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


3-5-2009

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Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2273




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 08-2273
                                     ___________

                                CORDERO CANDIDO,
                                              Appellant

                                           v.

  KAREN HOGSTEN; J. MARR, Lieutenant; D. BETZER; C. PARKER; F. CIOFFI;
                       RICHARD GARRISON

                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                              (D.C. Civ. No. 06-cv-01112)
                     District Judge: Honorable James M. Munley
                     ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 MARCH 2, 2009
        Before: FISHER, JORDAN AND VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: March 5, 2009)
                                     ___________

                                      OPINION
                                     ___________

PER CURIAM

      Pro se appellant Cordero Candido appeals from the District Court’s February 29,

2008 order granting appellees’ motions for summary judgment. We will vacate the

judgment of the District Court and remand for further proceedings.
                                             I.

       Candido, a federal prisoner, filed an action under Bivens v. Six Unnamed Agents

of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), in the Middle District of

Pennsylvania alleging that his constitutional rights were violated when correctional

officers at the Federal Correctional Institution in Allenwood assaulted him in his cell on

April 9, 2006. Candido alleges that after the assault he could not see well out of his right

eye, that he urinated blood, and that he now suffers from anxiety. The appellees filed

motions for summary judgment asserting that Candido failed to exhaust his administrative

remedies. See 42 U.S.C. § 1997e(a).

       In his complaint, Candido averred that there was “no available administrative

remedy” because “T. Noone [,] my unit manager, Karen F. Hogsten [,] warden and Scott

Dodrill [,] Regional director never responded to my complaint.” Candido attached

documents to his complaint to support this assertion, including a May 10, 2006 letter to

the Warden referencing an administrative appeal that challenged a decision by the

Disciplinary Hearing Officer (“DHO”) that Candido had refused to obey an order.1 That



       1
               As can be discerned from documents submitted by the defendants/appellees,
Candido refused to obey an order to remove a roll of toilet paper from the window sill.
This resulted, on April 9th, in prison guards entering Candido’s cell, and, Candido
alleges, assaulting him. At the resulting disciplinary hearing, Candido alleged that the
guards assaulted him. He was nevertheless sanctioned for refusing to obey the order. He
appealed the Disciplinary Hearing Officer’s (“DHO”) decision, claiming, among other
things, that the prison staff assaulted him. Regional Director Dodrill denied the appeal
and stated that “the DHO advised your allegation that you were assaulted by staff was
referred to the proper authority for further investigation.” Candido then appealed to the

                                             2
letter also stated that, on April 9th, he submitted a BP-8 form (the first step in exhausting

administrative remedies) alleging that he was assaulted. Candido also attached to his

complaint a May 22, 2006 letter, entitled “Formal Request,” to the Regional Director,

recounting the circumstances of the assault and stating that the Warden did not respond to

his May 10th letter. Candido’s brief opposing the motion to dismiss filed by some of the

defendants averred that he was unable to file a BP-9 form (the second step in exhausting

administrative remedies) because Noone and Hogsten did not respond to his complaint

regarding the April 9th assault. He repeated this claim in a “declaration” filed “under

penalty of perjury,” and added that Noone refused to provide him with a BP-9 form.

       The Magistrate Judge recommended granting the appellees’ motions. The District

Court agreed and overruled Candido’s objections to the Magistrate Judge’s

recommendations. Although the District Court acknowledged that Candido claimed that

prison officials thwarted his attempts to pursue his administrative remedies, the Court did

not specifically address this argument prior to concluding that Candido failed to

demonstrate that he had exhausted his remedies. Candido appeals.

                                              II.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Our standard

of review is plenary. McGreevy v. Stroup, 413 F.3d 359, 363 (stating standard of review




Director of the National Inmate Appeals, in the Office of the General Counsel, who
denied the appeal on August 10, 2006, finding that the DHO’s decision was reasonable.

                                              3
of an order granting summary judgment). Summary Judgment is proper when, viewing

the evidence in light most favorable to the non-movant, there is no genuine issue of

material fact, and the moving party is entitled to judgment as a matter of law. Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

       The Prison Litigation Reform Act (“PLRA”) prohibits an inmate from bringing a

civil rights suit, including a Bivens action, alleging specific acts of unconstitutional

conduct by prison officials “until such administrative remedies as are available are

exhausted.” 42 U.S.C. § 1997e(a); see Ahmed v. Dragovich, 297 F.3d 201, 209 & n.9 (3d

Cir. 2002); Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000). We have held, however, that

when prison officials thwart an inmate’s attempt to utilize 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).

       In his complaint, which was signed under penalty of perjury, and in nearly every

subsequent filing, Candido has averred that prison officials prevented him from

exhausting his administrative remedies by not responding to his complaint and by failing

to provide him with a BP-9 form. He substantiates this averment with the letters that he

wrote to the Warden and the Regional Officer, as well as a declaration signed under

penalty of perjury.

       Although he District Court acknowledged Candido’s argument that administrative

remedies were unavailable to him, it erred by failing to resolve this issue. See Mitchell v.



                                               4
Horn, 318 F.3d 523, 529 (3d Cir. 2003) (“The District Court incorrectly dismissed this

claim because it did not consider [plaintiff’s] allegations that he was denied grievance

forms.”). Accordingly, we will remand for a determination whether the grievance

procedure was “available” to Candido within the meaning of 42 U.S.C. § 1997e(a) so that

he could administratively exhaust his assault claim. See Miller v. Norris, 247 F.3d 736,

740 (8th Cir. 2001).

       For the reasons explained above, will vacate the District Court’s judgment and

remand this matter for further proceedings consistent with this opinion.




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