NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 11-1918
___________
SHERMAN MACK,
Appellant
v.
SERGEANT CURRAN;
CORRECTIONAL OFFICER KEANE;
SERGEANT GODLEWSKI, AKA Geloski;
DAVID DIGUGLIELMO;
UNIT MANAGER LINK;
UNIT MANAGER RADEL;
HARMIS, AKA Harim;
JEFFREY BEARD, PH.D SECRETARY OF CORRECTIONS
____________________________________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2-10-cv-01760)
District Judge: Honorable Timothy J. Savage
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
January 6, 2012
Before: AMBRO, JORDAN and VANASKIE, Circuit Judges
(filed: January 11, 2012 )
_________________
OPINION
_________________
PER CURIAM
Sherman Mack, a prisoner at the State Correctional Institution (“SCI”) Dallas,
appeals pro se from the District Court’s order granting defendants’ motion for summary
judgment. For the reasons that follow, we will affirm the order of the District Court.
I. Background
The record reflects that in September 2008, while incarcerated at SCI Graterford,
Mack filed a grievance alleging that Sergeant Curran, Sergeant Godlewski, and
Correctional Officer Seanor destroyed his personal property.1 On November 24, 2008,
Mack and his prison property were transferred to SCI Dallas. On December 16, 2008,
Mack inventoried his prison property and determined that some of his legal documents
were lost during the prison transfer.
On February 27, 2009, Mack filed a grievance alleging that Curran withheld or
destroyed his legal documents in retaliation for the grievance he filed against Curran in
September 2008. His grievance was dismissed as untimely in March 2009.2 Mack then
appealed the dismissal of his grievance to Superintendent DiGuglielmo in July 2009. His
1
The grievance states that Correctional Officer Keane had packed Mack’s cell
before the items went missing in September 2008.
2
The Commonwealth of Pennsylvania, Department of Correction’s Inmate
Grievance Review System, DC-ADM 804, requires that an inmate submit a grievance for
initial review “within 15 working days after the event upon which the claim is based.”
2
appeal was also dismissed as untimely.3 The Chief Grievance Officer dismissed Mack’s
final appeal, finding that his grievance was properly rejected because his grievance or
appeal was not submitted timely.4
In April 2010, Mack filed in the District Court a civil rights action under 42
U.S.C. § 1983, alleging that defendants deprived him of his access to the courts and
deprived him of his personal property by withholding, destroying, or losing his legal
documents. Mack claimed that as a result of defendants’ actions he was unable to submit
a timely petition to the state courts under the Pennsylvania Post Conviction Relief Act, 42
Pa. Cons. Stat. § 9545(b)(2).
Defendants filed a motion to dismiss, arguing, among other things, that Mack
failed to exhaust his administrative remedies. Defendants attached copies of Mack’s
grievances and appeals, and the dispositions of his grievances and appeals. Because
defendants’ motion to dismiss presented material outside of the complaint, the District
Court converted the motion to dismiss into a motion for summary judgment, and allowed
the parties to submit additional evidence. The parties declined to submit additional
evidence, and the District Court granted defendants’ motion for summary judgment by
order entered March 3, 2011.
3
DC-ADM 804 requires that an appeal of the initial review of a grievance be
made within 15 working days from the date of the initial review response.
4
In his complaint, Mack alleged that in August 2009 he sent a copy of his
grievance and related documents to Jeffrey Beard, stating that “I appreciate any and
everything you can do for me. All I’m asking for is my property to be returned to me.”
3
On April 1, 2011, Mack sent a notice of appeal to this Court, which the Clerk of
this Court forwarded to the District Court pursuant to Fed. R. App. P. 4(d). Attached to
Mack’s notice of appeal was a “request for leave to continue on appeal in forma
pauperis.” On June 14, 2011, Mack’s appeal was dismissed for failure to timely
prosecute because Mack failed to pay the requisite fee as directed. Mack then sent a
letter on June 16, 2011, which we construed as a motion to reopen, stating that he
attached an in forma pauperis motion to his notice of appeal. This Court informed Mack
that he must reapply for forma pauperis status on appeal and file the proper supporting
documents. Mack then filed the appropriate documents.
II. Discussion
A. Motion to Reopen and Motion to Proceed In Forma Pauperis
Before we can discuss Mack’s appeal, we must address Mack’s motion to reopen
and motion to proceed in forma pauperis. A motion to set aside a dismissal for failure to
prosecute must be filed within ten days of the date of dismissal and must be justified by a
showing of good cause. 3d Cir. LAR 107.2. Mack filed a motion to reopen within ten
days of the date his appeal was dismissed for failure to prosecute. Mack also
demonstrated good cause because he attempted to file a motion to proceed in forma
pauperis with this Court, albeit as an exhibit to his notice of appeal. Mack is proceeding
pro se and it appears that he did not know how to file a proper motion to proceed in
forma pauperis with this Court. Once we informed him of the proper procedure, Mack
4
submitted proper documentation. Therefore, Mack’s motion to reopen is granted.
A litigant may proceed in forma pauperis if he establishes that he is unable to pay
the filing fees of his suit on appeal. 28 U.S.C. § 1915(a)(1); Walker v. People Express
Airlines, Inc., 886 F. 2d 598, 601 (3d Cir. 1989). A litigant need not be "absolutely
destitute." Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948). Mack
has approximately $380 to his credit in his prison account, and Mack stated in his
affidavit that he has a total monthly income of $30 and monthly expenses of $25.
Because Mack has demonstrated that he is unable to pay the filing fee for this appeal, his
motion to proceed in forma pauperis is granted.
C. Appeal
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review a district court’s
decision granting summary judgment under a de novo standard of review. Barefoot
Architect, Inc. v. Bunge, 632 F.3d 822, 826 (3d Cir. 2011). Summary judgment is
granted when viewing the evidence in the light most favorable to the nonmoving party,
there is no genuine dispute as to any material fact and the movant is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56(a); Beers-Capitol v. Whetzel, 256 F.3d
120, 130 n.6 (3d Cir. 2001). We may affirm the District Court for any reason supported
by the record. United States v. Agnew, 407 F.3d 193, 196 (3d Cir. 2005).
The District Court properly granted summary judgment to the defendants, other
than Curran, for lack of personal involvement. A defendant in a civil rights action must
5
have personal involvement in the alleged wrongs, which may be shown through
allegations of personal direction or of actual knowledge and acquiescence. Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted). Mack did not
allege or present evidence of how the defendants, other than Curran, deprived him of his
access to the courts or deprived him of his personal property by withholding, destroying,
or losing his legal documents.5 To the extent that Mack argued that DiGuglielmo or
Beard had responsibility to take action based upon their review of his grievance, this does
not amount to personal involvement. See id. at 1207-08.
The District Court also properly granted summary judgment to Curran for failure
to exhaust administrative remedies. Under the Prison Litigation Reform Act (“PLRA”), a
prisoner must properly exhaust all available administrative remedies prior to filing suit.
42 U.S.C. § 1997e(a); Woodford v. Ngo, 548 U.S. 81, 83-84 (2006). “Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules.”
Woodford, 548 U.S. at 90. Consequently, an untimely administrative grievance does not
satisfy the mandatory exhaustion requirement of the PLRA. Id. at 83-84.
Mack did not deny that his initial grievance was untimely. In his initial grievance,
Mack stated that “the reason [i]t[] has tak[en] so long to write after I got out of the
5
Based on the record, Godlewski and Keane were not involved in the alleged
withholding or destruction of Mack’s legal documents. They were only involved in the
alleged destruction of Mack’s personal property, including combs and candy, in
September 2008.
6
[RHU]6 on [] 12-16-08, I went back to the [RHU] on [] 12-20-08 and got out on 2-17-09,
so this [grievance] is at my earliest convenience.” We have recognized certain
circumstances prevent the timely pursuit of the prison grievances process, thereby
making the administrative remedies “unavailable.” See, e.g., Brown v. Croak, 312 F.3d
109, 112 (3d Cir. 2002) (administrative remedies unavailable where prison officials gave
inmate erroneous instructions about grievance process); Camp v. Brennan, 219 F.3d 279,
281 (3d Cir. 2000) (administrative remedies unavailable where inmate was put on
grievance restriction). Mack’s placement in the RHU, however, is not one of those
circumstances. Mack did not argue or explain why administrative remedies were
unavailable to him while he was in the RHU. Therefore, Mack’s failure to file a timely
grievance effectively barred him from bringing his claim against Curran in federal court.
See Woodford, 548 U.S. at 83-84.
For the foregoing reasons, we grant Mack’s motion to reopen and motion to
proceed in forma pauperis, and we will affirm the District Court’s judgment.7
6
RHU is an acronym for Restrictive Housing Unit.
7
As a prisoner, Mack is required to pay the filing fee for this appeal in
installments. See 28 U.S.C. § 1915(b). The Clerk is directed to issue a separate order
noting that Mack’s motion to proceed in forma pauperis has been granted and direct the
assessment and collection of fees in accordance with the statute.
7