                                                        NOT PRECEDENTIAL

                  UNITED STATES COURT OF APPEALS
                       FOR THE THIRD CIRCUIT
                            ___________

                                No. 13-2029
                                ___________

                             LAMAR BROWN,
                                      Appellant

                                      v.

         ROBERT SHANNON, Superintendent at Frackville State Prison;
WENEROWICSZ, Deputy Superintendent; A. KOVALCHIK, Deputy Superintendent;
 S.K. KEPHAR, Deputy Superintendent, SHARON LUQUIS, Hearing Examiner;
   J.A. MIRANDA, Unit Manager; ROSADO, Unit Manager; DUSEL, Captain;
 LT. POPSON; MIRARCHI, CO II Sergeant; ALSHEFSKI, Correctional Officer;
      ALBERT, Correctional Officer; CORBY; SABO, Correctional Officer,
               PETER DAMITTER, Grievance Coordinator
                ____________________________________

               On Appeal from the United States District Court
                    for the Middle District of Pennsylvania
                  (M.D. Pa. Civil Action No. 10-cv-00149)
               District Judge: Honorable William J. Nealon, Jr.
                ____________________________________

               Submitted Pursuant to Third Circuit LAR 34.1(a)
                               May 13, 2014
           Before: JORDAN, COWEN and BARRY, Circuit Judges

                        (Opinion filed: May 14, 2014)
                               ___________

                                 OPINION
                                ___________
PER CURIAM

       Lamar Brown, a Pennsylvania state prisoner proceeding pro se, appeals an order of

the United States District Court for the Middle District of Pennsylvania granting

summary judgment for the defendants in his civil rights action. Brown also seeks review

of an order precluding him from filing a second amended complaint. We will affirm the

judgment of the District Court.

       The record reflects that on January 29, 2008, Brown was issued a misconduct

report for refusing to take down a towel that was covering his cell door. Shortly

thereafter, Brown was issued a second misconduct report for aggressive behavior while

being escorted to the Restricted Housing Unit. Brown was found guilty of misconduct

and sanctioned to a total of 90 days in disciplinary custody.

       Brown filed a complaint in District Court pursuant to 42 U.S.C. § 1983 claiming

that correctional officers used excessive force during the escort by pushing him, tackling

him to the ground, and spraying him with oleoresin capsicum (pepper spray) while he

was restrained in handcuffs. He sought monetary damages. Brown later filed an

amended complaint and attached as exhibits grievance forms related to his excessive

force claim and evidence of his appeals related to the finding of misconduct.1



1
 Brown also raised constitutional claims related to the issuance of the misconduct reports,
his disciplinary hearing, and the handling of his grievance. The District Court granted the
defendants’ motion to dismiss these claims and Brown does not challenge the dismissal
on appeal.
                                             2
       The defendants filed a motion for summary judgment asserting that Brown had

failed to exhaust his administrative remedies with respect to his excessive force claim. In

support, the defendants submitted the declaration of Keri Moore, a Grievance Review

Officer who reviews appeals at the final level of administrative review. Moore attested

that the grievance tracking system showed that Brown had filed two grievances in 2008,

neither of which involved the January 29, 2008 incident. Peter Damiter, the person

responsible for responding to grievances at Brown’s institution, attested that he did not

receive a grievance from Brown regarding the January 29, 2008 incident.

       Brown responded that he was not required or permitted to file a grievance because

his excessive force claim is related to an incident resulting in a misconduct report and

that his remedy was under the policy governing inmate discipline. Brown also argued

that, even though he was not required or permitted to file a grievance, he tried to use the

grievance process. Brown submitted, as he did with his amended complaint, a copy of a

grievance dated February 1, 2008 complaining of the use of excessive force, a grievance

dated February 11, 2008 seeking to appeal to the Superintendent and stating that he did

not receive a response to his February 1, 2008 grievance, and a grievance dated February

25, 2008 seeking to appeal to the final level of administrative review. Brown stated that

he did not receive a response from the Superintendent and that he doubted that his

February 25, 2008 appeal was received.




                                             3
       The District Court concluded that Brown had failed to exhaust his administrative

remedies because his allegation of a timely submitted grievance was unsupported and the

grievance form dated February 1, 2008 did not reflect that it had been filed. The District

Court noted that the form did not include a tracking number, that prison authorities had

no record of its filing, and that Brown had produced no evidence showing that the guards

mishandled the grievance or his appeals. The District Court also noted that Brown had

not exhausted his administrative remedies through his appeals of the finding of

misconduct because he did not raise his excessive force claim in those appeals and the

appeals were found untimely. This appeal followed.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. Our standard of review is de

novo. Small v. Camden County, 728 F.3d 265, 268 (3d Cir. 2013).

       As recognized by the District Court, the Prison Litigation Reform Act requires a

prisoner to exhaust available administrative remedies before bringing an action regarding

prison conditions. 42 U.S.C. § 1997e(a); Small, 728 F.3d at 268. Under § 1997e(a), a

prisoner must properly exhaust such remedies by complying with the prison grievance

system’s procedural rules. Woodford v. Ngo, 548 U.S. 81, 93-95 (2006); Spruill v.

Gillis, 372 F.3d 218, 222 (3d Cir. 2004). Here, those rules required, among other things,

the submission of a grievance to the grievance coordinator at the facility where the

grievance occurred. See Exhibit C-1 to Summary Judgment Motion.




                                             4
       Brown argues that it is unclear whether he was permitted to raise his excessive

force claim in a grievance or whether his remedy was through the disciplinary appeal

process. We need not decide whether there was any ambiguity in the prison’s policies

because, as noted by the District Court, the record reflects that Brown did not raise his

excessive force claim in his appeal of the finding of misconduct. Thus, even if Brown

could have exhausted his administrative remedies through his disciplinary appeals, he did

not do so.

       Brown also argues that the District Court erred in granting summary judgment

because there is a disputed factual issue as to whether he complied with the prison’s

grievance procedures. As noted above, the defendants submitted declarations

establishing that the person responsible for responding to grievances at Brown’s

institution did not receive a grievance from him regarding the January 29, 2008 incident,

and that the Department of Corrections did not have a record of such a grievance. Brown

submitted grievance forms to show that he did in fact try to exhaust his administrative

remedies.

       We conclude that the grievance forms submitted by Brown are insufficient to raise

a genuine issue of fact requiring an evidentiary hearing. See Small, 728 F.3d at 271

(holding court may resolve factual disputes on questions of exhaustion). Brown states in

his brief that on February 1, 2008 a correctional officer picked up his grievance, that he

saw the officer place it in the grievance box, and that Peter Damiter collected grievances

                                             5
from the box the next day. Brown, however, does not point to an affidavit or any other

evidence of record supporting these assertions.

       Brown also recognized in his brief in opposition to the summary judgment motion

that an inmate usually receives a return copy of a grievance from the grievance

coordinator within one to two days of submission, but the record does not reflect that he

asked about the fact that he did not receive a return copy, which would have provided a

tracking number and proof that he did in fact submit his grievance. The defendants also

submitted evidence showing that one of the grievances the prison did receive from Brown

in 2008 was rejected because he had falsified the date in order for the grievance to appear

timely. Ex. C-2 to Summary Judgment Motion. We hold that summary judgment was

warranted under the circumstances of this case.

       Finally, Brown appeals a District Court order declining to set aside a ruling

deeming his motion for leave to file a second amended complaint withdrawn. The record

reflects that Brown filed his motion after the defendants had answered his amended

complaint. The District Court deemed the motion withdrawn because Brown had not

filed a supporting brief as required by the court’s local rules. Almost three months later,

Brown moved the District Court to set aside the order. Brown stated that correctional

officers had confiscated the brief because he had refused to show it to them. In denying

Brown’s motion, the District Court stated that it appeared that Brown’s own conduct was




                                             6
the cause of his failure to timely file a brief, that Brown had waited three months to notify

the court, and that it was not clear that a properly-filed motion would have been granted.

       Brown moved to set aside the District Court’s order pursuant to Federal Rule of

Civil Procedure 60(b) and the District Court evaluated the motion under Rule 60(b)’s

standards. Rule 60(b) is inapplicable because Brown did not seek relief from a final

judgment. See Fed. R. Civ. P. 60(b). Brown, however, suffered no prejudice in not being

able to file his proposed second amended complaint. The record reflects that Brown

sought to revise his due process claim, which had been dismissed, add factual allegations

regarding injuries suffered as a result of the January 29, 2008 incident, and add as a

defendant a correctional officer identified in the defendants’ answer as being part of the

escort team. As explained in the District Court’s order granting the defendants’ motion

to dismiss, Brown’s sanction did not implicate a protected liberty interest and he does not

have a viable due process claim. For the reasons stated herein, Brown is unable to pursue

his excessive force claim.

       Accordingly, we will affirm the judgment of the District Court.




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