                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-8-2008

Candido v. Hogsten
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1608




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Recommended Citation
"Candido v. Hogsten" (2008). 2008 Decisions. Paper 694.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/694


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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 07-1608
                                     ___________

                                CORDERO CANDIDO,
                                                          Appellant

                                           v.

                        KAREN F. HOGSTEN; K. CLOUSER;
                                  Lt. J. HEPNER
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 06-cv-00490 )
                      District Judge: Honorable James M. Munley
                      ____________________________________

                     Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    August 7, 2008
               Before: SLOVITER, BARRY and NYGAARD, Circuit Judges

                             (Opinion filed: August 8, 2008)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

       Appellant, Cordero Candido, proceeding pro se, appeals from the District Court’s

order granting Appellees’ motion for summary judgment. For the reasons that follow, we

will affirm.
       Candido filed a civil rights complaint pursuant to Bivens v. Six Unknown Named

Agents of the Fed. Bureau of Narcotics, 403 U.S. 388 (1971) in the United Stated District

Court for the Middle District of Pennsylvania. Appellees filed a motion for summary

judgment, asserting that Candido failed to exhaust his administrative remedies. See 42

U.S.C. § 1997e(a). Candido filed several documents in opposition to Appellees’ motion

for summary judgment. After reviewing the documents that were submitted by Appellees

and Candido, the Magistrate Judge recommended granting Appellees’ motion for

summary judgment. The District Court adopted the report and recommendation as the

court’s opinion and entered an order granting Appellees’ motion for summary judgment.

Candido appeals.

       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. Kreimer v.

Bureau of Police for Town of Morristown, 958 F.2d 1242, 1250 (3d Cir. 1992).

Summary judgment may only be granted where “there is no genuine issue as to any

material fact and . . . the movant is entitled to a judgment as a matter of law.” Fed. R.

Civ. P. 56(c). All facts and inferences must be construed in the light most favorable to

the non-moving party. Boyle v. County of Allegheny Pa., 139 F.3d 386, 393 (3d Cir.

1998). The movant bears the burden of showing the absence of a genuine issue of

material fact, but the non-moving party must produce more than a scintilla of evidence in

his favor; he cannot simply rely on the unsupported allegations in his pleadings. Celotex



                                              2
Corp. v. Catrett, 477 U.S. 317, 323-25 (1986).

        An inmate is required to exhaust his administrative remedies prior to filing a civil

rights action in federal court. 42 U.S.C. § 1997e(a). Exhaustion is mandatory; an

inmate’s unexhausted claim cannot be raised in a Bivens action. See Jones v. Bock, 127

S. Ct. 910, 918-19 (2007).

        Candido admits that he failed to exhaust his administrative remedies, but avers that

prison officials prevented him from doing so. We have held that when prison officials

thwart an inmate’s attempt from utilizing his administrative remedies, those remedies are

“unavailable” to the inmate for purposes of exhaustion. Brown v. Croak, 312 F.3d 109,

113 (3d Cir. 2002). Candido, however, fails to substantiate his averment. See Celotex

Corp., 477 U.S. at 325. He gives no details regarding the alleged interference or the

manner in which prison officials prevented him from utilizing the administrative process.

Furthermore, Appellees have submitted numerous documents demonstrating that Candido

had access to the administrative process. Since his arrival at FCI Allenwood, Candido

has filed forty-four administrative remedy requests, seven of which he has fully

exhausted.1 Moreover, Candido filed three grievances regarding the claims in his

complaint. He failed to appeal the denial of his first grievance; he failed to follow the

proper procedure for appealing his second grievance; and his third grievance was still an

open matter when he filed his complaint. Based on the foregoing, we agree with the



   1
       None of Candido’s exhausted grievances are related to the current appeal.

                                              3
District Court’s conclusion that there is no evidence in the record demonstrating that

Appellees prevented Candido from pursuing his administrative remedies.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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