BLD-039                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 15-2591
                                       ___________

                             STEPHEN RANDALL SMITH,
                                           Appellant

                                             v.

          WARDEN MAIORANA; MR. WRIGHT; DR. FARKUS, DMP;
                   MR. BURKE, PA; MR. RODRIGUIS;
        MULTIPLE UNKNOWN NAMED EMPLOYEES OF THE FEDERAL
           BUREAU OF PRISONS; UNITED STATES OF AMERICA
                 ____________________________________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civil No. 3-13-cv-00070)
                      Magistrate Judge Honorable Maureen P. Kelly
                      ____________________________________

         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
                                   November 5, 2015
              Before: FUENTES, KRAUSE and SCIRICA, Circuit Judges


                               (Filed: November 12, 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.
       Pro se appellant Stephen R. Smith appeals from the judgment of the United States

District Court for the Western District of Pennsylvania in his civil rights case. As the

appeal does not present a substantial question, we will grant the Government’s motion for

summary affirmance and affirm the decision of the District Court.

                                              I.

       Stephen R. Smith is a federal prisoner, previously housed in the Federal

Correctional Institution in Loretto, Pennsylvania (“FCI Loretto”), and under the control

of the Bureau of Prisons (“B.O.P.”). Smith filed an amended complaint against Warden

Maiorana, Mr. Wright, Doctor Farkas,1 Steven Burk,2 Mr. Rodriguez-Miralles,3 and

multiple unknown named employees, bringing his claims under Bivens v. Six Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He also named the

United States of America as a defendant under the Federal Tort Claims Act, 28 U.S.C. §§

1346(b), 2671 et seq. (“FTCA”). He alleged that: (1) the medical staff of FCI Loretto

were deliberately indifferent to his medical needs; (2) the prison staff failed to protect

him or adequately supervise the prisoners; and (3) he received negligent medical care

from the medical staff. He asked only for damages. The Court found that Smith failed to

exhaust his administrative remedies as required by the Prison Litigation Reform Act




1
  Doctor Farkas is incorrectly named as “Doctor Farkus.”
2
  Steven Burk is incorrectly named as “Mr. Burke.”
3
  Mr. Rodriguez-Miralles is incorrectly identified as “Mr. Rodriguis.”
                                              2
(“PLRA”) and under the FTCA, and granted summary judgment in favor of the

defendants.4

                                             II.

       The District Court had jurisdiction pursuant to 28 U.S.C. § 1331, and we have

jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review over the District

Court’s order granting summary judgment. 5 See Giles v. Kearney, 571 F.3d 318, 322

(3d Cir. 2009). A district court may grant summary judgment only when the record

“shows that 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). When making this analysis, a

district court must credit the evidence of the non-moving party, and draw all justifiable

inferences in the non-movant’s party. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986). A mere “scintilla of evidence in support of the [non-moving party]’s

position will be insufficient” to create a genuine issue of fact. Id. at 252. The non-

moving party “must show where in the record there exists a genuine dispute over a

material fact.” See Doe v. Abington Friends Sch., 480 F.3d 252, 256 (3d Cir. 2007).

       The District Court correctly entered summary judgment because Smith failed to

exhaust his administrative remedies as required by the PLRA and the FTCA. Under 42

U.S.C. § 1997e(a), a prisoner must exhaust all of his administrative remedies. See Booth

v. Churner, 532 U.S. 731, 739 (2001); see also Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir.


4
  The parties consented to have the case heard by a magistrate judge, pursuant to 28
U.S.C. § 636(c)(1).
5
  We may summarily affirm a decision of the District Court if the appeal does not raise a
substantial issue. 3d Cir. LAR 27.4; I.O.P. 10.6.
                                             3
2000). Exhaustion is determined by determining answering two questions. First, a court

examines whether a prisoner has literally exhausted his administrative remedies, such that

no further steps are available within the prison remedy system. See Spruill v. Gillis, 372

F.3d 218, 232 (3d Cir. 2004). If a prisoner has not properly exhausted available

remedies, a court then examines whether procedural default applies. Id. For procedural

default purposes, a prisoner has properly exhausted his claims if he has complied with the

prison’s regulations that govern inmate grievances, or if prison officials have waived

those regulations. Id. at 222. We have excused the failure to exhaust under limited

circumstances when it is clear that a prison’s grievance procedure is unavailable to the

prisoner. See Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002). Generally, this will be

due to prison officials thwarting inmate efforts to file grievance procedures. Id.

Exhaustion is mandatory even if a prisoner is only seeking monetary damages. See

Nyhuis, 204 F.3d at 67.

       Smith argues before us that because he seeks only monetary damages, exhaustion

is not required. He contends that any usage of the administrative grievance process

would have been futile. In the alternative, he argues that he should not be required to

have exhausted his remedies, as those remedies were effectively unavailable. Smith’s

first argument is foreclosed by Nyhuis itself. Id.

       Smith also contends that administrative remedies were “effectively unavailable” to

him, and that he therefore could not have used the administrative remedies provided by

the B.O.P. The only procedure that he utilized was the appeals process in his disciplinary

hearing, and Smith admitted that he did not file any administrative grievances to pursue

                                             4
his claims. Smith did not literally exhaust his claims as required by the PLRA, and now

his claims are procedurally defaulted. See Spruill, 372 F.3d at 232. As such, the district

court properly granted summary judgment on this basis.

       Smith has also sued the United States of America. The United States has

sovereign immunity from civil liability, except where it has consented to be sued. See

United States v. Bormes, 133 S. Ct. 12, 16 (2012). The FTCA is a limited waiver of the

United States’ sovereign immunity, and prisoners may raise negligence claims against the

United States under the FTCA. See United States v. Muniz, 374 U.S. 150, 150-51

(1963). However, a plaintiff must exhaust his administrative appeals before the requisite

agency. See White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir. 2010). The

proper agency for Smith to present his FTCA claim to was the B.O.P., and Smith and the

defendants agree that he did not file any tort claim before the B.O.P. Accordingly, the

district court properly granted summary judgment on this claim as well.

       For the reasons stated above, we grant the Government’s motion for summary

affirmance and will summarily affirm the District Court’s decision.




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