                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2693
                                       ___________

                                     WILLIE DAVIS,

                                                   Appellant

                                             v.

                       LT. SAYLOR, in his individual capacity;
                      LT. SHERMAN, in his individual capacity;
                      NURSE PARTER, in his individual capacity
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 13-cv-02279)
                      District Judge: Honorable Robert D. Mariani
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 20, 2015
               Before: FUENTES, SHWARTZ and ROTH, Circuit Judges

                            (Opinion filed: November 4, 2015)
                                      ___________

                                        OPINION*
                                       ___________

PER CURIAM



*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
       Appellant, Willie L. Davis, appeals pro se from the judgment entered against him

in this civil rights action. For the following reasons, we will affirm.

                                              I.

       Davis is a federal prisoner incarcerated at the United States Penitentiary in

Lewisburg, Pennsylvania (“USP-Lewisburg”). In August 2013, Davis commenced this

Bivens1 action in the United States District Court for the Middle District of Pennsylvania

against correctional officers and medical staff at USP-Lewisburg, including Lt. Saylor,

Lt. Sherman, EMT-Paramedic Potter (incorrectly identified in the complaint as “Nurse

Parter”), and other unidentified corrections officers. Davis alleged that on August 24,

2013, in retaliation for his filing of numerous federal complaints against various USP-

Lewisburg employees, the defendants attempted to conduct an unjustified search of

Davis’s cell. When Davis protested against the cell search and refused to be handcuffed,

the “use of force team” was brought in, and Davis was placed in ambulatory restraints for

approximately thirty-four hours, until the evening of August 25, 2013. Davis alleged that

the defendants deliberately made the restraints too tight, cutting off circulation to his

hands and causing nerve damages. He alleged that Potter observed the damage to his

hands, but lied and falsified medical records to state that the restraints were fine, and

refused to document or treat Davis’s injuries after he was released from the restraints. On

August 27, 2013, Davis filed his complaint in the District Court, bringing claims that the


1
 Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971).
                                       2
District Court construed as claims for excessive force and medical indifference in

violation of the Eighth Amendment, and retaliation in violation of the First Amendment,

seeking compensatory and punitive damages.

       After seeking several extensions of time to answer the complaint, the defendants

filed a motion for summary judgment on the ground that, inter alia, Davis had failed to

exhaust his administrative remedies in accordance with the Prison Litigation Reform Act

(“PLRA”). See 42 U.S.C. § 1997e(a). Generally, in order to exhaust a complaint under

the Federal Bureau of Prisons’ (“BOP”) Administrative Remedy Program, an inmate

must first present his complaint to prison staff in an effort to informally resolve the

matter; if informal resolution fails, the inmate must then file a formal request with the

prison, followed by two levels of administrative review. See 28 C.F.R. § 542.13-15. The

BOP also provides an exception to this procedure if an 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.” 28 C.F.R. § 542.14(d)(1). Under these

circumstances, an inmate may submit his request directly to the appropriate Regional

Director.

       In response to the defendants’ motion for summary judgment, Davis filed a

“Motion to Dismiss” the motion, which the District Court construed as a brief in

opposition to summary judgment. Davis did not file an affidavit pursuant to Federal Rule

of Civil Procedure 56(d), but argued in his brief that the defendants’ motion was

improperly filed because he was not given sufficient notice or time to conduct discovery.
                                              3
The opposition brief did not specify what discovery Davis believed was necessary to

counter the defendants’ exhaustion argument.

       Davis does not dispute that he failed to file any administrative complaint related to

this alleged incident, and expressly stated in his complaint that he had not done so

because he feared further retaliation. It is also evident on the face of the complaint that

Davis could not possibly have completed the BOP’s administrative remedy procedure

with regard to an incident that took place only six days before his complaint was

docketed in the District Court. Instead, Davis argued—as he does on appeal—that

exhaustion is not required when bringing claims of First Amendment retaliation, and that

he did not file a grievance because he feared additional reprisals from prison staff. 2

Specifically, Davis alleged in his complaint that, on the morning after he was released

from the ambulatory restraints, he and his cellmate were handcuffed and taken to the

shower area of their cell block. There, Officer C. Brininger—who is not a defendant in

this case—approached Davis and stated, “You and I both know what happened to you,

and I suggest you take it on the chin, because if you file anything you will get caught up

in the cycle of more wrath.” Davis asserted in his complaint that he had not filed any


2
  In both his appeal and his District Court filings, Davis relies on three cases—Anderson
v. Davila, 125 F.3d 148 (3d Cir. 1997); Hill v. Borough of Kutztown, 455 F.3d 225 (3d
Cir. 2006); and McKee v. Hart, 436 F.3d 165 (3d Cir. 2006)—for his argument that he is
not required to exhaust claims of retaliation under the First Amendment. Although these
cases—none of which involves a prisoner plaintiff—do address some First Amendment
claims, they do not address exhaustion, much less support the conclusion that a prisoner
bringing a retaliation claim under the First Amendment is not required to exhaust
administrative remedies under the PLRA.
                                               4
administrative remedy because he interpreted Brininger’s statement to mean that he

should not “file [a grievance], or try to expose what had been done to him, or else

[Brininger] and his co-workers were going to intensify their oppression in retaliation

[against Davis for] trying to expose their corrupt conspiracy.”

       The matter was assigned to a magistrate judge, who recommended that the District

Court enter summary judgment against Davis on the ground that he had failed to exhaust

his administrative remedies. Davis objected, reiterating the arguments made in his

opposition to the motion; in the alternative, Davis requested that the court hold a hearing

to determine whether he was required to exhaust, or hold the action in abeyance to allow

Davis to exhaust. Upon review, the District Court approved and adopted the Report and

Recommendation, overruled Davis’s objections, and granted the defendants’ motion.

The District Court did not consider any record documents attached to the motion in

reaching its conclusion that Davis had failed to exhaust. The District Court also held that

further discovery “could not alleviate this procedural barrier to continuing the litigation,”

and did not address the underlying merits of the claims. Davis now appeals from the

District Court’s order.

                                             II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise

plenary review over the District Court’s order granting summary judgment. DeHart v.

Horn, 390 F.3d 262, 267 (3d Cir. 2004). To the extent that our review turns on the

statutory construction of the exhaustion requirement in 42 U.S.C. § 1997e(a), our review
                                              5
is also plenary. Concepcion v. Morton, 306 F.3d 1347, 1352 (3d Cir. 2002). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir.

2006). We may affirm a District Court’s judgment on any grounds supported by the

record. Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

       Upon review of the record, we agree with the District Court that summary

judgment was appropriate. As the District Court explained, the PLRA prohibits an

inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct

by prison officials until he has exhausted available administrative remedies. 42 U.S.C.

§ 1997e(a); see also Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000). Davis concedes that

the BOP has an established Administrative Remedy Program, but argues that it was

effectively unavailable to him because he had been threatened by Officer Brininger with

further retaliation if he “file[d] anything.” While we have recognized that a prisoner’s

failure to exhaust may be excused when the actions of prison staff render the

administrative remedies “unavailable,”3 we cannot say that there were no remedies


3
  See, e.g., Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (holding that there were
disputed issues of fact as to whether the prisoner’s administrative remedies were
“unavailable” where he claimed that he relied on prison officials’ erroneous instructions
about the grievance process); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)
(holding that administrative remedies were unavailable where inmate was on grievance
restriction).
                                              6
available to Davis here. Even assuming that Officer Brininger’s threats deterred Davis

from lodging an informal complaint with prison staff under 28 C.F.R. § 542.13, or from

filing a formal request with the correctional counselor under 28 C.F.R. § 542.14(c), Davis

could have bypassed the institution and filed a complaint directly with the Regional

Director under 28 C.F.R. § 542.14(d)(1), if he believed that his safety or well-being was

in danger. Given that Davis did not provide any argument or evidence in the District

Court suggesting that this alternative procedure was unavailable to him, the District Court

properly entered summary judgment against him.

                                           III.

       Accordingly, we will affirm the District Court’s judgment.




                                            7
