Shakuur v. Costello ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-1-2007
Shakuur v. Costello
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1164
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"Shakuur v. Costello" (2007). 2007 Decisions. Paper 1148.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1164
STEPHEN A. SHAKUUR,
Appellant
v.
THOMAS J. COSTELLO, COMMISSIONER;
GLOVER, OFFICER; SHIELDS, OFFICER;
MOORE, OFFICER
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Civil Action No. 05-cv-2918
(Honorable Michael M. Baylson)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 25, 2007
Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed May 1, 2007)
OPINION OF THE COURT
PER CURIAM.
Stephen Shakuur appeals the dismissal of his civil rights complaint by the United
States District Court for the Eastern District of Pennsylvania. We will affirm the District
Court’s order.
I.
According to Shakuur’s complaint, on October 14, 2002, he was assaulted by a
correctional officer at Currant-Fromhold Correctional Facility, a facility in the
Philadelphia Prison System (PPS). Shakuur alleges that he sustained severe head and
face injuries in the altercation, necessitating extensive medical treatment, and causing
ongoing migraine headaches and pain. Shakuur names three correctional officers and the
commissioner of the prison system as defendants. The defendants filed a motion to
dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Shakuur’s
claim was time-barred. After receiving Shakuur’s response to the motion to dismiss, the
District Court granted the motion.
Shakuur appealed and is proceeding in forma pauperis. We declined to dismiss the
appeal pursuant to 28 U.S.C. 1915(e)(2)(B), and by order entered November 2, 2006,
directed the parties to address whether the applicable statute of limitations should be
tolled during any period that Shakuur might have been exhausting administrative
remedies. Shakuur has filed a “Motion by Appellant for Oral Argument and/or
Appointment of Counsel.”
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and we exercise plenary review
over the decision to grant a Rule 12(b)(6) motion to dismiss. See Weston v.
Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001). We can affirm the District Court’s order
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on any ground supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240
(3d Cir. 1999).
We must determine “whether ‘the time alleged in the statement of a claim shows
that the cause of action has not been brought within the statute of limitations.’” Cito v.
Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989) (citations omitted).
Applying that standard, we agree with the District Court that Shakuur’s suit was untimely.
The statute of limitations for a personal injury action in Pennsylvania is two years. See
42 Pa. Cons. Stat. Ann. § 5524. According to Shakuur, the assault against him occurred
on October 14, 2002. Shakuur did not initiate this lawsuit until June 20, 2005,
approximately eight months past the date the statute of limitations expired. Unless there
is reason to toll a statute of limitations, the complaint was untimely.
Though this Court has not spoken on the issue, several courts of appeals have
concluded that, because exhaustion is mandatory under the PLRA, the statute of
limitations applicable to § 1983 actions must be tolled while a prisoner exhausts.1
1
See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) (agreeing with “the
uniform holdings of the circuits that have considered the question that the applicable
statute of limitations must be tolled while a prisoner completes the mandatory exhaustion
process”); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001) (holding “a federal court
relying on the Illinois statute of limitations in a § 1983 case must toll the limitations
period while a prisoner completes the administrative grievance process”); Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (because PLRA prevents bringing § 1983
action until administrative remedies are exhausted, state statute of limitations tolled while
prisoner exhausted); Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (state law
precedent dictates that PLRA’s exhaustion requirement prevents state statute of
limitations from running until prisoner has exhausted).
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However, because Shakuur has not properly attempted to exhaust administrative
remedies, we need not reach this issue. We take judicial notice of PPS’s internal
grievance procedures.2 The briefs submitted by the parties clarify that Shakuur has not
undertaken any of the steps of the grievance procedure. See Jones v. Bock, 127 S. Ct.
910, 923 (2007) (prison’s own requirements define proper exhaustion). Accordingly, we
agree with the District Court’s decision to grant defendants’ motion to dismiss on the
basis of the untimeliness of the complaint.
We, therefore, will affirm the judgment of the District Court. Shakuur’s motion
for counsel/oral argument is denied.
2
PPS has grievance procedures for inmate complaints that allege violations of
constitutional rights. See Nelson v. Warden of Currant-Fromhold Corr. Facility, 461 F.
Supp. 2d 316, 318 (E.D. Pa. 2006). The inmate completes a multi-part grievance form
and retains a copy. See Harvey v. City of Philadelphia, 253 F. Supp. 2d 827, 830 (E.D.
Pa. 2003). The inmate must submit the form within 10 days of the events giving rise to
the grievance. See Nelson, 461 F. Supp. 2d at 319 n.3. If the inmate feels he is being
denied access to the normal procedures, he may forward his grievance directly to the
Commissioner. See Harvey, 253 F. Supp. 2d at 830.
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