                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

Miles Lee v. Strada
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2274




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"Miles Lee v. Strada" (2008). 2008 Decisions. Paper 293.
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DLD-10                                                         NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     ___________

                                     No. 08-2274
                                     ___________

                               MILES ORLANDO LEE,
                                                          Appellant

                                           v.

          Mr. STRADA; Mr. SHILO; Mr. ADAMI; Mr. RICE; Mr. ROGERS;
                 Mr. LOFTON; Mr. CHAMBERS; Mr. HOEKMAN

                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civil No. 07-cv-0437)
                     District Judge: Honorable John E. Jones III
                     ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                   October 17, 2008
                Before: BARRY, AMBRO and SMITH, Circuit Judges

                           (Opinion filed: October 30, 2008)
                                      _________

                                       OPINION
                                      _________

PER CURIAM

      Miles Orlando Lee, a federal prisoner proceeding pro se, appeals from the District

Court’s order granting the defendants’ motion for summary judgment. For the reasons
that follow, we will summarily affirm the District Court’s order.

       This case arises from Lee’s confinement at the United States Penitentiary at

Lewisburg (“USP-Lewisburg”) in Lewisburg, Pennsylvania.1 In March 2007, Lee

commenced an action under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S.

388 (1971), in the United States District Court for the Middle District of Pennsylvania

against several USP-Lewisburg employees (the “Federal Defendants”). In the complaint,

Lee alleged, among other things, that he had been harassed for refusing to take part in a

Food Services conspiracy, and that prison officials had physically and verbally assaulted

him in retaliation for his failing to participate in the scheme.

       The Federal Defendants filed a motion to dismiss, or, in the alternative, motion for

summary judgment on the ground that Lee had not exhausted his administrative remedies

prior to commencing the present action. On November 27, 2007, Magistrate Judge

Andrew Smyser recommended that the District Court grant the Federal Defendants’

motion. By order entered February 20, 2008, the District Court adopted the Magistrate

Judge’s report and recommendation over Lee’s objections and granted summary judgment

in favor of the Federal Defendants. The present appeal followed.

       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 to the




   1
    Lee is no longer incarcerated at USP-Lewisburg; he is presently confined at the
United States Penitentiary in Pollock, Louisiana.

                                               2
appellees. See Whitfield v. Radian Guar., Inc., 501 F.3d 262, 265 (3d Cir. 2007). After a

careful review of the record, we conclude that the appeal presents “no substantial

question” under Third Circuit L.A.R. 27.4 and I.O.P. 10.6 and will, therefore, summarily

affirm the District Court’s order.

       Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is

required to pursue all avenues of relief available within the prison’s grievance system

before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C.

§ 1997e(a); Booth v. Churner, 532 U.S. 731, 741 (2001). This “exhaustion requirement

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).

       The Federal Bureau of Prisons (“BOP”) has established an administrative remedy

procedure through which an inmate can seek formal review of any complaint regarding

any aspect of his imprisonment. 28 C.F.R. § 542.10. In order to exhaust an appeal under

the administrative remedy process, an inmate must first raise his complaint with his unit

team through an informal resolution attempt. Id. at § 542.13. If the concern is not

informally resolved, the inmate may file an appeal to the warden of the institution where

he is confined. Id. at § 542.14. The inmate must then further appeal an adverse decision

to the Regional Director and then to the Central Office of the Federal Bureau of Prisons.

Id. at § 542.15. No administrative grievance is considered to have been fully and finally



                                             3
exhausted until denied by the Bureau of Prisons's Central Office. Id. at § 542.15(a).

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

judgment was appropriate because the record revealed that Lee did not properly exhaust

his administrative remedies. In support of its summary judgment motion, the Federal

Defendants submitted a declaration on behalf of L. Cunningham, the Supervisory

Attorney at USP-Lewisburg. In her declaration, Cunningham stated that Lee had filed

five requests for administrative relief to the Warden at USP-Lewisburg. The Warden

granted one of the requests but denied the rest. According to Cunningham, Lee did not

appeal any of the decisions denying relief to the second or third stages of administrative

review. Lee failed to come forward with any evidence to rebut the Federal Defendants’

assertions. Therefore, the District Court properly granted summary judgment in favor of

the Federal Defendants. See Fed. R. Civ. Pro. 56(e).2

       For the foregoing reasons, we will summarily affirm the District Court’s order

dismissing the complaint. See Third Cir. LAR 27.4 and I.O.P. 10.6.




   2
    In its order awarding summary judgment to the Federal Defendants, the District Court
also denied as moot Lee’s outstanding motion for discovery. We see no error in the
District Court’s disposition of the discovery motion.

                                             4
