297 F.3d 201 (3rd Cir. 2002), 01-1587, Ahmed v. Dragovich

Docket Nº:01-1587.
Citation:297 F.3d 201
Party Name:Ali AHMED (Hiram McGill) v. DRAGOVICH, Superintendent; Corrections Secretary Horn; Sromovski, Corrections Officer; Eichenberg, Sgt.; Mahally, Lt., Ali Ahmed, Appellant
Case Date:June 10, 2002
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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297 F.3d 201 (3rd Cir. 2002)

Ali AHMED (Hiram McGill)


DRAGOVICH, Superintendent; Corrections Secretary Horn; Sromovski, Corrections Officer; Eichenberg, Sgt.; Mahally, Lt., Ali Ahmed, Appellant

No. 01-1587.

United States Court of Appeals, Third Circuit

June 10, 2002

Argued: Dec. 17, 2001.

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[Copyrighted Material Omitted]

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Wendy Beetlestone (argued), Schnader, Harrison, Segal & Lewis, Philadelphia, PA, for appellant.

Howard G. Hopkirk (argued), Office of the Attorney General of Pennsylvania, Harrisburg, PA, for appellees.

Before: SLOVITER and McKEE, Circuit Judges and HAYDEN,[*] District Judge.


SLOVITER, Circuit Judge.

Ali Ahmed, a former Pennsylvania prison inmate, appeals the District Court's February 13, 2001 order denying his motion to amend his complaint against two state prison officers alleging excessive force. The District Court had previously dismissed Ahmed's complaint on June 26, 2000 on the ground that he had failed to exhaust administrative remedies prior to commencing suit, as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a) (2001). Although the statute of limitations on Ahmed's claim had expired, the District Court dismissed Ahmed's complaint without prejudice. Because of the expiration of the statute of limitations, the District Court's order was a final and appealable order which Ahmed failed to timely appeal. As will be developed hereafter, we are accordingly without jurisdiction to rule on the issues decided in the June 26 order. We are not under a similar limitation with respect to consideration of the new issues decided in the February 13 order, which Ahmed timely appealed.1



According to Ahmed's complaint, filed pursuant to 42 U.S.C. § 1983, Officers Sromovski and Eichenberg assaulted him in his cell on April 3, 1998, while he was incarcerated at the State Correctional Institution at Mahanoy.2 Following this incident, Officer Sromovski filed a prison misconduct charge against Ahmed for assaulting an officer. The misconduct charge was filed pursuant to the Pennsylvania Department of Corrections' Inmate Disciplinary and Restricted Housing Procedures, DC-ADM 801, under which prison officials may charge inmates with violations of prison rules. See, e.g., Ray v. Kernes, 285 F.3d 287, 290 (3d Cir. 2002). Inmates may appeal determinations of culpability through a process of administrative review. Id. at 291.

According to Sromovski, after Ahmed's cell door was accidently opened, Ahmed charged Sromovski, yelling an obscenity. Pending a hearing on the incident, Ahmed was confined to his cell. At the hearing, which took place on April 6, 1998, he was found guilty. Ahmed filed an appeal from that determination to the Program Review Committee on April 7, 1998. On April 9,

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the Program Review Committee sustained the decision of the hearing examiner on Ahmed's misconduct charge. Ahmed appealed that determination on April 13 to the superintendent, who upheld the charge in a decision dated April 14.

The matter also proceeded through the system within the prison designed to address inmate-initiated grievances. On April 8, Ahmed filed a claim regarding the April 3 incident pursuant to DC-804, the Consolidated Inmate Grievance Review System. Under the Grievance Review System, prison administrators investigate and attempt to resolve inmate grievances. At the conclusion of an investigation, a grievance officer provides the inmate with an Initial Review Response, which includes "a brief rationale, summarizing the conclusions and any action taken or recommended to resolve the issues raised in the grievance." DC-ADM 804 VI(B)(4), App. at 150. Inmates may appeal Initial Review Responses through two additional levels of administrative review.

On April 23, 1998, a grievance officer completed an Initial Review Response to Ahmed's April 8 grievance outlining the substance of the officer's interviews and the written reports filed in the matter. According to the grievance officer, "You [Ahmed] stated you had numerous injuries but when seen by Medical no injuries were noted." App. at 266. The officer observed that "[y]our witnesses did little to help you," and concluded "[m]y biggest doubt of your allegations, how do you get punched in the face and pushed against a table and the RN who checked you stated that you have no injuries." App. at 266. Although the grievance officer expressed no clear result in that decision, the clear implication is that he had concluded no further action was warranted. Ahmed did not appeal the Initial Review Response within five days, as required by DC-ADM 804 VI(C)(1), which provides for appeal "within five (5) days from the date of receipt by the inmate of the Initial Review decision. The inmate must appeal in this manner prior to seeking Final Review." App. at 150 (emphasis in original).

On April 14, 1998, before completion of the Initial Review Response, Ahmed received a letter from the Superintendent of Prisons placing Ahmed on "restricted access to the grievance system." App. at 271. Restricted access, which is authorized under DC-ADM 804 V(C), "limited [Ahmed] to filing one grievance per month." App. at 271. This action was taken because prison authorities had determined Ahmed had filed numerous frivolous grievances. According to the Superintendent's letter, Ahmed filed eighteen grievances from June 13, 1997 to April 9, 1998, or 4.4% of all prisoner grievances brought in that time frame. Although Ahmed concedes he often used the grievance procedures and was familiar with the prison's procedures governing grievances, he contends that he was hampered in any appeal of the Initial Review Response because he did not have a copy in his cell of the handbook containing DC-ADM 804's provisions. Br. of Appellant at 12. Ahmed also argues that he believed the grievance restriction precluded him from filing an appeal in April, although the letter placing him on grievance restriction referred only to the "filing" of grievances. However, he does not contend he was unaware of the relevant provisions nor does he explain why, if he believed he could not file an appeal of the Initial Review in April, he did not attempt to do so in the next month which would have been permitted under the one grievance per month restriction.

In addition to filing his grievance, Ahmed submitted a request on May 22, 1998 to the Schuylkill County District Attorney's

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office to file a criminal complaint against Sromovski and Eichenberg. The prosecutor's office referred the matter to the Pennsylvania Department of Corrections Office of Professional Responsibility. That office sent the complaint back to S.C.I. Mahanoy, Ahmed's place of incarceration, where the prison authorities prepared a report dated June 26, 1998. According to that report, "Inmate Ahmed's allegations against CO Sromovski are clearly contradicted by the staff reports of the incident." App. at 276. The report concluded that "[b]ased on the reports submitted by the staff involved in the incident and Ahmed's refusal to cooperate with the investigation, . . . no further action is necessary in this case." App. at 276. After reviewing the report, the Pennsylvania Department of Corrections Office of Professional Responsibility "determined the investigation satisfactory." App. at 298.

Ahmed first filed an application to proceed in forma pauperis on a § 1983 complaint against Sromovski, Eichenberg and their supervisors in the United States District Court for the Eastern District of Pennsylvania on May 18, 1998. Although his initial attempts were rejected as deficient, Ahmed eventually complied with the filing and fee requirements, and on July 29, 1998, the District Court granted his motion to proceed in forma pauperis. Ahmed's pro se complaint was filed with the District Court the same day. The complaint alleged that Sromovski and Eichenberg violated his Eighth Amendment rights. The defendants (also referred to collectively as the "Commonwealth"), represented by the state Attorney General, moved on September 14, 1998 to dismiss Ahmed's complaint for failure to allege exhaustion.

Two days later, Ahmed filed an administrative appeal under DC-ADM 804 from the April 23,1998 Initial Review Response. It is unclear whether Ahmed's appeal was in response to the Commonwealth's motion raising the exhaustion issue. In any event, his appeal was swiftly denied as untimely by the prison superintendent, who observed, "You have five days in which to file your appeal with this office and it is now five months later." App. at 272. Ahmed immediately appealed that determination to the Chief Hearing Examiner, the final level of review provided for by the DC-804 grievance procedures. That appeal was rejected on the same ground. The District Court denied the defendants' motion to dismiss on January 29, 1999.

A year later, this court decided Nyhuis v. Reno, 204 F.3d 65 (3d Cir. 2000), holding that the exhaustion requirement of the PLRA set forth in 42 U.S.C. § 1997e(a) means "that no action shall be brought in federal court until such administrative remedies as are available have been exhausted." Id. at 78. The Commonwealth then filed a supplemental motion3 for summary judgment in light of Nyhuis addressing Ahmed's failure to exhaust. The District Court, citing Nyhuis, reconsidered its January 29, 1999 order denying the Commonwealth's motion to dismiss and dismissed Ahmed's complaint on June 26, 2000,4 for failure to exhaust administrative remedies prior to filing suit under the PLRA. The court designated that dismissal as without prejudice. Ahmed, 103 F.Supp.2d at 846.

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By then, specifically by April 3, 2000, the statute of limitations on Ahmed's § 1983 claim had expired, as it was more than two years since the incident that is the subject of Ahmed's complaint. See, e.g., Wilson v. Garcia, 471 U.S....

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