DLD-222                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 10-1692
                                     ___________

                                  KEITH DANIELS,
                                                      Appellant

                                           v.

LT. TERRANCE T. ROSENBERGER; SGT. ALLAN J. WEBB; C.O. RAY W. BLOOR;
    C.O. LARRY TWIGG; C.O. JEFFREY ALBA; C.O. WALTER COUSINS; C.O.
     ANTHONY J. ALIANIELLO; C.O. D.A. ZIMMERMAN; JOHN AMDRADE
                 ____________________________________

                   On Appeal from the United States District Court
                       for the Middle District of Pennsylvania
                            (D.C. Civil No.1-05-cv-01601)
                      District Judge: Honorable Yvette Kane
                    ____________________________________

        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
                                   June 17, 2010

            Before: FUENTES, JORDAN and HARDIMAN, Circuit Judges

                             (Opinion filed: July 7, 2010)
                                     _________

                                      OPINION
                                      _________

PER CURIAM

      Keith Daniels, a Pennsylvania state inmate, appeals pro se from a District Court

order denying reconsideration of a grant of summary judgment for defendants. Because
the appeal presents no substantial question, we will summarily affirm.

       On August 8, 2005, Daniels filed a civil rights complaint pursuant to 42 U.S.C.

§ 1983, claiming that guards at the State Correctional Institution at Camp Hill (SCI-Camp

Hill) used excessive force and a racial epithet against him on August 13, 2003. Daniels

filed an amended complaint on September 5, 2006, raising the excessive force claim as a

violation of his due process rights and alleging that guards assaulted him and denied him

access to adequate medical treatment, food, clothing, water, ventilation, and housing in

violation of his Eighth Amendment rights. He further alleged that guards “denied

Plaintiff grievances and Plaintiff could not grieve his assault or actions of Defendants”

during his six-month incarceration at SCI-Camp Hill. Defendants denied obstructing

Daniels’s access to grievance forms in their answer and raised his failure to exhaust

administrative remedies as an affirmative defense.

       To support their defense, defendants produced documentation arising from

administrative review of Daniels’s grievance concerning the August 2003 incident. SCI-

Camp Hill policy grants inmates “15 working days after the event upon which the claim is

based” to file a grievance. The first on-record grievance, in which Daniels complained of

the SCI-Camp Hill incident, was filed by Daniels on October 7, 2004, over a year after

the alleged event. Daniels had filed this grievance while an inmate of the State

Correctional Institution at Smithfield, to which he had been transferred from SCI-Camp

Hill in January 2004. Accordingly, the initial grievance reviewer rejected Daniels’s



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October 2004 grievance as untimely filed. Two levels of institutional appeal affirmed.

       In the October 2004 grievance, Daniels also claimed that the filing was a

“continuance from a grievance process that was initiated on 11/3/03 when incarcerated at

SCI-Camp Hill.” Both levels of appeal rejected this claim because a search of grievance

records dating back to 2001 produced no record of a grievance filed by Daniels on

November 3, 2003, and no record of a grievance filed prior to October 2004 concerning

the August 2003 incident. To support his claim, Daniels submitted to the second level of

prison appeals, an unsigned grievance form dated “11/3/03” bearing no indication of a

grievance tracking number and no date of signature.

       With this evidence, defendants moved for summary judgment before the District

Court, raising Daniels’s failure to exhaust administrative remedies as one basis for

dismissal. The District Court agreed that Daniels’s failure to exhaust was dispositive and

dismissed his complaint, concluding that “Plaintiff’s attempt to circumvent the obligation

to exhaust by arguing that Defendants refused to provide him a grievance form is

completely lacking in evidentiary support, including his own deposition testimony.”

Daniels filed a timely motion for reconsideration, in which he conceded that he did not

timely file his grievance but maintained that defendants’ refusal to provide grievance

forms excused his failure to exhaust remedies. He provided no new evidence in support

of his claim. The court denied his motion on February 3, 2010. Daniels timely appealed.

       We have jurisdiction under 28 U.S.C. § 1291. Our review of a grant of summary



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judgment is plenary. See Kaucher v. County of Bucks, 455 F.3d 418, 422 (3d Cir. 2006).

       Summary judgment is proper where 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).

The record is viewed in the light most favorable to the non-moving party and all

inferences are drawn in its favor. See Kaucher, 455 F.3d at 423. To overcome summary

judgment, the non-moving party must provide sufficient evidence from which a

reasonable jury could find in its favor. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 248 (1986). If the non-moving party fails to establish sufficiently “the existence of

an element essential to that party’s case, and on which that party will bear the burden of

proof at trial,” then the moving party is entitled to judgment as a matter of law. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

       Under the Prisoner Litigation Reform Act, a prisoner must exhaust available

administrative remedies before bringing suit concerning prison conditions. See 42 U.S.C.

§ 1997e(a). Whether an administrative remedy is available to the prisoner is a matter of

law. See Ray v. Kertes, 285 F.3d 287, 291 (3d Cir. 2002). “‘Available’ means ‘capable

of use; at hand.’” Brown v. Croak, 312 F.3d 109, 113 (3d Cir. 2002). Proper exhaustion

of administrative remedies requires filing a timely or otherwise procedurally non-

defective grievance. See Woodford v. Ngo, 548 U.S. 81, 83–84 (2006). Failure to

exhaust administrative remedies is an affirmative defense to be pleaded by the

defendants. See Ray, 285 F.3d at 295.



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       Having reviewed the record, we agree with the District Court’s grant of summary

judgment for defendants. Through five years of litigation, Daniels failed to provide

evidence from which a reasonable jury could conclude that guards at SCI-Camp Hill

obstructed his ability to file a timely grievance about the August 2003 incident. Rather,

Daniels repeatedly contradicts his own claim. Daniels admits in his deposition that

grievance forms were available upon request. Furthermore, his claim that he filed a

grievance on November 3, 2003, undermines his argument that administrative remedies

were not available to him while incarcerated at SCI-Camp Hill. Accordingly, Daniels

was required to file his grievance within fifteen working days of the August 2003

altercation. The first on-record grievance complaining of the incident was filed on

October 7, 2004. Daniels did not meet the prison’s requirement for filing and, therefore,

failed to exhaust his administrative remedies. The District Court properly granted

summary judgment in favor of defendants.

       Because we find no substantial question raised on appeal, we will summarily

affirm. Appellant’s motion for leave to file exhibits is GRANTED with respect to copies

of the three misconduct forms filed by prison officials because those documents are

included in the District Court record, but DENIED with respect to Daniels’s “Inmate’s

Request to Staff Member” form and the letter from a Senior Deputy Attorney General,

dated September 29, 2006, because those documents are not part of the record.




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