Christopher M. Kinlaw, Sr. v. BYRON M. FOSTER, Warden

ALD-156 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 06-3446
________________
CHRISTOPHER M. KINLAW, SR.
Appellant
v.
BYRON M. FOSTER, Warden; ROBERT BROTHERS, Captain;
ROBERT ACKERMAN, Sgt.; WARREN COUNTY CORRECTIONAL CENTER
ADMINISTRATION
____________________________________
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 05-cv-03408)
District Judge: Honorable Garrett E. Brown, Jr.
_______________________________________
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
March 15, 2007
Before: SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES
(Filed March 21, 2007)
_______________________
OPINION
_______________________

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Kinlaw also appeals the District Court’s denial of his application for pro bono counsel.1
2
PER CURIAM
Christopher Kinlaw appeals following entry of orders by the United States District
Court for District of New Jersey dismissing his civil rights complaint with regard to some
claims and ultimately granting summary judgment in favor the defendants. We will1
affirm.
I.
According to Kinlaw’s complaint and amended complaint, “for quite some time”
officials at the Warren County Correctional Center have been opening his legal mail
outside of his presence, violating his constitutional rights and the applicable state
regulation concerning the opening of prisoner mail.
On August 11, 2005, the District Court entered an order granting Kinlaw in forma
pauperis status pursuant to 28 U.S.C. § 1915(a)-(b). The District Court construed
Kinlaw’s complaint as raising an access-to-the-courts claim, a First Amendment
challenge to the Center’s mail policy, and “a due process claim with respect to any failure
to respect [Kinlaw’s] privacy rights in his legal and personal mail.” In the same order,
the District Court dismissed the complaint for failure to state a claim upon which relief
may be granted under § 1915(e)(2)(B)(ii) and § 1915A(b)(1) with regard to the access-to-
the-courts and due process claims, and indicated that the First Amendment challenge to

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the mail policy could proceed. The District Court also dismissed the complaint as to
Warren County Correctional Center, as it is not a “person” subject to suit under § 1983.
The remaining defendants filed a motion for summary judgment, arguing, among
other things, that Kinlaw failed to exhaust administrative remedies. The District Court
granted the motion on that ground. The District Court also affirmed the magistrate
judge’s order denying Kinlaw’s application for pro bono counsel. Kinlaw appealed and
filed a motion for appointment of counsel in this Court.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. When reviewing an order
dismissing claims under § 1915(e)(2)(B)(ii), we accept as true all factual allegations in
the complaint, and all reasonable inferences that can be drawn from them. See Ransom
v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988). With regard to the decision to grant
summary judgment, we must determine whether the record, when viewed in the light most
favorable to Kinlaw, shows that there is no genuine issue of material fact and that the
defendants were entitled to judgment as a matter of law. See Torres v. Fauver, 292 F.3d
141, 145 (3d Cir. 2002); Fed. R. Civ. P. 56. We can affirm the District Court’s orders on
any ground supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240
(3d Cir. 1999).
A Plaintiff with IFP status whose complaint fails to state a cause of action
generally is entitled to amend his complaint. See Grayson v. Mayview State Hospital,

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293 F.3d 103, 111 (3d Cir. 2002); see also Alston v. Parker, 363 F.3d 229, 235 (3d Cir.
2004) (if complaint is vulnerable to dismissal for failure to state claim, District Court
must first permit plaintiff curative amendment). Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility. See Alston,
363 F.3d at 236. Because there is no indication in the record of bad faith, undue delay, or
prejudice, we can affirm only if it would have been futile for the District Court to allow
Kinlaw to amend his complaint.
Though we agree in part with the District Court’s August 2005 order, we cannot
conclude that it would have been futile for Kinlaw to amend his complaint with regard to
any access-to-the-courts claim. The District Court dismissed this claim because Kinlaw
failed to allege that he was hindered in his pursuit of a legal claim – an omission Kinlaw
potentially could have cured in an amendment. Accordingly, the District Court erred.
However, for the reasons explained below, this is not an error warranting a remand, as we
agree that Kinlaw has failed to exhaust administrative remedies in this matter.
Under 42 U.S.C. § 1997e(a), prisoners are required to exhaust available
administrative remedies before bringing a civil rights action concerning prison
conditions, regardless of whether these remedies can provide the inmate with the relief
sought. See Booth v. Churner, 532 U.S. 731, 741 (2001). We have interpreted this
provision to require, not only that an inmate have no further process available to him, but
also that an inmate must have engaged in “proper exhaustion,” that is, the inmate must

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Thus, even assuming that Kinlaw could make the required representation in order to2
state a claim that he was denied access to the courts, that claim would suffer the same
defect. All of Kinlaw’s allegations involve the prison’s mail procedures and practices,
and he failed to properly grieve any aspect of these claims.
Our affirmance because of failure to exhaust does not mean that we would reject3
Kinlaw’s claim on the merits. See Jones v. Brown, 461 F.3d 353 (3d Cir. 2006).
have timely sought relief at every level available to him. Spruill v. Gillis, 372 F.3d 218,
227-30 (3d Cir. 2004).
Despite Kinlaw’s assertion in his complaint that he had exhausted his
administrative remedies, Defendants’ affidavits in support of their summary judgment
motion show that he clearly did not follow the Center’s grievance procedure as provided
in the inmate handbook. The defendants offered a thorough description of the efforts
that Kinlaw did make and the ways in which he failed to comply with the grievance
requirements. Kinlaw filed no opposition to the defendants’ summary judgment motion.
On this record, we must agree with the District Court that no issue of material fact exists
as to whether Kinlaw exhausted his claims.2
Accordingly, we will affirm the judgment of the District Court. The motion for3
appointment of counsel is denied.
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