ALD-161                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-3807
                                       ___________

                           RAPHAEL MOSES SPEARMAN,
                                          Appellant

                                             v.

    LIEUTENANT ALAN MORRIS; CORRECTIONAL OFFICER W. HOLLOWOOD
                 ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 2-14-cv-01751)
                             District Judge Mark R. Hornak
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
           or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6
                                   February 25, 2016

           Before: AMBRO, SHWARTZ and GREENBERG, Circuit Judges

                             (Opinion filed: March 1, 2016)
                                       _________

                                        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.
       Pro se appellant Raphael Spearman appeals from the judgment of the United

States District Court for the Western District of Pennsylvania in his § 1983 action. As

the appeal does not present a substantial question, we will summarily affirm the decision

of the District Court.

                                             I.

       Spearman initiated this § 1983 action in 2014 against Lieutenant Alan Morris and

Correctional Officer W. Hollowood, both employees at SCI-Waynesburg, asserting a

variety of constitutional claims based on their alleged involvement in the destruction of

his legal documents and subsequent threats they directed at him.

       According to Spearman’s complaint, on February 2, 2014, Hollowood threatened

to move him to a “hard cell” if Spearman did not stop filing grievances related to his lost

legal documents,1 and also allegedly advised Spearman that “he thr[ew] [Spearman’s]

legal work in the trash” to ensure he would lose his case.2 On February 3, 2014,

Spearman filed grievance number 49606, listing the above allegations against

Hollowood. On February 11, 2014, the grievance office denied Spearman’s grievance,

citing a lack of evidence. Spearman appealed this decision on February 18, 2014, and on




1
  Hollowood’s threat regarding the filing of grievances appears to be related to a request
Spearman filed to library staff on January 27, 2014 concerning lost legal documents.
2
  Though it is not clear from the complaint, state court records indicate that Spearman
was charged in June of 2014 with criminal homicide and related charges for an incident
that occurred at SCI-Waynesburg. Spearman appears to suggest in his complaint that
Hollowood destroyed his legal work to handicap Spearman’s defense in this matter.
                                             2
March 6, 2014, the facility manager upheld the initial denial, also citing a lack of

evidence.

       On April 21, 2014, the Secretary’s Office of Inmate Grievances and Appeals

declined to exercise final review over Spearman’s appeal of the facility manager’s

decision because Spearman did not attach the required documentation with his appeal,

including a copy of the initial grievance and subsequent responses. The Secretary’s

response advised Spearman, in an “action required” notice, that if he did not submit these

forms within fifteen days, his appeal would be dismissed.

       Meanwhile, on February 12, 2014, Spearman filed grievance number 497318

against Defendant Morris, alleging that Morris “blackmailed” and threatened him into

withdrawing a previously filed grievance concerning his lost legal documents. The

grievance officer denied this grievance on February 24, 2014, citing a lack of evidence.

Spearman appealed on February 26, 2014, and on March 3, 2013, the facility manager

upheld the initial denial. On March 28, 2014, the Secretary’s office again declined to

exercise final review over Spearman’s appeal because Spearman failed to attach the

required documentation. The office advised him that his appeal would be dismissed if he

did not attach the required documents within fifteen days.

       Spearman acknowledges that he received both “action required” notices from the

Secretary’s office, but “swear[s] under oath” that he “filed all copies of my initial

grievance; all responses and all appeals, as well as a brief appeal to the (S.O.I.G.A.) [for

both grievances] within the time frame.” He further indicates that he “sent the copies to
                                              3
the central office for forwarding because of threats [he’s] been receiving.” Curiously,

Spearman also contends that his “failure to comply properly with the exhaustion

requirement [for both grievances] was caused by illegal actions by the name[d]

Defendants by threatening; retaliation & wrongdoing to prevent the plaintiff from

properly completing the exhaustion requirements.” The District Court record does not

contain any of Spearman’s appeals to the Secretary’s office, only the “action required”

notices sent to Spearman.

       Defendants filed a motion to dismiss on August 5, 2015, arguing that Spearman

failed to exhaust his administrative remedies because he never properly appealed to final

review. The District Court treated this as a motion for summary judgment, and in an

October 7, 2015 Report and Recommendation, recommended that Defendants’ motion be

granted. On October 29, 2015 the District Court granted Defendants’ motion for

summary judgment and adopted the Report and Recommendation as the opinion of the

Court. Spearman filed a timely notice of appeal from this order on November 19, 2015.

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over a

district court award of summary judgment and apply the same test the district court

should have applied – whether the record “shows that there is no genuine issue as to any

material fact and that the moving party is entitled to judgment as a matter of law.” Giles

v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009). In applying this test, we must accept

evidence presented by the non-movant as true and draw all justifiable factual inferences
                                             4
in his favor. Id. We may summarily affirm the District Court’s award of summary

judgment where “it clearly appears that no substantial question is presented or that

subsequent precedent or a change in circumstances warrants such action.” 3d Cir. I.O.P.

10.6 (2015).

       The District Court correctly granted Defendants motion for summary judgment

because Spearman failed to exhaust his administrative remedies as required by the Prison

Litigation Reform Act (“PLRA”).

       Section 1997e of the PLRA provides, in part, that “[n]o action shall be brought

with respect to prison conditions under section 1983 of this title . . . until such

administrative remedies as are available are exhausted.” This exhaustion requirement is

an affirmative defense, and entry of summary judgment on such a ground is appropriate

only when the moving party presents “evidence that would entitle [it] to a directed verdict

if not controverted at trial.” In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003) (quoting

Celotex Corp. v. Catrett, 477 U.S. 317, 331 (1986)).

       DC-ADM 804, which governs the grievance and appeals process in Pennsylvania

correctional institutions, provides for a three-step process, with final review of grievances

performed by the Secretary’s office. This Court has frequently observed that a plaintiff

must follow each of these steps to exhaust his administrative remedies under the PLRA.

Booth v. Churner, 206 F.3d 289, 299 (3d Cir. 2000) (2001) (plaintiff “did not take full

advantage of the administrative procedures available to him” in failing to use steps two

and three of DC–ADM 804); Jenkins v. Morton, 148 F.3d 257, 259 (3d Cir.1998)
                                               5
(discussing California and Illinois grievance procedures similar to DC–ADM 804 and

concluding that exhaustion occurs only after completion of final step). In addition,

“[p]roper exhaustion demands compliance with an agency’s deadlines and other critical

procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). Because Spearman never

perfected his appeal for final review according to applicable procedures, he has failed to

exhaust his administrative remedies.

       Spearman adopted seemingly inconsistent positions to oppose Defendants’

motion. In his response to Defendants’ motion to dismiss, he “swear[s] under oath [that

he] filed all copies of [his] initial grievance; all responses and all appeals as well as a

brief appeal to the (S.O.I.G.A.) [for both grievances] within the time frame,” and

concludes that “I believe that I exhausted all my administrative remedies.” But in his

objections to the Report and Recommendation, he states that his “failure to comply

properly with the exhaustion requirement [for both grievances] was caused by illegal

actions by the name[d] Defendants by threatening; retaliation & wrongdoing to prevent

the plaintiff from properly completing the exhaustion requirements.” These bare,

contradictory allegations are insufficient to create a genuine issue of material fact. Sec.

& Exch. Comm'n v. Bonastia, 614 F.2d 908, 914 (3d Cir. 1980). (“Denials in the form of

legal conclusions, unsupported by documentation of specific facts, are insufficient to

create issues of material fact that would preclude summary judgment.”).

       Accordingly, we will affirm the decision of the District Court.


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