NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  _____________

                                       No. 16-2017
                                      _____________

                                 CHARLES SHUMANIS,
                                           Appellant

                                             v.

               LEHIGH COUNTY; WARDEN DALE MIESEL;
         WARDEN JANINE DONATE; SERGEANT ERIC SABORSKY;
     SERGEANT RONALD MARCH; CORRECTION OFFICER ERIC NOWICKI
                          ______________

            ON APPEAL FROM THE UNITED STATES DISTRICT COURT
               FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                              (D.C. No. 5-14-cv-06560)
                    District Judge: Honorable Edward G. Smith
                                  ______________

                       Submitted Under Third Circuit LAR 34.1(a)
                                  November 8, 2016
                                   ______________

   Before: McKEE and RESTREPO, Circuit Judges, and HORNAK, * District Judge.

                                 (Filed: January 18, 2017)
                                     ______________

                                       OPINION **
                                     ______________

       *
         Honorable Mark R. Hornak, District Judge for the United States District Court
for the Western District of Pennsylvania, sitting by designation.
       **
          This disposition is not an Opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
HORNAK, District Judge.

       Charles Shumanis appeals from the March 29, 2016 order of the United States

District Court for the Eastern District of Pennsylvania entering summary judgment

against him and in favor of Appellees based upon its conclusion that Shumanis failed to

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

(PLRA), 42 U.S.C. § 1997e(a). Several months after the District Court’s judgment, the

Supreme Court, in Ross v. Blake, ––– U.S. –––, 136 S. Ct. 1850, 195 L. Ed. 2d 117

(2016), addressed in detail the circumstances in which an inmate must exhaust his or her

administrative remedies under the PLRA and when such exhaustion might be excused. In

Ross, the Supreme Court held that although there are “no limits on an inmate’s obligation

to exhaust,” “the remedies must indeed by ‘available’ to the prisoner” for the exhaustion

requirement to obtain. Id. at 1856.

       For the reasons set forth below, we will vacate the District Court’s judgment and

remand this case for further proceedings.

                                             I.

       On November 14, 2014, Shumanis filed this lawsuit invoking 42 U.S.C. § 1983

and alleging that individual defendant wardens and officers of the Lehigh County Jail

(Jail), as well as Lehigh County itself, violated his rights under the Fourth, Eighth, and

Fourteenth Amendments to the United States Constitution. Shumanis claimed that on

November 16, 2012, while he was an inmate at the Jail, Jail personnel brought him into

the Jail’s administration and discharge room so that he could complete paperwork for a

pending transfer to state prison. There, Shumanis was attacked and brutally beaten by

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three other inmates. He suffered numerous injuries, including blurred vision in his left

eye, five lost teeth, a torn lip, a closed head/brain injury, dizziness, back pain, numbness

in his right hand, a subdural hematoma, a dislocated mandible, permanent facial scarring,

a left eye deformity, and mental and cognitive concentration issues. One of Shumanis’s

attackers was a man named Roberto Diaz. A no-contact order was in effect to protect

Shumanis from Diaz because Shumanis previously served as a witness against Diaz.

According to Shumanis, Jail personnel either condoned the attack or improperly failed to

prevent it.

       The District Court allowed the parties to engage in limited discovery to determine

whether Shumanis had exhausted his administrative remedies as required by the PLRA,

42 U.S.C. § 1997e(a). Following that discovery, Lehigh County and the individual

Defendants moved for summary judgment, and—finding they were entitled to it—the

District Court entered summary judgment in their favor. The District Court concluded

that Shumanis failed to utilize his administrative remedies under the Jail’s Grievance

Policy and Procedure (GPP). Specifically, the District Court made the following factual

findings and legal conclusions:

       (1) the plaintiff was aware of the jail’s grievance procedure, (2) he needed

       to exhaust his administrative remedies by grieving any issues concerning

       any improper conduct by jail staff because such action constituted grievable

       “staff action” under the jail’s grievance policy, (3) the plaintiff did not file

       an informal grievance relating to the acts at issue, (4) even if he did file an

       informal grievance, the jail’s grievance policy required inmates to file a

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       formal grievance and proceed through any appeal from a denial of that

       grievance before the inmate’s remedies are considered to be exhausted, and

       (5) the plaintiff failed to exhaust his administrative remedies because he

       admits that he never timely filed a formal grievance relating to the

       November 2012 incident at issue.

Shumanis v. Lehigh Cty., No. 14-cv-6560, 2016 WL 1237322, at *1 (E.D. Pa. Mar. 29,

2016). Importantly, the text of the Jail’s GPP provides that administrative remedies are

available for “[s]taff actions,” but “[s]tate and federal laws” are “issues [that] are not

grievable under [the] policy.” App. Vol. I at 46.

                                              II.

       The District Court had jurisdiction over this case under 28 U.S.C. § 1331. We

have jurisdiction over this appeal under 28 U.S.C. § 1291. Our review of the District

Court’s grant of summary judgment is plenary, and we apply the same standards that the

District Court applied in determining whether summary judgment was appropriate. Giles

v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). Viewing the evidence in the light most

favorable to the nonmovant, summary judgment is appropriate if there is “no genuine

issue as to any material fact and . . . the moving party is entitled to judgment as a matter

of law.” Id. (quoting Fed. R. Civ. P. 56(c)). “The mere existence of some evidence in

support of the nonmovant is insufficient to deny a motion for summary judgment; enough

evidence must exist to enable a jury to reasonably find for the nonmovant on the issue.”

Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).



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       The PLRA requires inmates to exhaust prison grievance procedures before suing

in court. 42 U.S.C. § 1997e(a). It provides that “[n]o action shall be brought with respect

to prison conditions under section 1983 of this title, or any other Federal law, by a

prisoner confined in any jail, prison, or other correctional facility until such

administrative remedies as are available are exhausted.” Id. Where a prisoner has not

exhausted his administrative remedies, a lawsuit challenging prison conditions in federal

court is procedurally defaulted. Spruill v. Gillis, 372 F.3d 218, 230 (3d Cir. 2004). This

mandatory exhaustion requirement applies to “all inmate suits about prison life, whether

they involve general circumstances or particular episodes, and whether they allege

excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).

       Failure to exhaust administrative remedies under the PLRA is an affirmative

defense that a defendant must plead and prove. Jones v. Bock, 549 U.S. 199, 216 (2007);

Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). A prisoner need only exhaust those

administrative remedies that are actually “available” to him. Mitchell v. Horn, 318 F.3d
523, 529 (3d Cir. 2003). The “exhaustion of administrative remedies under the PLRA is a

question of law to be determined by the judge.” Drippe v. Tobelinski, 604 F.3d 778, 782

(3d Cir. 2010). “‘[P]rison grievance procedures supply the yardstick’ for determining

what steps are required for exhaustion,” Williams v. Beard, 482 F.3d 637, 639 (3d Cir.

2007) (quoting Spruill, 372 F.3d at 231), and interpretation of the prison’s grievance

policy is akin to statutory construction. Spruill, 372 F.3d at 232. “[T]o properly exhaust

administrative remedies, prisoners must ‘complete the administrative review process in

accordance with the applicable procedural rules’” as they are “defined . . . by the prison

                                               5
grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford v. Ngo, 548 U.S. 81,

88 (2006)).

                                            III.

       One of Shumanis’s arguments, both to the District Court and on this appeal, is that

he could not or need not have filed a grievance because an administrative remedy was not

“available” to him under the GPP. A remedy was not available, according to Shumanis,

because his complaints involved alleged violations of “federal law[],” issues which—at

least according to one reading of the GPP—are not grievable.

       Addressing Shumanis’s argument that issues of federal law were not grievable, the

District Court concluded that Shumanis’s interpretation of the GPP was “untenable and

unreasonable” because it would allow any inmate to bypass the grievance process simply

by alleging violations of federal law. Shumanis, 2016 WL 1237322, at *12. Such an

interpretation, the District Court found, “would lead to an unreasonable or absurd result

that is inconsistent with the purpose of the PLRA.” Id. Instead, the District Court

concluded, the GPP’s exclusion of “federal laws” from the administrative grievance

process really intended to convey to prisoners that they could not directly challenge such

laws through the Jail grievance process. Id. Beyond its analysis of the language of the

GPP, however, the District Court made no factual finding as to the actual availability of a

remedy for prisoner complaints that allege violations of federal law.

       Following the District Court’s judgment, the Supreme Court, in Ross, addressed in

detail the circumstances in which an inmate must exhaust his or her administrative

remedies under the PLRA. There, Shaidon Blake, a state prisoner, alleged that he was

                                             6
attacked by prison guards while the guards were escorting him from his regular cell to the

facility’s segregation unit. 136 S. Ct. at 1855. Blake complained to a senior corrections

officer, who referred the incident for investigation by the state prison system’s internal

investigative unit. Id. Although Blake believed that, in doing so, he had exhausted his

administrative remedies, the District Court found that the prison’s policy required a

formal grievance to the prison warden. Id. The Court of Appeals for the Fourth Circuit

held that a reasonable belief that a prisoner has exhausted his or her remedies, even if

mistaken, is sufficient to allow a suit to proceed in light of the PLRA. Id. at 1856. The

Supreme Court disagreed, holding that there are “no limits on an inmate’s obligation to

exhaust—irrespective of any ‘special circumstances.’” Id.

       That holding, however, did not end the Supreme Court’s inquiry. Blake’s suit

might still be viable, the Court reasoned—despite his failure to exhaust administrative

remedies—because of his “contention that the prison’s grievance process was not in fact

available to him.” Id. “A prisoner need not exhaust remedies if they are not ‘available.’”

Id. at 1855. In other words, “an inmate is required to exhaust those, but only those,

grievance procedures that are ‘capable of use’ to obtain ‘some relief for the action

complained of.’” Id. at 1859 (quoting Booth v. Churner, 532 U.S. 731, 738 (2001)). The

Court went on to explain that the actual availability of remedies may turn on questions of

fact. For example, an administrative procedure is unavailable whenever: (1) “it operates

as a simple dead end—with officers unable or consistently unwilling to provide any relief

to aggrieved inmates”; (2) it is “so opaque that is becomes, practically speaking,

incapable of use,” such as when no ordinary prisoner can discern or navigate it; or (3)

                                              7
“prison administrators thwart inmates from taking advantage of a grievance process

through machination, misrepresentation, or intimidation.” Id. at 1859-60.

       The Supreme Court also made it clear that lower courts are better positioned to

make factual findings regarding the actual availability of administrative remedies under

the PLRA. Id. at 1862. Examining the particular facts of Blake’s case, the Court found

that—although the prison’s grievance policy provided that prisoners could grieve “all

types” of complaints—the fact that the state maintained an investigative unit to

investigate charges of staff misconduct raised a question about whether relief under the

prison’s grievance policy was, as a matter of fact, actually available to Blake. Id. Because

the record before the Court was not “conclusive” on the issue of availability, the Court

remanded the case for further factual development. Id.

       In this case, the District Court properly concluded that interpretation of the GPP is

a question of law. See Spruill, 372 F.3d at 232. In light of the Supreme Court’s decision

in Ross, however, we conclude that the decisional process would benefit from the District

Court’s consideration, in the first instance, of factual questions surrounding the actual

availability of administrative remedies. 1 The District Court already heard argument on


1
  In particular, we note that the GPP’s exclusion of remedies for “issues” of “federal
law[]” raises a question about the actual availability of a remedy for Shumanis. The
District Court might conclude, for example, that a grievance would have been a “dead
end” because of the way Jail officials administer the GPP. See Ross, 136 S. Ct. at 1859. It
also might conclude that ambiguities in the GPP’s text regarding grieving issues of
federal law render the policy so opaque on such matters that no reasonable prisoner could
discern or navigate it. See id. Or, the District Court might conclude that the GPP and its
administration do not suffer from these or any other infirmities. We express no opinion as
to the resolution of such matters, concluding that post-Ross, the sounder course is to
permit the District Court to consider them in the first instance.
                                              8
the exhaustion issue and is familiar with the underlying facts of this case. Should the

District Court conclude that further factual development is warranted, as it was in Ross, it

is also better positioned to manage the nature and scope of the parties’ discovery.

                                            IV.

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

remand the case for further proceedings consistent with the Supreme Court’s decision in

Ross and with this Opinion.




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