DLD-192                                                   NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 11-1712
                                  ___________

                            RASHAUN BARKLEY,
                                 Appellant

                                        v.

             MICHELLE R. RICCI, Associate Administrator;
             ALFORD KANDELL, Assistant Superintendent;
              DONALD MEE, JR., Assistant Superintendent;
                   GOODING, Capt. Custody Captain;
     GEORGE HAYMAN, Commissioner of N.J. Department of Corrections;
        CHRISTINE S. DILL; LT. S. CATAPOLY; SGT. NEWSOM;
        SCO.R.P. NOLAN; SCO. D. VAOCOLO; SGT. PERTRETTI;
         CHRYSTAL RAUPPE; DENIECE GRAY; JEFFREY BELL
               ____________________________________

                 On Appeal from the United States District Court
                           for the District of New Jersey
                           (D.C. Civil No. 07-cv-02760)
                  District Judge: Honorable Anne E. Thompson
                  ____________________________________

      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
                                 May 19, 2011

              Before: BARRY, FISHER and ROTH, Circuit Judges.

                              (Filed: July 22, 2011 )
                                    _________

                                   OPINION
                                   _________

PER CURIAM
       Rashaun Barkley, a New Jersey state prisoner, appeals pro se from the order of

the District Court granting Defendants’ motion for summary judgment. Because the

appeal presents no substantial question, we will summarily affirm.

                                             I.

       Barkley, at all times relevant to his complaint, was incarcerated in the

Management Control Unit (“MCP”), a close custody unit, at the New Jersey State Prison

(“NJSP”) in Trenton, New Jersey. In March 2007, Barkley was determined to be a threat

to other inmates and placed on “non-congregate” status. Inmates on non-congregate

status are considered high-risk inmates, and, therefore, are not allowed to recreate with

other inmates.

       On June 14, 2007, Barkley commenced an action under 42 U.S.C. § 1983 against

several prison employees (the “NJSP Defendants”) alleging that he was not being given

adequate outdoor recreation time. Barkley noted that section 10A:5-2.21(a) of the New

Jersey Administrative Code provides for a minimum of two hours per week of exercise

and recreation for inmates housed in the MCU, and also states that “every effort shall be

made to provide at least five hours per week unless compelling security, safety or

weather reasons dictate otherwise.” See N.J. Admin. Code § 10A:5-2.21(a). Barkley

claimed that he was not receiving the minimum two hours per week, and that the prison’s

failure to comply with the regulations amounted to deliberate indifference to his health

and safety in violation of his rights under the Eighth Amendment. Several months later,

Barkley filed an amended complaint notifying the court that the NJSP Defendants had

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issued a new recreation schedule. Barkley maintained, however, that the new schedule

remained insufficient under the regulations.

       In December 2007, the NJSP Defendants filed a motion to dismiss, or, in the

alternative, for summary judgment arguing, among other things, that the prison=s

restrictions on exercise did not violate Barkley’s Eighth Amendment rights because the

prison’s efforts to provide additional exercise to the non-congregate MCU inmates

demonstrated that the prison had not been deliberately indifferent to their need for

exercise. The following month, in January 2008, the NJSP Defendants supplemented

their motion with evidence that the prison had again increased recreation periods for non-

congregate inmates so that Barkley now had more than the minimum amount of exercise

set forth under the regulations.

       In February 2008, Barkley filed a third amended complaint, bringing a retaliation

claim against the NJSP and several new defendants. Barkley alleged that, since filing his

original complaint, prison officials had searched his cell and reassessed his status in

retaliation for his having filed suit against them.

       In March 2008, the District Court granted the NJSP Defendants’ motion for

summary judgment. The Court did not rule on Barkley’s retaliation claim, however. The

NJSP Defendants subsequently moved for summary judgment on Barkley’s retaliation

claim and, in a February 2011 decision, the District Court granted their motion. The

Court concluded that Barkley had not demonstrated that he exhausted his administrative

remedies prior to filing suit. Barkley timely appealed.

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                                               II.

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

summarily affirm the judgment of the District Court if the appeal presents no substantial

question. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We exercise plenary review over a

district court’s order of summary judgment. See Kaucher v. County of Bucks, 455 F.3d

418, 422 (3d Cir. 2006). Summary judgment is proper if there is no genuine issue as to

any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ.

P. 56(c).

                                               III.

       We agree with the District Court that summary judgment was appropriate as to

Barkley’s Eighth Amendment claim. An inmate making a Eighth Amendment conditions

of confinement claim must show that the alleged violation deprived him of the most

minimal level of life’s necessities, and that prison officials acted with deliberate

indifference to his health or safety. Farmer v. Brennan, 511 U.S. 825, 834, 847 (1994);

Wilson v. Seiter, 501 U.S. 294, 304-05 (1991). 1

       The District Court determined that Barkley failed to raise a genuine issue of

material fact as to whether the limitations were the product of deliberate indifference.

See Farmer, 511 U.S. at 847 (1994) (requiring a successful Eighth Amendment claim

       1
        We have held that the denial of exercise or recreation may result in a constitutional
       violation. See Peterkin v. Jeffes, 855 F.2d 1021, 1031 (3d Cir. 1988).




                                                4
based on inhumane conditions of confinement to include a showing that prison officials

knew of a substantial risk of serious harm and failed to take reasonable measures to avoid

the harm). We agree.

       As the District Court explained, the NJSP Defendants submitted evidence

demonstrating that they reevaluated and readjusted the recreation schedule for non-

congregate MSU inmates on two separate occasions after Barkley filed his complaint.

Indeed, as of January 2008, the prison had increased the exercise schedule for non-

congregate MSU inmates like Barkley so that he was receiving more than the minimum

amount of exercise set forth under the regulations. 2 See Wishon v. Gammon, 978 F.2d

446, 449 (8th Cir. 1992) (forty-five minutes of exercise per week not constitutionally

infirm); Knight v. Armontrout, 878 F.2d 1093, 1096 (8th Cir. 1989) (holding that denial

of outdoor recreation for thirteen days not cruel and unusual punishment).

       We also agree with the District Court that summary judgment was appropriate as

to Barkley’s retaliation claim. Barkley alleged that after he filed his original complaint,

prison officials searched his cell, reassessed his status, and confiscated his mail in

retaliation for his having filed his lawsuit. During an October 2007 search, officials

found a pen that they believed had been modified for use as a weapon. Barkley was




       2
        The District Court also properly denied as moot Barkley’s claim for injunctive relief
       given that Barkley was already receiving the amount of exercise time that he sought in
       his complaint. See In re Surrick, 338 F.3d 224, 230 (3d Cir. 2003).


                                               5
served with an administrative charge, but the charge was dropped because of a delay in

serving him.

       The District Court properly found that Wilson failed to exhaust this claim

administratively before filing his complaint. Under the Prison Litigation Reform Act

(“PLRA”) prisoners must first properly exhaust their administrative remedies before

filing an action under section 1983. 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S.

81, 83 (2006).

       In order to comply with the PLRA, an inmate must exhaust all available

administrative remedies, including intermediate or final administrative review of a

prison’s decision. Booth v. Churner, 532 U.S. 731, 741 (2001). Barkley filed several

Inmate Request Forms (“IRFs”) relating to his claim of retaliation, but he failed to appeal

their rejections. Barkley does not dispute that he did not comply with the administrative

appeals process, but argues on appeal that he effectively completed the process when

NJSP Defendants Ricci and Hayman “examined and ruled” on his claims. However,

Barkley has not provided any evidence demonstrating that those Defendants ever

reviewed, let alone ruled on, his grievance. Under these circumstances, we agree with the

District Court that Barkley failed to exhaust his available administrative remedies.

       As the appeal presents no substantial question, we will summarily affirm the

District Court judgment. See 3d Cir. L.A.R. 27.4 and 3d Cir. I.O.P. 10. 6.




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