                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-5-2007

Bagley v. Bourne
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3459




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Recommended Citation
"Bagley v. Bourne" (2007). 2007 Decisions. Paper 1006.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1006


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ALD-229                                               NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT


                               No. 06-3459


                           ARTHUR BAGLEY,

                                                      Appellant

                                    v.

     BOURNE, CORRECTIONAL OFFICER, HER FIRST NAME UNKNOWN;
    BARNES, CORRECTIONAL LIEUTENANT, HIS FIRST NAME UNKOWN;
               RIEBA, LIEUTENANT, FIRST NAME UNKNOWN;
              LEDDON, LIEUTENANT, FIRST NAME UNKNOWN;
        PHYLLIS JONES-CARTER, CORRECTIONAL UNIT MANAGER,
                       A. SECTION UNIT MANAGER;
                COLMAN, CORRECTIONAL UNIT MANAGER,
           FIRST NAME UNKNOWN, B. SECTION UNIT MANAGER;
 SHIRLEY LAWS SMITH, CORRECTIONAL HEALTH CARE ADMINISTRATOR;
  U. KIHN, CORRECTIONAL PHYSICIAN, MD - HIS FIRST NAME UNKNOWN;
   NICKOLAS, CORRECTIONAL PHYSICIAN, HIS FIRST NAME UNKNOWN;
      MARY V. LEFTRIDGE BYRD, CORRECTIONAL SUPERINTENDENT;
               ROXINA RUMLEY, ACTING SUPERINTENDENT;
          MARY CAMINO, CORRECTIONAL HEARING EXAMINER;
   PAT O’CONNOR, CORRECTIONAL GAUDENZIA PROGRAM-DIRECTOR;
      FAISON, CORRECTIONAL COUNSELOR, FIRST NAME UNKNOWN;
                    BOURNE, CORRECTIONAL OFFICER;
          CARTER, UNIT MANAGER; COLEMAN, UNIT MANAGER;
                           DEAN, LIEUTENANT;
 SHIRLEY LONG-SMITH, CORRECTIONAL HEALTHCARE ADMINISTRATOR;
                RIERA, LIEUTENANT; SEDDON, LIEUTENANT


              On Appeal From the United States District Court
                 For the Eastern District of Pennsylvania
                        (D.C. Civ. No. 05-cv-00288)
               District Judge: Honorable Timothy J. Savage
           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    May 10, 2007

    Before:     SLOVITER, CHAGARES AND GREENBERG, CIRCUIT JUDGES

                                   (Filed: June 5, 2007)



                                        OPINION


PER CURIAM

       Appellant, Arthur Bagley, a prisoner at the State Correctional Institution at

Houtzdale, Pennsylvania, proceeding pro se and in forma pauperis, appeals an order of

the United States District Court for the Eastern District of Pennsylvania dismissing his

civil rights claims. For the following reasons, we will dismiss the appeal pursuant to 28

U.S.C. § 1915(e)(2)(B).

       On January 21, 2005, Bagley commenced an action in the District Court arising

from events that took place while he was incarcerated at the State Correctional Institution

at Chester, Pennsylvania (“SCI-Chester”). Bagley alleges that he requires frequent toilet

access because he suffers from diabetes and hypertension, and that the defendants caused

him physical and emotional harm by deliberately preventing him from using prison toilet

facilities. He singles out the conduct of co-defendant Correctional Officer Bourne, who is

alleged to have interfered with Bagley’s toilet access on various occasions over a period

of several months. Bagley’s amended complaint asserts claims under 42 U.S.C. § 1983,

alleging that the defendants violated his rights under the Eighth Amendment by acting

                                             2
deliberately indifferent to his serious medical needs and subjecting him to inhumane

conditions of confinement. The amended complaint also alleges that Officer Bourne

violated Bagley’s Fourteenth Amendment right to due process by arbitrarily and

capriciously denying him access to his cell. In addition, Bagley raises claims against

several of the defendants for breaching their supervisory duties.

       The defendants filed a motion to dismiss the complaint or in the alternative for

summary judgment on the grounds, inter alia, that Bagley’s claims were untimely and not

properly exhausted under 42 U.S.C. § 1997e(a). Bagley responded to this motion by

submitting a brief in opposition and supporting exhibits. The District Court granted

summary judgment after concluding that Bagley’s claims were untimely under the

applicable statute of limitations. Bagley now appeals. Because he is proceeding in forma

pauperis, we will dismiss the appeal if it lacks an arguable basis in law or fact. See 28

U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       We have jurisdiction under 28 U.S.C. § 1291. Our review of the District Court’s

order is plenary. See DeHart v. Horn, 390 F.3d 262, 267 (3d Cir. 2004). Summary

judgment is proper where, viewing the evidence in the light most favorable to the

nonmoving party and drawing all inferences in favor of that party, there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter of law. See

FED. R. CIV. P. 56(c); Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006).

       We agree with the District Court’s analysis regarding the timeliness of Bagley’s

claims. A party suing under 42 U.S.C. § 1983 must comply with the deadline prescribed

                                             3
by state law for timely filing a personal injury action. See Kost v. Kozakiewicz, 1 F.3d

176, 189-90 (3d Cir. 1993). Under Pennsylvania law, a plaintiff must file a personal

injury action no later than two years after the cause of action accrues. 42 PA. CONS.

STAT. ANN. § 5524. We note that nearly all specific instances of misconduct referenced

in the amended complaint are attributed to Officer Bourne. The amended complaint

states that Officer Bourne interfered with Bagley’s toilet access on several occasions from

February to September of 2002. There is no dispute that Bagley’s contact with Officer

Bourne ceased by October 2002, when Bagley moved to a different cell block. Bagley

did not commence the instant suit within two years of that date, but instead waited until

January 2005, or approximately three months after expiration of the two-year limitations

period.1

       The claims against the other defendants are also time barred because Bagley has

failed to show that any of these parties engaged in misconduct within two years prior to

the date he commenced this suit. Although the amended complaint vaguely refers to

ongoing interference with Bagley’s toilet access from November 2002 and thereafter, the

District Court correctly ruled that the evidence in the record does not establish a genuine

issue of fact as to the occurrence of any constitutional violations during this open-ended


  1
    Although we have not addressed the matter, several circuits have held that the
limitations period applicable to § 1983 actions tolls while a prisoner exhausts available
administrative remedies. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005)
(collecting cases). We need not resolve the issue here because even if the claims against
Officer Bourne presented no timeliness problem, they would be barred because Bagley
did not present them to prison officials in total or substantial compliance with the internal
grievance procedures. See Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004).

                                              4
period. Moreover, to the extent that Bagley asserts claims against defendants other than

Officer Bourne based on actions that occurred within the two-year limitations period, we

note that such claims are barred as a matter of law because Bagley has made no attempt to

exhaust them. See 42 U.S.C. § 1997e(a).

      Based on the foregoing, we will dismiss the appeal pursuant to 28 U.S.C. §

1915(e)(2)(B). We deny Appellant’s motion for appointment of counsel.




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