                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2009

Robert Barrick v. Prison Health Sys
Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1059




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ALD-217                                                       NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                               ___________

                                    No. 09-1059
                                    ___________

                              ROBERT A. BARRICK,
                                                         Appellant

                                          v.

      PRISON HEALTH SYSTEMS/MEDICAL; RAYMOND J. SOBINA,
  SUPERINTENDANT; MRS. G. POINDEXTER, PRISON HEALTH SERVICES
   ADMINISTRATOR; DR. MAXA, PRISON HEALTH SERVICES MEDICAL
  DIRECTOR; MS. R. SHERBINE, PRISON HEALTH SERVICES PHYSICIAN’S
                             ASSISTANT
                ____________________________________

                  On Appeal from the United States District Court
                      for the Western District of Pennsylvania
                       (D.C. Civil Action No. 1:07-cv-00163)
                  District Judge: Honorable Susan Paradise Baxter
                   ____________________________________

                 Submitted Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
  for Possible Summary Action Pursuant to Third Circuit L.A.R. 27.4 and I.O.P. 10.6
                                   June 11, 2009
            Before: SLOVITER, FUENTES and JORDAN, Circuit Judges

                           (Opinion filed : June 18, 2009)
                                    _________

                                      OPINION
                                     _________

PER CURIAM

     Robert A. Barrick appeals from an order of the United States District Court for the
Western District of Pennsylvania 1 granting Appellees’ motion for summary judgment and

dismissing his complaint for failure to exhaust his administrative remedies, as required by

the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §1997e. For the reasons that

follow, we will summarily affirm the judgment of the District Court. See 3d Cir. L.A.R.

27.4; I.O.P. 10.6.

                                       I. Background

       Barrick is an inmate in Pennsylvania state prison. In July 2007, Barrick filed a pro

se civil rights complaint pursuant to 42 U.S.C. § 1983. In it, Barrick contends prison

health staff violated his Eighth Amendment rights by failing to appropriately address his

medical needs concerning skin cancer on his left ear.

       Specifically, Barrick claims that in January 2007, members of the prison medical

staff at SCI-Forest were deliberately indifferent to an earlier doctor’s recommendation to

check Barrick’s left ear for possible skin cancer, instead only treating a surface infection

with antibiotics. According to Barrick, the months of delay in following up on the

possible cancer diagnosis allowed his condition to worsen. When Barrick eventually

received treatment, most of his ear was removed. He argues that if he had received

treatment earlier, his ear could have been saved. Barrick seeks compensatory and

punitive damages.




  1
    The parties consented to proceed before a Magistrate Judge pursuant to 18 U.S.C.
§ 636(c)(1).

                                              2
                                        II. Analysis

       The Prison Litigation Reform Act of 1995 (“PLRA”) requires that, prior to seeking

relief in federal court, a prisoner must properly exhaust all available administrative

remedies at the prison. See 42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 93

(2006). “The benefits of exhaustion can be realized only if the prison grievance system is

given a fair opportunity to consider the grievance.” Id. at 95. The availability of

administrative remedies is a question of law. See Ray v. Kertes, 285 F.3d 287, 291 (3d

Cir. 2002). We review de novo the District Court’s dismissal for failure to exhaust

administrative remedies under the PLRA. See Mitchell v. Horn, 318 F.3d 523, 529 (3d

Cir. 2003).

       Barrick filed two administrative grievances in which he attempted to raise claims

of inadequate medical treatment and deliberate indifference. Barrick’s grievances were

denied at all three levels of the prison’s administrative review process. Upon initial

review, the grievances were denied for lack of merit; when Barrick appealed, his efforts

were denied as untimely. An “untimely or otherwise procedurally defective

administrative grievance or appeal” does not satisfy the mandatory exhaustion

requirement of the PLRA. Woodford v. Ngo, 548 U.S. 81, 83 (2006); see also Spruill v.

Gillis, 372 F.3d 218, 230 (3d Cir. 2004).

       The District Court concluded that because Barrick’s grievance appeals were denied

as untimely, they do not satisfy his obligation to properly exhaust his administrative


                                              3
remedies under the PLRA. Barrick does not dispute this conclusion. Rather, in his

memorandum in support of his appeal, Barrick argues that his failure to exhaust

administrative remedies should be excused. He claims that he missed filing deadlines

because he was recovering from surgery on his ear.

       We sympathize that Barrick underwent surgery for a serious medical condition. In

addition, we have recognized that under certain circumstances, administrative remedies

may not effectively be “available,” preventing a timely pursuit of the prison grievance

process. See, e.g., Brown v. Croak, 312 F.3d 109, 112 (3d Cir. 2002) (administrative

remedy unavailable where prison security officials told inmate to wait to file grievance

until after the investigation was complete); Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.

2000) (administrative remedy unavailable where inmate put on grievance restriction).

However, in this case, the record simply does not support Barrick’s argument that

administrative process was unavailable to him during his recovery from surgery.

       Based upon the documents Barrick appended to his complaint, his surgery took

place on February 16, 2007. Within days, Barrick had sufficiently recovered to be able to

file documents with prison administrators in support of his medical claims, including a

February 19, 2007, request to obtain copies of his medical records. Indeed, Barrick filed

his second grievance on February 27, 2007, very shortly after his surgery. When that

grievance was denied, Barrick filed a timely first-level appeal. Only after the appeal was

denied on March 15, 2007, did Barrick miss the deadline for filing a second-level


                                             4
administrative appeal. Thus, it is apparent that Barrick had access to administrative

process and was able to pursue administrative remedies during the days and weeks

immediately following his surgery, even during his recuperation.

       Based upon these facts, we cannot credit Barrick’s claim that his surgery interfered

with his ability to properly exhaust his available administrative remedies as required by

the PLRA. We therefore will affirm the District Court’s decision.

                                      III. Conclusion

       Because this appeal does not present a substantial question, we will summarily

affirm the judgment of the District Court. See 3d Cir. L.A.R. 27.4; I.O.P. 10.6. We deny

Barrick’s motion for the appointment of counsel as moot.




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