                              UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                              No. 13-6394


DERRICK TOOMER,

                  Plaintiff - Appellant,

          v.

BCDC; WARDEN OLIVER; WENDELL FRANCE, Commissioner; M.
FERNANDEZ, Security Chief; OFFICER WILLIS; BOLA AYENI,
Correctional Officer II; OLIVER, Warden,

                  Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.    Deborah K. Chasanow, Chief District
Judge. (8:12-cv-00083-DKC)


Submitted:   July 18, 2013                  Decided:   August 6, 2013


Before NIEMEYER, WYNN, and DIAZ, Circuit Judges.


Affirmed in part, vacated in part, and remanded by unpublished
per curiam opinion.


Derrick Toomer, Appellant Pro Se. Douglas F. Gansler, Attorney
General,   Beverly  F.   Hughes,   Assistant Attorney General,
Pikesville, Maryland, for Appellees.


Unpublished opinions are not binding precedent in this circuit.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

               Derrick      Toomer       appeals    the     district       court’s    order

granting Defendants’ motions for summary judgment and dismissing

his    42   U.S.C.        § 1983    (2006)     action      for     failure      to   exhaust

administrative remedies.                 For the reasons that follow, we affirm

in part, vacate in part, and remand for further proceedings.

               We review a district court’s grant of summary judgment

de novo, viewing the facts and drawing reasonable inferences in

the light most favorable to the nonmoving party.                                Robinson v.

Clipse, 602 F.3d 605, 607 (4th Cir. 2010).                          Summary judgment is

appropriate when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).               Summary judgment will be granted unless

“a    reasonable         jury   could     return    a    verdict    for     the    nonmoving

party” on the evidence presented.                        Anderson v. Liberty Lobby,

Inc.,    477    U.S.      242,     248    (1986).        “Conclusory       or   speculative

allegations         do    not    suffice,     nor       does   a    mere    scintilla    of

evidence       in        support     of     [the        nonmoving     party’s]        case.”

Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir.

2002) (internal quotation marks omitted).

               The Prison Litigation Reform Act requires that inmates

exhaust all available administrative remedies before filing an

action      challenging         prison     conditions.         42    U.S.C.       § 1997e(a)



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(2006).     This         exhaustion    requirement            “applies         to    all     inmate

suits about prison life,” Porter v. Nussle, 534 U.S. 516, 532

(2002), and without regard to whether the form of relief the

inmate seeks is available through exhaustion of administrative

remedies.      Booth v. Churner, 532 U.S. 731, 741 (2001).                              However,

“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).                       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).

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).

            Although it is clear from the record that Toomer did

not exhaust his administrative remedies regarding the May and

September      2009      attacks    and    his       claim         that   prison       officials

failed to comply with the hospital’s discharge instructions, we

conclude that the district court erred by granting Defendants’

motions   for       summary    judgment        based          on    Toomer’s         failure    to

exhaust   his       administrative        remedies         regarding        the      April     2010



                                               3
attack.       After receiving a favorable outcome on the merits of

his grievance at a lower step in the process, Toomer was not

obligated     to     pursue    an     administrative           appeal       to    Step    III     in

order    to   exhaust       his     administrative         remedies.             See     Abney    v.

McGinnis,      380    F.3d        663,     669    (2d     Cir.       2004)       (holding      that

prisoner      had    exhausted       administrative              remedies        where    he     had

“received      a     favorable           ruling      .     .     .    [and]        no     further

administrative proceedings were available”); Dixon v. Goord, 224

F.    Supp.   2d     739,     749    (S.D.N.Y.           2002)    (holding         that     “[t]he

exhaustion requirement is satisfied by resolution of the matter,

i.e., an inmate is not required to continue to complain after

his grievances have been addressed”); see also Woodford v. Ngo,

548 U.S. 81, 90 (2006) (holding that exhaustion “means using all

steps that the agency holds out, and doing so properly,” to

allow the agency a full and fair opportunity to address the

issues on the merits); Booth, 532 U.S. at 736 (recognizing that

“exhaustion is [not] required where the relevant administrative

procedure lacks authority to provide any relief or to take any

action whatsoever in response to a complaint”).

              Moreover,       the        instructions          given     in       response        to

Toomer’s July 26 grievance only directed Toomer to file a Step

III     grievance      if     he     was     dissatisfied            with     the       decision.

Defendants provide no indication that Toomer was dissatisfied



                                                 4
with the decision, and Toomer maintains that he was satisfied.

The instructions also suggested that action already had been

taken    on    Toomer’s    grievance     and    that     any   further      complaints

should be addressed in a new grievance, not in an appeal of the

current       grievance.         Because       the     instructions        essentially

diverted Toomer from filing a Step III grievance, we conclude

that, even if Toomer had been obligated to file a Step III

grievance,      Defendants       are   estopped      from   arguing     that      Toomer

failed    to    exhaust    his   administrative         remedies.       See    Dole   v.

Chandler, 438 F.3d 804, 811 (7th Cir. 2006) (concluding that

district court erred by finding that prisoner had not exhausted

administrative      remedies      “[b]ecause         [prisoner]     took    all    steps

necessary to exhaust one line of administrative review, and did

not receive instructions on how to proceed once his attempts at

review were foiled” and remanding “for further proceedings on

the merits of [prisoner’s] claim”); Brown v. Croak, 312 F.3d

109, 112-13 (3d Cir. 2002) (holding that incorrect advice from

prison        officials     essentially          made       grievance         procedure

unavailable to prisoner).

               Accordingly, we vacate the district court’s grant of

summary judgment on the ground that Toomer failed to exhaust his

administrative remedies regarding the April 2010 attack, remand

to allow the district court to consider Defendants’ alternative



                                           5
grounds for summary judgment and for any further proceedings

that may be appropriate, and affirm the district court’s grant

of summary judgment regarding Toomer’s other allegations against

Defendants.      We also deny Toomer’s 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   this   court   and   argument   would   not   aid   the

decisional process.



                                                         AFFIRMED IN PART,
                                                          VACATED IN PART,
                                                              AND REMANDED




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