Robert Barrick v. Prison Health Sys , 335 F. App'x 153 ( 2009 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    Recommended Citation
    "Robert Barrick v. Prison Health Sys" (2009). 2009 Decisions. Paper 1168.
    http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1168
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    ALD-217                                                       NOT PRECEDENTIAL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.
    5