PS5-164                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 14-2779
                                       ___________

                                   WILLIE L. DAVIS,
                                               Appellant

                                             v.

                                  C. ANDERSON
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 13-cv-02722)
                      District Judge: Honorable Robert D. Mariani
                      ____________________________________

                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    July 7, 2015
             Before: CHAGARES, JORDAN and COWEN, Circuit Judges

                              (Opinion filed: July 20, 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.
         Appellant, Willie L. Davis, appeals pro se from the judgment entered against him

in this civil rights action. For the following reasons, we will affirm.

                                                I.

         Davis is a federal prisoner who is, and at all times relevant to this case was,

incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania. In November

2013, Davis commenced this Bivens1 action in the United States District Court for the

Middle District of Pennsylvania against C. Anderson, a corrections officer at USP-

Lewisburg. In the complaint, Davis stated that, on October 2, 2013, Officer Anderson

was escorting Davis back to his cell after a cell search when Officer Anderson warned

Davis not to continue filing grievances and law suits, stating: “you keep filing and we are

going to keep doing what we are doing.” Davis further alleged that when he arrived at

his cell, he saw that his notes and time logs pertaining to several pending law suits

against USP-Lewisburg corrections officers had been destroyed. According to Davis,

when he asked Officer Anderson why his legal mail had been “sabotaged,” Officer

Anderson stated: “it can get much worse for you, so be happy that[’]s all we did.” In

support of these allegations, Davis attached to his complaint affidavits from two fellow

inmates who attested that they were present when Officer Anderson made these threats.

Davis claimed that Officer Anderson’s conduct amounted to retaliation in violation of his

rights under the First Amendment, and sought compensatory and punitive damages.


1
    See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 

                                                2
         Officer Anderson filed a motion seeking dismissal, or, in the alternative, summary

judgment on the ground that, inter alia, Davis had failed to exhaust his administrative

remedies in accordance with the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C.

§ 1997e(a). Officer Anderson explained that, in order to exhaust a complaint under the

Federal Bureau of Prisons’ (“BOP”) Administrative Remedy Program, an inmate

generally must first present his complaint to prison staff in an effort to informally resolve

the matter, and then, if informal resolution fails, file a formal request with the prison,

followed by two levels of administrative review. See 28 C.F.R. § 542.13-15. Officer

Anderson further explained that the BOP provides an exception to this procedure if an

inmate “reasonably believes the issue is sensitive and the inmate’s safety or well-being

would be placed in danger if the Request became known at the institution.” 28 C.F.R. §

542.14(d)(1). Under these circumstances, an inmate may submit his request directly to

the appropriate Regional Director. Officer Anderson argued that because Davis did not

take advantage of these available BOP procedures, he could not seek redress in federal

court.

         Davis did not address the PLRA’s exhaustion requirement in his response to

Officer Anderson’s motion. Instead, he submitted an affidavit pursuant to Rule 56(d),

requesting that the court either deny the motion, or delay ruling on it, because he had not

been given sufficient time to conduct discovery. See Fed. R. Civ. P. 56(d).



(1971).
                                              3
      The matter was assigned to a magistrate judge, who recommended that the District

Court enter summary judgment against Davis on the ground that he had failed to exhaust

his administrative remedies. Davis objected to the Report and Recommendation. He

acknowledged that he had not pursued a remedy request concerning Officer Anderson’s

misconduct, but asked the court to excuse his failure to exhaust because Officer

Anderson’s threats of further retaliation had effectively rendered the prison’s remedy

program unavailable to him. He did not address Officer Anderson’s contention that, if he

feared retaliation from Officer Anderson, he could have bypassed the institution and

submitted a “sensitive” remedy request directly to the Regional Director under 28 C.F.R.

§ 542.14(d)(1).

      Upon review, the District Court approved and adopted the Report and

Recommendation, overruled Davis’s objections, and granted Officer Anderson’s motion.

Davis now appeals from the District Court’s order.

                                            II.

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

plenary review over the District Court’s order granting summary judgment. DeHart v.

Horn, 

, 267 (3d Cir. 2004). To the extent that our review turns on the

statutory construction of the exhaustion requirement in § 1997e(a), our review is also

plenary. Concepcion v. Morton, 

, 1352 (3d Cir. 2002). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

                                            4
nonmoving party and drawing all inferences in favor of that party, there is no genuine

dispute as to any material fact and the moving party is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 

, 422-23 (3d Cir.

2006). We may affirm a District Court’s judgment on any grounds supported by the

record. Hughes v. Long, 

, 122 n.1 (3d Cir. 2001).

       Upon review of the record, we agree with the District Court that summary

judgment was appropriate. As the District Court explained, the PLRA prohibits an

inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct

by prison officials until he has exhausted available administrative remedies. 42 U.S.C. §

1997e(a); see also Nyhuis v. Reno, 

, 69 (3d Cir. 2000). Davis conceded that

the BOP has an established Administrative Remedy Program, but argued that it was

effectively unavailable to him because Officer Anderson had threatened him with further

retaliation should he “keep filing” grievances. While we have recognized that a

prisoner’s failure to exhaust may be excused when the actions of prison staff render the

administrative remedies “unavailable,”2 we cannot say that there were no remedies

available to Davis here. Even assuming that Officer Anderson’s threats deterred Davis

from lodging an informal complaint with prison staff, see 28 C.F.R. § 542.13, or from


2
  See, e.g., Brown v. Croak, 

, 112 (3d Cir. 2002) (holding that there were
disputed issues of fact as to whether the prisoner’s administrative remedies were
“unavailable” where he claimed that he relied on prison officials’ erroneous instructions
about the grievance process); Camp v. Brennan, 

, 281 (3d Cir. 2000)
(holding that administrative remedies were unavailable where inmate was on grievance
                                             5
filing a formal request with the correctional counselor, see 

Davis could have

bypassed the institution and filed a complaint directly with the Regional Director, see 

Given that Davis did not provide any argument or evidence in the

District Court suggesting that this alternative procedure was unavailable to him, the

District Court properly entered summary judgment against him.

                                            III.

       Accordingly, we will affirm the District Court’s judgment.




restriction).
                                             6