                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-2005

Carston v. Sacks
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2398




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Recommended Citation
"Carston v. Sacks" (2005). 2005 Decisions. Paper 170.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/170


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                                                   NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  NO. 05-2398
                               ________________

                          CHRISTOPHER CARSTON,

                                    Appellant

                                        V.

  DAVID SACKS; MARE MARKIEWICZ; ERIC VALKCO; KRONH; DALEEP
  RATHORE; STANLEY FALOR; MORRIS HARPER; BRIAN HYDE; SUSAN
  CROFTCHECK; PAUL STOWIZKY; JEFFREY M. MARTIN, are sued in their
                      individual capacities


                 On Appeal From the United States District Court
                     For the Western District of Pennsylvania
                          (W.D. Pa. Civ. No. 03-cv-01490)
                 District Judge: Honorable Thomas M. Hardiman




                   Submitted Under Third Circuit LAR 34.1(a)
                              December 1, 2005

    BEFORE: SLOVITER, SMITH AND VAN ANTWERPEN, Circuit Judges

                            (Filed December 2, 2005)


                           _______________________

                                   OPINION
                           _______________________
PER CURIAM

    Christopher Carston, a Pennsylvania prisoner proceeding pro se, appeals an order
of the United States District Court for the Western District of Pennsylvania granting

summary judgment for the defendants in his civil rights action. For the reasons that

follow, we will vacate the District Court’s order and remand for further proceedings.

       Carston filed a complaint against Department of Corrections (“DOC”) employees

and medical providers claiming violations of his constitutional rights based upon the

denial of food and water while housed in a psychiatric observation cell from March 4,

2002 through March 7, 2002, as well as verbal abuse by the defendants. The DOC

defendants moved for summary judgment, contending Carston had not exhausted his

administrative remedies. The District Court adopted the Magistrate Judge’s

recommendation to grant summary judgment for all of the defendants on this basis.

       This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291. Our

standard of review is plenary. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993).

       The Prison Litigation Reform Act, 42 U.S.C. § 1997e(a), requires a prisoner to

exhaust his administrative remedies before bringing a civil rights action in federal court.

Spruill v. Gillis, 372 F.3d 218, 227-28 (3d Cir. 2004). The exhaustion requirement

includes a procedural default component, and a prisoner must comply with prison

grievance procedures to properly exhaust his claims. Id. at 230-31.

       The record reflects that on April 18, 2002, Carston was granted a five-day

extension of time to file a grievance. On April 26, 2002, Carston notified a staff member

in writing that on April 22, 2002, he asked a corrections officer to place his grievances in



                                              2
the mail box because no one picks up grievances from the grievance box. Carston stated

that the officer placed his grievances in the grievance box, and no one came to pick them

up. On May 2, 2002, the staff member replied that the matter would be addressed. On

May 10, 2002, Carston notified the prison Superintendent in writing that no one had

picked up his grievances. On May 13, 2002, the Superintendent replied that the matter

would be investigated.

       On May 20, 2002, the prison Grievance Coordinator found seven grievances filed

by Carston untimely.1 Although the grievances are dated April 19, 2002 and April 20,

2002, the Grievance Coordinator explained that, even with the five-day extension of time,

the grievances were untimely, as they were not retrieved from the grievance box until

May 15, 2002. The Coordinator noted that grievances are retrieved from the box on a

daily basis as evidenced by other grievances received from Carston’s pod.

       On May 31, 2002, the prison Superintendent rejected Carston’s argument on

appeal that the staff had not retrieved the grievances from the grievance box on a timely

basis. The Superintendent noted that he saw Carston’s grievances, that none of them

appeared to have spent a month in the lock box, and that they appeared to have been

backdated. He further noted that other inmates’ grievances had been retrieved from that




   1
    The DOC defendants did not produce a copy of the DOC grievance procedure in
District Court. However, it is undisputed that a prisoner has fifteen days after the event
upon which a claim is based to file a grievance.

                                             3
same box during the same time frame. Carston’s final appeal was also denied.2

       There is a factual dispute as to whether Carston complied with the prison

grievance procedures. In his opposition to the summary judgment motion, Carston

submitted evidence supporting his contention that his grievances were submitted within

the five-day extension of time he received. He provided copies of the grievances

themselves, which are dated April 19 and 20, 2002. He also submitted copies of the April

26, 2002 notice he sent to a staff member stating a corrections officer placed his

grievances in the grievance box on April 22, 2002, but no one had picked them up, and

his May 10, 2002 letter to the Superintendent stating that the grievances had not been

picked up.

       The DOC defendants rely on the Grievance Coordinator’s denial of the grievances

as untimely, and Carston’s unsuccessful appeals. The Grievance Coordinator’s decision

states that the grievances were received on May 15, 2002. The Grievance Coordinator

and the Superintendent noted that other grievances had been received from Carston’s pod

during the same time period. The DOC defendants cite no other basis for their assertion

that Carston did not comply with prison grievance procedures.

       Viewing the evidence in the light most favorable to Carston, the non-moving

party, see Groman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995), a genuine




   2
   Carston subsequently filed numerous additional grievances based upon the same
events, which were also found untimely.

                                             4
issue of material fact exists as to whether Carston complied with prison grievance

procedures and properly exhausted his claims. The parties’ factual dispute as to whether

Carston’s grievances were timely precludes summary judgment. Accordingly, we will

vacate the District Court’s order and remand for further proceedings consistent with this

opinion.3




   3
       Carston’s motion for appointment of counsel is denied.

                                              5
