Ravanna Spencer v. JEFFREY BEARD, Secretary

ALD-027 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-2692
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RAVANNA SPENCER,
Appellant
v.
JEFFREY BEARD, Secretary; DONALD KELCHER, Superintendent; RICK
SOUTHERS, SMU Counselor; TERESA M. LAW; ANDREW NEWTON;
MUHAMMAD KHAN; ED KALSKY; COUNSELOR WHALING
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 3-06-01099)
District Judge: Honorable Edwin M. Kosik
____________________________________
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 IOP. 10.6
October 29, 2009
Before: SLOVITER, AMBRO and SMITH, Circuit Judges
(Opinion filed: November 10, 2009)
_________
OPINION
_________
PER CURIAM
Ravanna Spencer, an inmate at the State Correctional Institution at Camp Hill,
Pennsylvania, appeals the order of the District Court entering judgment in favor of

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Appellees in his civil suit. For the following reasons, we will summarily vacate and
remand to the District Court for further proceedings. See 3d Cir. LAR 27.4; 3d Cir. IOP
10.6.
Spencer filed a complaint in May 2006, alleging numerous instances in which
various prison officials violated his constitutional rights. The crux of Spencer’s action is
that Appellee Kalsky, the prison psychologist, along with Appellee Newton, the prison
psychiatrist, interviewed him at his cell door and in the course of the interview improperly
disclosed his mental health history. Spencer also asserts that Newton discontinued his
medication in retaliation for his filing of a grievance.
The case was referred to a Magistrate Judge. Spencer filed two motions for
appointment of counsel, which the Magistrate Judge denied. Next, upon the Magistrate
Judge’s recommendation, the District Court dismissed several defendants and claims.
The remaining defendants then filed summary judgment motions. In their first summary
judgment motions, defendants contested only Spencer’s failure to exhaust his
administrative remedies. The District Court granted summary judgment with respect to
the retaliation claim and remanded the case to the Magistrate Judge with respect to the
Eighth and Fourteenth Amendment claims against both Newton and Kalsky. In their
second summary judgment motions, Kalsky and Newton argued that Spencer’s remaining
claims were meritless. The Magistrate Judge, in two separate orders dated December 11,
2008, and December 15, 2008, recommended granting summary judgment in favor of

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both Kalsky and Newton.
On January 12, 2009, Spencer filed the first of three motions requesting an
extension of time to file objections to the Magistrate Judge’s Report and
Recommendation. The District Court granted all three motions, indicating that the third
extension, setting the deadline on April 30, 2009, would be the last. On May 1, 2009, the
District Court entered an order adopting the Magistrate Judge’s Report and
Recommendations, granted both summary judgment motions, and entered judgment in
favor of the Appellees. In its order, the Court noted that no objections had been filed to
the Report and Recommendation.
Four days after the entry of judgment, the District Court received Spencer’s
objections to the Report and Recommendation which were dated April 29, 2009. The
District Court has not acted on Spencer’s objections. Spencer filed a timely notice of
appeal challenging the District Court’s order and has filed a motion requesting
appointment of counsel.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Under the
Magistrate Judges Act, a party may file written objections to the Magistrate Judge’s
proposed findings within ten days. 28 U.S.C. § 636(b)(1). Once objections are filed, the
District Court “shall make a de novo determination of those portions of the report or
specified proposed findings or recommendations to which objection is made.” Id. The
ten-day limit is not jurisdictional and may be extended by the District Court. See

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Grandison v. Moore, 786 F.2d 146, 148 (3d Cir. 1986).
Here, while the District Court did not receive the objections until five days after
the deadline, the document is dated April 29, 2009. Because Spencer is a prisoner, he
receives the benefit of the “prison mailbox rule.” See Houston v. Lack, 487 U.S. 266,
276 (1988). Under that rule, the date of filing occurs when a prisoner transmits
documents to prison authorities for mailing. See Longenette v. Krusing, 322 F.3d 758,
761 (3d Cir. 2003). Thus, inasmuch as the documents are dated one day before the
deadline, it appears that Spencer timely filed his objections to the Magistrate Judge’s
Report and Recommendation. Because the District Court did not consider the merits of
Spencer’s objections, we will remand for its consideration in the first instance. See
Grandison, 786 F.2d at 149.
Spencer also appeals the Magistrate Judge’s denial of his two motions for counsel.
Spencer did not appeal these orders to the District Court and therefore he cannot
challenge the orders in this Court. See Nara v. Frank, 488 F.3d 187, 195 (3d Cir. 2007).
For the foregoing reasons, we will summarily vacate the District Court’s order
granting judgment for the defendants and will remand this matter for further proceedings
in accordance with this opinion. See 3d Cir. LAR 27.4; 3d Cir. IOP 10.6. Spencer’s
motion for appointment of counsel in this Court is denied as moot.
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