PS5-164 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-2779

___________

WILLIE L. DAVIS,

Appellant

v.

C. ANDERSON

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 13-cv-02722)

District Judge: Honorable Robert D. Mariani

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

July 7, 2015

Before: CHAGARES, JORDAN and COWEN, Circuit Judges

(Opinion filed: July 20, 2015)

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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.
2

Appellant, Willie L. Davis, appeals pro se from the judgment entered against him 

in this civil rights action. For the following reasons, we will affirm.

I.

Davis is a federal prisoner who is, and at all times relevant to this case was, 

incarcerated at the United States Penitentiary in Lewisburg, Pennsylvania. In November 

2013, Davis commenced this Bivens1action in the United States District Court for the 

Middle District of Pennsylvania against C. Anderson, a corrections officer at USPLewisburg. In the complaint, Davis stated that, on October 2, 2013, Officer Anderson 

was escorting Davis back to his cell after a cell search when Officer Anderson warned 

Davis not to continue filing grievances and law suits, stating: “you keep filing and we are 

going to keep doing what we are doing.” Davis further alleged that when he arrived at 

his cell, he saw that his notes and time logs pertaining to several pending law suits 

against USP-Lewisburg corrections officers had been destroyed. According to Davis, 

when he asked Officer Anderson why his legal mail had been “sabotaged,” Officer 

Anderson stated: “it can get much worse for you, so be happy that[’]s all we did.” In 

support of these allegations, Davis attached to his complaint affidavits from two fellow 

inmates who attested that they were present when Officer Anderson made these threats. 

Davis claimed that Officer Anderson’s conduct amounted to retaliation in violation of his 

rights under the First Amendment, and sought compensatory and punitive damages. 

 

1 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 
3

Officer Anderson filed a motion seeking dismissal, or, in the alternative, summary 

judgment on the ground that, inter alia, Davis had failed to exhaust his administrative 

remedies in accordance with the Prison Litigation Reform Act (“PLRA”). See 42 U.S.C. 

§ 1997e(a). Officer Anderson explained that, in order to exhaust a complaint under the 

Federal Bureau of Prisons’ (“BOP”) Administrative Remedy Program, an inmate

generally must first present his complaint to prison staff in an effort to informally resolve 

the matter, and then, if informal resolution fails, file a formal request with the prison, 

followed by two levels of administrative review. See 28 C.F.R. § 542.13-15. Officer 

Anderson further explained that the BOP provides an exception to this procedure if an 

inmate “reasonably believes the issue is sensitive and the inmate’s safety or well-being 

would be placed in danger if the Request became known at the institution.” 28 C.F.R. § 

542.14(d)(1). Under these circumstances, an inmate may submit his request directly to 

the appropriate Regional Director. Officer Anderson argued that because Davis did not 

take advantage of these available BOP procedures, he could not seek redress in federal 

court. 

Davis did not address the PLRA’s exhaustion requirement in his response to 

Officer Anderson’s motion. Instead, he submitted an affidavit pursuant to Rule 56(d), 

requesting that the court either deny the motion, or delay ruling on it, because he had not 

been given sufficient time to conduct discovery. See Fed. R. Civ. P. 56(d). 

 

(1971). 
4

The matter was assigned to a magistrate judge, who recommended that the District 

Court enter summary judgment against Davis on the ground that he had failed to exhaust 

his administrative remedies. Davis objected to the Report and Recommendation. He

acknowledged that he had not pursued a remedy request concerning Officer Anderson’s

misconduct, but asked the court to excuse his failure to exhaust because Officer 

Anderson’s threats of further retaliation had effectively rendered the prison’s remedy 

program unavailable to him. He did not address Officer Anderson’s contention that, if he 

feared retaliation from Officer Anderson, he could have bypassed the institution and 

submitted a “sensitive” remedy request directly to the Regional Director under 28 C.F.R. 

§ 542.14(d)(1). 

Upon review, the District Court approved and adopted the Report and 

Recommendation, overruled Davis’s objections, and granted Officer Anderson’s motion.

Davis now appeals from the District Court’s order. 

II.

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. DeHart v.

Horn, 390 F.3d 262, 267 (3d Cir. 2004). To the extent that our review turns on the 

statutory construction of the exhaustion requirement in § 1997e(a), our review is also 

plenary. Concepcion v. Morton, 306 F.3d 1347, 1352 (3d Cir. 2002). Summary 

judgment is proper where, viewing the evidence in the light most favorable to the 
5

nonmoving party and drawing all inferences in favor of that party, there is no genuine 

dispute as to any material fact and the moving party is entitled to judgment as a matter of 

law. Fed. R. Civ. P. 56(a); Kaucher v. Cnty. of Bucks, 455 F.3d 418, 422-23 (3d Cir. 

2006). We may affirm a District Court’s judgment on any grounds supported by the 

record. Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001).

Upon review of the record, we agree with the District Court that summary 

judgment was appropriate. As the District Court explained, the PLRA prohibits an 

inmate from bringing a civil rights suit alleging specific acts of unconstitutional conduct 

by prison officials until he has exhausted available administrative remedies. 42 U.S.C. § 

1997e(a); see also Nyhuis v. Reno, 204 F.3d 65, 69 (3d Cir. 2000). Davis conceded that 

the BOP has an established Administrative Remedy Program, but argued that it was 

effectively unavailable to him because Officer Anderson had threatened him with further 

retaliation should he “keep filing” grievances. While we have recognized that a 

prisoner’s failure to exhaust may be excused when the actions of prison staff render the 

administrative remedies “unavailable,”2 we cannot say that there were no remedies 

available to Davis here. Even assuming that Officer Anderson’s threats deterred Davis

from lodging an informal complaint with prison staff, see 28 C.F.R. § 542.13, or from 

 

2 See, e.g., Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (holding that there were 

disputed issues of fact as to whether the prisoner’s administrative remedies were 

“unavailable” where he claimed that he relied on prison officials’ erroneous instructions 

about the grievance process); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 2000)

(holding that administrative remedies were unavailable where inmate was on grievance 
6

filing a formal request with the correctional counselor, see id. § 542.14, Davis could have 

bypassed the institution and filed a complaint directly with the Regional Director, see id.

§ 542.14(d)(1). Given that Davis did not provide any argument or evidence in the 

District Court suggesting that this alternative procedure was unavailable to him, the 

District Court properly entered summary judgment against him. 

III.

Accordingly, we will affirm the District Court’s judgment. 

 

restriction).