Myles Spires v. Lieutenant Harbaugh , 438 F. App'x 185 ( 2011 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-6207
MYLES SPIRES,
Plaintiff - Appellant,
v.
LIEUTENANT HARBAUGH; OFFICER CROWE,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Richard D. Bennett, District Judge.
(1:10-cv-01597-RDB)
Submitted: June 9, 2011 Decided: July 12, 2011
Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.
Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.
Myles Spires, Appellant Pro Se. Nichole Cherie Gatewood, OFFICE
OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Myles Spires appeals the district court’s order
granting summary judgment to the Defendants on his 42 U.S.C.
§ 1983 (2006) complaint. For the reasons that follow, we affirm
in part, vacate in part, and remand for further proceedings.
We review de novo a district court’s order granting
summary judgment, viewing the facts and drawing reasonable
inferences therefrom in the light most favorable to the non-
moving party. Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir.
2011). Summary judgment may be granted only when “there is no
genuine issue as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[T]here is
no issue for trial unless there is sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that
party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). For a non-moving party to present a genuine issue of
material fact, “[c]onclusory or speculative allegations do not
suffice, nor does a mere scintilla of evidence in support of
[the non-moving party’s] case.” Thompson v. Potomac Elec. Power
Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
The district court dismissed the primary claim in
Spires’ complaint for failure to exhaust administrative
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remedies. A prisoner must properly exhaust available
administrative remedies prior to filing a 42 U.S.C. § 1983action concerning prison conditions. 42 U.S.C. § 1997e(a)
(2006). This exhaustion requirement “applies to all inmate
suits about prison life, whether they involve general
circumstances or particular episodes, and whether they allege
excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 532 (2002). However, an inmate need not take
advantage of an “unavailable” remedy, and “an administrative
remedy is not considered to have been available if a prisoner,
through no fault of his own, was prevented from availing himself
of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008).
“[F]ailure to exhaust available administrative remedies is an
affirmative defense, not a jurisdictional requirement, and thus
inmates need not plead exhaustion, nor do they bear the burden
of proving it.” Id.Spires submitted copies of two Request for
Administrative Remedy forms, but the district court’s opinion
only addresses one. The district court found that the form
provided no information as to whether it was actually filed.
However, the form is signed and dated by a guard, indicating
that Spires submitted the form. It appears that the form did
not arrive at its intended destination, however, as the
Institutional Administrative Remedy Coordinator did not
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acknowledge that it was received. The second Request for
Administrative Remedy form was received by the Institutional
Administrative Remedy Coordinator (IARC) and was dismissed.
That dismissal was apparently overturned by the Commissioner of
Corrections, as evidenced by another copy of the same request
showing a second dismissal by the IARC for a different reason.
Spires provided no direct documentary evidence that he
appealed this second dismissal to the Commissioner of
Corrections, other than his own averments. According to his
account, he did appeal a second time but he received no response
from the Commissioner. Pursuant to the agency’s procedures, a
non-response by the Commissioner amounts to a denial after
thirty days have elapsed; a non-response is thus not fatal to
Spires’ claim of exhaustion. Moore, 517 F.3d at 725 (having
utilized available remedies in accordance with applicable
procedural rules, “a prisoner has exhausted his available
remedies, even if prison employees do not respond”). Spires
then appealed that denial to the Inmate Grievance Office, the
third and final level of administrative review, and submitted a
copy of this appeal to the district court. In the appeal to the
Inmate Grievance Office, Spires specifically noted that he
appealed to the Commissioner and received no response for a
period of over thirty days. This secondary documentation is
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consistent with Spires’ account. 1 For the purposes of opposing a
motion for summary judgment, it is at least sufficient to create
a genuine issue of material fact. 2 Viewing the facts in the
light favorable to Spires, we conclude that a genuine issue of
material fact exists on the issue of whether he made sufficient
filings to properly exhaust his available administrative
remedies.
Apart from the failure to exhaust administrative
remedies, the district court also found that summary judgment
was warranted to the extent that Spires’ complaint was based on
the denial of adequate dental care. Spires’ appellate brief
made no mention of this aspect of the district court’s decision.
We therefore will neither consider nor disturb it. See 4th Cir.
R. 34(b) (“The Court will limit its review to the issues raised
1
The Inmate Grievance Office did not acknowledge receipt of
Spires’ appeal. Spires has consistently claimed that guards
interfered with his filing of grievances, an explanation that
would be less credible were it not for the evidence of his
earlier Request of Administrative Remedy that was signed by a
guard but apparently never processed by the Institutional
Administrative Remedy Coordinator. Spires also provided
detailed information about the mailing of his appeal, including
the date and time the mail was picked up and the identity of the
guard who took it.
2
For its part, the State alleged to the district court that
Spires availed himself of none of the avenues of administrative
relief. This highly material fact is clearly disputed by
Spires’ submission of copies of dismissals of his administrative
remedy requests.
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in the informal brief.”); Canady v. Crestar Mortg. Corp., 109
F.3d 969, 973-74 (4th Cir. 1997).
Accordingly, we affirm the district court’s grant of
summary judgment to the extent Spires stated a claim for denial
of dental care. We vacate the district court’s judgment to the
extent it was premised on Spires’ non-exhaustion of
administrative remedies and remand so that the district court
may re-evaluate the propriety of dismissal on this basis or
consider the alternative grounds raised by the summary judgment
motion in the first instance. We deny Spires’ request for
appointment of counsel on appeal. We dispense with oral
argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would
not aid the decisional process.
AFFIRMED IN PART,
VACATED IN PART,
AND REMANDED
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