2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-13-2009

Michael Austin v. Jeffrey Beard

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3405

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Recommended Citation

"Michael Austin v. Jeffrey Beard" (2009). 2009 Decisions. Paper 262.

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1

 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3405

___________

MICHAEL LEE AUSTIN,

 Appellant

v.

JEFFREY A. BEARD; FRANKLIN J. TENNIS; MARIROSA LAMAS; 

R. MCMILLAN; MELINDA A. SMITH; KEVIN BURKE; JOHN D. WALMER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civ. No. 4:07-cv-01833)

District Judge: Honorable John E. Jones, III

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 12, 2009

Before: SMITH, FISHER and GARTH, Circuit Judges

(Opinion filed: November 13, 2009)

_________

 OPINION

_________

PER CURIAM

Michael Lee Austin, a state prisoner proceeding pro se, appeals the order of the
Austin is currently incarcerated at the DOC’s State Correctional Institution at 1

Cresson.

2

District Court granting Appellees’ respective motions to dismiss and denying his request

to equitably toll the statute of limitations pending the exhaustion of his administrative

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

I.

Austin is a prisoner in the custody of the Pennsylvania Department of Corrections

(“DOC”) who, during the relevant time, was incarcerated at the State Correctional

Institution at Rockview (“Rockview”). In October 2007, he commenced this action by 1

filing a 42 U.S.C. § 1983 complaint in the District Court against DOC Secretary Jeffrey

Beard and the following Rockview officials: Superintendent Franklin Tennis, Deputy

Superintendents Marirosa Lamas and R. McMillan, Chief Psychologist Dr. Charles

Walmer, Program Manager Melinda Smith, and psychiatrist Dr. Kevin Burke. Austin’s

complaint raised First, Eighth, and Fourteenth Amendment claims, as well as a state law

claim for breach of the duty of confidentiality. On the first page of his complaint, he

admitted that he had not completed the prison’s grievance process with respect to his

claims, and the various prison documents he submitted with his complaint reflected that

incompleteness.

In February 2008, the defendants moved to dismiss the complaint pursuant to Fed.

R. Civ. P. 12(b)(6) but did not submit an accompanying brief at that time. About a week
Although an order of dismissal generally must be with prejudice to be appealable, 2

“a plaintiff can appeal from a dismissal without prejudice when he declares his intention

to stand on his complaint or when he cannot cure the defect in his complaint.” Booth v.

Churner, 206 F.3d 289, 293 n.3 (3d Cir. 2000). As noted below, Austin cannot cure the

defect in his complaint because the time for exhausting his administrative remedies has

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later, Dr. Burke, who had retained separate counsel, filed an independent motion to

dismiss and an accompanying brief. Shortly thereafter, the remaining defendants

(hereinafter collectively referred to as “the DOC Officials”) filed a brief in support of

their February 2008 motion to dismiss, arguing, inter alia, that Austin had failed to

exhaust his administrative remedies with respect to his federal claims as required by the

Prison Litigation Reform Act of 1995 (“PLRA”), 42 U.S.C. § 1997e(a). Dr. Burke had

not raised this argument in his brief. Austin subsequently filed a “Motion for the

Allowance of Equitable Tolling and to Expendite [sic] the Administrative Grievance

Process,” apparently seeking to equitably toll the statute of limitations while he “exhausts

and then re-file[s] [his] case . . . under a new civil action [number] . . . .” 

In June 2008, the Magistrate Judge issued a report recommending that, in light of

Austin’s failure to exhaust his administrative remedies, the court grant both motions to

dismiss and deny Austin’s motion. In July 2008, the District Court adopted the report,

denied Austin’s motion, and dismissed the complaint without prejudice. Austin now

appeals the District Court’s judgment to this Court.

II.

We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise 2
long since passed. Accordingly, this appeal is properly before us.

4

plenary review over a district court’s decision to grant a motion to dismiss. See Fellner v.

Tri-Union Seafoods, L.L.C., 539 F.3d 237, 242 (3d Cir. 2008). 

Under the PLRA, a prisoner must exhaust all available administrative remedies

before raising claims under § 1983 concerning prison conditions. See 42 U.S.C. 

§ 1997e(a). To meet this requirement, a prisoner must properly exhaust his

administrative remedies. Woodford v. Ngo, 548 U.S. 81, 93 (2006). “Proper exhaustion

demands compliance with an agency’s deadlines and other critical procedural rules . . . .” 

Id. at 90-91. A prisoner’s failure to exhaust is an affirmative defense, Jones v. Bock, 549

U.S. 199, 216 (2007), and a defendant may, “in appropriate cases,” move to dismiss the

complaint on that basis. Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002).

Under the DOC’s grievance procedure, an inmate must file a grievance with the

Facility Grievance Coordinator within fifteen working days of the alleged event(s) at

issue. See Pa. Dep’t of Corr. Policy Statement, DC-ADM 804, Part VI.A.8. Once a

decision is issued, the inmate generally has ten working days to appeal to the prison’s

Facility Manager. See id. at Part VI.C.1, 2. After the Facility Manager issues a decision,

the inmate generally has fifteen working days to file a final appeal with the Office of

Inmate Grievances and Appeals. See id. at Part VI.D.1. 

In this case, Austin himself acknowledged that he had failed to complete the

DOC’s grievance process, and the prison documents submitted with his complaint
It appears that Austin now describes his motion for equitable tolling as a motion 3

to stay the District Court proceeding pending the exhaustion of his administrative

remedies. Even if (1) Austin’s motion could be interpreted as seeking a stay and (2) he

could go back and exhaust his remedies – the time for doing so, however, passed more

than two years ago – such a motion would still lack merit. See Johnson v. Jones, 340

F.3d 624, 627-28 (8th Cir. 2003) (recognizing that “many of our sister circuits [have held]

that permitting exhaustion [while the lawsuit is pending] . . . undermines the objectives of

section 1997e(a) and that the [statute] . . . clearly contemplates exhaustion prior to the

commencement of the action . . ., thus requiring an outright dismissal of such actions

rather than issuing continuances so that exhaustion may occur”). 

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confirm his failure to properly exhaust his remedies. Indeed, Austin sought equitable

tolling so that he could exhaust his administrative remedies. Accordingly, the District

Court correctly dismissed Austin’s federal claims against the DOC Officials. Although

Dr. Burke did not raise the issue of exhaustion in his separate motion to dismiss, the

District Court did not err in dismissing the federal claims against him because it was clear

from the complaint and accompanying documents that those claims were unexhausted. 

Cf. Ray v. Kertes, 285 F.3d 287, 293 n.5 (3d Cir. 2002) (noting that a district court may

“dismiss sua sponte a complaint which facially violates a bar to suit”). 

Having dismissed Austin’s federal claims, the court acted within its discretion in

declining to exercise supplemental jurisdiction over his state law claim. See 28 U.S.C. 

§ 1367(c)(3); Figueroa v. Buccaneer Hotel Inc., 188 F.3d 172, 181 (3d Cir. 1999). 

Moreover, the District Court did not err in denying Austin’s request for equitable tolling,

for he failed to demonstrate that such extraordinary relief is warranted here. See Santos

v. United States, 559 F.3d 189, 197 (3d Cir. 2009). Finally, we have considered the 3
6

remaining arguments Austin raises in his brief and conclude that they are without merit. 

In light of the above, we will affirm the District Court’s order granting Appellees’

respective motions to dismiss and denying Austin’s motion for equitable tolling. Austin’s

request for appointment of counsel is denied.