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HOWARD v. MENDEZ

February 9, 2004.

JACK T. HOWARD, Plaintiff
v.
JAKE MENDEZ, et al., Defendants



The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge

MEMORANDUM

I. Introduction.

  The pro se plaintiff, Jack T. Howard, an inmate at the Allenwood Federal Correctional Institution, White Deer, Pennsylvania, filed this civil rights action, alleging that the defendants discriminated against him when they fired him from his prison job because of a hearing disability, that conditions on the job had worsened an already existing hearing problem, and that defendants retaliated against him when he complained about his firing.*fn1 He makes a claim under the Rehabilitation Page 2 Act, 29 U.S.C. § 794, and Bivens claims for violations of the First and Eighth Amendments and the equal-protection component of the Fifth Amendment.*fn2

  The defendants have filed a motion, which we converted to one for summary judgment, arguing that Plaintiff's suit is barred by the statute of limitations. We will evaluate the motion under the well established standard. See Anderson v. Consolidated Rail Corp., 297 F.3d 242, 46-47 (3d Cir. 2002). In doing so, we will deny it because we conclude that Page 3 equitable estoppel and statutory tolling combine to defeat the motion on the record before us.

 II. Background.

  The following is the background to the motion, as established by the summary-judgment record. On February 29, 2000, Howard was fired from his prison job. (Doc. 15, Am. Compl., p. 5). On March 9, 2001, he filed a civil rights action raising the same claims presented here. On April 9, 2001, we dismissed that case without prejudice because he had only partially completed the Bureau of Prisons' administrative-remedy process, thus failing to exhaust available administrative remedies as required by 42 U.S.C. § 1997(e). Howard v. Zenk, No. 1:CV-01-0438 (M.D. Pa. April 9, 2001) (Caldwell, J.).*fn3 Page 4

  The Bureau's Administrative Remedy Program, 28 C.F.R. § 542.10-542.15 (2003), has four steps. First, the inmate must attempt an informal resolution with prison staff under procedures established by the warden of each prison, id. at § 542.13(a), using a form commonly identified as a "BP-8." The Allenwood "Informal Resolution" form involved in Plaintiff's case contained the following language at the beginning:

  This form will serve as documentation by the respective staff member and his/her unit manager to indicate an informal attempt to resolve the complaint of the following inmate. Inmates are NOT to complete this form. Page 5

 (Doc. 35, Ex. 1). Below that, there was a section for describing the "Nature of complaint" which was "to be completed by staff." Id. Below that was a signature line for the inmate prefaced by "I have read the complaint above as written by Unit Staff and agree it is accurate." Id.

  Second, if the informal resolution is unsuccessful, an inmate must file a formal administrative-remedy request with the warden on a Form BP-9. 28 C.F.R. § 542.14(a). Third, he may file an appeal to the Regional Director on a Form BP-10. Id. at § 542.15. Fourth, the inmate may appeal to the Bureau's General Counsel on a Form BP-11. Id.

  Plaintiff did eventually complete the administrative process. After dismissal of his first lawsuit, he began anew with a BP-8. However, the process was not promptly begun. On August 5, 2001, about four months after the dismissal of the previous case, Plaintiff submitted an "Inmate Request to Staff" complaining that his counselor, defendant Clark, was not assisting him in completing his BP-8. (Doc. 36, Ex. 2). On August 26, 2001, Plaintiff submitted another inmate-request form, this time to defendant Craig, stating that this would be Page 6 the third time Plaintiff would be seeking his help to obtain Clark's assistance in filling out Plaintiff's administrative papers. (Id., Ex. 3). During this time, Plaintiff also sought medical clearance in an attempt to be rehired to his prison job. Having received a response from the prison hospital, on November 7, 2001, Plaintiff sent an inmate-request form to Clark, stating that he was considering the response as a BP-8 and requesting a form BP-9. On November 8, 2001, Clark responded that the hospital's answer was not a BP-8 and that "we could do the 8" at the "open house." (Id., Ex. 7). On November 13, 2001, Clark filled out the BP-8. (Doc. 35, Ex. 1). Plaintiff then filed his BP-9, BP-10 and BP-11, receiving a response from the General Counsel on June 11, 2002. (Id., Ex. 2).

  Plaintiff started this lawsuit on December 10, 2002.*fn4 Defendants then filed a motion to dismiss on limitations Page 7 grounds which, as noted, we converted into a motion for summary judgment.

 III. Relevant Limitations Law.

  There is no statute of limitations for a Bivens claim, Napier v. Thirty or More Unidentified Federal Agents, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988), or for a Rehabilitation Act claim. Swierkowski v. Consolidated Rail Corp., 168 F. Supp.2d 389, 393 (E.D. Pa. 2001); Saylor v. Ridge, 989 F. Supp. 680, 685 (E.D. Pa. 1998). In these circumstances, courts borrow the most analogous state statute of limitations, Napier, 855 F.2d at 1087 n.3; Swierkowski, supra, 168 F. Supp.2d at 393, the two-year statute of limitations in Pennsylvania for a personal-injury action in 42 Pa. C.S. § 5524(2), (7). Egervary v. Young, 159 F. Supp.2d 132, 155 (E.D. Pa. 2001)(Bivens claim); Swierkowski, supra, 168 F. Supp.2d at 394 (Rehabilitation Act claim); Saylor, supra, 989 F. Supp. at 686 (same); Estrada v. Trager, ...


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