                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 08-7244


DEMETRIUS HILL,

                  Plaintiff - Appellant,

          v.

WARDEN HAYNES; A. W. GILL; WARDEN DRIVER; CAPTAIN ODDO;
LIEUTENANT CLEMENS; LIEUTENANT GIFFORD; LIEUTENANT TRAIT;
CORRECTIONAL OFFICER SPOTLAN; FOSTER; CORRECTIONAL OFFICER
MORGAN; COUNSELOR MORRERO; ETRIS,

                  Defendants - Appellees.



Appeal from the United States District Court for the Northern
District of West Virginia, at Martinsburg. John Preston Bailey,
Chief District Judge. (3:06-cv-00136-JPB-JSK)


Submitted:   April 20, 2010                 Decided:   June 2, 2010


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


Vacated and remanded by unpublished per curiam opinion.


Demetrius Hill, Appellant Pro Se.     Helen Campbell Altmeyer,
Assistant United States Attorney, Wheeling, West Virginia, for
Appellees.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Demetrius Hill, a former inmate at USP-Hazelton, filed

the subject action under Bivens v. Six Unknown Named Agents of

Fed. Bureau of Narcotics, 403 U.S. 388 (1971), against various

prison employees at that institution, alleging they violated his

First, Fifth, and Eighth Amendment rights by placing him in the

Special Housing Unit (“SHU”) without an incident report upon his

arrival      at    USP-Hazelton       in   September       2006,   and   that    the

conditions there were so unsanitary and deplorable that they

threatened his health and well-being.                   The Defendants filed a

motion to dismiss or, in the alternative, for summary judgment

based on Hill’s failure to exhaust administrative remedies.                      The

magistrate        judge,    concluding     there     was   a   genuine   issue    of

material fact as to whether Defendants played a part in Hill’s

failure to exhaust, recommended denying Defendants’ motion for

summary judgment.           The district court, however, declined the

magistrate judge’s recommendation, finding no genuine issues of

material fact as to exhaustion.                 For the reasons that follow, we

vacate and remand for further proceedings.



                                           I.

             The Prison Litigation Reform Act (“PLRA”) requires a

prisoner to properly exhaust available administrative remedies

prior   to    filing   an    action    challenging      the    conditions   of   his

                                           2
confinement. 1        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).

       1
       The BOP grievance process is set forth at 28 C.F.R.
§ 542.13-.15 (2009). First, an inmate normally must present his
complaint informally to prison staff using a BP-8 form. If the
informal complaint does not resolve the dispute, the inmate may
make an “Administrative Remedy Request” to the prison Warden
using a BP-9 form.    The BP-8 and BP-9 forms are linked.   Both
forms involve a complaint arising out of the same incident and
both must be submitted within twenty calendar days of the date
of that incident. 28 C.F.R. § 542.14(a). If the Warden renders
an adverse decision on the BP-9, the inmate may appeal to the
Regional Director within twenty calendar days of the date the
Warden signed the response, using a BP-10 form. 28 C.F.R.
§ 542.15(a).   The inmate may appeal an adverse decision by the
Regional Director to the Central Office of the BOP using a BP-11
form. Id.


                                           3
                 We review a district court’s order granting summary

judgment de novo. 2              Jennings v. University of N.C., 482 F.3d 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;


       2
       Defendants’ motion was styled “Motion to Dismiss, or
Alternatively, Motion for Summary Judgment.”      However, Hill
received notice pursuant to Roseboro v. Garrison, 528 F.2d 309,
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 deemed a grant of summary judgment. Fed. R. Civ. P. 56(c).



                                                   4
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

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)).



                                     II.

            In this case, Hill does not contest that he failed to

exhaust his administrative remedies.           He argues, however, that

Defendants hindered his ability to exhaust his administrative

remedies     with   respect   to    the    allegations      in   the   subject

complaint.     “[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 Mitchell v. Horn, 318 F.3d

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

                                      5
failing   to       consider     prisoner’s         claim   that    he    was    unable      to

submit        a      grievance,         and        therefore       lacked       available

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).

              Hill       asserted      in   his      complaint     the     prison     staff

threatened to kill him and refused him the tools necessary to

file administrative remedies.                 Specifically, he maintained that,

while he was in the SHU, he received BP-8 forms and turned them

in, but that he never received any responses.                            He alleged that

at one point he filed a BP-9 request with the Warden indicating

he had received no responses, but that he received no response

to that form either.                Hill claimed that after his release from

the    SHU,       when    he   asked    for    BP-8    forms,      one    of   the    named

defendants, Counselor Morrero, refused to give him forms.                                 Hill

alleged he was threatened with going back to the SHU, and when

he asked for other forms, Morrero stated he did not have any and

Morrero never            returned    with     forms   as   he    indicated      he   would.

Hill   claimed       prison      officials         chose   not    to    respond      to    the

                                               6
grievances he did file to hinder his efforts to exhaust his

administrative remedies.

               Hill also filed a motion for a temporary restraining

order/preliminary injunction.                        In support of his motion, Hill

filed a “declaration,” stating under penalty of perjury that (1)

he has repeatedly filed BP-8 forms; (2) the institution failed

to    respond     to    the        BP-8    forms,         but    then      rejected        his    BP-9

requests       because        he     did       not       have    responses          to   his     BP-8

submissions, thus preventing him from exhausting administrative

remedies;       (3)    he    has     been       repeatedly        retaliated           against     for

filing    his    administrative                remedies;        and   (4)    prison        officials

have    taken        away    BOP-authorized              “flexi-pens”          to    prevent       the

filing of complaints, as the BP-9 forms require completion in

pen.

               The     United       States,          appearing        on    its      own    behalf,

responded, arguing for dismissal of Hill’s complaint for failure

to exhaust administrative remedies.                             The Government pointed to

the     fact     that        USP-Hazelton            received         Hill’s        requests       for

administrative          remedies          as    early      as     December        6,     2006,     and

January     9,       2007,    clearly          demonstrating          Hill      had      access     to

administrative remedies.                  The Government further noted that Hill

filed    several       BP-8     forms          but   failed      to     file    BP-9       forms    to

continue the administrative grievance process.                                  In response to

Hill’s argument that he was rarely visited by counselors while

                                                     7
he was in the SHU and that when he was visited, he was not

provided     with      the       forms    needed      to     file        requests     for

administrative remedy, the Government maintained the SHU at USP-

Hazelton is visited at least once each week by each member of

Hill’s Unit Team and that every Thursday, the entire executive

staff,     including       the    Warden,       Associate    Wardens,        Department

heads, and the Captain, walk through the SHU to address any

issues the inmates may have.              The Government asserted that each

time a member of the executive staff or unit team makes rounds

in SHU he provides administrative remedy forms to inmates upon

request.      Last,    the       Government      attached    responses       to   Hill’s

requests    for     informal      resolution,      suggesting       that     they    cast

doubt upon the veracity of Hill’s allegations.

            The Government also attached an affidavit from Alecia

Sankey,    the     Administrative        Remedy    Clerk     at    the    Mid-Atlantic

Regional Office of the Bureau of Prisons.                     She averred, among

other     things,     that       Hill    has     submitted        approximately      147

administrative remedies during his incarceration with the BOP.

Sankey further attached six responses to Hill’s requests for

informal resolution.             Rapunzel Stephens, the case manager on

Hill’s     unit,    also     submitted      an    affidavit        stating    that    on

December 27, 2006, she conducted inmate Hill’s Program Review

and, during that time, he did not express any concerns regarding



                                            8
obtaining administrative remedy forms, submitting his requests,

or receiving responses to his requests for informal resolution.

              Hill filed replies to the Government’s response asking

the district court to take note of several things.                                First, Hill

submitted affidavits from two other inmates at USP-Hazelton, who

alleged prison officials have hindered their ability to file for

administrative         remedies.       Second,           Hill     highlighted        that    the

prison   officials’       responses       to       his    BP-8    forms      were    all    made

after    he    filed    the     subject    complaint             and    that      these    forms

concerned      issues    arising      after         the       incidents      underlying      the

subject complaint.             He argued that the fact that he was later

given forms to file subsequent complaints does not lessen the

legitimacy of his claim that he was refused forms for incidents

occurring      after     his    arrival        to       USP-Hazelton         up    until    mid-

December,      the     time     he   filed         his    complaint.              Third,    Hill

indicated     that     the    BP-8   forms         to    which    the     prison     officials

responded clearly show he has been attempting to exhaust his

administrative remedies.             Fourth, he noted by the time of his

Program Review with Case Manager Stephens on December 27, 2006,

weeks after his complaint was filed, he had already been able to

file some BP-8 forms regarding new claims.                            He asserted that, in

any   event,    she     regularly     refused            to    give    him    administrative

remedy forms.          Fifth, Hill maintained that, if given a hearing

on the exhaustion issue, he would produce witnesses who would

                                               9
attest to the fact that Defendants repeatedly refused to give

out administrative remedy forms.

               In their motion to dismiss or for summary judgment,

Defendants           noted        that    Hill     has    filed     more        than       163

administrative complaints since his confinement and argued that

Hill    has     not     fully       exhausted      a   single    remedy       since    being

confined at USP-Hazelton.                   Relying on another affidavit from

Sankey,        the     Defendants         highlighted      that     Hill       has     filed

approximately five Requests for Informal Resolution and received

responses from staff on each request since his designation to

USP-Hazelton.               They   further    alleged     Hill    has     a    history      of

failing to exhaust administrative remedies, noting that of the

163 remedies Hill filed during his incarceration in the BOP,

only seven were even submitted for consideration at the final

level     of    the     administrative           remedy   process.            Accordingly,

Defendants sought dismissal of the subject complaint based on

Hill’s failure to exhaust administrative remedies.

               In his response, Hill essentially reiterated his prior

allegations          that    he    was    denied   grievance      forms       and,    to   the

extent he received and was able to file some forms, officials

responded to these grievances only after he filed the subject

complaint.           In an attached affidavit, he claimed he filed BP-9

forms     that        were        never    responded      to,     were     intentionally

destroyed, or were never logged into the computer.

                                              10
            The magistrate judge concluded that Defendants failed

to verify the accuracy of their reports or file any affidavit

from any staff member that would contradict Hill’s assertions.

Finding     a    genuine          issue     of     material        fact     as    to     whether

Defendants      played        a    part     in    Hill’s    failure       to     exhaust,    the

magistrate       judge     recommended            denying      Defendants’         motion    for

summary dismissal based on Hill’s failure to exhaust.

            In their objections to the magistrate judge’s report,

Defendants      attached          an    affidavit       from      Susie     Elza,      declaring

under     penalty     of          perjury        that   she       is   an      Administrative

Specialist who is responsible for processing all administrative

remedy requests, and that she has never failed to process any

administrative       remedy         request       nor   has     she    ever      destroyed    an

administrative remedy request submitted by Hill.                               The Defendants

also proffered the previously submitted affidavit from Rapunzel

Stephens, the substance of which was that when she interviewed

Hill on December 27, 2006, less than two weeks after he filed

his     complaint,       he       did     not     express      any     concerns        regarding

receiving       remedy     forms,         submitting        the      forms,      or    receiving

responses.

            Hill     responded             to     the   Defendants’            objections     on

various grounds.          Of particular note, Hill remarked that nowhere

in Case Manager Stevens’ affidavit does she state that one of



                                                  11
her duties is to hand out administrative forms. 3              Hill maintained

that the magistrate judge properly noted that no one who was

actually in charge of handing out administrative remedy forms

filed an affidavit refuting his claims.               The district court,

after conducting a de novo review, and finding no genuine issue

of material fact as to “whether or not the defendants played a

part in the plaintiff’s failure to exhaust,” declined to accept

the magistrate judge’s recommendation, granted the Defendants’

motion    to    dismiss   or   for   motion    for   summary    judgment     and

dismissed      Hill’s   complaint    without   prejudice   for     failure   to

exhaust. 4


     3
         In her affidavit, Case Manager Stephens states:

     Unit Counselors are assigned the responsibility of
     processing   informal    resolutions,    administrative
     remedies, visitation forms, phone list, addressing
     financial  responsibility   obligations,   legal  phone
     calls, legal mail distribution, and trust fund account
     forms.

(E.R. 366).
     4
       The district court’s judgment was entered on March 5,
2008.  Hill’s notice of appeal was filed on July 16, 2008, the
day he delivered it to prison officials for mailing.    See Fed.
R. App. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 276 (1988).
In his notice of appeal, Hill stated that he did not receive
notice of the district court’s order until July 9, 2008, when he
received a copy of the district court’s docket sheet, in
response to his request to the district court for the status of
his case.    We remanded to the district court to determine
whether Hill was entitled to the benefit of Fed. R. App. P.
4(a)(6), governing reopening of the appeal period. See Hill v.
Haynes, 321 F. App’x 338 (4th Cir. 2009) (No. 08-7244).       On
remand, the district court permitted reopening of the appeal
(Continued)
                                      12
                                          III.

            We      find   there   are    genuine        issues     of   material        fact

concerning       the    exhaustion       of        administrative        remedies        that

preclude summary judgment.              Hill argues that Defendants hindered

his ability to exhaust his administrative remedies with respect

to the incidents giving rise to the subject complaint.                              Hill’s

argument is two-fold: (1) prison employees failed to provide him

with the necessary BP-8 and BP-9 forms upon request in some

instances; and (2) at other times, prison employees failed to

enter his appeals in the system or destroyed them, or simply

failed to respond to the forms he did submit in an effort to

thwart his ability to exhaust his administrative remedies.                               Hill

alleges he requested BP-8 forms from Counselor Morrero several

times   and      Morrero      refused    to        provide    them.       There     is    no

affidavit     from      Morrero    refuting          this     claim.         Furthermore,

although      the      administrative         specialist        claimed       she     never

destroyed any administrative requests and processed all those

that were received from Hill, there is nothing contradicting

Hill’s assertion that some of the named officers destroyed his

forms upon receiving them from Hill.                     As to the case manager’s

statement     that     Hill    failed    to        mention    any   difficulties         with



period, and the appeal                  was        returned    to     this    court      for
disposition on the merits.



                                              13
forms at his review on December 27, Hill did not allege, nor

does   the   record    indicate,    any       difficulty        in   receiving    forms

around that time. Furthermore, Hill’s subsequent BP-8 forms were

responded to after he filed the subject complaint.                         We further

find   Defendants’     reliance     on    Hill’s         high   volume     of    filings

specious.     The fact that Hill filed a great number of complaints

in   other   prisons    is   irrelevant       to   the     issue     of   whether   his

efforts to file grievances were obstructed at USP-Hazelton.

             Hill has sufficiently shown genuine issues of material

fact as to whether Defendants hindered his ability to exhaust

administrative remedies.           For example, was Hill denied forms

when he requested them?          Could Hill have appealed to the Bureau

of Prisons Regional Director without the appropriate form?                          See

28 C.F.R. § 524.14(a), (d)(1).                At what point, if any, did the

action or inaction of any prison official constitute preventing

a grievance from being filed?             Kaba, 458 F.3d at 686 (finding

affidavits of the prison officials and Kaba’s other grievances

and filings merely turn into a dispute with evidence, 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     remedies        had    become     “unavailable”);

Foulk v. Charrier, 262 F.3d 687, 698 (8th Cir. 2001) (same);

                                         14
Underwood v. Wilson, 151 F.3d 292, 295 (5th Cir. 1998); but see

Jernigan v. Stuchell, 304 F.3d 1030, 1032-33 (10th Cir. 2002)

(finding, because Jernigan was given ten days to cure deficiency

in question, he did not exhaust administrative remedies).                  We

therefore   find    the   district    court   erred   in   granting   summary

judgment on this issue.

            Accordingly, we remand for a determination whether the

grievance procedure was “available” to Hill within the meaning

of   § 1997e(a)    so   that   he   could   administratively   exhaust   his

claim.   For the reasons explained above, we vacate the district

court’s judgment and remand this matter for further proceedings

consistent with this opinion.           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.

                                                      VACATED AND REMANDED




                                      15
