UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 11-6207

MYLES SPIRES,

Plaintiff - Appellant,

v.

LIEUTENANT HARBAUGH; OFFICER CROWE,

Defendants - Appellees.

Appeal from the United States District Court for the District of 

Maryland, at Baltimore. Richard D. Bennett, District Judge. 

(1:10-cv-01597-RDB)

Submitted: June 9, 2011 Decided: July 12, 2011

Before NIEMEYER, KEENAN, and DIAZ, Circuit Judges.

Affirmed in part, vacated in part, and remanded by unpublished 

per curiam opinion.

Myles Spires, Appellant Pro Se. Nichole Cherie Gatewood, OFFICE 

OF THE ATTORNEY GENERAL OF MARYLAND, Baltimore, Maryland, for 

Appellees.

Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:

Myles Spires appeals the district court’s order 

granting summary judgment to the Defendants on his 42 U.S.C. 

§ 1983 (2006) complaint. For the reasons that follow, we affirm 

in part, vacate in part, and remand for further proceedings.

We review de novo a district court’s order granting 

summary judgment, viewing the facts and drawing reasonable 

inferences therefrom in the light most favorable to the nonmoving party. Bonds v. Leavitt, 629 F.3d 369, 380 (4th Cir. 

2011). Summary judgment may be granted only when “there is no 

genuine issue as to any material fact and the movant is entitled 

to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[T]here is 

no issue for trial unless there is sufficient evidence favoring 

the nonmoving party for a jury to return a verdict for that 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 

(1986). For a non-moving party to present a genuine issue of 

material fact, “[c]onclusory or speculative allegations do not 

suffice, nor does a mere scintilla of evidence in support of 

[the non-moving party’s] case.” Thompson v. Potomac Elec. Power 

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks 

omitted).

The district court dismissed the primary claim in

Spires’ complaint for failure to exhaust administrative 
3

remedies. A prisoner must properly exhaust available 

administrative remedies prior to filing a 42 U.S.C. § 1983 

action concerning prison conditions. 42 U.S.C. § 1997e(a) 

(2006). This exhaustion requirement “applies to all inmate 

suits about prison life, whether they involve general 

circumstances or particular episodes, and whether they allege 

excessive force or some other wrong.” Porter v. Nussle, 534 

U.S. 516, 532 (2002). However, an inmate need not take 

advantage of an “unavailable” remedy, and “an administrative 

remedy is not considered to have been available if a prisoner, 

through no fault of his own, was prevented from availing himself 

of it.” Moore v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008). 

“[F]ailure to exhaust available administrative remedies is an 

affirmative defense, not a jurisdictional requirement, and thus 

inmates need not plead exhaustion, nor do they bear the burden 

of proving it.” Id.

Spires submitted copies of two Request for 

Administrative Remedy forms, but the district court’s opinion 

only addresses one. The district court found that the form 

provided no information as to whether it was actually filed. 

However, the form is signed and dated by a guard, indicating 

that Spires submitted the form. It appears that the form did 

not arrive at its intended destination, however, as the 

Institutional Administrative Remedy Coordinator did not 
4

acknowledge that it was received. The second Request for 

Administrative Remedy form was received by the Institutional 

Administrative Remedy Coordinator (IARC) and was dismissed. 

That dismissal was apparently overturned by the Commissioner of 

Corrections, as evidenced by another copy of the same request 

showing a second dismissal by the IARC for a different reason.

Spires provided no direct documentary evidence that he 

appealed this second dismissal to the Commissioner of 

Corrections, other than his own averments. According to his 

account, he did appeal a second time but he received no response 

from the Commissioner. Pursuant to the agency’s procedures, a

non-response by the Commissioner amounts to a denial after 

thirty days have elapsed; a non-response is thus not fatal to 

Spires’ claim of exhaustion. Moore, 517 F.3d at 725 (having 

utilized available remedies in accordance with applicable 

procedural rules, “a prisoner has exhausted his available 

remedies, even if prison employees do not respond”). Spires 

then appealed that denial to the Inmate Grievance Office, the 

third and final level of administrative review, and submitted a 

copy of this appeal to the district court. In the appeal to the 

Inmate Grievance Office, Spires specifically noted that he 

appealed to the Commissioner and received no response for a 

period of over thirty days. This secondary documentation is 
5

consistent with Spires’ account.1 For the purposes of opposing a 

motion for summary judgment, it is at least sufficient to create 

a genuine issue of material fact.2

Apart from the failure to exhaust administrative

remedies, the district court also found that summary judgment 

was warranted to the extent that Spires’ complaint was based on 

the denial of adequate dental care. Spires’ appellate brief 

made no mention of this aspect of the district court’s decision. 

We therefore will neither consider nor disturb it. See 4th Cir. 

R. 34(b) (“The Court will limit its review to the issues raised 

 Viewing the facts in the 

light favorable to Spires, we conclude that a genuine issue of 

material fact exists on the issue of whether he made sufficient 

filings to properly exhaust his available administrative 

remedies.

 1 The Inmate Grievance Office did not acknowledge receipt of 

Spires’ appeal. Spires has consistently claimed that guards 

interfered with his filing of grievances, an explanation that 

would be less credible were it not for the evidence of his 

earlier Request of Administrative Remedy that was signed by a 

guard but apparently never processed by the Institutional 

Administrative Remedy Coordinator. Spires also provided 

detailed information about the mailing of his appeal, including 

the date and time the mail was picked up and the identity of the 

guard who took it.

2 For its part, the State alleged to the district court that 

Spires availed himself of none of the avenues of administrative 

relief. This highly material fact is clearly disputed by 

Spires’ submission of copies of dismissals of his administrative 

remedy requests.
6

in the informal brief.”); Canady v. Crestar Mortg. Corp., 109 

F.3d 969, 973-74 (4th Cir. 1997).

Accordingly, we affirm the district court’s grant of 

summary judgment to the extent Spires stated a claim for denial 

of dental care. We vacate the district court’s judgment to the 

extent it was premised on Spires’ non-exhaustion of 

administrative remedies and remand so that the district court 

may re-evaluate the propriety of dismissal on this basis or 

consider the alternative grounds raised by the summary judgment 

motion in the first instance. We deny Spires’ request for 

appointment of counsel on appeal. We dispense with oral 

argument because the facts and legal contentions are adequately 

presented in the materials before the court and argument would 

not aid the decisional process.

AFFIRMED IN PART, 

VACATED IN PART, 

AND REMANDED