NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 22-1814

__________

CHARLES TALBERT,

Appellant

v.

DEPARTMENT OF CORRECTIONS; JOHN E. WETZEL, Secretary of PA Department

of Corrections; SUPERINTENDENT LAUREL HARRY; OFFICER BENNING, Level

5 Housing Unit Property Officer; BETH HERB, Health Care Administrator; THEODOR

VOORSTAD, Contract Medical Doctor; MARGARET GORDON, Dietary Management 

Services Specialist, DOC; BRAD RITCHEY, Unit Manager, Level 5 Housing Unit, 

Camp Hill 

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3:21-cv-01669)

District Judge: Honorable Malachy E. Mannion

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 28, 2022

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

(Opinion filed: June 7, 2023)

___________

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

Charles Talbert, a Pennsylvania prisoner, appeals from an order of the United 

States District Court for the Middle District of Pennsylvania which granted the 

defendants’ motions to dismiss his amended complaint. For the following reasons, we 

will affirm in part, vacate in part, and remand for further proceedings consistent with this 

opinion.

Talbert filed a complaint, which he later amended, alleging that the defendants 

failed to follow a recommendation, made by a doctor at Holy Spirit Hospital in August 

2021, that he receive Flexeril for “lower-back muscle spasms” and “‘double portions’ of 

food ongoing to ensure that he retained proper nutrition.”1 (ECF 21, at 5.) The amended 

complaint raised claims under 42 U.S.C. § 1983 and the Americans with Disabilities Act 

(ADA). Talbert named as a defendant, inter alia, Dr. Theodor Voorstad, who was 

contracted to provide care to inmates at SCI-Camp Hill.2 Dr. Voorstad filed a motion to 

dismiss. (ECF 53 & 54.) 

1 Talbert alleged that he has “[a] faulty digestive system due to the surgical removal of 

his colon, which causes food nutrients to not properly absorb into his system unless being

fed in proper quantitative portions.” (ECF 21, at 4.)

2 Talbert also brought a retaliation claim against SCI-Camp Hill Superintendent Laurel 

Harry, Unit Manager Brad Ritchey, and Officer Benning. Later, however, Talbert 

withdrew all claims against those defendants. (ECF 42.) He also named as defendants 

the Pennsylvania Department of Corrections (DOC), the former DOC Secretary, several 

DOC employees, including Dietary Management Services Specialist Margaret Gordon 

and Health Care Administrator Herb. Talbert now moves to dismiss those parties as 

appellees to this action. (Doc. 30.) We grant that motion. 
3

The District Court granted that motion, holding that Talbert either failed to 

exhaust his administrative remedies as required by the Prison Litigation Reform Act or 

failed to state a claim upon which relief can be granted. (ECF 94 & 95.) The District 

Court also denied several motions filed by Talbert, including a motion for a preliminary 

injunction.

3

 (ECF 94, at 23-25.) Talbert appealed. (ECF 97.) 

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). We may affirm on any basis supported by the 

record. See Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011) (per curiam).

The Prison Litigation Reform Act 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). Failure to exhaust is an affirmative defense. See Jones v. Bock, 549 

U.S. 199, 216 (2007). “[A] remedy that prison officials prevent a prisoner from 

‘utiliz[ing]’ is not an ‘available’ remedy under § 1997e(a).” Mitchell v. Horn, 318 F.3d 

523, 529 (3d Cir. 2003) (quoting Miller v. Norris, 247 F.3d 736, 740 (8th Cir. 2001)). 

Thus, exhaustion is not required “when prison administrators thwart inmates from taking 

3 Of the several motions that the District Court denied, Talbert challenges only the denial 

of the motion for a preliminary injunction. See M.S. ex rel. Hall v. Susquehanna Twp. 

Sch. Dist., 969 F.3d 120, 124 n.2 (3d Cir. 2020) (noting that arguments not raised in an 

opening brief on appeal are forfeited).
4

advantage of a grievance process through machination, misrepresentation, or 

intimidation.” Ross v. Blake, 578 U.S. 632, 644 (2016). 

On August 21, 2021, Talbert submitted an initial grievance, complaining about Dr. 

Voorstad’s failure to comply with the hospital’s “medical order for a prescription for 

Flexeril ... and for ... a medical diet of ‘double portions[.]’” (Doc. 17, at 48.) In 

response to that grievance, a nurse stated that “[a]fter review of the discharge paperwork 

from the hospital, I found no mention of the diet recommendations that you mentioned in 

your grievance.” (Id. at 49.) The nurse noted, however, that “[i]t was recommended that 

you have small meals more frequently, which would allow you to use commissary as the 

meals between breakfast, lunch and dinner provided to you by the DOC.” (Id.) With 

respect to Talbert’s request for Flexeril, the nurse explained that the hospital doctor’s 

recommendation was “just that, [a] recommendation[,]” that “[a]t times, what is ordered 

... is not the standard of care given and is not followed[,]” and that “[i]f the providers did 

not feel that a particular medication was needed or felt that the same [e]ffects could be 

given with a different medication, that is the right of the medical providers employed by 

the DOC.” (Id.) The nurse concluded by writing that “this grievance is denied and no 

relief is warranted.” (Id.) Talbert did not appeal from the denial of his grievance, 

explaining that he was “content with having access to food from the commissary 

vendor[.]” (ECF 65, at 5.) Later, however, Talbert was “denied access to the 

commissary by the DOC ....” (Id.) At that point, Talbert contends, “he was time-barred 
5

from filing an appeal, and unable to raise [issues related to the denial of double portions 

of meals] again in another grievance.” (Id. at 8.)

In these circumstances, we conclude that there is a dispute of fact concerning 

whether prison officials made a misrepresentation that rendered the grievance process 

unavailable. See Hardy v. Shaikh, 959 F.3d 578, 588 (3d Cir. 2020) (“[T]o defeat a 

failure-to exhaust defense based on a misrepresentation by prison staff, an inmate must 

show (1) that the misrepresentation is one which a reasonable inmate would be entitled to 

rely on and sufficiently misleading to interfere with a reasonable inmate’s use of the 

grievance process, and (2) that the inmate was actually misled by the 

misrepresentation.”). Given that dispute, the District Court should have made factual 

findings pursuant to Small v. Camden County to determine the availability of 

administrative remedies. 728 F.3d 265, 270 (3d Cir. 2013). It erred by failing to do so. 

Accordingly, we will vacate that portion of the District Court’s judgment that held that 

Talbert failed to exhaust administrative remedies with respect to the claims brought 

against Dr. Voorstad. To resolve the factual dispute on remand, the District Court must, 

“at a minimum—notify the parties that it will consider exhaustion in its role as a fact 

finder under Small” and “at least provide the parties with an opportunity to submit 

materials relevant to exhaustion that are not already before it.” Paladino v. Newsome, 

885 F.3d 203, 211 (3d Cir. 2018). Holding “a full-scale evidentiary hearing (i.e.
6

involving live testimony) is not [always] required” and remains within the District 

Court’s discretion. Id.

For the foregoing reasons, we will vacate the District Court’s judgment and 

remand for further proceedings consistent with this opinion. We will affirm, however, 

the District Court’s denial of Talbert’s motion for a preliminary injunction.4 

4 Talbert’s challenge to the District Court’s denial of his motion for a preliminary 

injunction, which sought to “restrain Defendants [at SCI Camp Hill] from denying [him] 

access to the commissary vendor to purchase food items” (ECF 25, at 6), is moot because 

the Pennsylvania Department of Corrections Inmate Locator indicates that Talbert’s 

“Current Location” is SCI Phoenix, with a “Permanent Location” at SCI Coal Township. 

See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003) (per curiam) (“An inmate’s 

transfer from the facility complained of generally moots the equitable and declaratory 

claims.”); United States v. Lucas, 841 F.3d 796, 802 (9th Cir. 2016) (taking judicial 

notice of information from inmate locator). Talbert’s “Emergency Petition” (Doc. 12), in 

which he asks that we direct the DOC “to immediately deduct $500 from [his] inmate 

account in exchange for $500 worth of food from the DOC’s commissary vendor” is 

denied. Dr. Voorstad’s motion for leave to file a supplemental appendix is granted.