Filed: Mar. 05, 2009
Latest Update: Mar. 02, 2020
Summary: 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2009 Decisions States Court of Appeals for the Third Circuit 3-5-2009 Cordero Candido v. Karen Hogsten Precedential or Non-Precedential: Non-Precedential Docket No. 08-2273 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Cordero Candido v. Karen Hogsten" (2009). 2009 Decisions. Paper 1772. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1772 This decision is brought to you for free and open acce
Summary: 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2009 Decisions States Court of Appeals for the Third Circuit 3-5-2009 Cordero Candido v. Karen Hogsten Precedential or Non-Precedential: Non-Precedential Docket No. 08-2273 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009 Recommended Citation "Cordero Candido v. Karen Hogsten" (2009). 2009 Decisions. Paper 1772. http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1772 This decision is brought to you for free and open acces..
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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Precedential or Non-Precedential: Non-Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2009
Recommended Citation
"Cordero Candido v. Karen Hogsten" (2009). 2009 Decisions. Paper 1772.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1772
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2009 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL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
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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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