Steven BELL, Appellant v. John SKENDALL, SNU Unit Manager; Michael Harlow, Superindenent; Wendell Pazt, SNU Psych; Maxine Overton, Healthcare Administrator, 470 F. App'x 65

OPINION PER CURIAM. Steven Bell appeals pro se from the order of the United States District Court for the Western District of Pennsylvania dismissing his case. Because the appeal is lacking in arguable merit, we will dismiss it under 28 U.S.C. § 1915(e)(2). Steven Bell is a Pennsylvania state prisoner, incarcerated at the State Correctional Institution at Albion (SCI Albion). He filed suit pursuant to 42 U.S.C. § 1983 against officials of the Special Needs Unit (SNU) and the health care administrator at SCI Albion.

Bell alleged that the defendants violated his rights under the Eighth and Fourteenth amendments of the United States Constitution by removing him from the SNU despite his need for mental health treatment. The defendants filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. In their motion the defendants raised the affirmative defense that Bell had failed to exhaust his administrative remedies, disputing Bell’s claim in his complaint that he had filed grievances which had been denied.

The defendants attached to their motion a sworn declaration by Leilani Sears, an administrative officer responsible for reviewing prison grievance records, who stated that Bell “has not properly appealed any grievance to final review,” and attached in turn copies of Bell’s filings. The District Court issued an order which, inter alia, advised the parties that the motion may be treated as a motion for

summary judgment and advised Bell that he could respond to the defendant’s motion with opposing affidavits. Because Bell merely responded with a motion to amend his complaint and failed to address the question of exhaustion at all, the District Court granted the defendants’ motion. We have appellate jurisdiction under 28 U.S.C. § 1291, and because Bell is proceeding in forma pauperis, we review the appeal for possible dismissal under 28 U.S.C. § 1915(e)(2). Our review is plenary. See DiGiacomo v.

Teamsters Pension Trust Fund of Phila. and Vicinity, 420 F.3d 220, 222 n. 4 (3d Cir.2005) (stating standard of review over dismissal under Federal Rule of Civil Procedure 12(b)(6)), see McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.2005) (stating standard of review over an order granting

summary judgment). An appeal must be dismissed under 28 U.S.C. § 1915(e)(2) if it has no arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). Exhaustion is required by 42 U.S.C. § 1997(

e) before an inmate suit can be maintained. Booth v. Churner, 532 U.S. 731, 739, 121 S.Ct. 1819, 149 L.Ed.2d 958 (2001). Exhaustion of administrative remedies must be in accordance with applicable regulations and policies, and noncompliance cannot be excused by the courts. Woodford v. Ngo, 548 U.S. 81, 83, 126 S.Ct. 2378, 165 L.Ed.2d 368 (2006). Failure to 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).

Leilani Sears’ sworn declaration explains why, although Bell appears to have filed grievances, none was appealed to final review. Because Bell did not challenge Sears’ declaration, let alone do so in a way that created a “genuine dispute as to any material fact,” pursuant to Federal Rule of Civil Procedure 56(a), the District Court properly granted.the defendants’ motion. Accordingly, this appeal is lacking in arguable legal merit, and we will dismiss it according to 28 U.S.C. § 1915(e)(2). . The parties consented to proceed before a Magistrate Judge under 28 U.S.C. § 636(c).