ALD-234                                                  NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                  No. 10-1453
                                  ___________

                               FRANK RIVERA,
                                                   Appellant

                                        v.

   PENNSYLVANIA DEPARTMENT OF CORRECTIONS; JEFFREY BEARD,
   Secretary of Corrections; LOUIS S. FOLINO, Superintendent; DAN DAVIS,
   Grievance Coordinator; DORENA VARNER, Chief Grievance Officer; DIANE
  THOMAS, Superintendent Assistant; MAJOR GRAINEY; CAPTAIN WALKER,
   RHU Captain; ROBERT L. KENNEDY, RHU Lieutenant; MS. BALESTRIERI,
  Counselor; MS. NICKOLAS, Counselor; DR. KHAN, Psychiatrist; DR. EUGENE
    POLMULLER, Psychiatrist Supervisor; JOHN MCANANY, Registered Nurse
                          Supervisor; JOHN/JANE DOES
                    ____________________________________

                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                          (D.C. Civil No. 09-cv-01009)
                  Magistrate Judge: Honorable Cathy Bissoon
                  ____________________________________

      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
                                   July 1, 2010
          Before: SLOVITER, AMBRO AND SMITH, Circuit Judges

                              (filed: July 19, 2010)
                                    _________

                                   OPINION
                                   _________

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PER CURIAM

       Appellant Frank Rivera, proceeding pro se, appeals from the judgment of the United

States District Court for the Western District of Pennsylvania entered on January 22, 2010,

granting the appellees’ motions to dismiss. For the reasons stated herein, we will summarily

affirm the judgment of the District Court.

       In August 2009, Rivera filed a complaint against the Pennsylvania Department of

Corrections, several prison officials, and the prison’s psychiatrists, raising claims under 42

U.S.C. § 1983 for First, Eighth, and Fourteenth Amendment violations. Rivera is an inmate

confined in the Restricted Housing Unit (RHU) at the SCI-Greene prison.                 Rivera

complained that as a direct result of the excessive and incessant noise created by the officers

slamming doors every time they exit the housing pod after security rounds, he is awakened

from sleep every thirty minutes. He alleged that such “inhumane” conditions have deprived

him of adequate sleep and, that as a consequence, he has suffered from adverse effects on his

health such as stress, anxiety, fatigue and depression.

       In an attempt to resolve the problem, Rivera verbally complained to the prison guards,

his counselor, and his psychiatrist on several occasions. He also filed several written

complaints to various prison officials. When his complaints failed to produce any results,

he timely filed Grievance #206769 on November 2, 2007. However, the grievance was

rejected by the Facility Grievance Coordinator because it exceeded the two-page limit.

Rather than amend the grievance to comply with the procedural requirements outlined in DC-

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ADM 804, Rivera filed an appeal. Rivera received a response from the Secretary’s Office

of Inmate Grievances and Appeals, notifying him that his appeal was filed without action

because his initial grievance failed to comply with the two-page limit. In response to the

denial of his appeal, Rivera filed the instant action seeking a declaratory judgment: 1)

enjoining the defendants from creating excessive noise; and 2) enjoining defendants Beard,

Folino, and the Department of Corrections from enforcing certain policies outlined in the

Department of Corrections handbook.

      The Department of Corrections defendants filed a motion to dismiss arguing that

Rivera failed to exhaust administrative remedies, among other secondary arguments.

Defendants Mohammad Khan and Eugene Polmueller, psychiatrists employed by the

Department of Corrections, joined the motion to dismiss, and separately filed their own

motion to dismiss, arguing that Rivera failed to state a claim against them. The District

Court granted both motions to dismiss, holding that Rivera had failed to exhaust his

administrative remedies. Rivera filed a timely notice of appeal.

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

appeal presents no “substantial question,” we will summarily affirm the District Court’s

order. 3d Cir. LAR 27.4 & I.O.P. 10.6.

      An inmate must exhaust his administrative remedies prior to filing a civil action in

federal court. See Booth v. Churner, 

, 738-39 (2001); see also Nyhuis v. Reno,

, 78 (3d Cir. 2000) (finding that exhaustion must occur before filing suit).



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Furthermore, courts do not recognize a “futility” exception to the administrative exhaustion

requirement. See 

. More importantly, “proper exhaustion” requires

a prisoner to comply with an agency’s deadlines and other critical procedural rules. See

Woodford v. Ngo, 

, 90-91 (2006). While a prisoner must comply with prison

procedures, “compliance with the administrative remedy scheme will be satisfactory if it is

substantial.” See 

.

       Applying these legal holdings, the District Court held that Rivera failed to exhaust his

administrative remedies for the following reasons: 1) his failure to even attempt to comply

with the two-page limitation was a sufficient basis for determining that he failed to

“substantially comply” with the legitimate administrative appeals process; and 2) his

argument that his constitutional rights were violated by the enforcement of the procedural

requirement is without merit.      Because we agree that he failed to properly exhaust

administrative remedies, we cannot reach the merits of his excessive noise claim at this time.

       Additionally, Rivera asserted that the two-page procedural requirement itself violated

his First Amendment rights and that excluding “conditions of confinement” from being

reported as abuse also violated his constitutional rights. These constitutional claims are

without merit. See 

; Jones v. N.C. Prisoners’ Labor Union, Inc.,

, 129-31 (1977).

       Accordingly, we will summarily affirm the decision of the District Court. See 3d Cir.

LAR 27.4 & I.O.P. 10.6.



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