CLD-070 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10-3474

___________ RICKY SMITH,

Appellant

v. DIRECTOR, Federal Bureau of Prisons; FEDERAL BUREAU OF PRISONS NO RTHEAST REGIONAL DIRECTOR; UNITED STATES PENITENTIARY LEWISBURG ,Religious Department Chaplains; UNITED STATES PENITENTIARY LEWISBUR G, B block unit team manager; UNITED STATES PENITENTIARY LEWISBUR G , B block unit team counselor; UNITED STATES PENITENTIARY LEWI SBURG , Z block case manager;

UNITED STATES PENITENTIARY LEWI SBURG , Z block counselor; UNITED STATES PENITENTIARY LEWI SBURG, Z block unit manager; Warden USP LEWISBURG

___________________ _________________ Appeal from the United States District Court for the Middle Distri ct of Pennsylvania (D.C. Civil No. 09-cv-02378) District Judge: Honorable William J. Nealon

___________________ _________________ Submitted for Possible Dismissal Purs uant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Pursuant to Th ird Circuit LAR 27.4 and I.O.P. 10.6 December 16, 2010 Before: RENDELL, FUENTES and SMITH, Circuit Judges (Opinion filed: January 5, 2011)

_________ OPINION OF THE COURT

_________2 PER CURIAM Ricky Smith filed a civil rights complaint in the United States District Court for the Middle District of Pennsylvania. Sm ith appeals from the District Court’s order, which granted the defendants’ motion to dism iss or, in the altern ative, for summary judgment. Smith, a federal inmate, alleged in his co mplaint that he practices the Nuwaubian Moor faith. His complaint sought damages and “Injunctive Orders for equal Religious treatment as other [Bureau of Prisons (‘BOP’) ] Inmate[s] relating to Religious Diet and freedom to practice my faith without preju[ d]ice treatment from [BOP] staff.” Smith sought to have access to vega n meals, cosmetic/hygienic items without animal products, and sought BOP recognition of his religious faith. Defendants filed a motion to dismiss, or in the alternative, for summary judgment. Defendants argued, inter alia, that the comp laint should be dism issed for failure to exhaust administrative remedies. The Distri ct Court agreed that Smith had failed to exhaust administrative remedies, and also foun d that injunctive relief was not warranted. The Court granted Defendants’ motion, and st ated that “[a]ny appeal taken from this order will be deemed frivolous, without probab le cause, and not taken in good faith.” Smith filed a timely notice of appeal, and was advised that the appeal might be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B), or might be subject to summary action. After carefully examining the District Court record, we agree with th e District Court that this appeal is frivolous.3 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. See DeHart
v. Horn , 390 F.3d 262, 267 (3d Cir. 2004). Summa ry judgment is proper where, viewing the evidence in the light mo st favorable to the nonmov ing party and drawing all inferences in favor of that party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c)(2); 1 Reedy v.
Evanson , 615 F.3d 197, 210 (3d Cir. 2010). Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is required to pursue all avenues of relief availa ble within the prison’s grievance system before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C. ' 1997e(a); Booth v. Churner , 532 U.S. 731, 741 (2001). This “exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they alle ge excessive force or some other wrong.” Porter v. Nussle , 534 U.S. 516, 532 (2002). The Federa l Bureau of Prisons (“BOP”) has established an administrative remedy procedure through which an inma te can seek formal review of any complaint regarding any aspect of his imprisonment. See 28 C.F.R. '' 542.10-542.19. In order to exhaust an appeal under the administrative remedy process, an inmate must first present hi s complaints to prison staff informally. See 28

1 We cite to Rule 56 as it appeared befo re its December 1, 2010 amendment. The amendment has no effect on this appeal.4 C.F.R. ' 542.13. If unsuccessful, the inmate may file a formal administrative remedy request. See 28 C.F.R. ' 542.14. If the inmate is unsatisfied with the response he receives from within the institution, he may f ile an appeal with the appropriate regional director. See 28 C.F.R. ' 542.15. Finally, if the inmate is dissatisfied with the response of the regional director, he may file an a ppeal with Central Office’s general counsel. See
28 C.F.R. ' 542.15(a). Upon careful review of the record, we ag ree with the District Court that summary judgment was appropriate. In support of their summary judgment motion, the defendants submitted a statement of facts, supported by a declaration fro m Attorney-Advis or John E. Wallace, an attorney at the Federal Correc tional Complex at Alle nwood, Pennsylvania, and supported by records showing grievanc es filed by Smith during the time period in question. Only three of those requests relate d in any way to the a llegations of Smith’s complaint, and it does not appear that any of them were appealed beyond the institutional level. 2 In response to the de fendants’ motion, Smith alle ged that he “filed over (3) sensitive ‘9’ and ‘10’ grievances with the Regional and Central Offices notifing [sic] there [sic] department of the mi sconduct by Lewisburg Staff re lating directly to plaintiffs original complaint,” and that he “also filed BP -8’s on this conduct with the defendants.” The record shows that Smith’s “sensitive” filings were rejected because they were not

2 One of the grievances could not be cons idered in any event, as it was filed only after Smith filed his complaint. See Ahmed v. Dragovich , 297 F.3d 201, 209 & n.9 (3d Cir. 2002) (holding that administrative exha ustion must be completed prior to initiation of suit).5 “sensitive” and should have been f iled first at the institutional level. 3 The record also shows that Smith did file a number of BP-8 ’s (the initial grieva nce), but the PLRA requires not just initial filing, but proper e xhaustion. Because Smit h did not exhaust any of his claims, the District Court properly granted summary judgment. Even if Smith was not aware of the PL RA’s exhaustion requirements when he filed his complaint, the defendants’ motion in formed him of those requirements. In its opinion, the District Court confirmed that Smith had not exhausted administrative remedies, and also informed Smith that becaus e he had failed to fulfill the requirements, any appeal from the Court’s decision would be fri volous. We will thus dismiss the appeal as frivolous, pursuant to 28 U.S.C. § 1915(e)(2)(B). 4

3 Pursuant to 28 C.F.R. § 542.14(d), an inmate may bypass filing a request at the institutional level, and instead submit the requ est directly to the appropriate Regional Director if “the inmate reasonably believes th e issue is sensitive and the inmate’s safety or well-being wo uld be placed in danger if the Reque st became known at the institution . . . .”

4 Because Smith failed to exhaust administ rative remedies, the District Court did not need to reach th e issue of whether injunctive relief was warranted. However, we note, as did the District Court, that it appears from the record that Smith has already received some of the relief he requested: he has been approved to participate in the mainline component of the religious diet pr ogram, and the Religious Issue Committee has found that the Nuwaubian Nati on is religious in nature.