                            UNPUBLISHED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Affirmed in part, vacated in part, and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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.       § 1983

action    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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