ALD-047                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3589
                                       ___________

                              MUTTAQIN F. ABDULLAH,
                                                Appellant

                                             v.

                      LT. MILLER; LT. NAPP; LT. JOHNSON;
                          UNITED STATES OF AMERICA
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                             (D.C. Civil No. 3-15-cv-01153)
                           District Judge Malachy E. Mannion
                      ____________________________________

       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
                                 November 17, 2016
            Before: MCKEE, JORDAN and RESTREPO, Circuit Judges


                           (Opinion filed: December 13, 2016)
                                       _________

                                        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.
      Muttaqin F. Abdullah appeals from the judgment of the United States District

Court for the Middle District of Pennsylvania. We will summarily affirm.

      In June 2015, Abdullah, an inmate confined at USP-Lewisburg, filed an action

pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics,

(1971), alleging that USP-Lewisburg employees Lieutenant Randy

Johnson, Lieutenant Daniel Knapp, and Foreman Roger Miller used excessive force

against him when they broke up a fight between Abdullah and another inmate. Abdullah

alleged that on August 22, 2013, he and his cellmate “had a man to man fist fight with no

injuries from each other” in a recreation cage. Abdullah claimed that both inmates

stopped fighting before the three defendants arrived. Abdullah alleged that the other

inmate was handcuffed and removed from the cage and, while Abdullah was lying down

on the pavement, one of the lieutenants shot him in the back with rubber bullets and

another sprayed him with gas, causing him “severe bruises on his lower back, that made

blood visible.” Abdullah was then handcuffed, escorted to a holding cell to be searched

and decontaminated from the gas, and then medically assessed.

      In October 2015, defendants filed a motion to dismiss and/or for summary

judgment. The defendants argued, among other things, that the Bivens claim should be

rejected because Abdullah failed to exhaust his administrative remedies, allege Johnson’s

personal involvement, and establish a claim for excessive force. Defendants also argued

that summary judgment was appropriate because they were entitled to qualified

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immunity. By order entered on August 29, 2016, the District Court granted defendants’

motion for summary judgment, concluding that Abdullah failed to properly exhaust

available administrative remedies.

       Abdullah appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. Because

Abdullah has been granted in forma pauperis status pursuant to 28 U.S.C. § 1915, we

review this appeal for possible dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B). We

may summarily affirm under Third Circuit LAR 27.4 and I.O.P. 10.6 if the appeal lacks

substantial merit.

       We exercise plenary review over a district court order for summary judgment.

Giles v. Kearney, 

, 322 (3d Cir. 2009). Summary judgment is appropriate

“if the movant shows that there is no genuine dispute as to any material fact and the

movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving

party “bears the initial responsibility of informing the district court of the basis for its

motion, and identifying those portions” of the record which demonstrate the absence of a

genuine dispute of material fact. Celotex Corp. v. Catrett, 

, 323 (1986). If

the moving party meets its burden, the nonmoving party then must present specific facts

that show there is a genuine issue for trial. Fed. R. Civ. P. 56(c)(1), (e)(2); Anderson v.

Liberty Lobby, Inc., 

, 248 (1986).

       We agree with the District Court that Abdullah failed to properly exhaust available

administrative remedies prior to filing his complaint. The Prison Litigation Reform Act

                                               3
(PLRA) prohibits an inmate from bringing a civil rights suit alleging unconstitutional

conduct by prison officials “until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a); Woodford v. Ngo, 

, 84 (2006). “Proper

exhaustion demands compliance with an agency’s deadlines and other critical procedural

rules because no adjudicative system can function effectively without imposing some

orderly structure on the course of its proceedings.” 

.

Failure to substantially comply with procedural requirements of the applicable prison’s

grievance system will result in a procedural default of the claim. Spruill v. Gillis, 

, 227-32 (3d Cir. 2004). While the availability of administrative remedies is a

question of law, see Brown v. Croak, 

, 111 (3d Cir. 2002), “it necessarily

involves a factual inquiry,” Small v. Camden County, 

, 271 (3d Cir. 2013).

Judges may resolve factual disputes relating to the exhaustion of administrative remedies

without the participation of a jury. 

of Prisons (BOP) has established a multi-tier system whereby a

federal prisoner may seek formal review of any aspect of his imprisonment. See 28

C.F.R. §§ 542.10-542.19. Inmates must first informally present their complaints to staff

to attempt to resolve the matter. 28 C.F.R. § 542.13(a). If any inmate is unable to

informally resolve his complaint, he must then file a formal written complaint to the

Warden on the appropriate form (BP-9) within twenty days of the date on which the

subject matter of the complaint occurred. 28 C.F.R. § 542.14(a). The Warden shall

                                             4
respond within twenty days. 28 C.F.R. § 542.18. In the event that the inmate is

dissatisfied with the Warden’s response, he may file an appeal to the Regional Director

on the appropriate form (BP-10) within twenty calendar days of the response. 28 C.F.R.

§ 542.15(a). Finally, if the inmate is dissatisfied with the Regional Director’s response,

that decision may be appealed to the Central Office of the BOP within thirty calendar

days. 

exhibits provided by defendants with their motion to dismiss and/or for

summary judgment1 show that Abdullah was charged with two violations, fighting

another person and refusing an order, for the August 22, 2013 incident. On August 23,

2013, Abdullah appeared before the Unit Discipline Committee (UDC), and admitted to

fighting with the other inmate. The UDC referred the charge to the Discipline Hearing

Officer (DHO), recommending appropriate sanctions not available to the UDC. On

September 3, 2013, Abdullah appeared for a hearing before the DHO, during which he

admitted to fighting but questioned why the defendants “shot [him] up afterwards.” The

DHO informed Abdullah that a discipline hearing was not the forum to raise excessive

force claims and advised him to file a Request for Administrative Remedy. The DHO

sanctioned Abdullah to disallowance of twenty-seven days good conduct time, thirty days


1
  Among other things, defendants provided as exhibits the August 22, 2013 incident
report, the Administrative Remedy Generalized Retrieval Report, the Notice of Discipline
Hearing Before the (DHO), the DHO report, and incident memoranda from Knapp and
Miller.

                                             5
disciplinary segregation, and ninety days loss of commissary and visiting privileges. The

DHO advised Abdullah of his right to appeal the decision within twenty days under the

BOP’s Administrative Remedy Procedure. On June 4, 2014, Abdullah filed an

administrative tort claim, pursuant to the Federal Tort Claims Act (FTCA), which was

subsequently denied by the Northeast Regional Office of the Federal Bureau of Prisons

on December 1, 2014.

       As the District Court aptly noted, even though Abdullah was instructed to file an

administrative remedy with respect to his allegations of excessive force and was advised

of his right to appeal the DHO’s findings, there is no evidence in the record that Abdullah

filed an administrative remedy or appealed the fighting violation. While Abdullah argues

that “during the month of September 2013” he sent a BP-8 and BP-9 to the Warden with

no response, there is no record of a grievance filed by Abdullah at the institutional level

during the month of September 2013.2 Abdullah’s argument that “during the month of

October 2013, [he] filed a BP-10 to the Regional Office in the city of Philadelphia, PA,

and the Regional Office responded by informing [him] that they could not give [him] a

disposition to [his] complaint with the BP-8, and BP-9 grievance forms not attach[ed]

with [his] BP-10” is equally unpersuasive as the record shows that Abdullah had only two


2
 The District Court explained that the only activity reflected for the month of September
2013 on the Administrative Remedy Generalized Retrieval Report provided by
defendants was a September 9, 2013 appeal to the Northeast Regional Office, filed by
Abdullah from the denial of his August 19, 2013 grievance concerning the confiscation of
property.
                                            6
administrative submissions in October 2013, neither of which were related to this action.

Abdulla’s failure to follow the administrative remedy requirements of the BOP amounts

to a procedural default of his federal claim.3 See 

. Thus, the

District Court properly granted summary judgment to defendants.

       As there is no substantial question presented by this appeal, we will summarily

affirm the judgment of the District Court.




3
  The District Court noted that while this action was not filed as an FTCA case, Abdullah
submitted a copy of the FTCA remedy he pursued. The District Court explained,
however, that the FTCA provides that a tort claim against the United States is barred
“unless action is begun within six months after the date of mailing . . . of notice of final
denial of the claim by the agency to which it was presented.” 28 U.S.C. § 2401(b); see
also 28 C.F.R. § 14.9(a) (stating that if a claimant is dissatisfied with the final denial of
an administrative claim, “he may file suit in an appropriate U.S. District Court not later
than 6 months after the date of mailing of the notification”). The final denial of
Abdullah’s claim was mailed on December 1, 2014. Abdullah was required to file any
action in the District Court by June 1, 2015. We agree with the District Court’s
conclusion that because Abdullah did not commence this action until June 11, 2015, his
tort claim is barred by the statute of limitations period.
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