                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-30-2008

Kenneth Speight v. H. Sims
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2038




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ALD-234                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 08-2038
                                      ___________

                            KENNETH EUGENE SPEIGHT,
                                                 Appellant

                                            v.

    H. SIMS; A. FOURA; J. DOE; D. SALAMY; M. PICERNO; and GILBERTSON
                   ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                                 (D.C. Civil No. 07-0064)
                     District Judge: Honorable Richard P. Conaboy
                      ____________________________________

         Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
         or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    June 19, 2008

             Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                             (Opinion filed June 30, 2008 )
                                       _________

                                        OPINION
                                       _________

PER CURIAM

       Kenneth E. Speight, a prisoner proceeding pro se, appeals orders of the United

States District Court for the Middle District of Pennsylvania dismissing his complaint in

                                            1
part and granting summary judgment to the defendants. Speight, currently incarcerated at

FCI McKean, filed a Bivens complaint against Bureau of Prisons (“BOP”) officials,

alleging that defendants falsified information in his file in order to influence his custody

classification, forced him to share cells with inmates having a known history of violence,

which led to multiple assaults, retaliated against him by transferring him to a higher

security penitentiary, and interfered with the grievance process. We will summarily

affirm.

          Speight was incarcerated at FCI Ray Brook in New York for several years, until

his transfer in 2002. During that time, Speight alleges, defendants D. Salamy and M.

Picerno, case managers, and Gilbertson, a psychologist, falsified information in his file

regarding his disciplinary history. This false information led to an inflated classification

score and Speight’s placement in higher security units. This ultimately led him to be

housed with, and victimized by, prisoners with known histories of violence.

          In 2002, prison officials transferred Speight to FCI Allenwood in White Deer,

Pennsylvania. Speight alleges that, at FCI Allenwood, defendants H. Sims, the unit

manager, and A. Foura, a case manager, further falsified Speight’s file. These

falsifications resulted in Speight’s placement in a high security unit, where he was housed

with a violent inmate who assaulted him on February 28, 2005. Speight complained of

the inaccurate information in his file, and defendants assured him that they would correct

any inaccuracies. Speight later discovered that defendants had not made any corrections.



                                               2
       On September 28, 2006, Speight filed a grievance with respect to Sims’ and

Foura’s alleged misconduct. The BOP returned the grievance to him, and it contained a

handwritten note, purportedly signed by Speight, stating that he wished to withdraw the

grievance. The BOP’s Central Office denied the grievance appeal on the basis of

Speight’s decision to withdraw, stating, “If you wish to appeal this issue, you must start

the appeal process at the institution level.” Speight then filed a separate grievance stating

that he never withdrew his prior grievance, and that defendant J. Doe, an unknown

grievance officer, forged his signature in order to thwart the grievance process. The

prison denied that grievance after the BOP analyzed Speight’s signature and determined

that the signature was authentic, not forged. Speight also alleges that Sims and Foura

retaliated against him for filing suit in June 2004 by transferring him from a federal

correctional institution to a higher security penitentiary, USP Allenwood.

       The District Court dismissed Speight’s claims against defendants Salamy, Picerno

and Gilbertson at FCI Ray Brook on the basis of the statute of limitations, and dismissed

Speight’s claim against defendant Doe on the ground that Speight had no liberty interest

in an effective grievance process. See Massey v. Helman, 259 F.3d 641, 647 (7th Cir.

2001) (“[T]he existence of a prison grievance procedure confers no liberty interest on a

prisoner.”). The District Court remanded the remainder of the case for further

proceedings, and defendants Sims and Foura moved for summary judgment. The District

Court granted summary judgment on the ground that Speight had failed to exhaust his



                                              3
administrative remedies, and Speight appealed.

       We agree with the District Court’s dismissal of the claims against defendants

Salamy, Picerno and Gilbertson. Although the statute of limitations is an affirmative

defense, the District Court may sua sponte dismiss a claim on that basis if the defense is

evident from the face of the complaint. See Ray v. Kertes, 285 F.3d 287, 297 (3d Cir.

2002) (sua sponte dismissal inappropriate “unless the basis is apparent from the face of

the complaint.”). The statute of limitations for a § 1983 claim brought in New York is

three years. Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994). Speight alleges that

Salamy, Picerno and Gilbertson falsified his file at FCI Ray Brook in New York in 1998,

1999 and 2002.1 Speight does not allege that he lacked knowledge or the ability to know

of the harms at the time they occurred.2 Accordingly, he has not alleged any basis for

tolling the statute of limitations, and his claims against these defendants are time-barred.3


   1
   Speight was transferred from Ray Brook in 2002, so any acts of falsification at Ray
Brook necessarily occurred before that time.
   2
    In his objections to the Magistrate Judge’s report recommending dismissal under §
1915(e), Speight asserts that the false information placed in his file in the late 1990s
remains in his file and constitutes a continuing violation, such that the “statute of
limitations has not yet begun to run . . . .” Speight does not allege that the defendants
have consistently falsified his file over time; instead, he complains of a few sporadic
events at two different facilities. Therefore, the continuing violation theory does not
apply. See McAleese v. Brennan, 483 F.3d 206, 218 (3d Cir. 2007).
   3
     For the same reason, Speight’s claim that unspecified officials at FCI Ray Brook were
deliberately indifferent to his safety when they housed him in a cell with an inmate with a
known propensity for violence is also time-barred. After the District Court dismissed
Speight’s claims against Salamy, Picerno and Gilbertson, Speight filed a motion for leave
to file an amended complaint. The District Court did not abuse its discretion in denying

                                              4
       We also agree that summary judgment was proper on the basis of Speight’s failure

to exhaust. The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust the

administrative remedies available in prison prior to filing a lawsuit. Woodford v. Ngo,

548 U.S. 81, 88 (2006). The PLRA requires “proper” exhaustion, meaning that an inmate

must exhaust his administrative remedies in compliance with the applicable prison

regulations. Spruill v. Gillis, 372 F.3d 218, 222 (3d Cir. 2004). The BOP requires an

inmate to seek informal resolution of his concerns, after which he may file a formal

grievance if his unit team fails to provide a satisfactory response. 28 C.F.R. § 542.13-14.

The inmate may appeal to the Regional Director, and then to the Central Office. 28

C.F.R. § 542.15. If the Central Office denies his appeal, the inmate may file a lawsuit.

       Speight alleges that he attempted to exhaust his claim disputing his custody

classification, caused by Sims’ and Foura’s falsifications, by filing a grievance on

September 28, 2006. Speight alleges that defendant Doe forged his signature on a request

to “withdraw” the grievance, and that Doe’s forgery denied him access to the courts by

precluding him from satisfying the PLRA’s exhaustion requirements. The record

demonstrates that BOP officials rejected Speight’s grievance appeal, but that they gave

Speight the opportunity to appeal his custody classification starting at the institutional



him leave to amend because Speight cannot overcome the statute of limitations bar as to
Salamy, Picerno and Gilbertson. Winer Family Trust v Queen, 503 F.3d 319, 330-31 (3d
Cir. 2007); In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). Moreover,
the proposed amended complaint attached to his motion does not differ materially from
the initial complaint.

                                              5
level. Speight failed to do so.4 Therefore, the District Court properly concluded that

Speight had not exhausted this claim against Sims and Foura, and granted summary

judgment.

       We disagree with the District Court’s construction of Speight’s claim against Doe,

as Speight alleges that Doe’s conduct violated Speight’s First Amendment right to access

to the courts, not his right to due process. Regardless, a claim of denial of access to the

courts would be meritless because the record demonstrates that the BOP gave Speight an

opportunity to appeal his grievance regarding his custody classification, and he failed to

do so. Therefore, Speight’s own inaction – and not Doe’s alleged forgery – precluded

him from satisfying the requirements of the PLRA.5


   4
     In his opposition to defendants’ motion for summary judgment, Speight submitted
copies of numerous grievances he filed regarding inaccuracies in his file, and defendants’
failure to correct them. (Pl.’s Opp., Ex. M). The BOP requires an inmate to appeal his
grievance to the agency’s Central Office in order to fully exhaust his administrative
remedies. See 28 C.F.R. § 542.15. Speight contends that he did not appeal because
defendants agreed to correct the inaccuracies in his file. Speight asserts that he did not
learn until a later time that the incorrect information had not been corrected. Once
Speight learned that the information had not been corrected, however, he was obligated to
file a grievance to attempt to resolve his concerns. He began the process by seeking
informal resolution of his concerns, followed by filing a grievance dated September 28,
2006. This grievance was then purportedly withdrawn, and Speight failed to appeal.
   5
    Speight also alleges that the defendants placed him in a cell with an inmate with a
known history of violence, who assaulted him on February 28, 2005, at FCI Allenwood.
The defendants and the District Court did not construe the complaint as stating a free-
standing Eighth Amendment claim arising out of the assault. Instead, they construed the
allegations of assault as related to Sims’ and Foura’s alleged acts of falsification. On this
view, Sims’ and Foura’s acts of falsification led to Speight’s placement in a high security
facility, where he was housed with and beaten by a violent inmate. To the extent that
Speight’s Eighth Amendment claim arises out of his claim that Sims and Foura falsified

                                              6
       Finally, the undisputed evidence demonstrates, and Speight concedes, that he

failed to exhaust his administrative remedies with respect to his retaliation claim. The

District Court properly granted summary judgment as to that claim.

       For the foregoing reasons, we will summarily affirm the District Court’s orders.




his file, the District Court correctly determined that Speight failed to exhaust the claim.
To the extent that Speight sought to assert a free-standing Eighth Amendment claim, we
note that Speight could have asserted, but did not assert, such a claim either in his
opposition to summary judgment, or in his objections to the Magistrate Judge’s report
recommending summary judgment. Speight has also demonstrated his familiarity with
the practice of naming “Doe” defendants, and we have no basis for believing that Speight
intended to name additional defendants, but that he simply did not know their identities.

                                             7
