NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             _____________

                                 No. 09-2070
                                _____________

                           CARLO E. CEROME,
                                                  Appellant
                                      v.

            MOSHANNON VALLEY CORRECTIONAL CENTER/
             CORNELL COMPANIES, INC.; W. JONES, Captain;
                OFFICER MANN, Correctional Officer (C.O.);
            MR. M. MILLWARD, Warden; C. ROHRBACKER, C.O.;
                        OFFICER CRIBB, C.O.


                                _______________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
            FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                        (D.C. Action No. 07-cv-00077)
                  District Judge: Honorable Kim R. Gibson
                              _______________

                  Submitted Under Third Circuit LAR 34.1(a)
                              October 20, 2010
                             _______________

      Before: FISHER, GREENAWAY, JR., and NYGAARD, Circuit Judges

                      (Opinion Filed: December 7, 2010)
                             _______________

                                 OPINION
                             ________________

GREENAWAY, JR., Circuit Judge
       Appellant Carlo E. Cerome (“Cerome”) appeals the dismissal of his complaint by

the United States District Court for the Western District of Pennsylvania.1   The District

Court adopted the Magistrate Judge’s Report and Recommendation (“R & R”) and

granted the defendants’ motion to dismiss, pursuant to FED. R. CIV. P. 12(b)(6).

       We disagree. For the following reasons, we will reverse the District Court=s

judgment and remand for further proceedings consistent with this opinion.

                                 I.     BACKGROUND

       We write solely for the benefit of the parties, and therefore recount only the

essential facts. In 2006 and 2007, Cerome was incarcerated at MVCC in Phillipsburg,

Pennsylvania. MVCC is a privately owned and operated facility pursuant to a contract

with the Federal Bureau of Prisons. In his pro se Complaint,2 Cerome alleges that the

Hispanic inmates targeted and threatened him and other Black prisoners because of their

race.3 Cerome also alleges that the MVCC guards allowed the Hispanic inmates to

intimidate, attack and brutalize him and other black inmates. On one occasion, Cerome

alleges that on February 6, 2007, at approximately 4:00 a.m., he awakened to find a



1
  The defendants include the Moshannon Valley Correctional Center/Cornell
Companies, Inc. (“MVCC”), Warden Millward, Captain Jones, Officer Mann, Officer
Cribb, and Officer Rohrbacker.
2
  The 9-page Complaint, dated December 18, 2007, is found at J.A. Vol. II 27-35.
Accompanying the Complaint is Cerome’s Brief in Support of the Complaint and an
Affidavit from Cerome. Cerome also included a Motion for Service of Process.
3
  According to Cerome, the Hispanic inmates were of Mexican and Latin American
heritage, and made up the majority of the prison population. (J.A. Vol. II 61-99.)

                                             2
Hispanic gang leader in his cell, brought there by correctional officers. As a result of

this encounter, Cerome claimed to have suffered a mild stroke.

       On February 28, 2007, Cerome filed his first grievance at MVCC, an Inmate

Informal Resolution Form, describing his alleged problems with racial violence, and

requesting a transfer to protective custody.

       On April 4, 2007, Cerome filed, in the District Court, a Motion for Leave to

Proceed In Forma Pauperis. Included in that motion was a section labeled “ the

Complaint”, (J.A. Vol. II 27-35), a pro se Brief in Support of his Complaint, and

affidavits describing the factual allegations in further detail. The Complaint contained

four counts.4

       On April 17, 2007, Cerome filed his second grievance, an Inmate Request to Staff

Member. He requested 2 or 3 minutes of a staff member’s time to discuss his situation.

       On December 18, 2007, Magistrate Judge Pesto ordered that Cerome’s motion to

proceed In Forma Pauperis be granted and that Cerome’s pro se Complaint be filed in the

District Court.5

       On November 14, 2008, Defendants collectively moved to dismiss Cerome’s

Complaint, pursuant to FED. R. CIV. P. 12 (b)(6), stating that: (1) he failed to state a claim


4
  The Table of Contents in the Joint Appendix lists the Complaint as J.A. Vol. II 61-70;
however, those pages are not identified by Cerome as the Complaint. For the purposes
of our analysis, J.A. Vol. II 27-35 and 61-70 shall be considered Cerome’s Complaint.
5
   Cerome alleged violations of the Eighth Amendment under 42 U.S.C. § 1983,
violations of his right to privacy under 18 U.S.C. § 1801, and failure to provide

                                               3
upon which relief could be granted; (2) he presented claims which were not actionable

because they were based on prospective harm and emotional injury without any showing

of a prior physical injury; and (3) he failed to exhaust his administrative remedies.

       On December 11, 2008, Cerome filed opposition to the Motion to Dismiss,

asserting that he had fully exhausted the administrative remedies available to him at

MVCC and that he had not been required by MVCC authorities to choose alternative

remedies.

       The District Court referred disposition of the motion to dismiss to the Magistrate

Judge. On March 6, 2009, the Magistrate Judge filed an R & R, recommending that

Defendants’ Motion to Dismiss be granted for lack of exhaustion of administrative

remedies.

       On March 15, 2009, Cerome filed a Motion for an Extension of Time to File

Objections to the R & R, stating that he received the R & R on March 10, 2010, and that

“due to the quasi inaccessibility to the law library” where he was incarcerated, he “would

not be able to comply with the deadline to file the objections.” 6

       On March 27, 2009, the District Court denied Cerome’s Motion for an Extension

of Time to File Objections to the R & R. In the same Memorandum Order, the District




protection, safekeeping and care during his incarceration under 18 U.S.C. § 4042.
6
  Pursuant to 28 U.S.C. § 636(b)(1), the parties had 10 days to file written objections to
the R & R, due on March 16, 2009.

                                              4
Court adopted the Magistrate Judge’s R & R. Also on March 27, 2009, Cerome filed his

Objections to the R & R.7

         On April 13, 2009, Cerome filed a timely Notice of Appeal.

                II.     JURISDICTION AND STANDARD OF REVIEW

         The District Court had jurisdiction under 18 U.S.C. ' 3231. We have jurisdiction

pursuant to 28 U.S.C. ' 1291. Under FED. R. CIV. P. 12(b)(6 ), we exercise plenary

review over a district court’s grant of a motion to dismiss. Grier v. Klem, 

,

676 (3d Cir. 2010); Ballentine v. United States, 

, 808 (3d Cir. 2007). To

withstand a Rule 12(b)(6) motion to dismiss, “a complaint must contain sufficient factual

matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft

v. Iqbal, --- U.S. ----, 

, 1949 (2009) (internal quotation marks omitted).

“In deciding a motion to dismiss, all well-pleaded allegations of the complaint must be

taken as true and interpreted in the light most favorable to the plaintiffs, and all inferences

must be drawn in favor of them.” McTernan v. City of York, 

, 526 (3d Cir.

2009).

                                     III.   ANALYSIS

         Failure to exhaust administrative remedies is an affirmative defense that

defendants bear the burden to plead and prove. Jones v. Bock, 

, 216 (2007);

Mitchell v. Horn, 

, 529 (3d Cir. 2003). The District Court erroneously


7
    Cerome’s Objections were filed out of time and were not considered in the R & R.

                                               5
shifted to Cerome the burden of proving that he had exhausted the available

administrative remedies. We will reverse the District Court=s dismissal of Cerome’s

Complaint for failure to exhaust administrative remedies, and remand this case to the

District Court for further proceedings consistent with this opinion.

       The Complaint here generally alleges violations of the Eighth Amendment under

42 U.S.C. § 1983, violations of his right to privacy under 18 U.S.C. § 1801, and failure to

provide protection, safekeeping and care during his incarceration under 18 U.S.C. § 4042.

 (J.A. Vol. II 27-35.)

       Appellees contend that Cerome “voluntarily introduced the issue of exhaustion of

administrative remedies in his Complaint, and then launched into a justification of why he

was not required to exhaust the remedies.” (Appellees’ Br. 7.) Specifically, Appellees

assert that Cerome made this reference on page 23 of the Joint Appendix. However,

page 23 of the Joint Appendix contains information taken from the Brief in Support of the

Complaint, not from the Complaint itself.

       Appellees’ argument is based on a misapprehension of what Cerome argues is his

Complaint. Cerome’s Complaint was accepted for filing on December 18, 2007. As

noted earlier, the Complaint appears at J.A. Vol. II 27-35. The parties note in the Table

of Contents that the Complaint appears at J.A. Vol. II 61-70. This Court, for purposes of

this analysis, need not resolve whether either is the correct iteration of the Complaint.

Our jurisprudence requires that we construe the Complaint liberally; therefore, we shall


                                              6
consider both iterations to be Cerome’s Complaint.

          This Court, having reviewed the Complaint, finds no mention of exhaustion of

administrative remedies. Cerome’s assertions are brief and straightforward. More

importantly, neither he, nor inmate complainants generally, are required to specifically

plead or demonstrate exhaustion of administrative remedies in their complaints. 

.

          The Magistrate Judge focuses his R & R on the issue of exhaustion of

administrative remedies, recommending that the District Court grant Appellees’ motion to

dismiss Cerome’s Complaint, pursuant to FED. R. CIV. P. 12(b)(6).8

          We disagree with the Magistrate Judge’s recommendation for a number of reasons.

    First, the Complaint itself contains no reference to exhaustion of administrative

remedies, nor does it need to. See Ray v. Kertes, 

(3d Cir. 2002) (holding

that a prisoner plaintiff has no obligation to allege in his complaint that he has exhausted

his administrative remedies.) The docket sheet, the timing of the filing, and the wording

of the Complaint lend no support to the notion that Appellant concedes he has not

exhausted his administrative remedies.       Second, the analysis of the R & R focuses on

submissions outside of the Complaint. Although a pro se plaintiff’s pleadings are to be

reviewed liberally, Haines v. Kerner, 

(1972), it would be anomalous for all


8
  In addition, the Magistrate Judge’s R & R did not state whether dismissal was with or
without prejudice. As such, the recommendation for dismissal is assumed to be with
prejudice. FED. R. CIV. P. 41(a)(b); Shane et al. v. Fauver et al., 

, 115 (3d

                                                7
of Cerome’s papers to be viewed as his Complaint, when he has clearly delineated

otherwise.

       Generally, a district court may not consider matters outside of the Complaint when

ruling on a motion to dismiss. Under FED. R. CIV. P. 12(d), if, on a motion under Rule

12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the

court, the motion must be treated as one for summary judgment under Rule 56.

However, “an exception to the general rule is that a document integral to or explicitly

relied upon in the complaint may be considered without converting the motion [to

dismiss] into one for summary judgment.” In re Burlington Coat Factory Sec. Litig., 

, 1426 (3d Cir. 1997) (citation and internal quotation marks omitted). The

Magistrate Judge reviewed documents outside of the Complaint and, without notice to

Cerome, essentially converted the motion to dismiss into a summary judgment motion.9

Reviewing all of Cerome’s papers as his Complaint is inconsistent with 12(b)(6) and

Cerome’s intent.

       The burden of proving exhaustion of administrative remedies is on the Appellees.

The Supreme Court has noted that the exact requirement of the grievance process varies

from system to system, and prison officials are best able to describe the grievance

process. 

. Appellees did not meet that burden, and did not



Cir. 2000).
9
  Appellees admit that the Magistrate Judge looked outside the Complaint and relied on
certain attachments in Cerome’s Brief. (Appellees’ Brief at 8.)

                                             8
provide the court with information on the procedures Cerome did or did not follow in the

grievance process of MVCC. Appellants’ Brief did not clarify whether MVCC has a

grievance policy, the terms of that policy or how Cerome has met or failed to meet the

terms of that policy. (J.A. Vol. II 129-61.) Because Appellees bore the burden of

proving lack of exhaustion of administrative remedies, the Magistrate Judge should never

have reached the question of whether Cerome exhausted the administrative remedies.10

                                     IV.     CONCLUSION

       We find that the District Court erred when it placed the burden on Cerome to

prove exhaustion of administrative remedies. This Court shall reverse the District

Court’s dismissal of Cerome’s Complaint, and remand this case to the District Court for

further proceedings consistent with this opinion.




10
    Appellees also suggest that this Court dismiss Cerome’s Complaint on other grounds.
While it is true that an appellate court has the power to affirm a lower court’s decision,
even if on different grounds, Erie Telecomms. v. Erie, 

, 1089, n.10 (3d Cir.
1988) (“An appellate court may affirm a correct decision by a lower court on grounds
different than those used by the lower court in reaching its decision.”) (internal citations
omitted), it is within the Court’s discretion not to do so. Since the Magistrate Judge’s R
& R did not address the substance of the pleading, we believe the District Court should
likewise resolve, on remand, the issue of the appropriate parties to the action, going
forward.

                                             9