had raised any of the allegations presented in Talley’s

complaint.
4

Talley opposed Appellees’ motion to dismiss, appearing to argue that he had

exhausted his administrative remedies under DC-ADM 001, which covers allegations of

inmate “abuse,” by giving an oral statement and a written statement to Reber. Talley

attached to his opposition filing a copy of that written statement, which had been

prepared using a DC-ADM 001 form titled “Inmate Written Statement” (hereinafter

IWS). Talley’s IWS began by noting that Bruccoliere and Costanzo had given him items

from the commissary, that these two corrections officers “use the commissary that they

have to cook food,” that “[t]hey feed the inmates they wish to gain favor with,” that

Costanzo had given Talley tobacco when Talley’s commissary allotment had run out, and

that, on August 22, 2017, Costanzo told Talley to “stand at the back of [his] cell to

receive a tray.” (Dist. Ct. docket # 18, at 10.) But the IWS did not specifically allege

that Costanzo had denied Talley his food tray, nor did the IWS mention any of the other

allegations that formed the basis of the claims that Talley brought against Appellees in

the District Court. Instead, the remainder of the five-page IWS recounted Talley’s own

behavior (which included flooding his cell and setting fire to toilet paper) and made

various allegations against prison officials who are not parties to this lawsuit.

Talley’s opposition to the motion to dismiss also identified the dates on which he

had been on “close/suicide” watch at SCI-Graterford — December 15, 2017, to January

30, 2018. He argued, with respect only to his allegation about the stolen books, that his

lack of access to a writing implement while on “close/suicide” watch prevented him from

grieving that allegation. But his complaint had alleged that he did not even learn that the
5

books had been stolen until after he had been transferred from SCI-Graterford to another

DOC prison.

After Appellees replied to Talley’s opposition filing, the District Court granted

Appellees’ motion to dismiss. In doing so, the District Court observed that none of

Talley’s DC-ADM 804 grievances “covers, directly or indirectly, his claims in the

complaint,” (Dist. Ct. Mem. Op. 6), and that the IWS “does not detail the events that give

rise to the claims in his complaint, (id. at 8). Additionally, the District Court rejected

Talley’s argument that his administrative remedies were unavailable due to his lack of

access to a writing implement from December 15, 2017, to January 30, 2018. In view of

its exhaustion analysis, the District Court dismissed Talley’s federal claims with

prejudice, declined to exercise supplemental jurisdiction over his state-law claims, and

dismissed the state-law claims without prejudice. This timely appeal followed.

2

II.

The Prison Litigation Reform Act (“PLRA”) provides that “[n]o action shall be 

brought with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal 

law, by a prisoner . . . until such administrative remedies as are available are exhausted.” 

42 U.S.C. § 1997e(a). As the District Court explained, “[a] grievance . . . ‘must at least

alert[] the prison to the nature of the wrong for which redress is sought.’” (Dist. Ct.

Mem. Op. 9 (quoting Mack v. Warden Loretto FCI, 839 F.3d 286, 295 (3d Cir. 2016)).)

2 We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291, and we exercise 

plenary review over the District Court’s dismissal order. See Talley v. Wetzel, 15 F.4th 

275, 286 n.7 (3d Cir. 2021).
6

A plaintiff’s failure to exhaust his administrative remedies is an affirmative defense that,

in an appropriate case, may be raised in a motion to dismiss. Brown v. Croak, 312 F.3d 

109, 111 (3d Cir. 2002). When a defendant files such a motion and “the exhaustion issue 

turns on [] indisputably authentic documents related to [the inmate’s] grievances, [a

court] may consider those documents without converting [a motion to dismiss] to a 

motion for summary judgment.” Rinaldi v. United States, 904 F.3d 257, 261 n.1 (3d Cir. 

2018) (third alteration added) (internal quotation marks omitted). In this case, the

authenticity of Talley’s IWS and the grievances that he submitted pursuant to DC-ADM

804 are not in dispute.

3

We agree with the District Court’s decision to dismiss Talley’s federal claims for

lack of exhaustion.

4 As the District Court highlighted, neither Talley’s IWS nor his DC3 The current policies and procedures governing DC-ADM 804, effective since 2015, are 

available at the DOC’s website, https://www.cor.pa.gov. That website also has a copy of 

the current policies and procedures governing DC-ADM 001, which have been effective 

since April 11, 2022. Talley attached to his brief an earlier version of the DC-ADM 001 

policies and procedures. (See 3d Cir. docket # 55, at 112-28.) In all respects relevant to 

this appeal, the earlier version is the same as the current version.

4 Because Talley’s federal claims were subject to dismissal, the District Court properly

declined to exercise supplemental jurisdiction over his state-law claims. See Hedges v.

Musco, 204 F.3d 109, 123 (3d Cir. 2000). 
7

ADM 804 grievances alerted Appellees to these claims.

5 And since Talley alleged that

he did not learn that his books had been stolen until after his transfer to another prison, he

cannot show that his administrative remedies were unavailable based on his allegedly not

having access to a writing implement before that transfer.

6 To the extent that Talley

argues that it would have been futile for him to grieve the stolen books because he did not

learn of the theft within the 15-working-day deadline that governs the submission of

grievances under DC-ADM 804, see DC-ADM 804 Procedures Manual § 1.A.8, this

argument is unpersuasive. This Court “do[es] not recognize a futility exception to

exhaustion [under the PLRA],” Downey v. Pa. Dep’t of Corr., 968 F.3d 299, 307 (3d Cir.

5 As mentioned earlier, Talley alleges that, on August 24, 2017, he made both an oral 

statement and a written statement to Reber. Although DC-ADM 001 permits both types 

of statements, see DC-ADM 001 Policy Statement § IV.D.1, there is no indication that

the content of Talley’s oral statement to Reber was different from the content of Talley’s 

IWS. And even if there were a difference, such that the oral statement included 

allegations from Talley’s complaint about (1) Bruccoliere’s and Costanzo’s taking too 

many of Talley’s commissary items and (2) Costanzo denying Talley his food tray on one 

occasion, those allegations would not properly fall under the ambit of DC-ADM 001. 

See DC-ADM 001 Procedures Manual Glossary (defining “abuse” as being limited to 

“the use of excessive force upon an inmate,” “the improper use of force upon an inmate,”

“an occurrence of an unwarranted life-threatening act against an inmate,” or “an 

articulated verbal or written threat to inflict physical injury directed toward an inmate”);

see also Jones v. Bock, 549 U.S. 199, 218 (2007) (“[T]o properly exhaust administrative

remedies[,] prisoners must complete the administrative review process in accordance 

with the applicable procedural rules[]—rules that are defined not by the PLRA, but by the 

prison grievance process itself.” (internal quotation marks omitted)).

6 As noted earlier, it was Talley’s response to Appellees’ motion to dismiss that 

(1) identified the dates on which he allegedly lacked access to a writing implement and 

(2) alleged that this lack of access prevented him from grieving his stolen-books claim. 

We may consider these allegations in evaluating that motion. Cf. Mack, 839 F.3d at 291 

n.2 (considering the plaintiff’s “allegations made in response to the defendants’ motion to 

dismiss, which incorporate and are consistent with the allegations in his complaint”).
8

2020); see Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000), and, in any event, Talley has

not shown futility because he could have moved for an extension of the 15-working-day

deadline, see DC-ADM 804 Procedures Manual § 1.C.2. Finally, although an

administrative remedy is deemed unavailable when prison officials “thwart inmates from

taking advantage of a grievance process through . . . intimidation,” Ross v. Blake, 578

U.S. 632, 644 (2016), we are not persuaded by Talley’s argument that those

circumstances are present in this case, see Rinaldi, 904 F.3d at 269 (explaining that the

unavailable-due-to-intimidation exception applies only if (1) the inmate was subject to a

“threat [that] was sufficiently serious that it would deter a reasonable inmate of ordinary 

firmness and fortitude from lodging a grievance,” and (2) “the threat actually did deter

this particular inmate”).

Although we agree with the District Court’s dismissal of Talley’s federal claims

for lack of exhaustion, that dismissal should have been without prejudice, not with

prejudice. See Garrett v. Wexford Health, 938 F.3d 69, 81 n.16 (3d Cir. 2019).

Accordingly, we will modify the District Court’s dismissal order, entered July 3, 2019, so

that the dismissal is without prejudice, and we will affirm that order as modified.

7

Talley’s motion for oral argument is denied, as is his “Motion for the Appointment of

Standby Counsel, Alternatively an Injunction.” Appellees’ motion to supplement the

appendix is denied as well.

8

7 To the extent that Talley’s appeal also challenges the District Court’s May 20, 2019 

order denying his motion to take discovery, we see no reason to disturb that ruling. 8 Appellees ask us to consider a handwritten document that bears Talley’s signature and a 

date that falls within the period in which he allegedly lacked access to a writing 
9

implement. This document, which was not part of the District Court record in this case, 

would certainly undermine Talley’s argument that his administrative remedies were 

unavailable. But since we have already rejected this argument on different grounds, this 

case does not present exceptional circumstances warranting supplementation of the 

record on appeal. See Burton v. Teleflex Inc., 707 F.3d 417, 435 (3d Cir. 2013).