                                                              NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT
                              _____________

                                  No. 10-3325
                                 _____________

                           THOMAS J. BEATON, SR.,
                                  Appellant

                                         v.

  FRANKLIN J. TENNIS, Superintendent; JOEL DICKSON, Deputy Superintendent;
MAJOR JAMES MORRIS; GERARD MCMAHON, Major; ROBERT PATISHNOCK;
BRIAN CONFER, Sergeant; ANTHONY PORTER, Officer; BETINA REBAR, Officer;
    OFFICER JOHN DOE 2; RICHARD ELLERS, Medical Administrator; JOHN
 SYMONS, M.D.; Physicians Assistant JOHN DOE; Physicians Assistant VALERIE
 SENKO; PRISON HEALTH SERVICE COMPANY; SHARON BURKE, Camp Hill
  State Prison; JEFFREY PACKOVAN; DIANE WOODRING; NURSE TRIMPEY;
 *SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS; 2nd Shift
   Security Officers of Security Building DW, Surveillance and Camera Monitoring
                              Officers, John Doe Officers

                     *(Pursuant to Rule 43(c), Fed. R. App. P.)
                                  _____________

                  Appeal from the United States District Court
                      for the Middle District of Pennsylvania
                       (D.C. Civil Case No. 4-07-cv-01526)
                 District Judge: Honorable Christopher C. Conner
                                  _____________

                             Argued January 11, 2012

             Before: SCIRICA, RENDELL and SMITH, Circuit Judges

                         (Opinion Filed: January 31, 2012)
                                  _____________
Benjamin R. Barnett, Esq.
Kenneth J. Holloway, Esq.    [ARGUED]
Dechert
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
  Counsel for Appellant

Timothy A. Holmes, I, Esq. [ARGUED]
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
 Counsel for Appellees Brian Confer, Joel Dickson,
 Gerard McMahon, James Morris, Robert Patishnock,
 Anthony Porter, Betina Rebar, and Franklin Tennis

Alan S. Gold, Esq.
Gold & Ferrante
261 Old York Road, Suite 526
Jenkintown, PA 19046
   Counsel for Defendants – Non-Participating
   Prison Health Ser Co., Valerie Senko,
  John Symons, M.D.
                                    _____________

                               OPINION OF THE COURT
                                   _____________

RENDELL, Circuit Judge.

       Plaintiff Thomas Beaton appeals a District Court order granting a motion by

defendants, employees of the Department of Corrections who worked at a prison where

Beaton was incarcerated, for summary judgment on Beaton‟s 42 U.S.C. § 1983 failure-to-

protect claim. Although we disagree with the District Court‟s conclusion that Beaton

failed to administratively exhaust his claim, we conclude that Beaton‟s claim fails on the

merits and, accordingly, will affirm.


                                             2
                                                  I.

       On August 28, 2006, “Sharif,” a fellow inmate at SCI-Rockview prison, attacked

Beaton with a padlock. The padlock struck Beaton in the mouth, causing him to fall and

hit his head on the concrete floor. Beaton suffered injuries to his lip, teeth, and head. In

the following months, he was diagnosed with a fracture in his right occipital lobe and

post-concussion syndrome, which caused headaches, vertigo, nausea, visual distortion,

and affected his ability to concentrate. Beaton alleged that the defendants failed to

protect him from such an attack because they knew or should have known of a risk to

Beaton of an attack by Sharif or, more generally, of the risk to all inmates of injury

resulting from attacks using padlocks, which the prison makes available to prisoners

through its commissary.

       Beaton filed a grievance complaining about the attack on October 1, 2006. The

grievance initially was returned to him as untimely, but Beaton appealed to the prison

superintendant, defendant Tennis, asking for permission to proceed and stating that the

grievance was untimely filed as a result of Beaton‟s injuries from the assault. Tennis told

Beaton that the matter would be investigated, and directed him to refile the original

grievance. Defendant Patishnock, the Unit Manager of Beaton‟s housing unit at the time,

reviewed the grievance and filled out a form that stated that it had been accepted for

review. On October 16, 2006, however, Beaton met with Patishnock and signed and

dated the “withdrawal” section of his grievance form. Beaton testified in his deposition

that he believed that he was withdrawing a different grievance, related to a request for



                                              3
transfer to a different cell block, and that Patishnock deliberately confused him by

placing the withdrawal form underneath paperwork related to the housing grievance.

       On October 31, 2006, Beaton wrote a letter to Tennis seeking to appeal the

withdrawal and refile his grievance, asserting that Patishnock had taken advantage of

confusion arising from Beaton‟s injuries. Tennis denied the request. Beaton appealed

that denial to the Office of Grievances and Appeals, which initially requested additional

paperwork, but, after clarification, denied Beaton‟s appeal, citing prison regulations that

forbid appeals after a grievance has been withdrawn.

       Beaton filed this suit, and, after discovery, defendants moved for summary

judgment. A magistrate judge issued a Report and Recommendation urging that

defendants‟ motion be granted on administrative exhaustion grounds and on the merits of

Beaton‟s claims. The report concluded that there were no factual issues regarding

Beaton‟s failure to exhaust, based on Patishnock‟s testimony and Beaton‟s withdrawal of

the grievance. The District Court adopted the Magistrate Judge‟s report, granted

defendants‟ motion, and directed the clerk to enter judgment for defendants.

                                                 II.

                                                 A.

       On these facts, the Magistrate Judge and District Court erred in concluding that

Beaton failed to exhaust his administrative remedies. This is not a typical administrative

exhaustion case, in which a plaintiff ignores the required procedures or otherwise

neglects his claim. Instead, Beaton filed the proper grievance, appealed when necessary



                                             4
(securing a promise to investigate despite an initial finding that the grievance was not

timely filed), and followed up once he realized that the grievance had been withdrawn.

       More importantly, inmates “need only exhaust such administrative remedies as

„are available,‟” Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000) (quoting 42 U.S.C.

§ 1997e(a)), and, as the Magistrate Judge observed, “[a]ffirmative misconduct by prison

officials designed to impede or prevent an inmate‟s attempts to exhaust may render

administrative remedies unavailable,” Beaton v. Tennis, No. 07-1526, 2010 WL 2696857,

at *4 (M.D. Pa. May 10, 2010). Beaton alleged misconduct of this sort, namely that

defendant Patishnock intentionally tricked him into withdrawing his grievance.

       The record contains sufficient evidence to support Beaton‟s allegations at the

summary judgment stage. Specifically, Beaton testified both that Patishnock arranged

the paperwork so that Beaton would believe that he was withdrawing the housing

grievance, not the assault grievance, and that Patishnock specifically asked him to

withdraw the housing grievance. Beaton adds that, as a result of the assault, his mental

state was unstable and he was easily confused. Beaton‟s subsequent letters to Tennis and

the Office of Grievances and Appeals also document Beaton‟s version of events. The

Magistrate Judge and District Court relied solely on Patishnock‟s statements that Beaton

said that he wanted to withdraw the assault grievance to reject Beaton‟s claim. But, in

light of the documents and Beaton‟s contrary testimony, the most that can be said about

Patishnock‟s statements is that they create a material fact question for the jury to resolve.

The District Court therefore should not have granted summary judgment to defendants on

this ground.

                                              5
                                                  B.

       The District Court did not base its decision solely on the administrative-exhaustion

question; it also determined that “Beaton fail[ed] to state a cognizable failure to protect

claim.” Beaton v. Tennis, No. 07-1526, 2010 WL 2696853, at *1 (M.D. Pa. July 7,

2010). We agree.

       The Magistrate Judge rejected Beaton‟s claim that defendants failed to protect him

from Sharif because it found that Sharif‟s alleged threats to Beaton — a comment that

Beaton‟s “shower‟s up” and a subsequent comment, made a month-and-a-half before the

assault, that Sharif was “going to f*** [Beaton] up” — did not establish a risk of

pervasive harm. He also concluded that the threats were too remote in time to suggest a

“real and proximate threat” to Beaton and, in the prison context, were too vague to be

actionable. Beaton, 2010 WL 2696857, at *5. Nothing in Beaton‟s submissions to this

Court convinces us otherwise.

       Beaton‟s claim concerning the danger of padlocks in the prison also fails. As the

Magistrate Judge found, Beaton has not raised a genuine issue of fact that the prison‟s

padlock policy creates a substantial or pervasive risk of harm to its inmates. Tennis

acknowledged previous padlock assaults in the prison, and testified that they typically

occur at a rate of 1 or 2 per year. Given the padlocks‟ legitimate uses — to secure

prisoners‟ belongings — and the fact that inmates may use even the most harmless

objects as weapons (Tennis testified that attacks using bars of soap are much more

common than those using padlocks), the Magistrate Judge concluded that the evidence

did not support a conclusion that a failure to remove padlocks from the prison constituted

                                              6
deliberate indifference by the defendants. Id. at *6. We find no error in his analysis or

conclusion.1

                                                 III.

       For the foregoing reasons, we will affirm the judgment of the District Court.




1
  We also reject Beaton‟s argument that the Magistrate Judge abused his discretion by
denying Beaton‟s motion for leave to file an untimely counterstatement of facts in
support of his summary judgment opposition. Beaton‟s counsel plainly did not follow the
local rules, and offered a series of evolving, even inconsistent, excuses for his failure to
do so. Under those circumstances, the Magistrate Judge had no obligation to consider
Beaton‟s late filing.
                                             7
