Ricky Smith v. Fed Bureau of Prisons Director ( 2011 )


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  •  CLD-081                                                 NOT PRECEDENTIAL
    UNITED STATES COURT OF APPEALS
    FOR THE THIRD CIRCUIT
    ___________
    No. 10-3556
    ___________
    RICKY SMITH,
    Appellant
    v.
    FEDERAL BUREAU OF PRISONS DIRECTOR;
    FEDERAL BUREAU OF PRISONS NORTHEAST REGIONAL DIRECTOR;
    NORTHEAST REGIONAL MEDICAL DIRECTOR;
    USP LEWISBURG WARDEN; USP LEWISBURG ASSISTANT WARDEN;
    USP LEWISBURG CAPTAIN; USP LEWISBURG HEALTH
    SERVICE ADMINISTRATOR; USP LEWISBURG FOOD SERVICE
    ADMINISTRATOR; USP LEWISBURG MEDICAL DOCTORS;
    USP LEWISBURG NURSE/PA STAFF; USP LEWISBURG PSYCHOLOGIST;
    USP LEWISBURG LIEUTENANTS
    ____________________________________
    Appeal from the United States District Court
    for the Middle District of Pennsylvania
    (D.C. Civil No. 09-cv-02142)
    District Judge: Honorable William J. Nealon
    ____________________________________
    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
    January 6, 2011
    Before: RENDELL, FUENTES and SMITH, Circuit Judges
    (Opinion Filed: January 20, 2011)
    _________
    OPINION OF THE COURT
    _________
    PER CURIAM
    Ricky Smith, a prisoner confined in the Special Management Unit (“SMU”) at the
    United States Penitentiary in Lewisburg, Pennsylvania, appeals pro se from the District
    Court‟s order dismissing his case against various prison officials and employees. For the
    following reasons, we will summarily affirm.
    I.
    Smith‟s pro se complaint, brought pursuant to Bivens v. Six Unknown Named
    Agents of Federal Bureau of Narcotics, 
    403 U.S. 388
     (1971), alleged that he was
    subjected to unconstitutional treatment in the SMU. Smith claimed, among other things,
    that he was kept in metal restraints for prolonged periods of time, confined to a cell
    without a toilet or other hygiene-related necessities, and repeatedly beaten by prison staff
    and other inmates. He also alleged that he was denied adequate food and medical care
    and that prison staff retaliated against him for filing grievances.
    The defendants who had been served filed a motion to dismiss and for summary
    judgment arguing, among other things, that Smith failed to exhaust administrative
    remedies. The District Court agreed that Smith failed to exhaust administrative remedies
    and granted summary judgment to the defendants.1 Smith timely appealed.
    1
    Prior to ruling on that motion, the District Court had ordered Smith to provide the
    names and addresses of the defendants who had not been served because they could not
    be identified, lest Smith‟s claims against them be dismissed for failure to effect service.
    2
    II.
    The District Court possessed jurisdiction pursuant to 
    28 U.S.C. § 1331
    . Our
    jurisdiction arises under 
    28 U.S.C. § 1291
    . Our review of an order granting summary
    judgment is plenary. Curley v. Klem, 
    298 F.3d 271
    , 276 (3d Cir. 2002). 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.” Fed. R. Civ. P. 56(c)(2). We must
    “view all evidence and draw all inferences in the light most favorable to the non-moving
    party . . . .” Startzell v. City of Phila., 
    533 F.3d 183
    , 192 (3d Cir. 2008). We may
    summarily affirm if no substantial question is presented by the appeal. See 3d Cir. LAR
    27.4; 3d Cir. IOP 10.6.
    A prisoner may not bring a lawsuit based upon unconstitutional prison conditions
    unless he first exhausts available administrative remedies. See 42 U.S.C. § 1997e(a); see
    also Nyhuis v. Reno, 
    204 F.3d 65
    , 68 (3d Cir. 2000) (“[Section] 1997e(a) applies equally
    to § 1983 actions and to Bivens actions.”). Claims that have not been properly exhausted
    are procedurally defaulted. Spruill v. Gillis, 
    372 F.3d 218
    , 222 (3d Cir. 2004). “[T]he
    determination whether a prisoner has „properly‟ exhausted a claim (for procedural default
    Smith failed to provide that information in the time frame allotted by the District Court.
    Since the District Court closed Smith‟s case after granting summary judgment, we will
    construe its action as dismissing without prejudice Smith‟s claims against the
    unidentified defendants for failure to effect service within the requisite time period, and
    will summarily affirm that ruling. See Fed. R. Civ. P. 4(m).
    3
    purposes) is made by evaluating the prisoner‟s compliance with the prison‟s
    administrative regulations governing inmate grievances, and the waiver, if any, of such
    regulations by prison officials.” Id.; see also Woodford v. Ngo, 
    548 U.S. 81
    , 90-91
    (2006). Exhaustion must be completed before a prisoner files suit, Ahmed v. Dragovich,
    
    297 F.3d 201
    , 209 & n.9 (3d Cir. 2002), and is not subject to a “futility exception.”
    Nyhuis, 
    204 F.3d at 71
    .
    The Bureau of Prisons (“BOP”) has a three-level administrative process through
    which an inmate can address issues concerning the conditions of his confinement. See 
    28 C.F.R. § 542.10
    . In most cases, an inmate must attempt to informally resolve an issue
    with prison staff prior to filing a formal grievance. § 542.13. Thereafter, an inmate
    begins the grievance process by submitting a request for an administrative remedy, on the
    appropriate form, to the warden. § 542.14. If the inmate is dissatisfied with the warden‟s
    response, he may appeal to the appropriate regional director, using the proper form,
    within 20 days of the date the warden signed the response. § 542.15(a). The inmate may
    then appeal to the BOP‟s Central Office. Id. “If the inmate reasonably believes the issue
    is sensitive and the inmate‟s safety or well-being would be placed in danger if the
    Request became known at the institution, the inmate may submit the Request directly to
    the appropriate Regional Director.” § 542.14(d)(1). Should the regional director
    disagree with the inmate‟s assessment of the issue as sensitive, the inmate will be so
    notified and may restart the grievance process by filing a request for an administrative
    4
    remedy with the warden. Id.
    In support of their motion for summary judgment, the defendants submitted a
    record of the administrative grievances filed by Smith during the relevant time period
    identified by the complaint and a corresponding affidavit of a supervisory attorney at
    USP-Lewisburg. The record reflects that, from the time he was brought to Lewisburg
    through the date that he filed his complaint, Smith submitted nine grievances.2 Three of
    those grievances were filed at the regional level or with the BOP‟s central office as
    “sensitive,” but were rejected because officials disagreed with Smith‟s characterization of
    the grievance. There is no indication that Smith thereafter properly refiled those
    grievances with the warden, even though he was permitted to do so by regulations. Three
    other grievances were rejected because Smith failed to use the proper form and, although
    Smith was advised which form to use and invited to resubmit his grievance, there is no
    indication that he did so. In fact, the record reveals that Smith exhausted only one
    grievance concerning a challenge to his placement in the SMU – an issue that was not
    raised in Smith‟s complaint even under the most liberal reading – and that the grievance
    was not properly exhausted until after Smith filed his complaint.
    Indeed, Smith acknowledged in his complaint that he had not exhausted
    2
    The complaint purports to seek redress for constitutional violations occurring
    between March 25, 2009, through the date the complaint was filed, November 3, 2009.
    However, since Smith was not incarcerated at USP-Lewisburg until April 21, 2009, he
    cannot recover against Lewisburg staff for any infractions that occurred at another
    institution.
    5
    administrative remedies. He suggests that Lewisburg staff precluded him from doing so
    by “tak[ing] all [of his] legal paper/documents and administrative remedy documentation
    out of [his] cell [and] intentionally loosing [sic] them or destroying them.” (Compl. 8.)
    When prison staff precludes an inmate from utilizing the institution‟s administrative
    remedies, those remedies cannot be considered “available” for exhaustion purposes. See
    Mitchell v. Horn, 
    318 F.3d 523
    , 529 (3d Cir. 2003); see also Brown v. Croak, 
    312 F.3d 109
    , 112 (3d Cir. 2002). Here, however, the record establishes that Smith filed numerous
    grievances, militating against a conclusion that he was precluded from utilizing the
    administrative process. The vague, unsubstantiated allegations in Smith‟s complaint
    cannot overcome that conclusion. See Pa. Prison Soc‟y v. Cortes, 
    508 F.3d 156
    , 161 (3d
    Cir. 2007).
    Since the record establishes that Smith failed to exhaust administrative remedies,
    his appeal raises no substantial question and we will summarily affirm.3
    3
    After granting summary judgment to the defendants, the District Court denied
    Smith‟s motions seeking temporary restraining orders and preliminary injunctive relief
    due to Smith‟s inability to prevail on the merits of his claims. The District Court also
    denied Smith‟s motions to change venue, appoint counsel, compel discovery, and
    consolidate the case with another that he filed. We will affirm the denial of all of those
    motions.
    6