May 23, 2019
from the United States District Court for the Eastern
District of Pennsylvania (D.C. Civil Action No.
2-16-cv-06537) District Judge: Honorable Nitza I. Quinones
Bildner Quinnipiac University School of Law, Sebastian Brady
Elise M. Wander (Argued), Benjamin M. Daniels (Supervising
Attorney) Tadhg Dooley Wiggin & Dana Counsel for
J. Smyler General Counsel, Theron Perez Chief Counsel Chase
M. Defelice (Argued) Raymond W. Dorian Assistant Counsel
Timothy A. Holmes, I Pennsylvania Department of Corrections,
Counsel for Appellee Joseph Korszniak, Dr. Bianco, Dr.
Caitlin J. Goodrich Kenneth D. Powell, Jr. Emily B.
Ryan-Fiore (Argued) Weber Gallagher Simpson Stapleton First
& Newby Counsel for Appellee Dr. Muhammad Golsorkhi.
F. Sachs Carol A. VanderWoude (Argued) Marshall Dennehey
Warner Coleman & Goggin Counsel for Appellee Dr. Pamela
M. Baker Ava M. Plakins (Argued) Bonner Kiernan Trebach &
Crociata Counsel for Appellee Dr. Joseph P. Mulligan.
Before: AMBRO, GREENAWAY, JR., and SCIRICA, Circuit Judges
Shifflett was an inmate in the Pennsylvania prison system
when he was set upon by fellow inmates who broke his jaw.
This was only the beginning of his troubles: the surgery on
his jaw went badly, causing him intense pain for the better
part of a year. His efforts to seek treatment from the prison
medical system bore only the most frustrating of fruit: he
alleges he was denied adequate pain medication and given the
run-around by different providers, each saying it was someone
else's responsibility. Shifflett claims he had still not
received fully adequate corrective surgery over eight months
later when he filed this complaint in the Eastern District of
Pennsylvania, naming seven prison officials and outside
doctors as defendants and asserting causes of action under 42
U.S.C. § 1983 for deliberate indifference to severe
medical need in violation of the Eighth Amendment and
retaliation in violation of the First Amendment.
District Court dismissed all of Shifflett's claims,
principally because it found he had not exhausted his
administrative remedies within the prison system as required
by the Prison Litigation Reform Act of 1996
("PLRA"), 42 U.S.C. § 1997e. The Court also
found the substance of Shifflett's allegations
insufficient and denied him leave to amend, concluding that
amendment could not cure his failure to exhaust.
disagree. In Robinson v. Superintendent Rockview
SCI, 831 F.3d 148, 153-55 (3d Cir. 2016), we strongly
implied, though we did not hold outright, that a prisoner
exhausts his administrative remedies as soon as the prison
fails to respond to a properly submitted grievance in a
timely fashion. Today we finish what Robinson
started and adopt this as a rule. Shifflett exhausted his
remedies and acquired the right to come into federal court
when the prison did not decide the initial appeal of his
grievances within the time limits specified by the grievance
policy. Thus we reverse the District Court and remand with
instructions to appoint counsel under Tabron v.
Grace, 6 F.3d 147 (3d Cir. 1993), and to allow Shifflett
to file an amended complaint with the assistance of counsel.
following facts are taken largely from the complaint, as well
as certain attached documents. They are lengthy, but
was an inmate at SCI Graterford in Skippack, Pennsylvania
when he was attacked by fellow inmates on April 6, 2016. The
attack broke his jaw, and the next day he was taken to Temple
University Hospital for treatment. On April 8, Dr. Pamela
Roehm-an ear, nose, and throat specialist at Temple-operated
on Shifflett's jaw, and he was placed on Norco
(hydrocodone and acetaminophen) for ten days. Two weeks later
he returned to Temple for a follow-up appointment with Dr.
Roehm, during which she removed the stitches from the outside
of his face and told him that those on the inside of his
mouth would dissolve on their own. Shifflett complained of
intense pain in his jaw, but Dr. Roehm did not put him on any
further pain medication.
4, 2016, Shifflett filed Grievance No. 625021 through the
prison grievance system ("Grievance No. 1"). It
asserted chiefly that he was not being treated for the pain
in his jaw and that his numerous "sick call"
request slips had been ignored. It also stated that a
contract doctor at SCI Graterford, Dr. Ferdinand Christian,
had told him that there was no other option but to deal with
the pain, and that Shifflett was receiving his medication
only twice a day rather than three times a day as prescribed.
filed a second grievance against Dr. Christian, No. 626028,
on May 11, 2016 ("Grievance No. 2"). This one
alleged that Shifflett had submitted several additional
"sick call" request forms since his previous
grievance, and that Dr. Christian eventually came to visit
him on the 11th but said there was nothing he could do to
help. Eventually Dr. Christian agreed to send Shifflett to
the hospital for another follow-up appointment, but he left
before Shifflett could discuss his other medical concerns,
which included his pain medication and his need for allergy
medication. The same day, Shifflett submitted a dental
request form stating that he continued to be in extreme pain
and requesting another examination of his jaw.
following day, Shifflett was taken back to the hospital for
another appointment with Dr. Roehm. In response to
Shifflett's statement that he was in excruciating pain,
that there was swelling in his face, and that his teeth felt
misaligned, Dr. Roehm increased his dose of Motrin
24, 2016, Shifflett saw Dr. Muhammad Golsorkhi, a medical
doctor at SCI Graterford. He requested an increase in his
pain medicine, which Dr. Golsorkhi refused because a higher
dose of Motrin could cause long-term harm. Shifflett asked
for a stronger pain medicine instead, but was refused. Dr.
Golsorkhi suggested that Shifflett speak to