                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 09-6823


DEMETRIUS HILL,

                  Plaintiff – Appellant,

          v.

TERRY O’BRIEN, Warden; MR. STRICKLAND, Associate Warden; MR.
WILSON, Captain; LIEUTENANT STIGER; NURSE MEADE; DOCTOR
ALLRED; DOCTOR ROFF, Health Administrator,

                Defendants – Appellees,

          and

COUNSELOR PULIVAR; COUNSELOR MULLINS;             MS.    HALL,     Case
Manager; CORRECTIONAL OFFICER TAYLOR,

                       Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Roanoke.       James C. Turk, Senior
District Judge. (7:08-cv-00283-jct-mfu)


Submitted:   June 30, 2010                       Decided:   July 12, 2010


Before TRAXLER,     Chief   Judge,   NIEMEYER,    and   GREGORY,    Circuit
Judges.


Affirmed in part, vacated and remanded in part by unpublished
per curiam opinion.
Demetrius Hill, Appellant Pro Se. Thomas Linn Eckert, Assistant
United States Attorney, Roanoke, Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

             In    April    2008,       Demetrius          Hill,      a        federal    inmate

incarcerated       during     the      relevant        period         at       United     States

Penitentiary Lee (“USP Lee”), filed a civil action pursuant to

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971), alleging various prison officials at USP

Lee used excessive force against him, subjected him to cruel and

unusual      conditions     of    confinement,             retaliated           against       him,

obstructed his ability to file administrative grievances, and

denied    him      adequate      medical           care,    in        violation          of   his

constitutional       rights.          Upon    conducting         an    initial         screening

under 28 U.S.C. § 1915A (2006), the district court dismissed for

failure to state a claim all but one of Hill’s excessive force

claims    and     his   medical       indifference         claims.              By    subsequent

order, the district court granted summary judgment to Defendants

on the remaining claims.               Hill appeals both orders challenging

the denial of relief on his claims.



                                              I.

                Allegations      in     a     complaint       are         to     be    liberally

construed, and a court should not dismiss an action for failure

to   state    a   claim     “‘unless         after    accepting           all     well-pleaded

allegations in the plaintiff’s complaint as true and drawing all

reasonable        factual     inferences            from     those         facts         in    the

                                              3
plaintiff’s favor, it appears certain that the plaintiff cannot

prove any set of facts in support of his claim entitling him to

relief.’”      De’Lonta v. Angelone, 330 F.3d 630, 633 (4th Cir.

2003)    (quoting     Veney    v.    Wyche,      293    F.3d       726,    730     (4th    Cir.

2002)).      Courts    are     instructed        that      pro     se   filings     “however

unskillfully pleaded, must be liberally construed.”                                 Noble v.

Barnett, 24 F.3d 582, 587 n.6 (4th Cir. 1994) (citing Haines v.

Kerner, 404 U.S. 519 (1972); Vinnedge v. Gibbs, 550 F.2d 926,

928   (4th   Cir.     1977)).        However,        the    complaint       must     contain

sufficient     facts     “to       raise    a    right        to     relief      above     the

speculative     level”       and     “state      a     claim       to    relief     that     is

plausible on its face.”              Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555, 570 (2007).              A claim having no arguable basis in law

or fact may be dismissed as frivolous.                     Neitzke v. Williams, 490

U.S. 319, 325 (1989); see also 28 U.S.C. §§ 1915(e)(2)(B), 1915A

(2006)    (outlining     screening         process      for      indigent     or    prisoner

complaints).

             This     court     reviews         de     novo      a      district     court’s

dismissal for failure to state a claim pursuant to § 1915A.

Slade v. Hampton Rds. Reg’l Jail, 407 F.3d 243, 248 (4th Cir.

2005) (citation omitted).             Pursuant to § 1915A, a district court

shall dismiss a case at any time if it determines that the

action is frivolous or malicious, fails to state a claim upon



                                            4
which relief may be granted, or seeks monetary relief against a

defendant who is immune from suit.                  28 U.S.C. § 1915A(b)(1).

               Relying on our decision in Norman v. Taylor, 29 F.3d

1259, 1263 (4th Cir. 1994) (en banc), the district court noted

that,    absent       the    most    extraordinary       circumstances,           an   inmate

cannot prevail on an excessive force claim unless he proves more

than de minimis pain or injury.                      Finding Hill failed to show

more than de minimis injury, the district court dismissed two of

Hill’s excessive force claims for failure to state a claim upon

which relief may be granted.                  In Wilkins v. Gaddy, 130 S. Ct.

1175 (2010), the Supreme Court recently overruled Norman and

clarified       that     the    extent       of    any   resulting         injury,     while

material to the question of damages and informative as to the

likely       degree    of    force    applied,      is   not    in   and    of    itself    a

threshold requirement for proving this type of Eighth Amendment

claim.       130 S. Ct. at           1175.    In doing so, the Court expressly

rejected the theory that lower courts may dismiss such claims

based solely on the de minimis nature of the resulting injury.

Id.     at    1177-78.         The    Court       emphasized     that,      “[t]he     ‘core

judicial inquiry’ . . . is not whether a certain quantum of

injury was sustained, but rather ‘whether force was applied in a

good-faith       effort        to    maintain       or   restore        discipline,        or

maliciously       and       sadistically      to    cause      harm.”       Id.    (quoting

Hudson v. McMillian, 503 U.S. 1, 7 (1992)).                             In other words,

                                              5
because “not . . . every malevolent touch by a prison guard

gives     rise    to    a     federal        cause    of    action,”       a   de   minimis

application       of    force         will   not     result      in    a   constitutional

violation.        Hudson, 503 U.S. at 9; see also Wilkins, 130 S. Ct.

at 1177-78 (“An inmate who complains of a push or a shove that

causes no discernible injury almost certainly fails to state a

valid     excessive         force       claim.”)       (internal       quotation      marks

omitted).         Where     the    force     applied       is   excessive,      however,    a

constitutional claim may survive summary dismissal even if the

resulting injury is de minimis.                 Wilkins, 130 S. Ct. at 1180.

            Because the district court did not have the benefit of

the Wilkins decision, we vacate the district court’s judgment

dismissing Hill’s excessive force claims for failure to state a

claim and        remand     to    the    district      court     for   consideration       of

Hill’s claims in light of Wilkins.                          We affirm, however, the

district court’s dismissal under § 1915A of Hill’s other claims

for the reasons stated by the district court.



                                               II.

            In ruling on Defendants’ motion for summary judgment,

the district court concluded that Hill failed to exhaust his

administrative remedies with respect to his medical indifference

claims,    i.e.,       that      he     received      inadequate       medical      care   on

November     1,    2007,         and    that    USP    Lee      provided       insufficient

                                               6
treatment of his asthma condition on a day-to-day basis.                                 The

Prison Litigation Reform Act (“PLRA”) requires a prisoner to

properly       exhaust     available     administrative         remedies        prior     to

filing an action challenging his conditions of confinement.                              42

U.S.C.    §    1997e(a)     (2006);    Woodford      v.    Ngo,   548    U.S.      81,    84

(2006)        (requiring       “proper”        exhaustion       of      administrative

remedies); Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008)

(discussing          “availability”       of    remedies).            “[T]he       PLRA’s

exhaustion      requirement       is   mandatory,”        Anderson      v.   XYZ    Corr.

Health Servs., Inc., 407 F.3d 674, 677 (4th Cir. 2005), and

“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).        Pursuant        to

§ 1997e(a), the exhaustion requirement is applicable to Bivens

claims.       See Steele v. Fed. Bureau of Prisons, 355 F.3d 1204,

1214 (10th Cir. 2003), abrogated on other grounds by Jones v.

Bock, 549 U.S. 199 (2007); Booth v. Churner, 206 F.3d 289, 291

(3d Cir. 2000).

               This court reviews a district court’s order granting

summary judgment de novo. *            Jennings v. Univ. of N.C., 482 F.3d


     *
       Defendants’ motion was styled “Motion to Dismiss or in the
Alternative Motion for Summary Judgment.”          However, Hill
received notice pursuant to Roseboro v. Garrison, 528 F.2d 309,
(Continued)
                                           7
686, 694 (4th Cir. 2007).           “At the summary judgment stage, facts

must be viewed in the light most favorable to the nonmoving

party only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. R. Civ.

P.    56(c)).       Summary    judgment         “should     be    rendered    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).                 Because the prison

employees    bear     the   burden    on       exhaustion    in    this     case,   see

Bennette, 517 F.3d at 725, they must show that the evidence is

so one-sided that no reasonable factfinder could find that Hill

was prevented from exhausting his administrative remedies.                          See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).

An otherwise properly supported motion for summary judgment will

not   be   defeated    by     the   existence      of     some    factual    dispute;

rather, only disputes over facts that might affect the outcome

of the suit under the governing law will properly preclude the

entry of summary judgment.           Id. at 248.          Indeed, to withstand a



310 (4th Cir. 1975), of his right to file material responsive to
the Defendants’ dispositive motion.     Hill availed himself of
this opportunity, and because the district court considered
materials other than the complaint, the district court’s order
is best deemed a grant of summary judgment. See Fed. R. Civ. P.
56(c).



                                           8
motion for summary judgment, the non-moving party must produce

competent        evidence   sufficient     to   reveal       the    existence      of    a

genuine issue of material fact for trial.                          Fed. R. Civ. P.

56(e)(2); see Thompson v. Potomac Elec. Power Co., 312 F.3d 645,

649 (4th Cir. 2002) (“Conclusory or speculative allegations do

not suffice, nor does a ‘mere scintilla of evidence’ in support

of [the non-moving party’s] case.”) (citation omitted).

             Hill does not contest that he failed to exhaust his

administrative       remedies      with   respect    to   the      incidents    giving

rise   to   his     medical   indifference      claims.          Rather,   he   argues

Defendants hindered his ability to exhaust his administrative

remedies.        In support of their motion for summary judgment based

on Hill’s failure to exhaust administrative remedies, Defendants

submitted an affidavit from Sharon Wahl, a paralegal with the

Bureau      of     Prisons,      who   noted    that      Hill     has     filed    229

administrative remedies since his incarceration and fourteen of

those related to his confinement at USP Lee.                     Defendants further

argued that Hill’s assertions that he was denied forms or that

the forms were destroyed were nothing more than self-serving

statements.         In   fact,    they    pointed    to   Hill’s     administrative

remedy history as proof that Hill’s assertions that his access

to   the    administrative       remedy    process     has    been   obstructed         is

belied by the record.



                                           9
               In        response     to         Defendants’         motion     for        summary

judgment,          Hill    responded        that       his   assigned       counselor       often

failed    to       do     his    rounds    and     failed      to    give     him    the    proper

grievance forms in some cases and that, in other cases, Hill was

informed that he could only file one remedy form at a time and

was then required to wait for a response before another could be

filed.     As he noted in his complaint, Hill maintained he was

only     able       to     exhaust        some     remedies         because     his    assigned

counselor was on vacation and another counselor acting in his

capacity provided some forms.

               “[A]n 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, 517 F.3d at 725.

Thus,    “when          prison    officials        prevent     inmates        from    using   the

administrative process . . ., the process that exists on paper

becomes unavailable in reality.”                        Kaba v. Stepp, 458 F.3d 678,

684 (7th Cir. 2006); see also Dole v. Chandler, 438 F.3d 804,

811     (7th       Cir.     2006)    (holding          that,    because        Dole    properly

followed procedure and prison officials were responsible for the

mishandling of his grievance, it cannot be said that Dole failed

to exhaust his administrative remedies); Mitchell v. Horn, 318

F.3d 523, 529 (3d Cir. 2003) (holding that district court erred

in failing to consider prisoner’s claim that he was unable to

submit         a        grievance,         and         therefore        lacked        available

                                                  10
administrative       remedies,        because   prison       employees         refused   to

provide him with the necessary forms); Miller v. Norris, 247

F.3d 736, 740 (8th Cir. 2001) (stating administrative remedy

rendered unavailable when prison officials prevent prisoner from

using it).       Accordingly, the district court is “obligated to

ensure that any defects in exhaustion were not procured from the

action or inaction of prison officials.”                         Aquilar-Avellaveda v.

Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007).

            We find there are genuine issues of material fact as

to the issue of exhaustion of administrative remedies, thereby

precluding summary judgment.               Hill’s main allegations are that

he   requested       BP-8     forms     from    his       counselor      and    that     the

counselor refused to provide them, destroyed them, or failed to

respond to them after requiring Hill to wait until he received a

response    to   a   claim     before    filing       a    new    one.    There     is    no

affidavit from Hill’s counselor or the other named Defendants

who allegedly obstructed Hill’s administrative remedy process.

See Kaba, 458 F.3d at 686 (finding affidavits of the prison

officials    and     Kaba’s     other     grievances        and     filings     showed    a

factual     dispute,        requiring     the    factfinder         to    evaluate       the

credibility of the witnesses and other evidence in the record);

see also Lewis v. Washington, 300 F.3d 829, 831-32 (7th Cir.

2002)   (deemed      administrative        remedies         exhausted      when    prison

officials failed to respond to inmate grievances because those

                                           11
remedies had become “unavailable”); Foulk v. Charrier, 262 F.3d

687, 698 (8th Cir. 2001) (same).

            We further find Defendants’ reliance on Hill’s high-

volume filings specious.              First, the fact that Hill filed a

large number of complaints in other prisons is irrelevant to

whether his efforts to file grievances were obstructed upon his

arrival at USP Lee.               Second, the fact that Hill successfully

filed many grievances in the past suggests that Hill is familiar

with the requirements of the administrative process and is not

purposefully attempting to evade them.                       Third, the ability to

take advantage of administrative grievances is not an “either-

or”     proposition.         See    Kaba,        458   F.3d    at    685   (“Sometimes

grievances are clearly available; sometimes they are not; and

sometimes    there      is   a     middle    ground         where,   for   example,   a

prisoner     may    only     be    able     to     file     grievances     on   certain

topics.”).

            We conclude Hill has sufficiently shown genuine issues

of material fact as to whether Defendants hindered his ability

to exhaust administrative remedies and therefore the district

court    erred     in   granting     summary       judgment.         Accordingly,     we

vacate the court’s judgment and remand for a determination of

whether the grievance procedure was “available” to Hill within

the   meaning      of   § 1997e(a)     so    that      he    could   administratively

exhaust his medical claims.

                                            12
                                             III.

              The district court also granted summary judgment to

Defendants on Hill’s excessive force claim based on events on

November 1, 2007, in which restraints were used.                              In assessing

Hill’s     claim,     the     district        court,        relying      again   on       then-

controlling Fourth Circuit law, found that Hill’s injuries were

de minimis and did not amount to a constitutional violation.

Although the district court also found that Hill could not show

that    Defendants’        use    of    force       was     applied      maliciously        and

sadistically to cause harm, because the district court did not

have    the   benefit       of    Wilkins       at    the      time    it     rendered      its

decision,     we     vacate      the    district          court’s     judgment       on    this

excessive force claim and afford the court an opportunity to

consider the claim in light of Wilkins.

              Accordingly, we grant Hill’s motion to remand, vacate

the district court’s judgments as to all of Hill’s excessive

force     claims     and     remand      to     allow       the     district     court       an

opportunity     to    consider         the    claims      in   light     of    the    Supreme

Court’s decision in Wilkins.                   We further vacate the district

court’s    judgment        dismissing        without       prejudice        Hill’s    medical

indifference        claims       for    failure        to      exhaust      administrative

remedies and remand for further proceedings consistent with this

opinion.       We affirm the district court’s dismissal of Hill’s

                                              13
remaining claims.        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 AND
                                                        REMANDED IN PART




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