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
Rehabilitation
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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
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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
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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.
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(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
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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
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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, ...