BLD-177                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 10-3471
                                      ___________

                                  JOE M. TONEY, JR.,
                                                   Appellant

                                            v.

         B. A. BLEDSOE, WARDEN; MS. REAR, ASSISTANT WARDEN;
   J. CARPENTER, CORRECTIONAL OFFICER; G. KULAGO, CORRECTIONAL
                                 OFFICER
                   ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            (D.C. Civil No. 4-09-cv-01412)
                       District Judge: Honorable Malcolm Muir
                     ____________________________________

        Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
        or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    May 5, 2011

      Before: SLOVITER, JORDAN and GREENAWAY, JR., Circuit Judges

                              (Opinion filed: May 13, 2011)
                                       _________

                                       OPINION
                                       _________

PER CURIAM

      Joe M. Toney, Jr., appealed orders of the District Court 1) granting summary

judgment in favor of the defendants, 2) denying his request for a preliminary injunction
or temporary restraining order (TRO), 3) declining to appoint counsel, and 4) denying his

motion for reconsideration. His notice of appeal was filed after the sixty days allowed by

Federal Rule of Appellate Procedure 4(a)(1)(B). We construed his August 10, 2010,

letter to the District Court as requesting the reopening of time to file an appeal, see Fed.

R. App. P. 4(a)(6), and held this appeal in abeyance pending the District Court‘s ruling

on the 4(a)(6) motion. His request has since been granted, and the matter is now ripe for

appellate review.1 For the following reasons, we will summarily affirm the judgment of

the District Court on all grounds.

                                              I.

       This suit arises out of a June 25, 2009, incident, in which appellant Toney—a

federal prisoner then housed at USP Lewisburg—was brutally assaulted by another

inmate, Jeffrey Clark. The basic facts are not in dispute: Clark was brought to Toney‘s

cell by several correctional officers; Toney voluntarily submitted to restraints (per

standard operating procedure) prior to the introduction of his new cellmate; following his

entry, Clark was freed from restraints, produced a knife, and assaulted Toney, whose

hands were still bound; and, after the passage of an uncertain amount of time and after

ignoring the repeated commands of the officers, Clark ceased attacking Toney and

surrendered. Toney was treated for ―multiple lacerations, puncture wounds, and an

avulsed right upper tooth‖; most of his injuries were superficial. See Toney v. Bledsoe,


1
 In response to the District Court‘s order granting his Rule 4(a)(6) motion, Toney filed
an amended notice of appeal.
                                              2
No. 4:CV-09-1412, 

, at *5–8 (M.D. Pa. Jan. 29, 2010).

       Proceeding pro se and in forma pauperis, Toney filed suit under Bivens2 on July

19, 2009, alleging what appeared to be an Eighth Amendment claim against the named

defendants—the warden, assistant warden, and two correctional officers. Toney claimed

that the officers ―refuse[d] to open the door and let [him] out‖ during the assault, and that

when he returned to his cell later, blood was still all over the walls and floor. Compl. ¶

IV, ECF No. 1. He requested both monetary damages and injunctive relief.3 A motion

for appointment of counsel was denied. See Order, ECF No. 13.

       The defendants moved to dismiss the complaint or, in the alternative, for summary

judgment. They pointed out that Toney, in his complaint, had admitted that his grievance

process4 was not complete at the time of filing. See Compl. ¶ II(C). As he had failed to



2
 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 

(1971).
3
  We note that Toney has since been transferred to USP Florence in Florence, Colorado.
See, e.g., Pl.‘s Mot. for Enlargement of Time, ECF No. 65. Accordingly, his request for
injunctive relief—mainly placement on ―single-cell‖ status for the ―remainder of [his]
stay [at Lewisburg]‖, see Compl. ¶ V(3)—is moot.

Toney later filed a separate request for a preliminary injunction or a temporary
restraining order (TRO), claiming that the defendants were retaliating against him by
poisoning his food, discarding his property, and preventing him from accessing legal
materials. See Mot. for Preliminary Injunction or TRO, ECF No. 32. Again, as Toney is
no longer housed at Lewisburg, this request is also moot, and we therefore will not
review the District Court‘s disposition on the topic of injunctive relief.
4
  See 28 C.F.R. § 542.10 et seq. (delineating administrative review process in facilities
run by the Bureau of Prisons).
                                              3
―present his claims through an administrative grievance process before seeking redress in

federal court,‖ the Prison Litigation Reform Act (PLRA) mandated judgment in the

defendants‘ favor. See Def.‘s Br. 15–16, ECF No. 29.

       The District Court agreed, granting summary judgment in favor of the defendants

because ―[i]t [was] patently clear from the chronological background of this action that

Toney ha[d] failed to exhaust his administrative remedies before filing the above

captioned action.‖ Toney, 

, at *14. The accompanying

order also denied Toney‘s request for discovery. A timely motion for reconsideration

followed, which was denied.

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. ―The standard of review

applicable to an order granting summary judgment is plenary.‖ Curley v. Klem, 

, 276 (3d Cir. 2002). In reviewing the decision of the District Court, we apply ―the

same standard that the lower court should have applied.‖ Farrell v. Planters Lifesavers

Co., 

, 278 (3d Cir. 2000); see also Fed. R. Civ. P. 56(c)(2) (2009) (summary

judgment is appropriate ―if the pleadings, the discovery and disclosure materials on file,

and any affidavits show that there is no genuine issue as to any material fact and that the

movant is entitled to judgment as a matter of law‖).5 We also must ―view all evidence




5
 Rule 56 was revised as of December 1, 2010. We employ the text in effect at the time
of the District Court‘s judgment; however, the 2010 amendment does not change the
                                             4
and draw all inferences in the light most favorable to the non-moving party.‖ Startzell v.

City of Phila., 

, 192 (3d Cir. 2008).

       Orders involving the appointment of counsel or the scope or availability of

discovery are reviewed for abuse of discretion. Brumfield v. Sanders, 

, 380

(3d Cir. 2000); Tabron v. Grace, 

, 158 (3d Cir. 1993). With regard to motions

for reconsideration under Rule 59(e) of the Federal Rules of Civil Procedure, we exercise

plenary review over matters of law and abuse-of-discretion review otherwise. Cureton v.

NCAA, 

, 272 (3d Cir. 2001). ―If no substantial question is presented by this

appeal, we may summarily affirm the District Court‘s order on any ground supported by

the record.‖ United States v. Rhines, ___ F.3d ___, 

, at *3

(3d Cir. Apr. 4, 2011, No. 10-4077); see also Third Cir. L.A.R. 27.4; IOP 10.6.

                                              III.

       Under the PLRA, ―[n]o action shall be brought with respect to prison conditions .

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

administrative remedies as are available are exhausted.‖ 42 U.S.C. § 1997e(a) (emphasis

added). The language of the statute sweeps broadly; the phrase ―prison conditions‖

covers all ―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, 

, 532 (2002). Exhaustion of administrative remedies must



relevant standard for granting summary judgment. See Fed. R. Civ. P. 56 advisory
committee‘s 2010 note.
                                               5
be proper and in accordance with applicable regulations and policies, and noncompliance

cannot be excused by the courts. Woodford v. Ngo, 

, 83 (2006); Spruill v.

Gillis, 

, 222 (3d Cir. 2004); Nyhuis v. Reno, 

, 73 (3d Cir. 2000).

If exhaustion is not complete at the time of filing, dismissal is mandatory. See Johnson v.

Jones, 

, 627 (8th Cir. 2003); Neal v. Goord, 

, 122 (2d Cir.

2001) (―Subsequent exhaustion after suit is filed . . . is insufficient.‖); Perez v. Wis. Dep‘t

of Corr., 

, 534 (7th Cir. 1999); see also 

n.12 (―The

more sensible rule, and the one we believe Congress intended, is that inmates first test

and exhaust the administrative process, and then, if dissatisfied, take the time necessary

to file a timely federal action.‖).

       In the instant case, it was plain from the moment of commencement that Toney

had not complied fully with the administrative grievance process; indeed, he indicated as

such on the front page of his complaint. Nor was Toney mistaken. At the time of filing,

less than a month had passed since the complained-of incident, and he had just begun

pursuing his administrative remedies.

       Toney argues that he was misinformed by two non-parties to the suit regarding the

proper filing of grievance appeals. See, e.g., Pl.‘s Br. in Opposition to Def.‘s Mot. to

Dismiss 1–2. We have previously held that erroneous instructions or other impediments

to pursuing administrative relief may render those remedies ―unavailable‖ for the

purposes of § 1997e(a), and can potentially excuse a failure to comply therewith. See,


                                              6
e.g., Brown v. Croak, 

, 112–13 (3d Cir. 2002); see also Miller v. Norris, 

, 740 (8th Cir. 2001) (―[A] remedy that prison officials prevent a prisoner from

‗utilizing‘ is not an ‗available‘ remedy under § 1997e(a) . . . .‖). But nowhere does

Toney argue that he received bad information regarding the proper time to file his federal

suit, and he does not otherwise connect the misinformation he allegedly received to the

salient issue on appeal: not procedural default, but instead the failure to fully exhaust

administrative remedies before taking his complaint to court. Accordingly, even

assuming arguendo that Toney was misled regarding the appeals process for his

administrative grievances, those errors do not, under the language of the PLRA and the

facts of his case, excuse premature commencement in federal court.6

       As the District Court‘s disposition was correct, it follows that it also rightly denied

Toney‘s requests for appointment of counsel and did not abuse its discretion in declining

to reconsider its final judgment. See 

(establishing consideration of

―the merits of the plaintiff‘s claim‖ as a threshold matter in appointing counsel). Nor,

given the deficiencies of the complaint, did the District Court err in denying Toney‘s


6
  Further, we observe that the grievance responses contain instructions for appealing
adverse decisions. See, e.g., Part B – Response, Def.‘s Statement of Material Facts Ex.
L, ECF No. 28-2 (―If you are dissatisfied with this response, you may appeal to the
General Counsel, Federal Bureau of Prisons. Your appeal must be received . . . within 30
calendar days of the date of this response.‖). And despite Toney‘s professed lack of
familiarity with the grievance process, he appeared to be cognizant of the ―sensitive
issue‖ exception to institutional commencement contained in 28 C.F.R. § 542.14(d)(1).
See, e.g., Regional Administrative Remedy Appeal, Def,‘s Statement of Material Facts
Ex. H, ECF No. 22-2.

                                              7
request for discovery. Cf. Morton v. Hall, 

, 946 (9th Cir. 2010) (holding

that the District Court did not abuse its discretion in declining to grant additional

discovery when the plaintiff had not exhausted administrative remedies).

                                             IV.

       There appearing to be no substantial issue in this appeal, we will summarily affirm

the order of the District Court.7 To the extent that Toney‘s ―Notice of Issues of Appellate

Review/Declaration for Entry of Default,‖ ―Motion for Default Judgment,‖ and March 8

―Status Report‖ request independent relief, they are denied.




7
  As failure to exhaust is an affirmative defense, we have recognized that ―sua sponte
dismissal is inappropriate unless the basis is apparent from the face of the complaint.‖
Ray v. Kertes, 

, 296 (3d Cir. 2002). Here, the defect in Toney‘s complaint
was apparent from its face, and sua sponte dismissal would have been appropriate. See

n.5 (discussing the ―district court‘s inherent power to dismiss sua sponte a
complaint which facially violates a bar to suit‖). As our analysis in this appeal was
limited to the question of whether Toney‘s suit was prematurely filed, we have not
examined and will not address the issue of whether Toney has exhausted his
administrative remedies since commencing suit. See 

(―We have
recognized that failure to exhaust administrative remedies is usually a ‗curable,
procedural flaw‘ that can be fixed by exhausting those remedies and then reinstituting the
suit. . . . Since [the plaintiff‘s] amended complaint was properly dismissed without
prejudice, he may simply re-file his pleadings, if so advised, after fully complying with
the exhaustion requirement.‖) (citations omitted).
                                              8