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UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
ROBERT McCARGO,
Appellant
v.
MICHAEL GUELICH, et al.,
Appellees
NO. 99-3017
September 12, 2002,
Submitted Under Third Circuit LAR 34.1(a)
September 17, 2002, Filed
NOTICE:
RULES OF THE THIRD CIRCUIT
COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO
THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.
SLOVITER, Circuit Judge.
Appellant Robert McCargo, a
Pennsylvania state prisoner, filed suit pursuant to 42 U.S.C. 1983 against two
prison officials, alleging that prison authorities denied him adequate medical
and nutritional services. Both parties agree that the case should be remanded
for further proceedings, and we will do so. Therefore, we set out the
procedural background in some detail.
I.
BACKGROUND
McCargo is a prisoner who is
diabetic. For his condition, he receives a special diet and twice-daily insulin
injections. McCargo alleges that on various occasions from May through August
of 1997, when he was a prisoner at SCI Houtszdale, after he was given his
early-morning insulin shots, Appellee Michael Guelich, a prison guard, refused
to open McCargo's cell to permit him to get food from the dining facility.
McCargo alleges that on at least forty occasions during this time period,
Guelich prevented him from eating either breakfast or lunch. McCargo filed
grievances 260.1on May 15, 19, and 31, alleging that Guelich refused him access
to his diet meal. He submitted various written "Inmate's Request to
Staff Member" forms on May 22 and 31, to various of McCargo's supervisors
and also alleges that he spoke informally with Guelich and other officers about
this problem. On June 6, 1997, after having received no response to his
grievances, McCargo wrote to the Central Office Review Committee attaching some
of his earlier complaints. He says that he mailed this letter by certified mail
and that he received a reply receipt. The receipt for certified mail, however,
appears to be dated July 10 and the return receipt appears to be dated on July
14.
On June 13, 1997, McCargo filed
a pro se complaint in the United States District Court for the Western District
of Pennsylvania against Guelich and Appellee John McCullough, the warden. His
1983 complaint alleged violations of his Eighth Amendment rights, arguing that
the denial of his meals following his insulin shots caused him to suffer low
blood-sugar levels and related symptoms and risked life-threatening
complications. The case was assigned to a Magistrate Judge. McCargo continued
to file grievances that included, inter alia, allegations that Guelich
threatened retaliation against him unless he stopped filing grievances and
stopped pursuing the lawsuit against Guelich. McCargo alleges that the prison
responded to only one of his various written grievances, namely the grievance
filed on September 5, 1997. He then withdrew this grievance, allegedly in light
of its denial of the complaint and threats of retaliation.
[*98] In his federal action,
McCargo asked for a temporary restraining order and a preliminary injunction.
Guelich opposed the motion for preliminary relief and denied some of the
substantive allegations of McCargo's complaint, but did not then assert a
failure to exhaust administrative remedies.
The
Magistrate Judge held a hearing at the prison on August 18, 1997, on the
complaint which is the basis of the instant case. The Magistrate Judge issued a
Report and Recommendation acknowledging that McCargo had presented
uncontroverted testimony that Guelich had refused to let him out of his cell to
receive meals on over forty occasions and that he had experienced
"lightheadedness and headaches" as a result, but holding that McCargo
was not in danger of irreparable injury. His report, which recommended that
McCargo's motion for preliminary relief be denied, was adopted by the District
Court.
Guelich moved to dismiss the complaint because, inter alia, McCargo
failed to exhaust administrative remedies, but the District Court, adopting the
Magistrate Judge's Report and Recommendation, denied the motion because it was
"not clear that there is an administrative remedy available for plaintiff's
claims" and because of a factual issue about "the extent to which
plaintiff had availed himself of the administrative process." App. at 179.
Thereafter, defendants filed a motion for summary judgment arguing that
McCargo did not suffer a constitutionally significant physical injury, and
McCargo filed his own motion for summary judgment, attaching affidavits of,
inter alia, a nurse experienced in treating diabetes who verified that McCargo
had low blood-sugar levels that were dangerous and that failure to eat meals
after insulin injections could "cause much pain and stress to the body and
brain even to the point of unconsciousness and coma." App. at 284-85. The
District Court, adopting the Magistrate Judge's Report and Recommendation which
rejected the proffer of testimony from the nurse, granted defendants' motion.
McCargo appealed. We directed the appointment of counsel, scheduled
supplemental briefing, and directed the parties to "advise the Court whether
prison administrative authorities have issued rulings in response to McCargo's
grievances" and "address whether the lack of a timely response to
McCargo's grievances affects the exhaustion requirements set forth in 42 U.S.C.
1997e(a)." App. at 364.
II.
JURISDICTION AND STANDARD OF REVIEW
The
District Court had jurisdiction pursuant to 28 U.S.C. 1331 and 1343. This court
has jurisdiction pursuant to 28 U.S.C. 1291.
This court exercises plenary review of a district court's grant of summary
judgment. Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001).
III.
DISCUSSION
Appellees now concede that the
nurse's affidavit submitted by McCargo created material issues of fact that
made summary judgment improper. They argue that in addition to resolving
outstanding factual issues, the District Court should reach the question of
whether [*99] McCargo satisfied the exhaustion requirement.
McCargo argues that Appellees
have waived and forfeited any exhaustion
defense and asks us to take judicial notice of the fact that the denial
of meals to a diabetic following insulin shots is an injury significant enough
to support McCargo's Eighth Amendment claim. Inasmuch as the parties agree that
the case should be remanded, we will comment only briefly on the outstanding
issues.
A. Exhaustion
42 U.S.C. 1997e(a) provides that
"no action shall be brought with respect to prison conditions under
section 1983 of this title . . . 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) (amended by Pub. L. 104-134, Title I,
101(a), 110 Stat. 1321-71 (1996)). We have recently held that the failure to
exhaust administrative remedies pursuant to 1997e(a), as amended by the Prison
Reform Litigation Act, is an affirmative defense that must be plead and proved
(and may be waived or forfeited) by the defendant. Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002).
McCargo argues that Appellees
waived any exhaustion requirements because they failed to raise the argument in
their first responsive pleading. Guelich's first filing was an opposition to
McCargo's motion for preliminary relief which was filed on August 13, 1997.
Subsequently, on September 23, 1997, Guelich filed a motion requesting a
protective order and a stay of discovery, claiming that he had not been served
with McCargo's complaint. On February 11, 1998, Guelich moved to dismiss
McCargo's complaint on the ground that McCargo had failed to exhaust his
administrative remedies. While, as Appellees note, Ray explicitly did not reach
whether the failure to exhaust defense can be the basis for a motion to
dismiss, we have not yet decided whether a defendant's failure to raise this defense
in his first responsive pleading constitutes a waiver. We have observed, in
other contexts, that "failure to raise an affirmative defense by
responsive pleading or appropriate motion, however, does not always result in
waiver." Charpentier v. Godsil, 937 F.2d 859, 863 (3d Cir. 1991). We have
also noted that "under Fed. R. Civ. P. 15(a), a responsive pleading may be
amended at any time by leave of court to include an affirmative defense, and
leave shall be freely given
when justice so requires. Unless the opposing party will be prejudiced, leave
to amend should generally be allowed." Id. at 863-64.
The exhaustion issue encompasses both a
legal issue and factual issues, as Appellees raise, apparently for the first
time, questions about whether McCargo in fact filed the grievances he claims he
did. McCargo argues that he "substantially complied" with the
exhaustion requirement. We have recently commented in Ahmed v. Dragovich, 297
F.3d 201 (3d Cir. 2002), on the issue of "substantial compliance,"
referred to in Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 2000). McCargo
further argues that, because Appellees do not deny in their brief before this
court that they have waived the exhaustion defense, they have conceded that
point. Given the factual disputes relating to exhaustion, and in light of this
court's intervening decision in Ray, we believe that we should allow the
District Court, on remand, to consider the full factual and post-Ray legal
issues concerning exhaustion.
B. Expert Testimony and Judicial Notice
If the District Court determines
after considering the exhaustion issue that it [*100] should proceed to the
merits, it will have to decide whether the alleged failure to allow McCargo
food after his insulin injections is a constitutional violation because of the
seriousness of the harm that can be
caused. He also asks this court to take judicial notice, on the basis of
various medical treatises and publications of the American Diabetes
Association, that denial of meals to a diabetic following insulin shots is
serious enough to constitute deliberate indifference to a prisoner's medical
needs.
The Magistrate Judge refused to
consider the affidavit of the nurse saying that "no court would allow . .
. an LPN to testify as a medical expert," but the cases cited by McCargo
demonstrate that nurses have sometimes been held qualified to testify as
medical experts. The Appellees concede this point as they state that the
affidavit of the licensed practical nurse "created a material dispute of
fact as to the risk of the alleged denial of diet meals in McCargo's
health." Br. of Appellees at 11.
In addition to consideration of
the nurse's testimony, McCargo argues that the District Court should have taken
judicial notice of some of the facts concerning diabetes, such as the excerpts
he quotes from some leading medical texts detailing the risks of hypoglycemia,
which can result when a diabetic receiving insulin does not eat at regular
times. Although the texts themselves do not include the conclusion that McCargo
seeks to derive from them ("denial of meals to a diabetic following . . .
insulin shots creates constitutionally significant injury to support an Eighth
Amendment claim for deliberate indifference to a prisoner's medical need,"
Br. of Appellant at 27), portions of McCargo's medical claims as to various
medical facts about hypoglycemia, nutrition, diabetes and insulin treatments
may warrant judicial notice under Rule 201 of the Federal Rules of Evidence. We
leave this issue to the District Court.
IV.
CONCLUSION
For the reasons set forth, we
will vacate the District Court's order and remand this case to the District
Court for further consideration.
/s/
Dolores K. Sloviter
Circuit Judge