United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER 
Cynthia Reed Eddy Chief United States Magistrate Judge
before the Court is Defendants' Motion to Dismiss (ECF
No. 28), to which Plaintiff has responded in opposition. (ECF
Nos. 33, 34). For the reasons that follow, the motion will be
argue that, whatever the merits of Plaintiff s claims, the
Complaint should be dismissed because Plaintiff failed to
exhaust administrative remedies as required by the Prison
Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e(a), which provides in relevant part as follows:
No action shall be brought with respect to prison conditions
under [42 U.S.C. §] 1982, or any other Federal law, by a
prisoner confined in any jail, prison, or correctional
facility until such administrative remedies as are available
42 U.S.C. § 1997e(a).
the Court notes that “[f]ailure to exhaust is an
affirmative defense the defendant must plead and prove;
it is not a pleading requirement for the
prisoner-plaintiff.” Small v. Camden
Cty., 728 F.3d 265, 268 (3d Cir. 2013) (emphasis added)
(citing Jones v. Bock, 49 U.S. 199, 212, 216-17
(2007)). Accordingly, when failure to exhaust is raised as
the basis for a motion to dismiss, dismissal is appropriate
only where the failure to exhaust is “apparent from the
complaint or other documents before the [Court].”
Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002).
properly exhaust administrative remedies prisoners must
‘complete the administrative review process in
accordance with the applicable procedural rules,' rules
that are defined not by the PLRA, but by the prison grievance
process itself.” Jones v. Bock, 549 U.S. 199,
218 (2007) (quoting Woodford v. Ngo, 548 U.S. 81, 88
(2006)). The PLRA, however, “requires only
‘proper exhaustion,' meaning exhaustion of those
administrative remedies that are
‘available'.” Rinaldi v. United
States, 904 F.3d 257, 266 (3d Cir. 2018) (quoting
Woodford, 548 U.S. at 93). “Available means
capable of use; at hand.” Small, 728 F.3d at
271 (internal citations and quotation marks omitted).
“Although the availability of administrative remedies
to a prisoner is a question of law, it necessarily involves a
factual inquiry.” Id.
argue that because “Plaintiff does not indicate
anywhere in his Amended Complaint that he ever filed a
Grievance to address any of his concerns while he was an
inmate at the Westmoreland County Detention Center, ”
the entire Complaint should be dismissed. Defs' Br. at 3
(ECF No. 29). At this stage, Defendants' argument is
unavailing because exhaustion “requires only . . .
exhaustion of those administrative remedies that are
‘available', ” Rinaldi, 604 F.3d at
266, and as stated previously, “[f]ailure to exhaust is
an affirmative defense the defendant must plead and prove; it
is not a pleading requirement for the
prisoner-plaintiff.” Small, 728 F.3d at 268.
Plaintiff argues that administrative remedies were not
available to him (which is consistent with the allegations of
the Complaint wherein he also indicates that administrative
remedies were not available to him). See Ross v.
Blake, ___ U.S. ___, 136 S.Ct. 1850, 1860 (2016)
(holding an administrative remedy is unavailable “when
prison administrators thwart inmates from taking advantage of
a grievance process through machination, misrepresentation,
or intimidation”); Shifflett v. Korszniak, No.
17-2676, ___ F.3d ___, 2019 WL 3772104, *6 (3d Cir. Aug. 12,
2019) (holding that “as soon as a prison fails to
respond to a properly submitted grievance or appeal within
the time limits prescribed by its own policies, it has made
its administrative remedies unavailable . . .”);
Small, 728 F.3d at 273 (same). Defendants offer no
response to the argument that the prison's administrative
remedies were not, in fact, “available” to
Plaintiff. Thus, the motion to dismiss the Complaint on the
ground that Plaintiff failed to exhaust his administrative
remedies before filing suit will be denied.
NOW, this 23rd day of August, 2019, it is hereby
ORDERED that Defendant's Motion to
Dismiss is DENIED.
IS FURTHER ORDERED that Defendants shall file a
responsive pleading in accordance with Federal Rule of Civil
 In accordance with the provisions of
28 U.S.C. § 636(c)(1), all parties who have been
identified have been served and have voluntarily consented to
have a United States Magistrate Judge conduct proceedings in
this case, including ...