BLD-177 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-3471

___________

JOE M. TONEY, JR.,

Appellant

v.

B. A. BLEDSOE, WARDEN; MS. REAR, ASSISTANT WARDEN;

J. CARPENTER, CORRECTIONAL OFFICER; G. KULAGO, CORRECTIONAL 

OFFICER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil No. 4-09-cv-01412)

District Judge: Honorable Malcolm Muir

____________________________________

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)

or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6

May 5, 2011

Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

(Opinion filed: May 13, 2011)

_________

OPINION

_________

PER CURIAM

Joe M. Toney, Jr., appealed orders of the District Court 1) granting summary 

judgment in favor of the defendants, 2) denying his request for a preliminary injunction 
2

or temporary restraining order (TRO), 3) declining to appoint counsel, and 4) denying his 

motion for reconsideration. His notice of appeal was filed after the sixty days allowed by 

Federal Rule of Appellate Procedure 4(a)(1)(B). We construed his August 10, 2010,

letter to the District Court as requesting the reopening of time to file an appeal, see Fed. 

R. App. P. 4(a)(6), and held this appeal in abeyance pending the District Court‘s ruling 

on the 4(a)(6) motion. His request has since been granted, and the matter is now ripe for 

appellate review.1For the following reasons, we will summarily affirm the judgment of 

the District Court on all grounds.

I.

This suit arises out of a June 25, 2009, incident, in which appellant Toney—a 

federal prisoner then housed at USP Lewisburg—was brutally assaulted by another 

inmate, Jeffrey Clark. The basic facts are not in dispute: Clark was brought to Toney‘s 

cell by several correctional officers; Toney voluntarily submitted to restraints (per

standard operating procedure) prior to the introduction of his new cellmate; following his 

entry, Clark was freed from restraints, produced a knife, and assaulted Toney, whose 

hands were still bound; and, after the passage of an uncertain amount of time and after 

ignoring the repeated commands of the officers, Clark ceased attacking Toney and 

surrendered. Toney was treated for ―multiple lacerations, puncture wounds, and an 

avulsed right upper tooth‖; most of his injuries were superficial. See Toney v. Bledsoe, 

 

1

In response to the District Court‘s order granting his Rule 4(a)(6) motion, Toney filed 

an amended notice of appeal. 
3

No. 4:CV-09-1412, 2010 U.S. Dist. LEXIS 7621, at *5–8 (M.D. Pa. Jan. 29, 2010). 

Proceeding pro se and in forma pauperis, Toney filed suit under Bivens2on July 

19, 2009, alleging what appeared to be an Eighth Amendment claim against the named 

defendants—the warden, assistant warden, and two correctional officers. Toney claimed 

that the officers ―refuse[d] to open the door and let [him] out‖ during the assault, and that

when he returned to his cell later, blood was still all over the walls and floor. Compl. ¶ 

IV, ECF No. 1. He requested both monetary damages and injunctive relief.3 A motion

for appointment of counsel was denied. See Order, ECF No. 13. 

The defendants moved to dismiss the complaint or, in the alternative, for summary 

judgment. They pointed out that Toney, in his complaint, had admitted that his grievance 

process

4 was not complete at the time of filing. See Compl. ¶ II(C). As he had failed to 

 

2 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 

(1971).

3 We note that Toney has since been transferred to USP Florence in Florence, Colorado. 

See, e.g., Pl.‘s Mot. for Enlargement of Time, ECF No. 65. Accordingly, his request for 

injunctive relief—mainly placement on ―single-cell‖ status for the ―remainder of [his] 

stay [at Lewisburg]‖, see Compl. ¶ V(3)—is moot. 

Toney later filed a separate request for a preliminary injunction or a temporary 

restraining order (TRO), claiming that the defendants were retaliating against him by 

poisoning his food, discarding his property, and preventing him from accessing legal 

materials. See Mot. for Preliminary Injunction or TRO, ECF No. 32. Again, as Toney is 

no longer housed at Lewisburg, this request is also moot, and we therefore will not 

review the District Court‘s disposition on the topic of injunctive relief.

4

See 28 C.F.R. § 542.10 et seq. (delineating administrative review process in facilities 

run by the Bureau of Prisons).
4

―present his claims through an administrative grievance process before seeking redress in 

federal court,‖ the Prison Litigation Reform Act (PLRA) mandated judgment in the 

defendants‘ favor. See Def.‘s Br. 15–16, ECF No. 29. 

The District Court agreed, granting summary judgment in favor of the defendants 

because ―[i]t [was] patently clear from the chronological background of this action that 

Toney ha[d] failed to exhaust his administrative remedies before filing the above 

captioned action.‖ Toney, 2010 U.S. Dist. LEXIS 7621, at *14. The accompanying 

order also denied Toney‘s request for discovery. A timely motion for reconsideration 

followed, which was denied.

II.

We have jurisdiction pursuant to 28 U.S.C. § 1291. ―The standard of review 

applicable to an order granting summary judgment is plenary.‖ Curley v. Klem, 298 F.3d 

271, 276 (3d Cir. 2002). In reviewing the decision of the District Court, we apply ―the 

same standard that the lower court should have applied.‖ Farrell v. Planters Lifesavers 

Co., 206 F.3d 271, 278 (3d Cir. 2000); see also Fed. R. Civ. P. 56(c)(2) (2009) (summary 

judgment is appropriate ―if the pleadings, the discovery and disclosure materials on file, 

and any affidavits show that there is no genuine issue as to any material fact and that the 

movant is entitled to judgment as a matter of law‖).5 We also must ―view all evidence 

 

5 Rule 56 was revised as of December 1, 2010. We employ the text in effect at the time 

of the District Court‘s judgment; however, the 2010 amendment does not change the 
5

and draw all inferences in the light most favorable to the non-moving party.‖ Startzell v. 

City of Phila., 533 F.3d 183, 192 (3d Cir. 2008). 

Orders involving the appointment of counsel or the scope or availability of 

discovery are reviewed for abuse of discretion. Brumfield v. Sanders, 232 F.3d 376, 380 

(3d Cir. 2000); Tabron v. Grace, 6 F.3d 147, 158 (3d Cir. 1993). With regard to motions 

for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure, we exercise 

plenary review over matters of law and abuse-of-discretion review otherwise. Cureton v. 

NCAA, 252 F.3d 267, 272 (3d Cir. 2001). ―If no substantial question is presented by this 

appeal, we may summarily affirm the District Court‘s order on any ground supported by 

the record.‖ United States v. Rhines, ___ F.3d ___, 2011 U.S. App. LEXIS 6781, at *3

(3d Cir. Apr. 4, 2011, No. 10-4077); see also Third Cir. L.A.R. 27.4; IOP 10.6.

III.

Under the PLRA, ―[n]o action shall be brought with respect to prison conditions . 

. . by a prisoner confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.‖ 42 U.S.C. § 1997e(a) (emphasis 

added). The language of the statute sweeps broadly; the phrase ―prison conditions‖ 

covers all ―suits about prison life, whether they involve general circumstances or 

particular episodes, and whether they allege excessive force or some other wrong.‖ 

Porter v. Nussle, 534 U.S. 516, 532 (2002). Exhaustion of administrative remedies must 

 

relevant standard for granting summary judgment. See Fed. R. Civ. P. 56 advisory

committee‘s 2010 note.
6

be proper and in accordance with applicable regulations and policies, and noncompliance 

cannot be excused by the courts. Woodford v. Ngo, 548 U.S. 81, 83 (2006); Spruill v. 

Gillis, 372 F.3d 218, 222 (3d Cir. 2004); Nyhuis v. Reno, 204 F.3d 65, 73 (3d Cir. 2000). 

If exhaustion is not complete at the time of filing, dismissal is mandatory. See Johnson v. 

Jones, 340 F.3d 624, 627 (8th Cir. 2003); Neal v. Goord, 267 F.3d 116, 122 (2d Cir.

2001) (―Subsequent exhaustion after suit is filed . . . is insufficient.‖); Perez v. Wis. Dep‘t 

of Corr., 182 F.3d 532, 534 (7th Cir. 1999); see also Nyhuis, 204 F.3d at 77 n.12 (―The 

more sensible rule, and the one we believe Congress intended, is that inmates first test 

and exhaust the administrative process, and then, if dissatisfied, take the time necessary 

to file a timely federal action.‖).

In the instant case, it was plain from the moment of commencement that Toney 

had not complied fully with the administrative grievance process; indeed, he indicated as 

such on the front page of his complaint. Nor was Toney mistaken. At the time of filing, 

less than a month had passed since the complained-of incident, and he had just begun

pursuing his administrative remedies. 

Toney argues that he was misinformed by two non-parties to the suit regarding the 

proper filing of grievance appeals. See, e.g., Pl.‘s Br. in Opposition to Def.‘s Mot. to 

Dismiss 1–2. We have previously held that erroneous instructions or other impediments 

to pursuing administrative relief may render those remedies ―unavailable‖ for the 

purposes of § 1997e(a), and can potentially excuse a failure to comply therewith. See, 

 
7

e.g., Brown v. Croak, 312 F.3d 109, 112–13 (3d Cir. 2002); see also Miller v. Norris, 247 

F.3d 736, 740 (8th Cir. 2001) (―[A] remedy that prison officials prevent a prisoner from 

 ̳utilizing‘ is not an  ̳available‘ remedy under § 1997e(a) . . . .‖). But nowhere does 

Toney argue that he received bad information regarding the proper time to file his federal 

suit, and he does not otherwise connect the misinformation he allegedly received to the 

salient issue on appeal: not procedural default, but instead the failure to fully exhaust 

administrative remedies before taking his complaint to court. Accordingly, even 

assuming arguendo that Toney was misled regarding the appeals process for his 

administrative grievances, those errors do not, under the language of the PLRA and the 

facts of his case, excuse premature commencement in federal court.

6

As the District Court‘s disposition was correct, it follows that it also rightly denied 

Toney‘s requests for appointment of counsel and did not abuse its discretion in declining 

to reconsider its final judgment. See Tabron, 6 F.3d at 155 (establishing consideration of 

―the merits of the plaintiff‘s claim‖ as a threshold matter in appointing counsel). Nor, 

given the deficiencies of the complaint, did the District Court err in denying Toney‘s 

 

6

Further, we observe that the grievance responses contain instructions for appealing 

adverse decisions. See, e.g., Part B – Response, Def.‘s Statement of Material Facts Ex. 

L, ECF No. 28-2 (―If you are dissatisfied with this response, you may appeal to the

General Counsel, Federal Bureau of Prisons. Your appeal must be received . . . within 30 

calendar days of the date of this response.‖). And despite Toney‘s professed lack of 

familiarity with the grievance process, he appeared to be cognizant of the ―sensitive 

issue‖ exception to institutional commencement contained in 28 C.F.R. § 542.14(d)(1). 

See, e.g., Regional Administrative Remedy Appeal, Def,‘s Statement of Material Facts 

Ex. H, ECF No. 22-2. 
8

request for discovery. Cf. Morton v. Hall, 599 F.3d 942, 946 (9th Cir. 2010) (holding 

that the District Court did not abuse its discretion in declining to grant additional 

discovery when the plaintiff had not exhausted administrative remedies).

IV.

There appearing to be no substantial issue in this appeal, we will summarily affirm 

the order of the District Court.7 To the extent that Toney‘s ―Notice of Issues of Appellate 

Review/Declaration for Entry of Default,‖ ―Motion for Default Judgment,‖ and March 8 

―Status Report‖ request independent relief, they are denied. 

 

7 As failure to exhaust is an affirmative defense, we have recognized that ―sua sponte 

dismissal is inappropriate unless the basis is apparent from the face of the complaint.‖ 

Ray v. Kertes, 285 F.3d 287, 296 (3d Cir. 2002). Here, the defect in Toney‘s complaint 

was apparent from its face, and sua sponte dismissal would have been appropriate. See

id. at 293 n.5 (discussing the ―district court‘s inherent power to dismiss sua sponte a 

complaint which facially violates a bar to suit‖). As our analysis in this appeal was 

limited to the question of whether Toney‘s suit was prematurely filed, we have not 

examined and will not address the issue of whether Toney has exhausted his 

administrative remedies since commencing suit. See Neal, 267 F.3d at 123 (―We have 

recognized that failure to exhaust administrative remedies is usually a  ̳curable, 

procedural flaw‘ that can be fixed by exhausting those remedies and then reinstituting the 

suit. . . . Since [the plaintiff‘s] amended complaint was properly dismissed without 

prejudice, he may simply re-file his pleadings, if so advised, after fully complying with 

the exhaustion requirement.‖) (citations omitted).