Walter Duane White v. Warden B.a. Bledsloe

BLD-094 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-3903
WALTER DUANE WHITE,
Appellant
v.
WARDEN B.A. BLEDSLOE; CHAD RICE, Correctional Counselor;
KAVANAUGH, Correctional Counselor; UNIT MANAGER ADAMI
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-08-cv-01388)
District Judge: Honorable Thomas I. Vanaskie
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
January 14, 2010
Before: MCKEE, RENDELL and CHAGARES, Circuit Judges
(Opinion filed: March 9, 2010)
OPINION
PER CURIAM
Walter Duane White, a federal prisoner proceeding pro se, appeals from the
District Court’s order granting the defendants’ motion for summary judgment. For the
reasons that follow, we will summarily affirm the District Court’s order.

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1 White is no longer incarcerated at USP-Lewisburg; he is presently confined at the
Federal Correctional Institution in Butner, North Carolina.
2
In July 2008, White commenced an action under Bivens v. Six Unknown Federal
Narcotics Agents, 403 U.S. 388 (1971), in the United States District Court for the Middle
District of Pennsylvania. In the complaint, White claimed that he had been transferred to
the United States Penitentiary at Lewisburg (“USP-Lewisburg”) in Lewisburg,
Pennsylvania from the Gilmer Federal Correctional Institution (“FCI-Gilmer), in
Glenville, West Virginia, in retaliation for complaining about allegedly inadequate
medical care.1 He also alleged that the defendants failed to protect him from an assault by
another inmate, fabricated an incident report which resulted in excessive sanctions, and
denied him access to legal materials. White named as defendants four USP-Lewisburg
officials.
The defendants filed a motion to dismiss, or, in the alternative, for summary
judgment on the ground that, with the exception of the retaliatory transfer claim, White
had not exhausted his administrative remedies prior to commencing the present action.
With respect to the retaliatory transfer claim, the defendants asserted that they did not
have any personal involvement in the decision to transfer White. By order entered
September 24, 2009, the District Court construed the defendants’ motion as solely
seeking summary judgment, granted it with respect to the retaliatory transfer claim, and
dismissed the remaining claims, without prejudice, for failure to exhaust administrative
remedies. White appealed.

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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). Summary judgment is proper where, viewing
the evidence in the light most favorable to the nonmoving 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); Kaucher v.
County of Bucks, 455 F.3d 418, 422-23 (3d Cir. 2006).
Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is
required to pursue all avenues of relief available 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 allege excessive force or some other wrong.”
Porter v. Nussle, 534 U.S. 516, 532 (2002). The Federal Bureau of Prisons (“BOP”) has
established an administrative remedy procedure through which an inmate 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 his complaints to prison staff informally. See 28
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 file an appeal with the appropriate regional

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2 The other two exhausted administrative remedy requests concerned White’s wish to
be transferred to a medical center and his complaints about a May 22, 2008, disciplinary
hearing. It is not clear whether that disciplinary hearing was the one which resulted in the
allegedly excessive sanctions that White challenged in his complaint. Even if it was,
however, there is still a failure to exhaust because White sought Central Office review of
that grievance only after he filed his complaint. See Ahmed v. Dragovich, 297 F.3d 201,
209 & n.9 (3d Cir. 2002) (holding that administrative exhaustion must be completed prior
to initiation of suit).
4
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 appeal with Central Office’s general counsel. See
28 C.F.R. § 542.15(a).
Upon careful review of the record, we agree with the District Court that summary
judgment was appropriate. In support of their summary judgment motion, the defendants
submitted a declaration from the Supervisory Attorney at USP-Lewisburg. In the
declaration, the Supervisory Attorney stated that a review of BOP records indicated that
White had filed 14 requests for administrative relief regarding issues allegedly occurring
at USP-Lewisburg. Only three of those requests, however, were appealed to the Central
Office. Of those three exhausted requests, only one pertained to an issue raised in
White’s complaint, namely, the allegedly retaliatory transfer.2 White asserted that he
satisfied the exhaustion requirement because his administrative challenge to his transfer
encompassed all of the allegedly unconstitutional conduct which subsequently occurred at
USP-Lewisburg. But the Supervisory Attorney’s declaration indicates that the pertinent
grievance “concerned a request that [his] inmate custody classification be lowered so he
could be transferred to an FCI, and included language complaining about his transfer

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5
from FCI-Gilmer.” We conclude that this satisfies the defendants’ burden of pleading
and proving non-exhaustion. See Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). To
the extent White alleged that exhaustion would have been futile, we reject his claim. See
Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000).
We also agree that White’s retaliatory transfer claim lacks merit because he did not
allege any facts to indicate that the defendants had personal involvement in his transfer.
“A defendant in a civil rights action must have personal involvement in the alleged
wrongs” to be liable. Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). In this
case, the defendants asserted that they had no part in the decision to transfer White.
Indeed, the Supervisory Attorney’s declaration explains that “[i]nstitution staff do not
have the authority to determine designations and transfers.” White concedes that the
defendants “did not participate in” the transfer, but argues that the defendants are
nonetheless liable because he told them upon arrival at USP-Lewisburg that his transfer
was retaliatory. But the fact that the defendants may have been aware of the allegedly
retaliatory transfer after it occurred does not justify the imposition of liability. See Bressi
v. Ford, 575 F.3d 891, 899 n.8 (9th Cir. 2009) (holding that police officer was not liable
under respondeat theory where officer “did not direct the arrest, nor did he know of it
until after the fact.”).
For the foregoing reasons, we conclude that no substantial question is presented by
this appeal. See I.O.P. 10.6. Accordingly, we will summarily affirm the District Court’s
judgment. White’s “Motion to File Argument in Support of Appeal to Exceed (5) Five

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Pages” is granted. His motion for appointment of counsel is denied. See Tabron v.
Grace, 6 F.3d 147, 155 (3d Cir. 1993).

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