ROBERT L. SMALL, Appellant
CAMDEN COUNTY; CAMDEN COUNTY CORRECTIONAL FACILITY; DAVID OWENS; ERIC TAYLOR; DAVID CROSSAN; OFF. NIEVES; JOHN VERNON; JOSEPH WHITTICK; SGT. WORLDS; SERGIO MONROE; JOSEPH WHITTICK; CHARLES WALKER; MELENDEZ; CROSS; COOPER; WEBSTER; LIPKA; CATHY HENDERSON; DEFORGE; HELLENDER; PETTIS; HARRIS; PETER FARLOW; JONES; JOSEPHINE CURLS; STEVE SCHOFIELD; ERIC PATRACCI; JAMES; TISBY; DANIELS; ACCETTI; SIMONS; HICKS; HOLLIMON; WESLEY; RODRIGUEZ;ALKINS; ELLIS; FRANCHECHINI; KIMBERLEE ADAMS; JOHN DOES 1-9; SKILLED NURSING, INC.
Argued: July 10, 2013.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY (D.C. Civil No. 06-cv-01363) District Judge: Honorable Renee M. Bumb.
Jennings F. Durand, Esq. Carolyn M. Hazard, Esq. Dechert LLP and Lauren M. Bennett* (Argued) University of Pennsylvania Law School *Eligible Law Student under 3d Cir. L.A.R. 46.3 Counsel for Appellant.
Anne Walters, Esq. (Argued) Cheryl L. Cooper, Esq. Howard L. Goldberg, Esq. Office of County Counsel Counsel for Appellee Camden County.
Thomas J. Decker, Esq. (Argued) Decker & Magaw, Counsel for Appellees Josephine Curls, et al.
Frank Orbach, Esq. Law Offices of Brian Granstrand Counsel for Appellee Cathy Henderson.
Before: GREENAWAY, JR., SLOVITER and BARRY, Circuit Judges.
BARRY, Circuit Judge.
Robert L. Small, an inmate at the Camden County Correctional Facility ("CCCF"), appeals the dismissal of his civil rights action against Camden County, CCCF, approximately thirty individual medical personnel and prison officers, and nine John Does (collectively, "Defendants"), for his failure to exhaust administrative remedies, as he was required to do by the Prison Litigation Reform Act of 1995 ("PLRA"), 110 Stat. 1321-71, as amended, 42 U.S.C. § 1997e(a). We will affirm in part and vacate in part.
Small is a New Jersey state prisoner. He is a paraplegic and confined to a wheelchair. As relevant here, at various times between June and September 2004, and again between May 2005 and January 2008, Small was a pretrial detainee at CCCF. Each time, he entered CCCF with his own wheelchair equipped with leg rests.
In March 2006, Small filed this action, pro se, under 42 U.S.C. § 1983. The District Court appointed pro bono counsel, and a second amended complaint was filed on January 15, 2008. In that complaint, Small asserted claims against Defendants arising from fourteen incidents that he alleged occurred between August 2004 and September 2006. Those incidents involved, among other misconduct, the use of excessive force, the denial of medical treatment, and the confiscation of his personal wheelchair and its replacement with one without leg rests. When left with what he alleges was an improper replacement, he claims he was unable to brush his teeth, shower, and on several occasions, was left to lie for days in his own excrement.
In late 2009, after the completion of merits discovery, Defendants moved for summary judgment, arguing, among other things, that Small failed to exhaust his administrative remedies pursuant to CCCF's grievance procedures before filing suit. These procedures, which are set forth in CCCF's inmate handbook, are reproduced in full in the Appendix to this Opinion. In broad summary, however, they provide that a prisoner may, within 15 days after a grievable incident, file a formal, written grievance on a grievance form or, if a grievance form is not available, on plain paper. Grievable incidents include violations of civil, constitutional or statutory rights, criminal acts, and unsafe or unsanitary conditions. After a grievance is filed, it is reviewed by a grievance officer who time stamps and logs it into the prison computer system. If improperly filed, the grievance is returned to the prisoner. If properly filed and logged in, it is forwarded to the appropriate Shift Commander to be addressed within 72 hours. If not resolved in that time, it is returned to the grievance officer for review and resolution within 10 days. If the prisoner is not satisfied with the grievance officer's decision, he may appeal, in writing, to the Warden (or his designee) within 10 days. The Warden's decision is final.
On May 11, 2010, the District Court denied Defendants' motions without prejudice and stated its intention to hold an evidentiary hearing to decide the exhaustion issue before reaching any of the other asserted bases for summary judgment. Initially, the Court gave Small the option of having an advisory jury serve as fact finder at the hearing, an option he accepted. Shortly thereafter, however, the Court became aware of our then-recent decision in Drippe v. Tobelinski, 604 F.3d 778 (3d Cir. 2010), which stated, albeit in dicta, that exhaustion of administrative remedies is a question of law to be determined by the judge. Id. at 782. The Court provided Small with two options: (1) brief the issue further; or (2) withdraw his request for an advisory jury. Small withdrew his request.
On June 23 and 24, 2010, the District Court held an evidentiary hearing to determine whether Small properly filed a grievance and thereafter exhausted each of the fourteen incidents of which he complained. The Court heard testimony from Small and two prison officials, Lt. Karen Taylor and Sgt. Reginald Atkins, and reviewed the extensive collection of documents Small submitted to demonstrate his compliance with CCCF's grievance procedures. The Court went through the grievances one by one, ultimately concluding that Small failed to exhaust all but one of them, and explaining at length why it had reached that conclusion. By order entered June 25, 2010, the Court dismissed the complaint as to all but that one, and after it eventually settled, the Court entered the final order in the case on March 4, 2011. Small appealed. We granted Small's motion for appointment of counsel on appeal.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), and 1367. We have jurisdiction under 28 U.S.C. § 1291. We review the determination of a failure to exhaust de novo, including whether that determination was properly made by a judge rather than a jury. Spruill v. Gillis, 372 F.3d 218, 226 (3d Cir. 2004); Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). We accept the Court's factual conclusions unless clearly erroneous, Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 215 F.3d 407, 409 (3d Cir. 2000), and will, therefore, "upset a finding of fact . . . only if [we have] 'the definite and firm conviction that a mistake has been committed.'" Haines v. Liggett Grp. Inc., 975 F.2d 81, 92 (3d Cir. 1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). We must, ...