Nelson Kirk v. Sgt. Kenneth Roan

CPS-69 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-4436
________________________________
NELSON KIRK,
Appellant
v.
SGT. KENNETH ROAN; MR. KERSTETTER, Unit Manager;
MR. J. RACKOVAN, Grievance Coordinator;
MAJOR FRANK TENNIS, Superintendent; MAJOR SNEDEKER;
ROBERT MYERS; GRIEVANCE REVIEW OFFICER TSHANNA KYLER;
H. CLIFFORD O’HARA, Department of Corrections Office of Professional
Responsibility
_____________________________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-01990)
District Judge: Sylvia H. Rambo
_______________________________________
Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B) or Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
December 8, 2005
BEFORE: BARRY, SMITH and NYGAARD, CIRCUIT JUDGES
(Filed: December 20, 2005)
____________________
OPINION
_______________________

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PER CURIAM
In September 2004, Nelson Kirk, a state prisoner proceeding pro se, filed the
underlying complaint in the United States District Court for the Middle District of
Pennsylvania alleging violations of his First, Eighth, and Fourteenth Amendment rights.
Specifically, Kirk alleged that: defendant Roan subjected him to a pattern of unwanted
sexual comments and threats; the defendants transferred him to a smoking unit in
retaliation for filing a prison grievance; and Pennsylvania’s three-level administrative
review process is unconstitutional because “it create[s] a maze of steps to safeguard state
officials from liability, while subjecting inmates to retaliat[ion].” Kirk alleged in his
complaint that he filed inmate grievance # 24096 in 2002 complaining about Roan’s
alleged harassment.
The defendants filed a motion to dismiss Kirk’s complaint for failure to state a
claim pursuant to Federal Rule of Civil Procedure 12(b)(6). In their 12(b)(6) motion, the
defendants alleged that Kirk failed to properly exhaust his administrative remedies with
respect to inmate grievance # 24096 because he never submitted the documentation
necessary for final review by the Secretary’s Office of Inmate Grievances and Appeals.
Kirk filed a response to the defendants’ motion in which he asserted that on August 26,
2002, he mailed the appropriate documentation for final review to Grievance Review
Officer Tshanna Kyler, thereby exhausting his administrative remedies. On September 1,
2005, without considering the allegations in Kirk’s response, the District Court granted

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the defendants’ motion and dismissed Kirk’s complaint for failure to exhaust. This timely
appeal followed.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review of
the District Court’s dismissal of Kirk’s complaint pursuant to Fed. R. Civ. P. 12(b)(6).
Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004). Because we are reviewing the grant of
a motion to dismiss, we accept as true the factual allegations in the complaint and view
them in the light most favorable to Kirk. Doug Grant Inc. v. Greate Bay Casino Corp.,
232 F.3d 173, 183 (3d Cir. 2000).
The Prison Litigation Reform Act of 1995 (“PLRA”) prohibits an inmate from
bringing a civil rights suit alleging specific acts of unconstitutional conduct by prison
officials until the inmate has exhausted available administrative remedies. 42 U.S.C.
§ 1997e(a). The exhaustion requirement of the PLRA applies to grievance procedures
“regardless of the relief offered by the administrative procedures.” Booth v. Churner, 523
U.S. 731, 741 (2001); see also Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir. 2000). To satisfy
this requirement, a prisoner must properly exhaust all available administrative remedies
prior to filing suit. Spruill, 372 F.3d at 228, 231. Failure of a prisoner to exhaust
administrative remedies is an affirmative defense that must be pled and proven by the
defendants. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002) (holding that failure to
exhaust is an affirmative defense and finding that the District Court erred in imposing an
improperly heightened pleading standard that required the prisoner not only to plead, but

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also to prove, exhaustion in the complaint); see also Mitchell v. Horn, 318 F.3d 523, 529
(3d Cir. 2003).
The defendants alleged in the District Court that Kirk failed to exhaust inmate
grievance # 24096 because he failed to include with his appeal to the Secretary’s Office
of Inmate Grievances the documents required for “a proper appeal to final review.” DC-
ADM 804, Part VI.D.1.h. In support of their motion to dismiss, the defendants submitted
the declaration of Tshanna Kyler, the Grievance Review Officer in the Secretary’s Office
of Inmate Grievances and Appeals. In her declaration, Kyler stated that “Kirk attempted
to appeal grievance no. 24096 without submitting to our office the documentation
required by DC-ADM 804.” Kyler further stated that by letter dated August 20, 2002, she
notified Kirk that his appeal was incomplete and granted him ten working days to comply
with the procedural requirements for pursuing his appeal. According to Kyler, “Kirk
failed to submit the required documentation in a timely manner.”
Kirk, however, has contested the information contained in Kyler’s declaration.
Specifically, Kirk alleged in the District Court that on August 26, 2002, he mailed the
additional documentation necessary for final review to the Secretary’s Office of Inmate
Grievances and Appeals. Kirk supported this contention by submitting to the District
Court a photocopy of a mail receipt indicating that on August 26, 2002, he sent mail to
the Department of Corrections. Neither the defendants nor the District Court addressed
Kirk’s specific allegations regarding exhaustion of this particular grievance.

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It is undisputed that Kirk did not file inmate grievances as to the remaining1
allegations in his complaint. Because any attempt by Kirk to now exhaust these claims
would be untimely, the claims are procedurally defaulted. See Spruill, 372 F.3d at 230
(holding that the PLRA’s exhaustion requirement contains a procedural default
component).
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Because this is an appeal from an order granting a motion to dismiss, we view the
facts in the light most favorable to Kirk. Doug Grant, 232 F.3d at 183. On this record,
we conclude that there is insufficient evidence to find that Kirk failed to exhaust his
administrative remedies with respect to inmate grievance # 24096. See Ray, 285 F.3d at1
297 (explaining that “[w]ithout further inquiry, the District Court was not in a position to
reach the conclusion that Ray failed to exhaust his administrative remedies”).
Accordingly, because the defendants did not meet their burden of proving the affirmative
defense of failure to exhaust, the District Court erred in granting their motion to dismiss.
For the foregoing reasons, we will summarily vacate the order of the District Court
entered September 1, 2005, and remand for further proceedings consistent with this
opinion. See 3rd Cir. LAR 27.4 and I.O.P. 10.6.

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