United States District Court, M.D. Pennsylvania
September 22, 2005.
WILLIAM E. FOSTER, SR., Plaintiff
ROBERT MORRIS, ET AL., Defendants.
The opinion of the court was delivered by: RICHARD CONABOY, Senior District Judge
MEMORANDUM AND ORDER Background
William E. Foster, Sr., an inmate presently confined at the
Mahanoy State Correctional Institution, Frackville, Pennsylvania
(SCI-Mahanoy), initiated this pro se civil rights action
pursuant to 42 U.S.C. § 1983. By Order dated July 22, 2004, this
Court granted Plaintiff leave to file an amended complaint which
identified John/Jane Doe Defendants which were named in the
Named as Defendants in Plaintiff's subsequently filed amended
complaint (Doc. 82) are Franklin County, Pennsylvania; the
Borough of Chambersburg and former Mayor Robert Morris, as well
as current Mayor Thomas L. Newcomer; the Franklin County Prison,
ex-Warden Ray Rosenberry and eight (8) members of the prison
Board of Trustees.*fn1 The Plaintiff is also proceeding against the
Honorable Douglas W. Herman of the Franklin County Court of
Plaintiff describes himself as being a partial paraplegic and
"wheelchair bound individual."*fn2 Doc. 82, ¶ 15. Foster
states that he was transferred from the handicapped accessible
SCI-Mahanoy to the Franklin County Prison on or about October 18,
1999. He alleges that the Defendants had full knowledge that he
was wheelchair bound and that the prison was not in compliance
with the Americans with Disabilities Act (ADA). Therefore, he
contends that Defendants were deliberately indifferent to his
medical and physical needs in that they failed to provide
handicapped accessible accommodations at the Franklin County
Plaintiff adds that his wheelchair would not fit into his cell
and the toilet and shower lacked grab bars. Furthermore, Foster
allegedly fell on November 1, 1999 while trying to use the shower
and was thereafter forced to use the sink in his cell as his sole
means of bathing.
The amended complaint adds that since Defendants were aware
that the prison was not handicapped accessible, their failure to
relocate Plaintiff to a prison having handicapped accessible
facilities likewise constituted deliberate indifference. Foster also contends that Defendants' alleged actions violated the ADA
and he includes pendent state law tort claims. His amended
complaint seeks injunctive and declaratory relief as well as
compensatory and punitive damages.
Presently pending are two motions for summary judgment filed by
the Defendants. See Docs. 87 & 90. Both motions raise identical
arguments. The motions have been briefed and are ripe for
Defendants claim entitlement to an entry of summary judgment on
the grounds that Plaintiff's amended complaint is barred by the
applicable statute of limitations. Alternatively, they argue that
Foster failed to exhaust his available administrative remedies.
Standard of Review
Summary judgment is appropriate if the "pleadings, depositions,
answers to interrogatories, admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to judgment
as a matter of law." Fed.R.Civ.P. 56(c).
[T]he plain language of Rule 56(c) mandates the entry
of summary judgment, after adequate time for
discovery and upon motion, against a party who fails
to make a showing sufficient to establish the
existence of an element essential to that party's
case, and on which that party will bear the burden of
proof at trial. In such a situation, there can be "no
genuine issue as to any material fact," since a
complete failure of proof concerning an essential
element of the nonmoving party's case necessarily
renders all other facts immaterial. The moving party
is "entitled to a judgment as a matter of law" because the nonmoving party has failed to make a
sufficient showing on an essential element of her
case with respect to which she has the burden of
proof. "[T]he standard [for granting summary
judgment] mirrors the standard for a directed verdict
under Federal Rule of Civil Procedure 50(a). . . ."
Celotex Corp. v. Catrett, 477 U.S. 317
, 322-23, (1986).
The moving party bears the initial responsibility of stating
the basis for its motion and identifying those portions of the
record which demonstrate the absence of a genuine issue of
material fact. The moving party can discharge that burden by
"`showing' . . . that there is an absence of evidence to support
the nonmoving party's case." Celotex, supra,
106 S.Ct. at 2553 and 2554. Once the moving party has satisfied its burden,
the nonmoving party must present "affirmative evidence" to defeat
the motion, consisting of verified or documented materials.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
Issues of fact are "genuine only if a reasonable jury,
considering the evidence presented could find for the nonmoving
party." Childers v. Joseph, 842 F.2d 689, 693-94 (3d Cir.
1988). Only disputes over facts that might affect the outcome of
the suit will preclude the entry of summary judgment. Id. In
evaluating a motion for summary judgment, the entire record must
be examined in the light most favorable to the nonmoving party.
Statute of Limitations
Defendants argue that any claim predating July 16, 2000 is
barred by Pennsylvania's applicable statute of limitations.
Foster counters that his complaint should be deemed timely filed
under the continuing violation doctrine. Doc. 90, ¶ 7. He further maintains
that Defendants' statute of limitations argument should not be
entertained because it was previously raised and rejected by this
By Memorandum and Order dated May 27, 2003, this Court denied
an earlier request by the Defendants for dismissal based on the
statute of limitations defense. See Doc. 45, p. 6. Specifically
this Court, noting Foster's pro se status, concluded that
"the amended complaint is "arguably seeking relief under a
continuing violation theory." Id. Consequently, based on
Defendants' failure to address the issue of a continuing
violation theory, the request for dismissal under the statute of
limitations was denied. The Memorandum and Order did not preclude
the Defendants from reasserting their statute of limitations
argument. Since this Court's prior determination was not premised
on a merits analysis but, rather on the parties' failure to
address the continuing violation doctrine, Defendants'
reassertion of the statute of limitations defense in a manner
which adequately addresses the continuing violation doctrine is
In reviewing the applicability of the statute of limitations to
an action filed pursuant to § 1983, a federal court must apply
the appropriate state statute of limitations which governs
personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276
(1985); Cito v. Bridgewater Twp. Police Dep't, 892 F.2d 23, 25
(3d Cir. 1989). The United States Supreme Court clarified its decision in
Wilson when it held that "courts considering § 1983 claims
should borrow the general or residual [state] statute for
personal injury actions." Owens v. Okure, 488 U.S. 235, 250
(1989). Pennsylvania's applicable personal injury statute of
limitations is two years. See 42 Pa. Cons. Stat. Ann. § 5524(7)
(Purdon Supp. 1996); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d
Cir. 1993); Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d
Cir.), cert. denied, 474 U.S. 950 (1985). Finally, the statute
of limitations "begins to run from the time when the plaintiff
knows or has reason to know of the injury which is the basis of
the Section 1983 action." Gentry v. Resolution Trust Corp.,
937 F.2d 899, 919 (3d Cir. 1991) (citations omitted).
The ADA does not contain a specific statute of limitations.
However, as with § 1983 claims, it has been recognized that the
applicable statute of limitations for ADA claims is the forum
state's personal injury statute. See Estrada v. Trager, 2002
WL 31053819 (E.D. Pa. Sept. 10, 1992); McMenamin v.
Philadelphia, 2000 WL 873321 (E.D. Pa. June 13, 2000). As
previously observed, Pennsylvania's applicable personal injury
statute of limitations is two (2) years.
Defendants incorrectly claim that Plaintiff's original
complaint was filed July 16, 2002. On the contrary, Foster's
original complaint was filed on May 6, 2002. More importantly,
Plaintiff signed and dated the original complaint on May 3, 2002. In Houston v. Lack, 487 U.S. 266 (1988), the United States
Supreme Court established that a prisoner's complaint is deemed
filed at the time it was given to prison officials for mailing to
the Court. This "mailbox rule" resulted from the Court's concern
that prisoners had no choice but to rely upon prison authorities
for the filing of their legal papers. The Court in Houston also
noted that if a question regarding timeliness of a filing date
arises, a prisoner would not likely be able to establish that
prison staff were responsible for any delays in the filing of
such papers. See id. at 271. Pursuant to the standards
announced in Houston, Foster's complaint will be deemed filed
as of May 3, 2002.
The question of when a cause of action accrues is a question of
federal law. Smith v. Wambaugh, 887 F. Supp. 752, 755 (M.D. Pa.
1995). A § 1983 claim accrues when the facts which support the
claim reasonably should have become known to the plaintiff.
Plaintiff's allegations of a long term deliberate indifference
to his need for handicapped accessible accommodations could
indicate a continuous or ongoing violation of his rights. If a
defendant's conduct is part of a continuing practice, an action
is timely so long as the last act evidencing the continuing
pattern falls within the limitations period. National R.R.
Passenger Corp. V. Morgan, 536 U.S. 101 (2002); Brenner v.
Local 514, 927 F.2d 1283, 1295 (3d Cir. 1991).
This Court's May 27, 2003 decision correctly determined that
Plaintiff's claims accrued on November 1, 1999 and that the
statute of limitations began to run on that date. See Doc. 45, p. 5.
With respect to the issue of the continuing violation theory, the
undisputed record as developed by the Defendants establishes that
Plaintiff has been housed at SCI-Mahanoy since 1994. Between 1997
and 2001, Foster was temporarily transferred on different
occasions to the Franklin County Prison in order to attend court
proceedings. His longest period of incarceration at the Franklin
County Prison during said period lasted approximately 2-3 months.
Since Plaintiff was housed at the Franklin County Prison on a
sporadic and temporary basis, this Court finds that the
continuing practice doctrine is not applicable in this case.
Consequently, since the Plaintiff's present claims accrued in
October-November, 1999 and his present action was not initiated
until May, 2002, all of his present claims are clearly time
barred. Entry of summary judgment on the basis of Defendants'
statute of limitations argument is appropriate.
Defendants alternatively assert that Plaintiff failed to
exhaust his available administrative remedies with respect to his
present claims. Based on the non-exhaustion of those claims, they
claim entitlement to entry of summary judgment. Plaintiff's
opposing brief asserts that he initiated request slips regarding
the lack of handicapped accessible facilities in 1997, 1999 and
2001. See Doc. 90, ¶ 5. He adds that the Franklin County Prison
only has an informal grievance system. 42 U.S.C. § 1997e(a) provides as follows:
No action shall be brought with respect to prison
conditions under Section 1979 of the Revised Statutes
of the United States (42 U.S.C. 1983), or any other
federal law, by a prisoner confined in any jail,
prison, or other correctional facility until such
administrative remedies as are available are
Section 1997e(a) requires administrative exhaustion "irrespective
of the forms of relief sought and offered through administrative
avenues." Porter v. Nussle, 122 S.Ct. 983
, 992 (2002); Booth
v. Churner, 532 U.S. 731
, 741 n. 6 (2001). Claims for monetary
relief are not excused from the exhaustion requirement. Nyhuis
v. Reno, 204 F.3d 65
, 74 (3d Cir. 2000). Dismissal of an
inmate's claim is appropriate when a prisoner has failed to
exhaust his available administrative remedies before bringing a
civil rights action. Ahmed v. Sromovski, 103 F. Supp. 2d 838
843 (E.D. Pa. 2000). "[E]xhaustion must occur prior to filing
suit, not while the suit is pending." Tribe v. Harvey,
248 F.3d 1152, 2000 WL 167468, *2 (6th Cir. 2000) (citing Freeman v.
Francis, 196 F.3d 641
, 645 (6th Cir. 1999)).
An inmate's failure to comply with the administrative
exhaustion requirement constitutes an affirmative defense. See
e.g., Massey v. Helman, 196 F.3d 727, 735 (7th Cir. 2000),
cert. denied, 532 U.S. 1065 (2001); Jenkins v. Haubert,
179 F.3d 19, 29 (2d Cir. 1999); Robinson v. Dalton, 107 F.3d 1018,
1021 (3d Cir. 1997) (failure to exhaust administrative remedies
is an affirmative defense in a Title VII case). Consequently, a
prisoner does not have to allege in his complaint that he has exhausted
administrative remedies. Ray v. Kertes, 285 F.3d 287 (3d Cir.
2002). Rather, it is the burden of a defendant asserting the
defense to plead and prove it. Id.; Williams v. Runyon,
130 F.3d 568, 573 (3d Cir. 1997); Charpentier v. Godsil,
937 F.2d 859 (3d Cir. 1991); Fed.R.Civ.P. 8(c).
Based on documents submitted by the Defendants, this Court is
satisfied that the Franklin County Prison had a formal
appropriate administrative grievance procedure in place during
the relevant time period of this action. Doc. 94, Exhibit C-1.
Thus, Plaintiff's argument that a formal grievance procedure did
not exist lacks merit. Second, Plaintiff contends that he filed
grievances in 1997, 1999, and 2001. It is initially noted that
any grievance filed in 1997 clearly pre-dates the relevant period
of this action. Foster's October 21, 1999 grievance regarded a
financial dispute with prison officials. Doc. 88, Exhibit D.
Plaintiff's April 18, 2001 grievance concerned discovery of a
weapon in the cushion of a wheelchair. Doc. 94, Exhibit E.
As demonstrated above, the three grievances cited by Foster are
irrelevant for purposes of determining if his present conditions
of confinement claims were administratively exhausted.
Furthermore, although Foster also apparently filed a request for
an additional mattress (which was granted), that request is
equally immaterial. In conclusion, based on the record Foster
failed to initiate any grievance at the Franklin County Prison
regarding either the lack of handicapped accessible accommodations in 1999
or his November, 1999 fall while showering.
Accordingly, in light Foster's demonstrated failure to file and
exhaust an administrative grievance regarding his present claims,
entry of summary judgment with respect to Defendants'
non-exhaustion argument is also appropriate.
It is additionally noted that the adjudicatory power of a
federal court depends upon "the continuing existence of a live
and acute controversy." Steffel v. Thompson, 415 U.S. 452, 459
(1974) (emphasis in original). "The rule in federal cases is that
an actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed." Id. at n. 10
(citations omitted). "Past exposure to illegal conduct is
insufficient to sustain a present case or controversy regarding
injunctive relief if unaccompanied by continuing, present adverse
effects." Rosenberg v. Meese, 622 F. Supp. 1451, 1462 (S.D.N.Y.
1985) (citing O'Shea v. Littleton, 414 U.S. 488, 495-96
(1974)). Thus, for example, "[a]bsent class certification, an
inmate's claim for injunctive and declaratory relief in a section
1983 action fails to present a case or controversy once the
inmate has been transferred." Wahl v. McIver, 773 F.2d 1169,
1173 (11th Cir. 1985) (citation omitted); see also Carter v.
Thompson, 808 F. Supp. 1548, 1555 (M.D. Fla. 1992). In his deposition testimony, Foster acknowledges that he has
not been confined at the Franklin County Prison since 2001. See
Doc. 88, Exhibit B-1, N.T. 53. In his opposing brief, Plaintiff
additionally notes that the Franklin County Prison no longer
houses prisoners who are confined to wheelchairs. Doc. 90, p. 3.
Foster is no longer confined at the Franklin County Prison and
there is no reasonable probability that he will be returned to
that correctional facility in the foreseeable future.
Consequently, since Plaintiff is not suffering any apparent
continuing adverse effects as a result of his prior temporary
periods of confinement at the Franklin County Prison, his
complaint to the extent that it seeks injunctive and declaratory
relief is subject to dismissal on the basis of mootness under the
standards set forth in Rosenberg and Wahl. An appropriate
Order will enter.
AND NOW, THEREFORE, THIS 22nd DAY OF SEPTEMBER, 2005, IT IS
HEREBY ORDERED THAT:
1. Defendants' pending summary judgment motions
(Docs. 87 & 90) are granted.
2. Plaintiff's present claims are subject to
dismissal under Pennsylvania's applicable statute of
limitations and for failure to exhaust administrative
3. The Clerk of Court is directed to close the case. 4. Any appeal from this Order will be deemed
frivolous, without probable cause, and not taken in
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