DLD-017 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2397
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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
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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)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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 action pursuant to Bivens v. Six Unknown Named
Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against Lieutenants
Sherman, Miller, and Agones, claiming that he suffered scars and dark spots on his body
after being placed in restraints by them. 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. The District Court granted defendants’ motion for summary
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 summarily affirm if
an appeal lacks substantial merit. LAR 27.4 and I.O.P. 10.6. We exercise plenary review
over a District Court 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 dispute as to any material fact and the movant is entitled to judgment as a
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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).
An inmate may not bring a suit alleging unconstitutional conduct by prison
officials “until such administrative remedies as are available 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 imposing 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 procedural 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 formal written complaint to the warden on the appropriate form (BP-9)
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within twenty days of the date on which the subject matter of the complaint occurred.
28 C.F.R. § 542.14(a). Subsequent administrative 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 the 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, defendants submitted the
BOP’s entire file relating to Livingston’s grievances and disciplinary proceedings.
These submissions showed that Livingston did exhaust his administrative remedies as
to several Discipline Hearing Officer (DHO) decisions, including an appeal (case
number 729172) from a disciplinary determination that Livingston assaulted an officer
during an incident which resulted in the guard placing Livingston on the ground to
regain control. But the record revealed that he did not submit even an initial grievance
in regards to the matters alleged in his complaint.
Without providing documents or affidavits, Livingston simply contended in
response that he initiated the administrative appeal process in case number 729172.
As noted, however, that case concerned Livingston’s appeal of a disciplinary
determination. It may be that the facts underlying that case are related to Livingston’s
allegations about the defendants’ use of restraints. But even assuming that they are, a
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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
restraints. 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 respect 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 decision. 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 claims 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 he
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explained the Eighth Amendment standard for excessive force and cited to Supreme
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 motions for
appointment of counsel. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).
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