United States District Court, M.D. Pennsylvania
February 9, 2004.
JACK T. HOWARD, Plaintiff
JAKE MENDEZ, et al., Defendants
The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
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
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
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
equitable estoppel and statutory tolling combine to defeat the motion on
the record before us.
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
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
(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
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
grounds which, as noted, we converted into a motion for summary
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, 2002 WL 31053819, at *3 (E.D. Pa.) (same). See also
Lake v. Arnold, 232 F.3d 360, 368 (3d
Cir. 2000)(borrowing the Pennsylvania two-year statute of limitations
for an action under 42 U.S.C. § 1983).
The court must also apply any relevant state tolling principles, id. at
368, unless they conflict with federal law and policy. Id. at 369, 370.
In Pennsylvania, the limitations period can be tolled by the discovery
rule, a judicially created, equitable rule that tolls the period during
the time that a plaintiff could not have known, in the exercise of
reasonable diligence, about the existence of his injury. See Dalrymple
v. Brown, 549 Pa. 217, 223, 701 A.2d 164, 167 (1997). A plaintiff "can
[also] escape the rigors" of the limitations period by invoking equitable
estoppel, Lake, supra, 232 F.3d at 367, if the defendant has committed
fraud or concealment that "causes the plaintiff to relax his vigilance or
deviate from his right of inquiry" so that the suit is not timely filed.
Molineux v. Reed, 516 Pa. 398, 402, 532 A.2d 792, 794 (1987). However,
the fraud or concealment need not be fraud or concealment "in the
strictest sense, that is, with an intent to deceive; unintentional fraud
or concealment is sufficient." Id. at 403, 532 A.2d at 794.
Additionally, certain statutory
provisions address tolling of the limitations period under certain
circumstances. See 42 Pa. C.S. § 5532-5535.
Although state tolling rules apply, federal law controls when the cause
of action accrues. Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d
Cir. 1991); Elliott Reihner Siedzikowski & Egan, P.C. v. Pennsylvania
Employees Benefit Trust Fund, 29 Fed. Appx. 838, 840 (3d Cir. 2002)
(nonprecedential). Under federal law, a civil rights cause of action
accrues, and the statute begins to run, when the plaintiff "knew or
should have known of the injury upon which [the] action is based."
Sameric Corp. of Delaware, Inc. v. City of Philadelphia, 142 F.3d 582,
599 (3d Cir. 1998)(section 1983 action)(brackets added).
Although Plaintiff's complaint seeks redress for some acts occurring
before February 29, 2000, the defendants assume for the purpose of their
motion that the limitations period for all claims accrued on that day,
the date Plaintiff was
terminated from his prison job. (Doc. 25, Defs.' Supporting Br., p.
With this assumption, the defendants argue that the statute began
running on February 29, 2001, and that the two-year limitations period
expired on March 1, 2002.*fn5 Consequently, this case is time-barred
because it was filed on December 10, 2002, about nine months too late.
(Id., p. 7).
The defendants further argue that Plaintiff cannot rely on any tolling
rule, court-made or statutory, to extend the limitations period. As to
the discovery rule, they point out that there was nothing hidden about
the nature of Plaintiff's firing; he would have discovered that injury on
the date it happened. (Doc. 35, Defs.' Supplemental Br., p. 6). As to
equitable estoppel, they maintain that Plaintiff does not allege that any
of the defendants "fraudulently misrepresented any operative facts."
(Id.). They also argue, citing in part, Robbins v. Seventko Orthopedic
Surgeons, Inc. v. Geisenberger, 449 Pa. Super. 367, 674 A.2d 244 (1996),
that Pennsylvania does
not toll the limitations period while a plaintiff exhausts administrative
remedies. Finally, they point out that Pennsylvania has provided
statutorily that incarceration will not toll the statute. See 42 Pa.
C.S. § 5533(a).
Alternatively, assuming for the sake of argument that administrative
exhaustion is relevant, they assert Plaintiff would only be entitled at
most to tolling from November 13, 2001, the date defendant Clark filled
out the BP-8, through June 11, 2002, the date the administrative process
was completed at the General Counsel's level, a period of only about
seven months, not enough time to avoid the limitations bar since the
complaint was filed some ten months (in their view) after the statute
In part, Plaintiff counters that, in light of section 1997e(a), the
limitations period must be tolled while he was attempting to exhaust
administrative remedies; however, he would use a longer time frame than
the defendants. He would
toll the period from April 9, 2001, the date we dismissed his first
lawsuit, until June 11, 2002. In his supplemental brief, Plaintiff
represents he was actively pursuing his administrative remedies during
this time. Plaintiff's time frame would toll the period for about
thirteen months, thereby making the complaint timely since it was filed
about nine months after the limitations deadline.
Contrary to the defendants' argument, the court believes that
Pennsylvania's rule of equitable estoppel would apply here. That rule
applies to fraud "in the strictest sense" but also extends to a
defendant's conduct that is even unintentionally an act of fraud or
concealment that leads the plaintiff not to file within the limitations
period. We think that Plaintiff has provided sufficient evidence of
defendant Clark's conduct to bring it within the scope of the latter
Specifically, Clark's delay from at least August 5, 2001, as evidenced
by Plaintiff's inmate-request form of that date, until November 13, 2001,
to fill out Plaintiff's BP-8 form is neglect that would come within this
application even though Clark's conduct would not normally be seen as a
concealment, let alone fraud. Clark's delay was not intentional, or
intended to harm Plaintiff, but that issue is irrelevant because the
Pennsylvania rule extends to so-called unintentional fraud or
concealment. Critical here is that Clark did delay and this delay
involved a part of the administrative process that prison rules
prohibited Plaintiff from doing himself, filling out a BP-8 form. The
defendants should therefore be estopped from invoking the limitations
period for the time between August 5, 2001, and November 13, 2001.
Even though Pennsylvania courts have not faced this precise factual
scenario, we find support for our ruling in Simmons v. Snider,
165 Pa. Commw. 417, 645 A.2d 400 (1994). The facts of Simmons are
dissimilar to those here, but the case is relevant because the
Pennsylvania Commonwealth Court was willing to apply equitable estoppel
in that case to the conduct of the respondent state agency, which was
characterized in material part by a failure to act.
As Simmons relates, in 1975 the Pennsylvania Department of Public
Welfare (DPW) entered into a compact with the federal government whereby
DPW would make interim
assistance payments to Pennsylvania residents while these residents
appealed the denial of supplemental security income through the Social
Security Administration. If the resident succeeded on appeal, the federal
government would make a lump-sum payment for past benefits to DPW, which
in turn would deduct the amount of its assistance payments and pass the
difference on to the resident.
Simmons was a class action in which the residents claimed, and
the commonwealth court agreed, that DPW should pay them their legal
expenses in establishing their right to federal payments, on the theory
that the residents had benefitted DPW by obtaining reimbursement for the
Under the applicable two-year statute of limitations, DPW argued in
part that no resident could be included in the class who had not made a
claim for legal expenses on or after August 14, 1983, two years before
August 14, 1985, the filing date of the action. Discussing the discovery
rule, DPW argued that residents must have known about their claims for
legal expenses from the amount DPW forwarded to them after deducting the
sum of the agency's interim payments, supposedly a matter of "simple
arithmetic." Id. at 424, 645 A.2d at 404.
The commonwealth court rejected this argument, finding that equitable
estoppel, in line with the fraud-or-concealment language from Molineux,
supra, had tolled the statute of limitations from March 1, 1975, the date
of the compact, until the date suit was filed. Among other things, it
relied on the following findings:
(1) without statutory authority, DPW practiced a
policy of nonreimbursement of the legal fee portions
benefitting DPW. (2) It never published any statement
of this negative policy. (3) DPW stipulates that it
did not grant hearings on reimbursement issues. (4)
DPW's refund notice unnecessarily curtailed class
members' filing time and directed class members to
local DPW agencies which, in practice, asserted that
reimbursement matters are not actually handled by
local DPW agencies but by the Board of Claims. (5) DPW
corresponded directly with class members regardless of
whether the class members had an attorney of record.
165 Pa. Commw. at 428, 645 A.2d at 406. The court also noted that
"litigation was not a real option for the class members" given the small
size of the DPW payments and the residents' financial conditions,
id. at 429, 645 A.2d at 406, and should not have been imposed on
the residents given DPW's statutory duty to assist the class members.
Id. at 427, 645 A.2d at 405.
Of course, some facts are present in Simmons that are absent here: the
refund notice only gave a short time for filing an appeal with the agency
and incorrectly directed class members to local DPW agencies; DPW
corresponded directly with class members and not with their attorneys, if
they had one; and the financial condition of class members.
Nonetheless, we cannot ignore the significance the commonwealth court
attached to DPW's failure to act, as established by the first three
numbered findings in the portion of the opinion quoted above. Also,
elsewhere in the opinion the court characterized DPW's conduct as
"informed neglect," id. at 426, 645 A.2d at 405, or a failure to
"take explicit actions to implement a policy to address reimbursements."
Id. at 429, 645 A.2d at 406.
We recognize that DPW's failure to set forth a clear attorney-fee
reimbursement policy and its incorrect advice on appeals could be seen as
a form of concealment because the court charged DPW with failing "to
educate the public" by not publishing a statement of policy, id.
at 426, 645 A.2d at 405, and with "creat[ing] and continu[ing] the
resulted in this case," id. at 429, 645 A.2d at 406, but we believe other
aspects of the case make DPW's failure to act sufficient ground for
estoppel. For instance, the court did not reject DPW's discovery-rule
argument that a resident could know that she had not been reimbursed for
attorney's fees when she was sent her payment from DPW, which would
normally trigger the running of the statute. Instead, it decided that
even if true, DPW's conduct tolled the statute because it created a
"[dis]incentive" to seek the fees, id. at 426, 645 A.2d at 405, not that
it deprived the residents of knowledge necessary to know of their claim.
Further, the absence of a policy and the refusal to hold hearings on
reimbursement of attorney's fees represent failures to act.
We therefore conclude that we can rely on equitable estoppel to toll
the limitations period here for the three months or so that Clark failed
to fill out the BP-8. Clark had the responsibility to fill out the BP-8.
He did not have to act immediately, but his failure to act for almost
three months, even without any bad intention, requires tolling, just as
it did in Simmons.
As further support for tolling the statute, we note that Pennsylvania
courts use a common-sense approach to interpreting a statute of
limitations. See Ayers v. Morgan, 397 Pa. 282, 285, 154 A.2d 788, 789
(1959). We think that a Pennsylvania court confronted by the
circumstances in this case would conclude that common sense requires
tolling of the limitations period when a litigant's right to file suit
depends on the timely conduct of the opposing party's agent in assisting
in the exhaustion of mandatory administrative remedies. For this reason,
the defendants' citation to Robbins, supra, is inapposite. In Robbins,
the Pennsylvania Superior Court held that a legal malpractice action for
drafting an inaccurate pension plan was not tolled while remedies were
exhausted before the IRS seeking approval of the plan. Unlike here, the
IRS administrative procedures were not mandatory.
We also conclude that statutory tolling requires us to exclude the time
between November 13, 2001, and June 11, 2002, which was consumed while
Plaintiff pursued the administrative process. The defendants have
42 Pa. C.S. § 5535(b), which provides: "[w]here the commencement of a
civil action or proceeding has been stayed by a court or by statutory
prohibition, the duration of the stay is not a part of the time within
which the action or proceeding must be commenced." Here, section 1997e(a)
prevented Plaintiff from commencing his civil rights action until he had
exhausted administrative remedies, see Booth, supra, 532 U.S. 731, 739,
121 S.Ct. 1819, 149 L.Ed.2d 958 (exhaustion is mandatory), and courts
will dismiss actions, as we did with the first lawsuit, where the
plaintiff-prisoner did not exhaust his remedies. Hence, pursuant to
section 5535(b), the statute of limitations is tolled for the time
between November 13, 2001, and June 11, 2002. See Johnson v. Rivera,
272 F.3d 519 (7th Cir. 2001)(limitations period on section 1983 action
was tolled while section 1997e(a) required the plaintiff to exhaust
administrative remedies, based on an Illinois statute that excludes the
time the action is "stayed" by a "statutory prohibition").*fn6
[EDITORS NOTE: THIS PAGE IS BLANK.]
Based on the foregoing, Plaintiff's limitations deadline was January
6, 2003, calculated as follows. Equitable estoppel tolls the period
between August 5, 2001, and November 13, 2001, a period of 100 days. Cf.
1 Pa. C.S. § 1908 (for periods of time mentioned in a statute, the first
day of the period shall be excluded and the last one included). Statutory
tolling tolls the period between November 13, 2001, and June 11, 2002, a
period of 210 days. Id. Thus, the total number of days the limitations
period was tolled was 310 days. These days are added to March 1, 2002, the
date upon which the limitations period would have expired absent
tolling, bringing us to January 5, 2003, but because that was a Sunday,
the deadline was the next day, January 6, 2003. Id. (the last day of the
period is excluded if it would fall on a Sunday). Plaintiff filed his
complaint on December 10, 2002, some three weeks earlier. It was
therefore timely and the defendants' motion must be denied.*fn7
We will issue an appropriate order.
AND NOW, this 9th day of February, 2004, it is ordered that the
defendants' motion (doc. 21) to dismiss, based on the statute of
limitations, and converted to a motion for summary judgment, is denied.