No Exhaustion Without Sworn Proof: Third Circuit Reinforces Declaration Requirement in PLRA Disputes

Commentary on Payne v. Gourley, No. 25-1765 (3d Cir. Sept. 24, 2025) (nonprecedential)

Introduction

In this nonprecedential opinion, the United States Court of Appeals for the Third Circuit affirmed summary judgment in favor of officials at SCI–Camp Hill in a 42 U.S.C. § 1983 suit brought by inmate Joshua I. Payne. Payne alleged violations of his Eighth and Fourteenth Amendment rights arising from: (1) the alleged disclosure of sensitive mental-health information at his cell door; (2) a six-week period of denied services (meals, showers, yard, and group treatment sessions) while in the Diversionary Treatment Unit within the Restricted Housing Unit; and (3) a transfer to an unsanitary cell allegedly containing human waste and the denial of cleaning supplies.

The central legal issue was whether Payne exhausted available administrative remedies as required by the Prison Litigation Reform Act of 1996 (PLRA), 42 U.S.C. § 1997e(a). The case also presented a recurring evidentiary problem at summary judgment: can a pro se prisoner defeat a properly supported motion by asserting, without a sworn declaration, that prison officials failed to process or respond to grievances?

The Third Circuit’s resolution underscores two critical points for PLRA litigation in Pennsylvania:

• Failure to pursue all steps of the Department of Corrections’ (DOC) grievance process—including appeals—results in non-exhaustion absent competent evidence that remedies were “unavailable.”
• At summary judgment, unsworn allegations—even by a pro se litigant—do not create a genuine issue of material fact; the nonmovant must submit evidence in admissible form, such as a declaration made under penalty of perjury pursuant to 28 U.S.C. § 1746.

Although the District Court also relied in the alternative on Talley v. Clark’s rule that an impeded prisoner must seek an extension once the impediment ends, the Court of Appeals affirmed primarily because Payne provided no sworn evidence to support his “unavailability” theory and did not appeal denied grievances.

Summary of the Opinion

Applying de novo review to the grant of summary judgment, the Third Circuit summarily affirmed, concluding there was no substantial question on appeal. The record showed:

• Payne filed two relevant grievances:
  • Grievance #1004149 (Oct. 26, 2022) alleging improper disclosure of medical information, which was denied as untimely and for combining discrete incidents; no appeal followed.
  • Grievance #1009367 (Nov. 30, 2022) alleging denial of services and retaliatory cell relocation, which was denied on timeliness grounds; no appeal followed. Notably, this grievance did not describe unsanitary, human-waste conditions.
• In opposing summary judgment, Payne first introduced two additional “missing” grievances dated November 10 and November 30, 2022, and later argued that the facility failed to process them.

The Court held that these unsworn assertions—raised for the first time in opposition to summary judgment—were insufficient to create a genuine dispute of material fact concerning exhaustion. Citing Federal Rule of Civil Procedure 56(c)(4), 28 U.S.C. § 1746, United States ex rel. Doe v. Heart Solution, PC, and the Third Circuit’s recent decision in Lauria v. Lieb, the panel explained that factual averments must come in the form of affidavits or declarations made under penalty of perjury to be considered at summary judgment.

Because Payne neither appealed the denial of the two processed grievances nor produced competent, sworn evidence that his remedies were rendered unavailable by the facility’s failure to process additional grievances, summary judgment for failure to exhaust was affirmed. The panel therefore did not need to reach the District Court’s alternative reliance on Talley v. Clark, though that framework loomed in the background.

Analysis

Precedents Cited and Their Influence

• Williams v. Beard, 482 F.3d 637 (3d Cir. 2007): Reaffirms the PLRA’s categorical requirement that incarcerated plaintiffs exhaust “available” administrative remedies before proceeding in federal court. This foundational rule framed the court’s approach to Payne’s claims.
• Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004): Establishes that failure to comply with DOC grievance procedures results in procedural default and confirms the three-step Pennsylvania DOC process: (1) initial grievance review, (2) appeal to the facility manager, and (3) final appeal to the Secretary’s Office of Inmate Grievances and Appeals (SOIGA). Payne’s undisputed failure to appeal denials was dispositive absent proof of unavailability.
• Blunt v. Lower Merion Sch. Dist., 767 F.3d 247 (3d Cir. 2014) and Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986): Provide the summary judgment standards applied by the panel: the movant’s entitlement to judgment as a matter of law in the absence of a genuine dispute supported by evidence sufficient for a reasonable factfinder to return a verdict for the nonmovant.
• Mala v. Crown Bay Marina, Inc., 704 F.3d 239 (3d Cir. 2013) and Brooks v. Kyler, 204 F.3d 102 (3d Cir. 2000): Clarify that even pro se litigants must meet Rule 56 evidentiary requirements; they cannot rely on unsworn allegations to fend off summary judgment.
• Fed. R. Civ. P. 56(c)(4); 28 U.S.C. § 1746: Rule 56(c)(4) requires that factual statements be set out in affidavits or declarations made on personal knowledge, showing competence to testify. Section 1746 allows unsworn declarations, but they must be dated and made under penalty of perjury. Payne’s submissions lacked this formality and thus carried no evidentiary weight.
• United States ex rel. Doe v. Heart Solution, PC, 923 F.3d 308 (3d Cir. 2019) and Lauria v. Lieb, — F.4th —, 2025 WL 2628170 (3d Cir. Sept. 12, 2025): These decisions reinforce that unsworn statements not made under penalty of perjury cannot create a triable fact dispute. The panel expressly relied on this line of authority to reject Payne’s “missing grievances” narrative as inadequate at summary judgment.
• Talley v. Clark, 111 F.4th 255 (3d Cir. 2024): Holds that a Pennsylvania prisoner impeded from filing a grievance must seek an extension of time once the impediment is lifted. The District Court invoked Talley in the alternative, reasoning that even assuming prior unavailability, Payne’s failure to request an extension after his return to general population was independently fatal. While the Third Circuit did not rely on Talley to affirm, it endorsed the District Court’s analysis as a permissible alternative rationale.
• Robinson v. Superintendent Rockview SCI, 831 F.3d 148 (3d Cir. 2016) and Shifflett v. Korszniak, 934 F.3d 356 (3d Cir. 2019): These cases excuse exhaustion where the DOC fails to comply with its own deadlines or otherwise renders relief “unavailable.” Payne invoked this line of authority in objections, arguing the grievance coordinator failed to process his filings. But without sworn evidence of non-processing—and in light of Talley’s extension requirement once any impediment ends—Robinson/Shifflett did not aid him.

Legal Reasoning

1. Exhaustion Framework: The PLRA mandates completion of the DOC’s three-step grievance process unless remedies are truly “unavailable.” Here, two grievances (medical-privacy and denial-of-services/retaliation) were timely denied at the initial stage, and Payne undisputedly did not appeal. Under Spruill, that is procedural default absent a recognized excuse.
2. Claim-Specific Exhaustion: The unsanitary cell conditions were not included in the processed November 30 grievance (#1009367). The District Court emphasized, and the panel agreed, that this omission meant that claim was not exhausted. The court noted Payne could have appealed the denial with the supporting narrative he later advanced, but he did not.
3. “Missing Grievances” and Evidentiary Burden: Payne later produced two additional forms purporting to be grievances (dated November 10 and 30) and status inquiries, and alleged non-processing. However, he offered only unsworn assertions. Under Rule 56(c)(4), § 1746, Doe, and Lauria, that is insufficient to create a genuine dispute. Even pro se litigants must present affidavits or § 1746 declarations, dated and made under penalty of perjury, setting forth specific facts based on personal knowledge.
4. Alternative Talley Rationale: The District Court assumed arguendo that remedies were unavailable while Payne was in the RHU/DTU. Under Talley, an impeded prisoner must request an extension once the impediment ends. Because Payne did not seek an extension after returning to general population in late December 2022, this provided an alternative ground for non-exhaustion.
5. Summary Affirmance: Given the lack of competent evidence contradicting the DOC records and the undisputed failure to appeal, the panel concluded the appeal presented no substantial question and summarily affirmed.

Impact and Practical Implications

Although nonprecedential, Payne v. Gourley reinforces several practical lessons that will influence PLRA litigation in Pennsylvania and, more broadly, within the Third Circuit:

• Sworn evidence is essential at summary judgment: Inmate-plaintiffs must support claims of “unavailability” (e.g., non-processing, interference, or missing responses) with affidavits or § 1746 declarations. Bare allegations in briefs, unsworn exhibits, or inconsistent theories raised late in the case will not suffice.
• Appeal denials and preserve the record: The three-step process is mandatory. Even if an initial grievance is denied as untimely or incomplete, the inmate should appeal to the facility manager and then to SOIGA. Failing to appeal typically results in non-exhaustion.
• Claim-specific pleading in grievances: Each discrete event or condition must be properly grieved consistent with DOC policy; mixing unrelated events in one grievance risks procedural rejection. If new facts emerge (e.g., unsanitary conditions), they must be included in a timely grievance or raised on appeal with supporting documentation.
• Talley’s extension rule matters: If an inmate is impeded from filing (e.g., by RHU limitations or staff interference), Talley requires requesting an extension once the impediment ends. Failure to do so undermines any “unavailability” argument premised on earlier impediments.
• Robinson/Shifflett remains viable—but only with evidence: Courts will excuse exhaustion where the DOC’s own noncompliance renders remedies unavailable. But litigants must present competent proof (e.g., dated, sworn declarations; documentary confirmations; mail logs; unanswered status requests) to bring themselves within these doctrines.
• Defense strategy: Defendants can prevail by producing complete grievance records and highlighting any failure to appeal or to grieve claim-specific facts. They should invoke Doe/Lauria at summary judgment to challenge unsworn assertions and point to Talley where impediments are alleged but no extension was sought.

Complex Concepts Simplified

• PLRA Exhaustion: Before suing about prison conditions, an inmate must use the prison’s internal grievance process all the way through the final appeal level. If this is not done, the federal case cannot proceed unless the process was truly “unavailable.”
• “Availability” of Remedies: A grievance process is “unavailable” if, for example, officials do not respond, obstruct filings, or otherwise prevent use of the system. But the inmate must prove this with admissible evidence.
• Summary Judgment Evidence: To defeat summary judgment, facts must be presented through admissible evidence—usually affidavits or declarations. Pro se litigants are held to this same requirement.
• 28 U.S.C. § 1746 Declarations: An unsworn statement can substitute for an affidavit if it is dated and includes language substantially stating that it is made under penalty of perjury that the contents are true and correct.
• Talley Extension Requirement: If something prevented timely filing (e.g., being in a restrictive unit with limited access), the inmate must ask the DOC for more time as soon as the barrier is removed.
• Claim-Specific Grievances: DOC policy generally requires separate grievances for separate events. Omitting a specific condition (e.g., human waste) from the grievance means that condition has not been exhausted.
• “Pink Action Return Copy”: In Pennsylvania’s DOC, inmates often receive a colored receipt or acknowledgment when a grievance is logged. The absence of that receipt can be relevant but is not, by itself, proof that a grievance was filed or that it was improperly withheld—especially absent a sworn declaration.

What This Case Does Not Decide

• The merits of Payne’s Eighth and Fourteenth Amendment claims were not reached; the case turns entirely on exhaustion and summary judgment evidentiary standards.
• The panel did not resolve whether the missing grievances were in fact filed or obstructed; it held only that Payne’s unsworn assertions could not create a triable issue.
• The Court did not need to (and did not) definitively apply Talley; it simply affirmed on the primary ground that Payne presented no competent evidence of unavailability and failed to appeal.

Practical Checklists

For Incarcerated Litigants

• File grievances within the DOC’s deadline (typically 15 days) and follow the policy for discrete events.
• Keep copies and request receipts. If you do not receive a receipt, submit a dated status inquiry and retain a copy.
• Appeal every denial to the facility manager and then to SOIGA; do not stop after an initial denial.
• If you were impeded, request an extension as soon as the impediment ends (Talley).
• When opposing summary judgment, submit a dated declaration under penalty of perjury (28 U.S.C. § 1746) setting forth specific facts of interference, non-processing, or non-response and attach any corroborating documents.
• Ensure your grievances describe all relevant conditions (e.g., unsanitary cell) you intend to litigate.

For Defense Counsel and Courts

• Assemble and present the complete grievance history, including denials and the absence of appeals.
• Invoke Rule 56(c)(4), § 1746, Doe, and Lauria to challenge unsworn assertions offered to prove “unavailability.”
• Where an inmate alleges impediments, cite Talley: require proof of an extension request after the impediment ended.
• Scrutinize whether claim-specific facts (like unsanitary conditions) were included in any properly exhausted grievance.

Conclusion

Payne v. Gourley delivers two clear messages, even as a nonprecedential disposition. First, PLRA exhaustion in Pennsylvania remains a strict, claim-specific prerequisite: inmates must navigate all three steps of DC-ADM 804, including appeals, or produce competent evidence that remedies were unavailable. Second, at summary judgment, unsworn allegations—even if detailed—do not create genuine disputes of material fact. Under Rule 56(c)(4), § 1746, Doe, and Lauria, litigants must support factual contentions with affidavits or declarations made under penalty of perjury.

The District Court’s alternative reliance on Talley underscores a further, increasingly important principle: where an impediment prevents timely filing, the inmate must request an extension once that impediment is removed. Together, these doctrines promote orderly grievance processing and sharpen the evidentiary standards governing PLRA exhaustion disputes. While the merits of Payne’s constitutional claims were not reached, the decision provides a practical roadmap for both incarcerated plaintiffs and corrections defendants on how to litigate exhaustion—and how not to.

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Note: The Third Circuit designated this opinion “NOT PRECEDENTIAL” under I.O.P. 5.7; it does not constitute binding precedent. Its value lies in its persuasive synthesis of established PLRA exhaustion principles and summary judgment evidentiary rules.