PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 22-3268

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WILLIAM JOSEPH WEBB, JR., Appellant

v.

DEPARTMENT OF JUSTICE, ADMINISTRATES

JUSTICE; ISLANDA L. FINAMORE, DEPUTY ATTORNEY GENERAL; JOELLE P. HITCH, JUDGE - FAMLY COURT, NEW CASTLE COUNTY; DIVISION OF YOUTH AND FAMILY SERVICES; SUZANNE VALLE, SOCIAL WORKER; ROBERT MAY, WARDEN; UNKNOWN DEJESUS, STAFF LIEUTENANT FOR INTERNAL AFFAIRS; STACEY HOLLIS, TREATMENT ADMINISTRATOR; UNKNOWN THONGVONG, COUNSELOR

____________ On Appeal from the United States District Court for the District of Delaware (D.C. Civil No. 1-22-cv-00933) District Judge: Honorable Richard G. Andrews

____________2 ____________ Submitted Under 3rd Cir. LAR 34.1(a) on May 20, 2024

Before: RESTREPO, FREEMAN, and McKEE, Circuit Judges

(Opinion filed: September 27, 2024)

____________ Don Arrington Cara Costanzo Jennifer Hance Mary E. Levy Stephanie Terinoni Temple University Beasley School of Law 1719 N Broad Street Philadelphia, PA 19122

Jessica Rickabaugh Tucker Law Group 1801 Market Street Ten Penn Center, Suite 2500 Philadelphia, PA 19103 Counsel for Appellant

Nicholas D. Picollelli, Jr. Office of Attorney General of Delaware Delaware Department of Justice 820 N French Street Wilmington, DE 198013 Gregory E. Smith Office of Attorney General of Delaware Delaware Department of Justice 102 W Water Street, 3rd Floor Dover, DE 19904 Counsel for State of Delawa re by Special Appearance

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OPINION OF THE COURT

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FREEMAN
, Circuit Judge

. William Webb, an inmate at Delaware’s James T. Vaughn Correctional Center (JTVCC), sued prison officials for failing to schedule court-ordered visits with his daughter. The District Court screened and dismissed the suit, holding that Webb did not exhaust JTVCC’s internal grievance process or allege a valid constitutional clai m. Seeking to appeal, Webb placed a notice of appeal in a mailbox for JTVCC staff to collect and file electronically. We deem his notice filed on the day he placed it in that mailbox, so his appeal is timely. And because the complaint states a plausible claim for relief, we will reverse the District Court’s order and remand the case for further proceedings.4 I

A

At all times relevant to this case, Webb has been incarcerated at JTVCC. 1 In October 2020, a Delaware family court issued an order granting hi m visits with his daughter. Since that order, however, prison officials have arranged only one father-daughter visit. That visit, held in 2021, lasted fifteen minutes, was supervised by an official from the state child-services agency, and concluded “without incident or intervention” from the supervising official. App. 21. But no visits have been scheduled since, and Webb has become estranged from his dau ghter as a result.

Seeking additional visits , Webb filed a grievance through the prison’s internal pr ocedure. That grievance was returned to him as unprocessed. He tried to follow up by writing to three prison officials, but none of them adequately responded.

Webb, representing himself, then filed suit against several JTVCC employees. He alleged that prison officials violated his constitutional righ t to “reunification” and he sought money damages and in junctive relief. App. 24.

The District Court dismissed the pro se complaint under the screening provisions of 28 U.S.C. §§ 1915A(b) and 1915(e)(2)(B), which authorize courts to quickly dismiss defective lawsuits from incarcerat ed plaintiffs. The Court held

1 We take these facts from Webb’s complaint and, at this stage of the case, assume that they are true. Durham v. Kelley , 82 F.4th 217, 223 (3 d Cir. 2023).5 that the complaint had two fatal flaws: it revealed that Webb failed to exhaust JTVCC’s internal grievance process, and it stated no valid claim for relief against the JTVCC employees. 2 The Court determined that am endment would be futile, so it did not permit Webb to amend his complaint.

B
On November 22, 2022—twenty-eight days after the District Court dismissed his complaint—Webb signed his notice of appeal and took steps to send it to th e Court. For reasons we will discuss below, the Court did not receive his notice of appeal until November 29, thirty-five days after it entered its dismissal order.

Because it appeared that Webb’s notice of appeal was untimely filed, the Clerk of this Court flagged the appeal for possible dismissal. Webb (still representing himself) opposed dismissal, arguing that his no tice was timely filed under the prison mailbox rule. We ap pointed counsel for Webb and directed the parties to brief th e timeliness issue alongside the merits. 3

2 Webb’s complaint also named other defendants and raised other claims. The District Cour t held that those defendants were immune from suit, and We bb does not challenge those holdings on appeal.

3 We thank appointed counsel from the Temple University Beasley School of Law for ab ly representing Webb in this appeal. We are also grateful to the Delaware Department of Justice, which entered a special appearance at our request and6 II
Before addressing the merits of Webb’s appeal, we must determine whether it was timely file d. The answer turns on an issue of first impression in our Court: whether the prison mailbox rule established in Houston v. Lack , 487 U.S. 266 (1988) and codified in Rule 4(c) of the Federal Rules of Appellate Procedure applies to a system in which prison officials electronically file inma tes’ court documents. We hold that it does. Because Webb us ed this system and otherwise complied with Rule 4(c), his notic e of appeal was timely filed.

In civil cases, a party seeking to appeal a district court’s order or judgment must file a “n otice of appeal . . . with the district clerk within 30 days after the judgment or order appealed from.” Fed. R. App. P. 4(a)(1)(A). 4 This thirty-day deadline is “mandatory and jurisdictional,” Bowles v. Russell

, 551 U.S. 205, 209 (2007) (citation omitted), so we cannot hear

expressed its positions on timelin ess and the merits. Because the District Court dismissed Webb’s suit before any of the defendants were served, they we re not obligated to participate in this appeal. 3d Ci r. L.A.R. 31.2 (2011).

4 There are some exceptions to this rule, none of which apply here. See, e.g. , Fed. R. App. P. 4(a)(1)(B) (extending the deadline to sixty days when the United States, a federal agency, or a federal officer or employee sued in their o fficial capacity is a party).7 an appeal if the notice was filed late, Sec’y of Lab. v. Doyle

, 675 F.3d 187, 189 n.1 (3d Cir. 2012). 5

We assess whether the notice was timely by looking to the date it was “filed with the dist rict clerk.” Fed. R. App. P. 4(a)(1)(A). For most litigants, a document is filed when it is delivered to the district clerk. See Fed. R. Civ. P. 5(d)(2); United States v. Lombardo , 241 U.S. 73, 76 (1916). But we calculate filing dates differently for incarcerated litigants. Recognizing that these litigants face unique disadvantages, the Supreme Court developed th e prison mailbox rule. Houston
, 487 U.S. 266. Under this ru le, we treat an incarcerated litigant’s notice of appeal as “filed at the time [he] delivered it to the prison authorities for fo rwarding to the court clerk.” Id. at 276.

The prison mailbox rule was la ter codified in Rule 4(c) of the Federal Rules of Appellate Procedure. Fed. R. App. P. 4(c) advisory committee’s note to 1993 amendment; see Long v. Atl. City Police Dep’t , 670 F.3d 436, 441 n.11 (3d Cir. 2012). 6 As relevant here, Rule 4(c)(1) provides that “[i]f an inmate files a notice of appeal[,] . . . the notice is timely if it is deposited in the institution’s inte rnal mail system on or before the last day for filing.” Fed. R. App. P. 4(c)(1). To benefit from this rule, an incarcer ated litigant must meet two

5 The District Court exercised jurisdiction unde r 28 U.S.C. § 1331. Its order dismissing th e complaint is a final order under 28 U.S.C. § 1291.

6 The rule announced in Houston applied to incarcerated pro se litigants, but codification ex tended it to any “[i]nmate [c]onfined in an [i]nstitution, ” not just those representing themselves. Fed. R. App. P. 4(c).8 conditions. First, “[i]f an ins titution has a system designed for legal mail, an inmate confined there must use that system.” Id. Second, the litigant must provide evidence co rroborating the date that the notice was deposited in the prison’s mail system: either “a declaration in compliance with 28 U.S.C. § 1746 . . . or a notarized statement,” id. 4(c)(1)(A)(i), 7 or some other “evidence (such as a postmark or date stamp) showing that the notice was . . . deposited and that postage was prepaid,” id. 4(c)(1)(A)(ii). If no su ch evidence accompanies the notice of appeal, we may “e xercise[] [our] discretion to permit the later filing of a declaration or notarized statement that satisfies Rule 4(c)(1)(A)(i).” Id. 4(c)(1)(B).

Our jurisdiction to hear th is appeal turns on whether Webb benefits from the prison mailbox rule. His notice of appeal was delivered to the distri ct clerk more than thirty days after the dismissal order. However, he argues that we should apply the prison mailbox rule a nd deem his notice of appealfiled on the date when he placed it in a designated electronicfiling mailbox in his housing unit, which was within the thirtyday window. We invite d the State of Delaware to address this question by special appearance . The State accepted our invitation, described the electronic filing process at JTVCC, and conceded that the prison mailb ox rule should apply to it. We agree.

7 To comply with 28 U.S.C. § 17 46, a declaration executed in the United States must say “sub stantially the following”: “I declare (or certify, verify, or stat e) under penalty of perjury that the foregoing is true and correc t. Executed on (date). (Signature)[.]”9 As the State explains, JTVCC has established an electronic filing system for inmates’ court documents. Under an agreement between the Delaware Department of Corrections and the United States District Court for the District of Delaware, prisoners at JT VCC file documents with the District Court by placing them in a mailbox in their housing unit. Security staff gather thes e filings and bring them to the prison’s central mailroom. Parale gals then collect the filings from the mailroom, log them in a spreadsheet, scan them, and email them to the District Court. 8 (Inmates housed in units with access to JTVCC’s law library have an additional option: they can bring their court filings directly to the law library for a paralegal to log, scan, and email to the Court. Webb is housed in a unit without access to the law library, so he must use an in-house mailbox for electronic filing.)

Following this procedure, Webb placed his notice of appeal in an in-house mailbox on November 22. That is the date listed on the notice and th e accompanying certificate of service, in which Webb stated that he “served a true and correct copy of the attached Notice of Appeal . . . by placing [the] same in the U.S. mailbag at JT VCC.” App. 14–15. Webb later confirmed in an affidavit that he “placed the Notice of Appeal in the in-house mail on the da te it was signed.” App. 41.

We have not yet applied th e prison mailbox rule to a system like JTVCC’s, in wh ich prison officials submit inmates’ filings electronically. When the rule was developed, court documents were delivered by hand or by mail. But changing filing methods have not disturbed the underlying

8 This agreement does not cove r inmates at other Delaware prisons or filings in De laware state courts.10 legal principle. The Suprem e Court developed the prison mailbox rule because incarcerated litigants lose control of their legal submissions as soon as they give them to prison officials. “Unskilled in law, unaided by co unsel, and unable to leave the prison,” prisoners “ha[ve] no choice but to entrust the forwarding of [their] notice[s] of appeal to prison authorities whom [they] cannot control or supervise and who may have every incentive to delay.” Houston , 487 U.S. at 271.

With this reasoning in mind, we see no meaningful distinction between inmate fili ngs that prison staff submit to the court electronically and those that are delivered on paper. Even though Webb’s notice was fi led electronically, he lost the ability to monitor its progress an d ensure its timely delivery to the District Court as soon as he placed it in the prison’s inhouse mailbox. It is no surprise, then, that our sister circuit had little trouble extending the prison mailbox rule to electronic filings—after all, “pro se prisoners are no more able to guarantee that properly tendered documents are e-filed than that they’re mailed.” Taylor v. Brown , 787 F.3d 851, 859 (7th Cir. 2015). Following its lead, we hold “that a pro se prisoner’s legal documents are considered filed on the date that they’re tendered to prison staff in accordance with reasonable prison policies, regardless of whether they are ultimately mailed or uploaded” electronically. Id. 9

9 Like the Seventh Circuit, we r ecognize that some language in Rule 4(c) does not neatly transl ate to electronic filings. For instance, the rule requires inca rcerated litigants to provide a declaration, notarized statement, or other evidence that postage was prepaid. Fed. R. App. P. 4(c)(1)(A)(i), (ii). This11 We also conclude that Webb met the other requirements of Rule 4(c)(1). By placing hi s notice in the in-house mailbox, he used his prison’s established system for handling legal mail. And the signed and dated certific ate of service he submitted alongside his notice of appeal is “evidence . . . showing that the notice was so deposited” su fficient to satisfy Rule 4(c)(1)(A)(ii). See Baker v. United States , 670 F.3d 448, 451 n.2 (3d Cir. 2012) (presuming that an incarcerated litigant filed a document on the date he executed it); United States v. Rinaldi , 447 F.3d 192, 194 n. 6 (3d Cir. 2006) (same); Long
, 670 F.3d at 439 n.4 (same); cf. Ford v. Wilson , 747 F.3d 944, 949 (7th Cir. 2014) (citing “the certificate of service [the incarcerated litigant] included w ith his notice of appeal” as additional evidence of timely filing). 10 Webb’s notice was therefore timely filed, and we ma y proceed to the merits of his appeal.

III
Turning to the merits, Webb challenges the District Court’s screening-stage dismissal on two grounds. First, he

requirement “is obviously not applicable when e-filing.” Taylor , 787 F.3d at 859 n.10.

10 Even if the certificate of serv ice were insufficient, we would exercise our discretion to accept Webb’s subsequently submitted affidavit, which supports his version of events and complies with Rule 4(c)(1)(A)(i). Fed. R. App. P. 4(c)(1)(B); see Carney v. Oklahoma Dep’t of Pub. Safety , 875 F.3d 1347, 1351 (10th Cir. 2017) (“We exer cise our discretion under Fed. R. App. P. 4(c)(1)(B) to perm it the later filing of [the incarcerated litigant’s] declar ation and deem the appeal timely.”).12 says that his complaint did not de finitively allege that he failed to exhaust JTVCC’s internal gr ievance process. And second, he argues that his complaint stat ed a valid constitutional claim. We review the dismissal de novo, accepting the complaint’s factual allegations as true. Dooley v. Wetzel , 957 F.3d 366, 373 (3d Cir. 2020). 11 Applying this standard, we agree with Webb on both fronts.

A

Under the Prison Litigation Reform Act (PLRA), inmates must “exhaust[]” “such ad ministrative remedies as are available” in the prison system before bringing a lawsuit about prison conditions in federal c ourt. 42 U.S.C. § 1997e(a). “[T]he PLRA’s exhaustion requir ement applies to all inmate suits about prison life . . . .” Porter v. Nussle , 534 U.S. 516, 532 (2002).

As the statute makes clear, prisoners need only exhaust “available” administrative remedies. Ross v. Blake , 578 U.S. 632, 635–36 (2016). In this context, “available” means “capable of use to obtain some relief for the action complained of.” Id. at 642 (cleaned up). A prison’s internal grievance process is not “available” if, for example, (1) “it operates as a simple dead end—with office rs unable or consistently unwilling to provide any relief to aggrieved inmates,” (2) it is “so opaque that it becomes, practically speaking, incapable of use” because “no ordinary prisone r can discern or navigate it,”

11 Because Webb drafted the comp laint himself, we construe it liberally, holding it to “less st ringent standards” than one drafted by a lawyer. Durham , 82 F.4th at 223 (quoting Shorter v. United States , 12 F.4th 366, 371 (3d Cir. 2021)).13 or (3) “prison administrators thwart inmates from taking advantage of [it] through machin ation, misrepresentation, or intimidation.” Id. at 643–44.

In addition, an incarcerated plaintiff generally need not demonstrate that he exhausted his prison’s available grievance procedures in his complaint. Failure to exhaust administrative remedies “is an affirmative de fense the defendant must plead and prove,” so the issue is ty pically resolved later in the litigation process. Mack v. Warden Loretto FCI, 839 F.3d 286, 295 (3d Cir. 2016) (quoting Small v. Camden Cnty. , 728 F.3d 265, 268 (3d Cir. 2013)); see Jones v. Bock , 549 U.S. 199, 216 (2007). But there is a narrow exce ption to this rule: when the inmate’s complaint itself makes cl ear that he failed to exhaust the prison’s available grievance procedures, a court may dismiss the suit without waiting fo r the defendants to raise the issue and meet their burden of proof. Talley v. Clark , 111 F.4th 255, 264 (3d Cir. 2024).

The District Court concluded that the exception applied here. Yet a review of Webb’s complaint leaves us far from certain that his allegations co nveyed a failure to exhaust JTVCC’s available grievance pro cedures. True, Webb marked the “No” checkbox in response to the complaint form’s question “[i]s the grievance process completed?” App. 24. But the form offered a section for further explanation, in which Webb wrote that his grievance “was returned as unprocessed,” that he then “went on the tablet and wrote” to prison officials, and that he received “an illegal response.” Id.

Reading Webb’s complaint as a whole, then, it is not obvious that he failed to exha ust JTVCC’s available grievance procedures. His explanatio n raises the “reasonable inference[]” that, by the time he filed his complaint, he had14 taken his grievance as far as it c ould go in the prison’s internal
process. Durham , 82 F.4th at 223; see Small , 728 F.3d at 273 (holding that a prisoner exhauste d available remedies when he did not receive a decision on hi s grievance and the prison had no process for appealing non-decisions); Hacker v. Dart , 62 F.4th 1073, 1081 (7th Cir. 2023) (prisoner exhausted when there was “no conceivable next st ep for [him] to take” (cleaned up)); cf. Shifflett v. Korszniak , 934 F.3d 356, 365 (3d Cir. 2019) (prisoner exhausted administrati ve remedies when his prison failed to respond to his grieva nce on time). Alternatively, Webb has plausibly allege d that JTVCC’s rules for unprocessed grievances were “so opaque” that they rendered administrative remedies unavailable. Ross , 578 U.S. at 643. Without a developed record on JTVCC’s grievance procedures, we will leave it to th e District Court to make these determinations in the first inst ance. But the co mplaint raises enough uncertainty about exhausti on to preclude dismissal at the screening stage. 12

12 While we reach this conclu sion based on Webb’s complaint alone, we observe that the United States District Court for the District of Delaware has repeatedly found JTVCC’s policies for unprocessed grievances to be confusing or indeterminate. See, e.g.
, Fatir v. Phelps , No. 18-1549, 20 21 WL 827142, at *8 (D. Del. Mar. 4, 2021) (“If the [Delaware Department of Corrections] requires inmates to administratively exhaust grievances returned as ‘unprocessed’ then prison policy should indicate the process to exhaus t unprocessed grievances.”); Abbatiello v. Metzger , No. 19-1317, 2021 WL 678137, at *4 (D. Del. Feb. 22, 2021) (“Our District Court has previously15 B

Webb’s complaint withstands the screening stage for an additional reason: construed libera lly, it states a valid claim for relief. The complaint alleges th at “[s]ince October 19, 2020, [Webb] has had court ordered vis its to be scheduled” by prison officials, that those visits ha ve “only been performed once” despite that single visit concluding “without incident or intervention,” and that he is in “immediate danger of estrangement” from his daughter as a result. App. 21–22.

Though “inartfu lly pleaded,” Estelle v. Gamble , 429 U.S. 97, 106 (1976) (citation omitted), these allegations support a plausible freedom-of- association claim under the First and Fourteenth Amendmen ts. The Constitution “protects

noted that the return s of unprocessed grievance instructions in use at JTVCC are confusing at best.” (cleaned up)); Montgomery v. Onuoha , No. 19-001, 2020 WL 4673828, at *3 (D. Del. Aug. 12, 2020) (holdi ng that the “[p]laintiff had no available administrative remedies” because his grievances were returned as unprocessed and the prison had no rules outlining how to proceed). B ecause the PLRA’s exhaustion requirement is so unforgiving, “prisons should create understandable grievance procedures” that are “clear and transparent enough to allow or dinary inmates to navigate them.” Hacker , 62 F.4th at 1078. Fair , transparent procedures further the interests of inmates and prison officials alike. See Mack , 839 F.3d at 296 (observing that grievances processes offer prison officials an opport unity to gather information and “take appropriate responsive meas ures” before an inmate sues (quoting Johnson v. Testman , 380 F.3d 691, 697 (2d Cir. 2004)).16 an individual’s right to enter in to and maintain certain intimate human relationships,” including th e parent-child relationship. Starnes v. Butler Cnty. Ct. of Common Pleas, 50th Jud. Dist.

, 971 F.3d 416, 431 (3d Cir. 20 20) (cleaned up). Because “freedom of association is am ong the rights least compatible with incarceration,” this right is sharply curtailed in prison. Overton v. Bazzetta , 539 U.S. 126, 131 (20 03). But it is not extinguished altogether. Id. (“We do not hold, and we do not imply, that any right to intim ate association is altogether terminated by incarceration . . . .”); see also Inmates of Allegheny Cnty. Jail v. Pierce , 612 F.2d 754, 759 (3d Cir. 1979) (upholding a ban on contact visits but observing that the policy did “not preclude[] [a prisoner] from visiting with members of his family and ot hers”). Indeed, “while the [Supreme] Court has sustained significant abridgments of prisoners’ associational rights, . . . [those] sustained policies have often contained excepti ons expressly privileging prisoners’ communications with immediate family members.” Tiedemann v. von Blanckensee , 72 F.4th 1001, 1013 (9th Cir. 2023).

To evaluate policies that burden prisoners’ constitutional rights, courts use the well-worn, four-factor test set out in Turner v. Safley , 482 U.S. 78, 89–91 (1987). 13 At its

13 Webb also argues on appeal that his complaint plausibly alleges a substantive due proc ess claim under the Fourteenth Amendment. This claim is closely intertwined with the freedom-of-association claim: bo th rely on th e complaint’s allegations that prison offici als impeded Webb’s relationship with his daughter. We declin e to define the boundaries17 core, that test asks whet her the challenged policy is “reasonably related to legitima te penological interests.” United States v. Haymond , 588 U.S. 634, 653 (2019) (quoting Turner , 482 U.S. at 89). This “hi ghly fact sensitive” inquiry is ill-suited to resolution on the complaint alone. Jones v. Brown
, 461 F.3d 353, 364 (3d Cir. 2006 ). And while the inquiry is deferential to prison officials by design, “it is also not a blank check.” Tiedemann , 72 F.4th at 1013.

Unsurprisingly, then, we cannot resolve the Turner analysis at this early stage. We read Webb’s claim that the visit with his daughter concluded “wit hout incident or intervention” to allege that prison officials’ failure to schedule further visits was not rationally related to legitimate penological interests— an allegation that we must take as true for now. App. 21. And without any responsive pleading from the defendants, we cannot assess how they justify th eir actions. While we express

between these claims at this ea rly stage because both would be subject to the Turner test. Nasir v. Morgan , 350 F.3d 366, 370 (3d Cir. 2003) (explaining that “the Supreme Court has consistently applied the Turner standard to prisoners’ constitutional rights claims,” incl uding substantive due process claims); see Doe v. Delie , 257 F.3d 309, 323 (3d Cir. 2001) (holding that “prison inmates retain a Fourteenth Amendment substantive due process right to privacy in their medical information” but that the ri ght’s scope was limited by the Turner test).18 no opinion on the ultimate mer it of Webb’s claim, the complaint’s allegations are su fficient at this juncture. 14

* * *

For the reasons set forth ab ove, we will reverse the District Court’s order dismissing Webb’s complaint and remand the case for further proceedings.

14 Because we conclude that Webb ’s complaint, read liberally, states a constitutional claim, we need not determine whether the District Court erred in de nying Webb permission to amend it. See Kedra v. Schroeter , 876 F.3d 424, 43 4 n.3 (3d Cir. 2017).