DLD

- 017 NOT PRECEDENTIAL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

___________ No. 17

- 2397

___________ ANTHONY LIVINGSTON , Appellant

v. LIEUTENANT SHERMAN;

LIEUTENANT MILLER; LIEUTENANT AGONES

____________________________________ On Appeal from the United States District Court for the Middle District of Pennsylvania ( M.D. Pa. Civ. No. 1

- 16

- cv - 00039 ) District Judge: Honorable John E

. Jones III

____________________________________ 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 October 19, 2017 Before: JORDAN, SHWARTZ, and KRAUSE , Circuit Judges (Opinion filed : October 24, 2017 )

___________

OPINION *

___________

* This disposition is not an opinion of the full C ourt and pursuant to I.O.P. 5.7 does not constitute binding precedent.2 PER CURIAM Anthony Livingston appeals from the District Court’s order granting a motion for summary judgment. For the reasons that follow, we will summarily affirm. In January 2016, Livingston , a prisoner at United States Penitentiary

- Lewisburg at all relevant times, filed a civil rights acti on pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics , 403 U.S. 388 (1971) , against Lieutenant s Sherman, Miller, and Agones, claiming that he suffered scars and dark spots on his body after being placed in restraints by the m . Livingston asserted that he filed the necessary forms (BP

- 9, BP

- 10, BP

- 11) to comply with the grievance procedure, and that prison officials conducted an investigation. In October 2017, defendants filed a motion to dismiss or, in the alternative, for summary judgment , arguing that Livingston failed to exhaust his administrative remedies. In his brief of opposition, Livingston reasserted his claim that he did exhaust his administrative remedies. T he District Court granted defendants’ motion for summar y judgment

. After unsuccessfully asking for reconsideration, Livingston timely appealed

. On appeal, Livingston asks for the appointment of counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291. We may summa rily affirm if

an appeal lacks substanti al merit. LAR 27.4 and I.O.P. 10.6

. We exercise plenary review over a District C ourt order for summary judgment. See Giles v. Kearney , 571 F.3d 318, 322 (3d Cir. 2009). Summary judgment is appropriate “if the movant shows that there is no genuine dispu te as to any material fact and the movant is entitled to judgment as a3 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 , 477 U.S. 317, 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); See also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). A n inmate may not bring a suit alleging unconstitutional conduct by prison officials “until such administrative remedies as are availab le are exhausted.” 42 U.S.C. § 1997e(a); Woodford v. Ngo , 548 U.S. 81, 84 (2006). “Proper exhaustion demands compliance with an agency’s deadlines and other critical procedural rules because no adjudicative system can function effectively without imposin g some orderly structure on the course of its proceedings.” Woodford , 548 U.S. at 90

- 91. Failure to substantially comply with procedural requirements of the applicable prison’s grievance system will result in a pro cedural default of the claim. Spruill v

. Gillis , 372 F.3d 218, 227

- 32 (3d Cir. 2004). The Bureau of Prisons (BOP) has established a multi

- tier system in which a federal prisoner may seek formal review of any aspect of his imprisonment. See 28 C.F.R. §§ 542.10

- 542.19. If an inmate is unable to informally resolve his complaint, he must file a f ormal written complaint to the w arden on the appropriate form (BP

- 9)4 within twenty days of the date on which the subject matter of the complaint occurred. 28 C.F.R. § 542.14(a). Subsequent administrat ive appeals are to the Regional Director (form BP

- 10) and the Central Office of the BOP (form BP

- 11)

. 28 C.F.R. § § 542. 14

- 542.15. We agree with the District Court’s entry of summary judgment against Livingston

. As the moving party, the defendants bore th e burden to show that there was no genuine issue of fact , and , as the District Court concluded, they met that burden

. In support of their motion for summary judgment, d efendants submitted the BOP ’ s entire file relating to Livingston’s grievances and disci plinary proceedings

. These submissions show ed that Livingston did exhaust his administrative remedies as
to several Discipline Hearing Officer (DHO) decisions , including a n appeal (case number 729172) from a disciplinary determination that Livingston assa ulted an officer during an incident which resulted in the guard placing Livingston on the ground to regain control

. B ut the record revealed that he did not submit even an initial grievance in regards to the matters alleged in his complaint. Without provi ding documents or affidavits, Livingston simply contended in
response that he initiate d the administrative appeal process in case number 729172

. As noted, however, that case concern ed Livingston’s appeal of a disciplinary determination

. It may be that th e facts underlying that case are related to Livingston’s allegations about the defendants’ use of restraints. But even assuming that they are, a5 disciplinary proceeding about an assault committed by Livingston would not involve consideration of whether he was , at some point after the assault , improperly placed in restrain t s. See Woodford , 548 U.S. at 89 (explaining that exhaustion of remedies

serves , among other things, the purpose of giving the agency “ ‘ an opportunity to correct its own mistakes with resp ect to the programs it administers before it is haled into federal court.’ ” (quoting McCarthy v. Madigan , 503 U.S. 140 , 145 (1992) )). Indeed , we note that Livingston did not mention the claims alleged in his complaint in the appeal forms for the DHO decis ion. Thus, we must conclude that Livingston did not meet his burden of showing the genuine existence of any material issue as to exhaustion. See Anderson , 477 U.S. at 249; Celotex Corp. , 477 U.S. at 322

- 23. The District Court also examined Livingston’s cl aims under the Federal Tort Claims Act (FTCA)

. 28 U.S.C. § 2679(b)(1). Based on the BOP’s file relating to Livingston’s grievances and disciplinary proceedings, the District Court concluded that Livingston could not succeed with a FTCA claim since he had not filed an administrative tort claim

. “No claim can be brought under the FTCA unless the plaintiff first presents the claim to the appropriate federal agency and the agency renders a final decision on the claim.” Shelton v. Bledsoe , 775 F.3d 554, 569 (3d Cir. 2015)

. We agree

. Finally, we conclude that the District Court did not abuse its discretion in denying Livingston ’s Fed. R. Civ. P. 59 motion for reconsideration , where he6 explained the Eighth Amendment standard for excessive force and cited to S upreme Court cases, but did not provide a sound reason as to why the District Court should reexamine its conclusion about exhaustion

. See Max’s Seafood Café v. Quinteros , 176 F.3d 669, 677 (3d Cir. 1999). For the foregoing reasons, we conclude that there is no substantial question presented by this appeal and will thus summarily affirm the District Court’s order granting summary judgment to the defendants. Livingston ’s motion for appointment of counsel is denied

. 1

1 The District Court did not abuse its discretion in denying Livingston’s two motion s for appointment of counsel

. See Tabron v. Grace , 6 F.3d 147, 155 (3d Cir. 1993)

.