NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-2374 ____________
CHARLES F. HYMER, Appellant v.
DR. TIMOTHY KROSS, Addictionologist/Wellpath; KEVIN KOLLMAN, Medical Director; DR. BOLAND, Medical Supervisor/SCI-Benner Township; KATHERINE MCCORMICK, Nurse/SCI-Benner Township; J. BURD, Facility Grievance Coordinator/SCI- Benner Township; DORIS VARNER, Chief Grievance Officer; K. ARDERY, RNS/SCI-Benner Township ____________
On Appeal from the United States District Court For the Middle District of Pennsylvania (District Court No. 3-22-cv-01531) District Judge: Honorable Malachy E. Mannion ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on June 7, 2024 ____________
Before: CHAGARES, Chief Judge, CHUNG and FISHER, Circuit Judges
(Filed: June 17, 2024) ____________
OPINION* ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHUNG, Circuit Judge.
Charles Hymer challenges the District Court’s dismissal of his complaint for
failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). For the reasons below, we
will reverse in part and remand.
I. BACKGROUND1
Prior to November 12, 2020, Hymer participated in the Medication Assisted
Treatment (MAT) program at SCI Benner Township to treat his opioid use disorder.
While in the MAT program, prison medical staff provided Hymer with daily doses of
Suboxone to manage his condition. A few days before November 12, prison medical
staff provided Hymer his daily dose of Suboxone. Once Hymer believed it had dissolved,
he took a drink of water and showed the administering nurse his mouth “as [he has]
always been told to do.” Appendix (“A”) 35. However, the administering nurse
instructed Hymer to take another sip of water after noticing that he still had some
medication in his teeth. Hymer complied with the instruction, showed the nurse his
mouth, and “was told [that he] was done.” A38.
On November 12, when Hymer sought to get his medication renewed for the
month, medical staff informed him that he had been removed from the MAT program
because he “attempted to divert Suboxone when it was administered to [him] … on
[November 9th].” A37. Hymer filed a prison grievance arguing that he did not attempt
1 Because we write for the parties, we recite only facts pertinent to our decision. The facts are drawn from assertions by Hymer in his grievance statements which are attached to his complaint. SCI Benner’s responses to the grievance are also attached.
2 to divert medication and requesting reinstatement in the MAT program. SCI Benner
denied his grievance and the requested relief. The denial response noted that after Hymer
was removed from the program he was “placed on tapering doses of Suboxone and …
Clonidine as needed for withdrawal which was administered.” A40. The response also
noted that “[s]ince tapering of medication there ha[d] been no adverse reaction reported
by [Hymer] or documented by medical staff,” but the response did not include the
referenced documentation as an attachment. Id.
Hymer, pro se, filed a complaint pursuant to 42 U.S.C. § 1983, suing various
medical officials at SCI Benner for violating his Eighth Amendment rights by failing to
provide adequate medical care.2 Hymer alleged that terminating him from the MAT
program resulted in withdrawal illness, depression, relapse, and an overdose. He
requested reinstatement in the MAT program, as well as compensatory and punitive
damages. The District Court preliminarily screened the case under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A and dismissed the case for failure to state a claim. The
District Court also denied leave to amend. Hymer timely appealed.3
2 Hymer also asserted a Fourteenth Amendment due process claim, but he does not challenge the denial of that claim on appeal. 3 Because Hymer’s complaint was preliminarily screened, the District Court’s review occurred before Appellees filed an answer and they have not yet appeared in the underlying case. In granting Hymer’s motion to proceed in forma pauperis, we stated that “Appellee[s] need not file a response [in this appeal] unless directed to do so.” App. Ct. Dkt., No. 11. We did not direct a response, and Appellees did not file one.
3 II. DISCUSSION4
While courts may consider exhibits attached to a complaint when considering
whether dismissal is appropriate, a plaintiff does not automatically incorporate into her
complaint every fact asserted in such attachments. Moreover, facts asserted in such
attachments may not necessarily be considered for the truth of the matter asserted. See,
e.g., LeMay v. Mays, 18 F.4th 283, 289 (8th Cir. 2021) (“Our precedent permits
consideration of materials necessarily embraced by the pleadings, including exhibits
attached to the complaint ... Such evidence may not, however, be viewed for the truth of
the matters asserted.” (quotation marks and citation omitted)); Banneker Ventures, LLC
v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (“Rule 10(c) ‘does not require a
plaintiff to adopt every word within the exhibits as true for purposes of pleading simply
because the documents were attached to the complaint to support an alleged fact.’”
(citation omitted)); Guzell v. Hiller, 223 F.3d 518, 519 (7th Cir. 2000) (“A plaintiff in a
libel suit who attached the allegedly libelous article to his complaint would obviously not
be vouching for the truth of the libelous assertions in the article … The plaintiff’s
purpose in attaching an exhibit to his complaint determines what assertions if any in the
exhibit are facts that the plaintiff has incorporated into the complaint.” (citations
4 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a District Court’s dismissal for failure to state a claim under 28 U.S.C. § 1915(A)(b)(1). Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Id. (alterations in the original) (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
4 omitted)).
In finding that Hymer failed to plausibly allege SCI Benner’s deliberate
indifference, the District Court improperly considered as true statements contained within
SCI Benner’s grievance responses. The District Court appears to have accepted the truth
of such statements because it viewed them as having been adopted by Hymer, despite
Hymer’s own statements to the contrary.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ____________
No. 23-2374 ____________
CHARLES F. HYMER, Appellant v.
DR. TIMOTHY KROSS, Addictionologist/Wellpath; KEVIN KOLLMAN, Medical Director; DR. BOLAND, Medical Supervisor/SCI-Benner Township; KATHERINE MCCORMICK, Nurse/SCI-Benner Township; J. BURD, Facility Grievance Coordinator/SCI- Benner Township; DORIS VARNER, Chief Grievance Officer; K. ARDERY, RNS/SCI-Benner Township ____________
On Appeal from the United States District Court For the Middle District of Pennsylvania (District Court No. 3-22-cv-01531) District Judge: Honorable Malachy E. Mannion ____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on June 7, 2024 ____________
Before: CHAGARES, Chief Judge, CHUNG and FISHER, Circuit Judges
(Filed: June 17, 2024) ____________
OPINION* ____________
* This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent. CHUNG, Circuit Judge.
Charles Hymer challenges the District Court’s dismissal of his complaint for
failure to state a claim pursuant to 28 U.S.C. § 1915A(b)(1). For the reasons below, we
will reverse in part and remand.
I. BACKGROUND1
Prior to November 12, 2020, Hymer participated in the Medication Assisted
Treatment (MAT) program at SCI Benner Township to treat his opioid use disorder.
While in the MAT program, prison medical staff provided Hymer with daily doses of
Suboxone to manage his condition. A few days before November 12, prison medical
staff provided Hymer his daily dose of Suboxone. Once Hymer believed it had dissolved,
he took a drink of water and showed the administering nurse his mouth “as [he has]
always been told to do.” Appendix (“A”) 35. However, the administering nurse
instructed Hymer to take another sip of water after noticing that he still had some
medication in his teeth. Hymer complied with the instruction, showed the nurse his
mouth, and “was told [that he] was done.” A38.
On November 12, when Hymer sought to get his medication renewed for the
month, medical staff informed him that he had been removed from the MAT program
because he “attempted to divert Suboxone when it was administered to [him] … on
[November 9th].” A37. Hymer filed a prison grievance arguing that he did not attempt
1 Because we write for the parties, we recite only facts pertinent to our decision. The facts are drawn from assertions by Hymer in his grievance statements which are attached to his complaint. SCI Benner’s responses to the grievance are also attached.
2 to divert medication and requesting reinstatement in the MAT program. SCI Benner
denied his grievance and the requested relief. The denial response noted that after Hymer
was removed from the program he was “placed on tapering doses of Suboxone and …
Clonidine as needed for withdrawal which was administered.” A40. The response also
noted that “[s]ince tapering of medication there ha[d] been no adverse reaction reported
by [Hymer] or documented by medical staff,” but the response did not include the
referenced documentation as an attachment. Id.
Hymer, pro se, filed a complaint pursuant to 42 U.S.C. § 1983, suing various
medical officials at SCI Benner for violating his Eighth Amendment rights by failing to
provide adequate medical care.2 Hymer alleged that terminating him from the MAT
program resulted in withdrawal illness, depression, relapse, and an overdose. He
requested reinstatement in the MAT program, as well as compensatory and punitive
damages. The District Court preliminarily screened the case under 28 U.S.C.
§§ 1915(e)(2)(B) and 1915A and dismissed the case for failure to state a claim. The
District Court also denied leave to amend. Hymer timely appealed.3
2 Hymer also asserted a Fourteenth Amendment due process claim, but he does not challenge the denial of that claim on appeal. 3 Because Hymer’s complaint was preliminarily screened, the District Court’s review occurred before Appellees filed an answer and they have not yet appeared in the underlying case. In granting Hymer’s motion to proceed in forma pauperis, we stated that “Appellee[s] need not file a response [in this appeal] unless directed to do so.” App. Ct. Dkt., No. 11. We did not direct a response, and Appellees did not file one.
3 II. DISCUSSION4
While courts may consider exhibits attached to a complaint when considering
whether dismissal is appropriate, a plaintiff does not automatically incorporate into her
complaint every fact asserted in such attachments. Moreover, facts asserted in such
attachments may not necessarily be considered for the truth of the matter asserted. See,
e.g., LeMay v. Mays, 18 F.4th 283, 289 (8th Cir. 2021) (“Our precedent permits
consideration of materials necessarily embraced by the pleadings, including exhibits
attached to the complaint ... Such evidence may not, however, be viewed for the truth of
the matters asserted.” (quotation marks and citation omitted)); Banneker Ventures, LLC
v. Graham, 798 F.3d 1119, 1133 (D.C. Cir. 2015) (“Rule 10(c) ‘does not require a
plaintiff to adopt every word within the exhibits as true for purposes of pleading simply
because the documents were attached to the complaint to support an alleged fact.’”
(citation omitted)); Guzell v. Hiller, 223 F.3d 518, 519 (7th Cir. 2000) (“A plaintiff in a
libel suit who attached the allegedly libelous article to his complaint would obviously not
be vouching for the truth of the libelous assertions in the article … The plaintiff’s
purpose in attaching an exhibit to his complaint determines what assertions if any in the
exhibit are facts that the plaintiff has incorporated into the complaint.” (citations
4 The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of a District Court’s dismissal for failure to state a claim under 28 U.S.C. § 1915(A)(b)(1). Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “[W]e must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom.” Id. (alterations in the original) (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
4 omitted)).
In finding that Hymer failed to plausibly allege SCI Benner’s deliberate
indifference, the District Court improperly considered as true statements contained within
SCI Benner’s grievance responses. The District Court appears to have accepted the truth
of such statements because it viewed them as having been adopted by Hymer, despite
Hymer’s own statements to the contrary. We do not join the District Court in this
assumption. Based on the nature of Hymer’s claims and his own statements, we cannot
conclude that, instead of intending to demonstrate that he availed himself of the
administrative process,5 Hymer intended to adopt SCI Benner’s statements when he
attached the grievance responses to his complaint. Accordingly, we will reverse the
District Court’s dismissal of Hymer’s Eighth Amendment claim and remand to allow the
District Court to screen Hymer’s complaint without consideration of the statements
asserted in the grievance responses.6
5 The Prison Litigation Reform Act (PLRA) mandates that a plaintiff exhaust administrative remedies before filing suit. See 42 U.S.C. § 1997e(a); see, e.g., Carroll v. Yates, 362 F.3d 984, 986 (7th Cir. 2004) (“[Plaintiff] had appended the [prison] board’s decision not in order to vouch for the truth of the statements in it, but to show that he had exhausted his administrative remedies.”). 6 The District Court also determined that amendment would be futile, citing Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004) for support without further explanation. To the extent its determination was based on the truth of factual statements made in the grievance responses, those statements should not inform its futility assessment on remand. See, e.g., Shifflett v. Korszniak, 934 F.3d 356, 366 (3d Cir. 2019) (“Because we conclude the District Court should not have dismissed Shifflett’s Eighth Amendment claims for failure to exhaust, we vacate as well its refusal to allow leave to amend as to those claims” where the basis for futility was “the impossibility of curing the exhaustion defect”).
5 III. CONCLUSION
For the reasons stated, we will reverse in part and remand with instructions for
further proceedings consistent with this opinion.