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


9-17-2008

Bernard Brown v. A.D. Tollackson
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2128




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DLD-268                                                      NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 08-2128
                                     ___________

                                 BERNARD BROWN,

                                                          Appellant

                                           v.

                               A.D. TOLLACKSON
                      ____________________________________

                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                                (D.C. Civil No. 07-1094)
                     District Judge: Honorable William J. Nealon
                     ____________________________________

        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
                                   August 7, 2008

       Before: BARRY, CHAGARES AND GREENBERG, CIRCUIT JUDGES.

                          (Opinion filed: September 17, 2008)
                                       _________

                                       OPINION
                                      _________

PER CURIAM

      Bernard Brown, a prisoner proceeding pro se, appeals an order of the United States

District Court for the Middle District of Pennsylvania granting summary judgment to the
defendant, A.D. Tollackson, a prison official at FCI-Allenwood. On appeal, Tollackson

seeks summary affirmance of the District Court’s order, and Brown seeks summary

reversal.

       Brown, who is incarcerated at FCI-Allenwood, filed a Bivens complaint against

Tollackson, alleging that Tollackson had violated his federal civil rights. Brown alleges

that, in 2004, Tollackson denied him access to the prison staff photocopier when the

inmate photocopier was out of service, and that Tollackson discouraged Brown from

talking to the warden about the issue. Brown alleges that Tollackson’s refusal to permit

him access to the staff photocopier compromised his legal representation.

       Brown also alleges that Tollackson refused to permit Brown’s wife to visit him,

purportedly on account of her criminal history. Brown asserts that this explanation was a

pretext for discrimination, as prison officials at other facilities had previously permitted

Brown’s wife to visit him, despite their knowledge of her criminal history. Brown

requested the assistance of Mr. Kos, his unit counselor, in obtaining clearance for his

wife’s visits. Kos indicated that Brown’s wife had not filled out the appropriate visitor

form. Brown alleges that his wife submitted another letter from her probation officer,

permitting the visit. Tollackson ordered Kos to forward the letter to him. Tollackson

thwarted the clearance process and then allegedly told Brown that it was not his fault that

Brown’s wife “is a criminal.”




                                              2
       The parties cross-moved for summary judgment. Tollackson sought summary

judgment on the basis that the statute of limitations on Brown’s claims had expired and

that Brown had failed to exhaust his administrative remedies. Brown responded that the

statute of limitations with respect to his wife’s visits should be tolled because the full

harm did not accrue until 2006, when his wife filed for divorce. The District Court

denied Brown’s motion and granted Tollackson’s motion.

       We agree that Brown’s claims are time-barred. The statute of limitations for a

Bivens claim, as for claims arising under 42 U.S.C. § 1983, is borrowed from the forum

state’s personal injury statute. See Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993);

King v. One Unknown Fed. Corr. Officer, 201 F.3d 910, 913 (7th Cir. 2000) (same

statute of limitations applies to actions under Bivens and § 1983). In Pennsylvania, the

statute of limitations for personal injury actions is 2 years. 42 Pa. C.S.A. § 5524.

Therefore, Brown had two years from the time each claim accrued to file suit.

       Brown’s first claim, regarding Tollackson’s refusal to permit him to use the staff

photocopier, accrued in 2004. Brown does not contend that he did not or could not know

of the harm at the time it occurred. As Brown did not file suit until January 16, 2007, his

first claim is time-barred. As to his second claim, Brown contends that Tollackson

refused to permit his wife to visit him in 2003 and 2004. In his response in opposition to

summary judgment, Brown contends that the statute of limitations on his second claim

should be tolled because his claim did not accrue until 2006, when his wife divorced him.



                                               3
The complaint alleges that Brown was harmed in 2003 and 2004 when his wife was not

permitted to visit. His cause of action accrued not at the time of his divorce, but when

visitation was denied. Therefore, Brown’s second claim is also time-barred.

       Even if we were to determine that the statute of limitations did not begin to run

until Brown’s wife filed for divorce in 2006, Brown’s claim would still fail due to his

failure to exhaust. Failure to exhaust under the PLRA is an affirmative defense, and the

plaintiff has no obligation to plead exhaustion in the complaint. Ray v. Kertes, 285 F.3d

287, 297-98 (3d Cir. 2002). However, exhaustion may be properly raised on a motion for

summary judgment. Where, as here, the defendant submits evidence at the summary

judgment stage indicating that the plaintiff failed to exhaust his administrative remedies,

Def’t. Mot. for Summ. J., Ex. 1, the plaintiff must come forward with rebuttal evidence

to avoid summary judgment. Brown concedes in his opposition brief that he failed to

exhaust his administrative remedies with respect to his second claim, but he contends that

exhaustion would have been futile. Futility does not excuse the PLRA’s exhaustion

requirement. Nyhuis v. Reno, 204 F.3d 65, 71 (3d Cir. 2000). Therefore, the District

Court could not have reached the merits of Brown’s second claim, in any event.

       As this appeal presents no substantial question, we will grant appellee’s motion for

summary affirmance. 3d Cir. L.A.R. 27.4 and I.O.P. 10.6. Appellant’s motions for

summary reversal and for appointment of counsel are denied.
