Michael Lee Austin v. Jeffrey A. Beard

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NOT PRECEDENTIAL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

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Austin is currently incarcerated at the DOC’s State Correctional Institution at1
Cresson.
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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 by1
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

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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 exercise2

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long since passed. Accordingly, this appeal is properly before us.
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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

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It appears that Austin now describes his motion for equitable tolling as a motion3
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 the3

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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.

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