NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3839
                                       ___________

                                  DESMOND MARTIN,
                                            Appellant

                                             v.

       GEARHART, Correction Officer; KNIGHT, Correctional Officer Sergeant;
                 C.A.S. RICHARD DAVIS; C.O. SHERMAN
                 ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 12-cv-02410)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 2, 2017
              Before: AMBRO, KRAUSE and NYGAARD, Circuit Judges

                            (Opinion filed: October 13, 2017)
                                     ___________

                                        OPINION*
                                       ___________

PER CURIAM

       Pro se appellant Desmond Martin, a Pennsylvania state prisoner at SCI-Rockview,

appeals the District Court’s summary judgment dismissal of his civil rights complaint


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
filed pursuant to 42 U.S.C. § 1983. We will affirm in part, vacate in part, and remand for

further proceedings.

       In 2012, Martin filed a civil rights action against four employees of the

Pennsylvania Department of Corrections (DOC) for violations of his constitutional rights

under the First, Eighth, and Fourteenth Amendments. Specifically, he alleged that:

Defendant Davis used excessive force against him, and then retaliated against him by

filing a misconduct report; Defendants Gearhart and Knight (1) “seized” his property

without due process and in retaliation for Martin’s use of the Inmate-Abuse Hotline to

report Davis; and (2) denied him access to the courts by disposing of “legal work” which

prevented Martin from filing a timely response in his Post-Conviction Relief Act (PCRA)

proceedings; and that Defendant Sherman retaliated against Martin by ignoring his

complaints that water had been turned off in his prison cell, resulting in “cruel and

unusual punishment.” Martin sued the Defendants in both their individual and official

capacities, and sought declaratory relief and damages.

       The claims arose from an incident after Martin’s team lost an inmate intramural

basketball game. Davis intervened in an argument between some of the inmates and the

inmate referees, telling them it was “just a game.” The parties dispute what happened

next. Martin claims he responded then, “[I]f it was just a game, you know, why did they

cheat us?” He claims that Davis cursed at him to get out of the gym, and when he refused

to leave until Davis gave him a hall pass, Davis assaulted him. Defendants maintain that

Martin became verbally abusive and refused to obey repeated orders to leave the gym and

to turn over his inmate I.D. As a result of the incident, Davis filed a misconduct report


                                             2
against Martin, and Martin reported abuse allegations to prison officials and the Inmate-

Abuse Hotline. Martin was found guilty of misconduct, specifically of using abusive

language and failing to obey an order; he was placed in the Restricted Housing Unit

(RHU) for 90 days.

       The District Court dismissed the due process claim against Gearhart and Knight,

and dismissed the retaliation claim against Knight. It granted summary judgment for the

remaining defendants after determining that Martin had failed to exhaust his

administrative remedies, or, in the alternative, that he had failed to produce sufficient

evidence to demonstrate that there was a genuine issue of material fact. This appeal

ensued.

       We have jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary review

over a grant of summary judgment, see Groman v. Twp. of Manalapan, 

, 633

(3d Cir. 1995), and over the dismissal of a complaint for failure to exhaust administrative

remedies, see Jenkins v. Morton, 

, 259 (3d Cir. 1998).1 Summary judgment

is proper where, viewing the evidence in the light most favorable to the nonmoving party

and drawing all inferences in favor of that party, there is no genuine issue of material fact


1
  Although this opinion addresses the grant of summary judgment, we will affirm the
orders granting the motions to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for
substantially the same reasons articulated by the District Court in its Memorandum
Orders. We note that the Court dismissed Knight from the action after determining that
there were no more pending claims against him. However, the complaint included
allegations against Knight for the denial of access to the courts, which the District Court
had determined were sufficient to state a claim for relief. Nevertheless, as the discussion
above makes clear, that claim is procedurally defaulted; accordingly, dismissing Knight
from the action was harmless error.


                                              3
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56;

Kaucher v. Cty. of Bucks, 

, 422-23 (3d Cir. 2006).

                                Excessive Force Claim

       In response to Martin’s excessive force claim, Davis raised the affirmative defense

of failure to exhaust. See Brown v. Croak, 

, 111 (3d Cir. 2002) (“Failure to

exhaust administrative remedies is an affirmative defense that must be pled and proven

by the defendant.”).2 The Prison Litigation Reform Act (PLRA) requires a prisoner to

exhaust all administrative remedies available within a prison’s grievance system prior to

filing a § 1983 action concerning prison conditions.3 See 42 U.S.C. § 1997e(a); see also

Porter v. Nussle, 

, 532 (2002) (holding that the PLRA's exhaustion

requirement “applies to all inmate suits about prison life, whether they involve general

circumstances or particular episodes, and whether they allege excessive force or some

other wrong”). The PLRA’s exhaustion requirement is mandatory. Woodford v. Ngo,

, 85 (2006).

       Martin filed a grievance regarding his excessive force claim; it was denied, and the

decision was upheld on appeal. Martin admits in his complaint that his subsequent

appeal to SOIGA was untimely. See 

(exhaustion requirement may not be

satisfied “by filing an untimely or otherwise procedurally defective” appeal). The

2
  In support, Defendants provided a declaration from Jeffrey A. Rackovan, the Facility
Grievance Coordinator at SCI-Rockview, setting forth Martin’s grievance history at the
prison, including appeals.
3
  The Pennsylvania DOC requires three stages of review to exhaust administrative
remedies, including an initial written grievance submitted to the Facility Grievance
Coordinator, an appeal to the Facility Manager, and a final written appeal to the
Secretary’s Office of Inmate Grievances and Appeals (SOIGA). See DC-ADM 804.


                                             4
District Court properly discounted his argument that the process was rendered

unavailable by the delay in the prison’s response to the initial grievance. See 

(PLRA requires exhaustion of all “available” remedies); see also Robinson v.

Superintendent, 

, 153-54 (3d Cir. 2016) (the exhaustion requirement

satisfied where prison officials fail to timely respond to an inmate’s properly filed

grievance). As the District Court noted, about a month after the grievance was filed,

prison officials notified Martin that the response time was extended pending further

investigation of the incident. Later, after Martin filed a grievance complaining of the

delayed response time, prisons officials promptly responded that the matter was still

under investigation. Once the grievance regarding the excessive force claim was denied,

prison officials timely responded to his appeal. Under these circumstances, the

administrative remedies were not rendered unavailable. Compare 

(observing

that “filing suit was [plaintiff’s] only method to advance his claims” where prison

officials failed to timely respond to grievance and “repeatedly ignored his follow-up

requests for a decision on his claim”).

       Martin also maintained that the remedies should be deemed unavailable because

he was misled by the Superintendent’s decision upholding the Initial Review Response

(IRR), which stated that “[t]his matter has been investigated and reviewed in accordance

with applicable DOC policy DC ADM 001. The Office of Special Investigations and

Intelligence has determined your allegations were not supported by any evidence. No

further action is necessary. Your appeal is denied.” Martin asserts that the statement that

“no further action is necessary” misled him to believe that he need not file an appeal.


                                              5
The Supreme Court has recognized that an inmate has no obligation to exhaust where

prison administrators “thwart” his efforts to do so through misrepresentation. Ross v.

Blake, 

, 1860 (2016). We agree with the District Court that Martin was

not “thwarted” here, and that the Superintendent’s statement, by itself, was insufficient to

excuse exhaustion. As the Defendants note, this statement appears to be in response to

Martin’s contention in his appeal that further investigation was necessary. Moreover, it is

clear from the summary judgment record that, at the time of the Superintendent’s

decision, Martin was aware that DC-ADM 804 required an appeal to SOIGA because he

had filed an appeal from another grievance. See Grievance #418651. To the extent that

the Superintendent’s decision conflicted with that established policy, Martin should have

“err[ed] on the side of exhaustion.” 

.4 Accordingly, we find that

the District Court properly granted summary judgment on this claim.

                     Denial of Access to the Courts/Retaliation Claims
                           Arising out of Loss of Property

       Defendant Sherman conducted an inventory to determine that Martin’s property

had been transferred to RHU. Martin signed a DC-153 form, indicating that all of his

property was present and accounted for, except for a pair of Nike sneakers. In his

complaint, Martin alleges that there was additional property missing, including a washtub

4
 We find no merit to Martin’s alternative argument that he exhausted his remedies by
appealing his misconduct charge to final review. Even assuming that Martin could have
exhausted this claim through DC-ADM-801, he failed to do so here. The Disciplinary
Hearing Report indicates that Martin merely stated that “there is an investigation on Mr.
Davis for assaulting me,” but his appeals centered on procedural aspects of the
misconduct hearing process, rather than on the facts underlying his excessive force claim.



                                             6
and “legal work,” which he claims he listed on the back of the DC-153 form. He

maintains that his cellmate gave the missing property to Defendant Gearhart, who then

stated that “he’ll never see this stuff again” and “he’s a snitch.” Martin asserts that

Gearhart took the property to the property room and “seized it” in retaliation for Martin’s

abuse complaint against Davis. He further avers that, as a result of the loss of his legal

work, his PCRA petition was dismissed, denying him access to the courts.

         We agree with the District Court that Defendants met their burden to prove that

Martin did not exhaust his administrative remedies with respect to these claims. On July

3, 2012, Martin filed grievance #418651 alleging that his property was missing, including

his sneakers, a washtub, and various other items.5 Notably, he did not list his “legal

work,” nor did he allege that the property was taken in retaliation for his having filed an

abuse complaint. The grievance was upheld in part as to the sneakers, but denied as to

the remaining items because they were not listed on the DC-153 form. In an appeal filed

on July 19, 2012, Martin stated that Gearhart could verify that he had retrieved the items

from his cell and brought them to the property room. Again, there was no reference to an

intentional deprivation by Gearhart; rather, Martin stated, “I just want what belongs to

me.” Further, although he again listed the missing items, the list did not include “legal

work.”

         In response, the Facility Manager indicated that he had spoken to Gearhart, who

stated that he had retrieved “one pair of sneakers, one wash tub, and some legal


5
 Martin listed the other missing items as “1 tank top, 1 thermal top, T-shirt, 1 ½ pair of
ankle socks (I have 1 sock), 2 mirrors, razor, 1 commissary towel.”


                                              7
paperwork” from the cell and brought it to the property room. The Facility Manager

concluded that Martin would not be reimbursed for the sneakers because there was no

record that Martin legitimately possessed them, but that he would be reimbursed for the

washtub. There would be no reimbursement for the legal material because there was no

way to determine the content or the amount. On appeal to final review, Martin stated that

his PCRA was dismissed because his “rebuttal was in [his] legal work a yellow manilla

(sic) envelope full about 40 pieces of paper missing.” He sought $500.00 for the legal

work. The SOIGA denied the appeal, noting that Martin did not mention missing legal

work until his appeal to final review, nor could reimbursement be properly determined.

       Martin’s failure to raise his retaliation claim at any level, and his denial of access

to the courts claim at the first two levels, precludes relief for these claims in federal court.

See Woodford v. Ngo, 

, 85, 93 (2006) (holding PLRA requires “proper”

exhaustion, which requires prisoner to bring complaint to every level of the state’s prison

grievance system). With respect to the retaliation claim, he provides no evidence to

support his contention that he filed a separate grievance to which the administration

failed to respond. There is also insufficient support for his claim that he “resubmitted

[his] initial grievance” to include reference to the missing legal work. The document to

which Martin refers was construed as the appeal from the IRR; it was filed on July 19,

2012, nine days after the IRR was filed, and it refers to that decision. Although Martin

maintains that he filed his appeal from the IRR on August 1, 2012, and referenced the




                                               8
resubmitted grievance, there is simply no evidence to support this claim.6 Furthermore,

as 

, Martin did not list his “legal work’ among the missing documents in the

appeal from the IRR. Although there is a notation in the bottom side margin that reads:

“sneakers (indecipherable) and washtub[,] legal work,” this was insufficient to put the

state on notice that the legal work was missing and that Martin was injured by its loss.

Indeed, Martin admits that his PCRA was not dismissed “until right before final review.”

At that point, Martin should have filed a grievance with respect to his access-to-the-

courts claim, rather than presenting it, for the first time, in his appeal to final review. The

District Court, therefore, did not err in determining that these claims were defaulted and

that summary judgment was warranted.

                     Conditions of Confinement/Retaliation Claim

       In his complaint, Martin alleges that, while he was in RHU, the water to his cell

was turned off for 27 ½ hours resulting in inhumane conditions of confinement. In

particular, Martin maintains that the smell of feces and urine from the toilet caused

“vomitting (sic) and massive headaches,” and led him to contract scabies. He further

asserts that he informed Defendant Sherman about the water stoppage, but that he failed

to address the problem in retaliation for Martin’s complaints of abuse against Davis. 7



6
  We note that such an appeal would have been untimely as to the initial grievance. See
DC-ADM 804 § 2(A)(1)(a) (appeals from IRR must be filed within 15 working days).
7
  Martin disputes the Defendants’ contention that the water was turned off due to a
plumbing issue, and that it was manually turned on to intermittently allow Martin and his
cellmate to wash their hands and flush the toilet. Because the facts surrounding the
incident are disputed, we view them in the light most favorable to Martin in analyzing the
claim.


                                              9
       Defendants argued that these claims were procedurally defaulted. Martin filed

Grievance #416153, in which he complained that his water was turned off, and that it was

in retaliation for his complaints against Davis. The grievance was denied, and the

response was upheld on appeal. The parties dispute whether Martin appealed the

grievance to SOIGA. Martin produced a copy of an appeal to SOIGA, which he

maintains went unanswered; Defendants failed to address the validity of this appeal. On

this record, the District Court properly determined that Martin exhausted his remedies

relative to these claims. See 

.

       The District Court concluded that Defendant Sherman was entitled to judgment as

a matter of law with respect to the Eighth Amendment claim. We agree. The

Constitution does not mandate comfortable prisons, but the conditions of confinement

must be “humane.” See Farmer v. Brennan, 

, 832 (1994). To establish a

violation of his Eighth Amendment rights, Martin had to show (1) a deprivation that is

“objectively, sufficiently serious” that he was denied “the minimal civilized measure of

life's necessities,” and (2) a “sufficiently culpable state of mind” on the part of Sherman,

such as deliberate indifference to Martin’s health or safety. 

       The District Court also determined that Martin could not establish the objective

element of his claim because the deprivation of running water for just over a day was

insufficiently serious to establish an Eighth Amendment violation. In determining

whether the conditions of confinement amount to a constitutional violation, the

“‘circumstances, nature, and duration’ of the conditions must be carefully considered”

but the “length of exposure . . . is often of prime importance.” DeSpain v. Uphoff, 264


                                             

, 974 (10th Cir. 2001) (citation omitted); see Hutto v. Finney, 

,

686–87 (1978) (“A filthy, overcrowded cell . . . might be tolerable for a few days and

intolerably cruel for weeks or months.”); see also Whitnack v. Douglas County, 

, 958 (8th Cir. 1994) (“the length of time required before a constitutional violation is

made out decreases as the level of filthiness endured increases”).

       The conditions of confinement here are indeed troubling, but they were of limited

severity and duration. While there is no doubt that “exposure to human waste carries

particular weight in the conditions calculus,” 

, Martin admits

that he showered the morning of June 11, 2012, before the water was turned off and he

does not allege that the toilet overflowed, or that he had physical contact with urine or

feces. Martin also allegedly suffered health consequences from the conditions, including

headaches and vomiting.8 In addition, Martin averred that he was deprived of potable

water during the one-day shut-off. Cf. Chavarriaga v. New Jersey Dep't of Corr., 

, 228 (3d Cir. 2015) (Observing that the denial of potable water for two days

may be sufficient to constitute a constitutional deprivation).

       Even assuming Martin can satisfy the objective component of the Eighth

Amendment analysis, however, he has not alleged facts sufficient to establish the

subjective component. Martin could establish deliberate indifference by showing that

Sherman failed to act despite knowing that his inaction would subject Martin to a

substantial risk of serious harm. 

. The summary judgment

8
 Martin neither alleges facts nor produces evidence from which it plausibly could be
determined that he contracted scabies as a result of the brief period in which the water
was turned off.


                                             11
record includes sworn declarations from Martin and his cellmate in RHU, Aaron

Pitchford, alleging that Martin informed Sherman that the water had been turned off; but

that was only two hours after the shut-off. There is no indication that Sherman was made

aware, at any later point, about the cell conditions, including the build-up of waste or the

vomiting. Accordingly, summary judgment on this claim was proper.

       Finally, we turn to Martin’s retaliation claim against Sherman. Prison officials

may be held liable for retaliatory conduct that was motivated “‘in substantial part by a

desire to punish [the prisoner] for exercise of a constitutional right,’” Allah v. Seiverling,

, 224-25 (3d Cir. 2000) (citation omitted), such as filing lawsuits and

grievances related to the conditions of incarceration. See Mitchell v. Horn, 

,

530 (3d Cir. 2003). To succeed on his retaliation claim, Martin had to demonstrate that

he was engaged in constitutionally protected conduct, that the prison officials caused him

to suffer “adverse action,” and that there is a causal connection between the exercise of

his constitutional rights and the adverse action. Rauser v. Horn, 

, 333 (3d

Cir. 2001). Martin alleged that the water to his cell was turned off because he reported

the alleged abuse by Davis to the Inmate-Abuse Hotline.

       In rejecting Martin’s retaliation claim, the District Court concluded that Martin

failed to present any evidence creating a genuine issue of material fact as to whether

Sherman was personally involved in shutting off the water to the cell. However, Martin

need only show knowledge of and acquiescence in the retaliatory act to demonstrate

involvement. See Rode v. Dellarciprete, 

, 1207 (3d Cir. 1988). Martin

testified in his deposition that when he informed Sherman that the water to his cell had


                                              12
been shut off, he replied, “Tell Rick Davis to do it,” and “You should have kept you[r]

mouth closed.” Pitchford also attested that Sherman made these statements. Viewing

this evidence in the light most favorable to Martin, it is sufficient to create a jury question

about whether Sherman participated in a retaliatory act against Martin.

       The District Court alternatively concluded that defendants were entitled to

judgment on this claim because the alleged “adverse action” did not deter Martin from

exercising his constitutional rights, as evidenced by his filing of grievances and this civil

rights suit. The test for adverse action, however, is not whether this plaintiff would be

deterred, but rather whether a prisoner of ordinary firmness would be deterred. Bistrian

v. Levi, 

, 376 (3d Cir. 2012). Furthermore, the effect of the adverse action

must be more than de minimis. McKee v. Hart, 

, 170 (3d Cir. 2006). The

alleged adverse action here – cutting off the water supply to Martin’s cell for over a day –

was neither trivial nor inconsequential. Even assuming conditions in Martin’s cell fail to

rise to an Eighth Amendment violation, they were more than just uncomfortable, as they

caused both Martin and Pitchford to become sick9; moreover, without potable water,

there was a risk of dehydration from the vomiting. We find this conduct sufficiently

injurious to make out a retaliation claim. Martin filed a grievance complaining while the

water was still shut off; but it is reasonable to conclude that a similarly situated person of

ordinary firmness might not have filed such a grievance out of fear it would cause a delay

9
 The record indicates that on the morning of June 12, 2016, the second day of the water
shut-off, Martin received a misconduct report for twice refusing to shut the food slot to
his cell door. He argued in response to the charge that it was necessary to keep the slot
open to get some fresh air because the stench of the feces, urine, and vomit had become
unbearable.


                                              13
in having the water turned back on, or out of fear it would get turned off again in the

future. Accordingly, we will vacate the District Court's grant of summary judgment on

the merits of the retaliation claim.

       For the reasons set forth above, we will affirm the District Court’s judgment as to

all claims except the retaliation claim against Defendant Sherman, which we will vacate

and remand for further proceedings.




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