                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-10-2002

Ahmed v. Dragovich
Precedential or Non-Precedential: Precedential

Docket No. 01-1587




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PRECEDENTIAL

       Filed June 10, 2002

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1587

ALI AHMED (HIRAM MCGILL)

v.

DRAGOVICH, SUPERINTENDENT;
CORRECTIONS SECRETARY HORN;
SROMOVSKI, CORRECTIONS OFFICER;
EICHENBERG, SGT.;
MAHALLY, LT.

Ali Ahmed,
       Appellant

On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 98-cv-02548)
District Judge: Hon. Anita B. Brody

Argued: December 17, 2001

Before: SLOVITER and McKEE, Circuit Judges and
HAYDEN,* District Judge

(Filed: June 10, 2002)
_________________________________________________________________

* Hon. Katharine S. Hayden, United States District Judge for the District
of New Jersey, sitting by designation.


       Wendy Beetlestone (Argued)
       Schnader, Harrison, Segal & Lewis
       Philadelphia, PA 19103

        Attorney for Appellant

       Howard G. Hopkirk (Argued)
       Office of the Attorney General
        of Pennsylvania
       Harrisburg, PA 17120

        Attorney for Appellees

OPINION OF THE COURT

SLOVITER, Circuit Judge.

Ali Ahmed, a former Pennsylvania prison inmate, appeals
the District Court’s February 13, 2001 order denying his
motion to amend his complaint against two state prison
officers alleging excessive force. The District Court had
previously dismissed Ahmed’s complaint on June 26, 2000
on the ground that he had failed to exhaust administrative
remedies prior to commencing suit, as required by the
Prison Litigation Reform Act ("PLRA"), 42 U.S.C. S 1997e(a)
(2001). Although the statute of limitations on Ahmed’s
claim had expired, the District Court dismissed Ahmed’s
complaint without prejudice. Because of the expiration of
the statute of limitations, the District Court’s order was a
final and appealable order which Ahmed failed to timely
appeal. As will be developed hereafter, we are accordingly
without jurisdiction to rule on the issues decided in the
June 26 order. We are not under a similar limitation with
respect to consideration of the new issues decided in the
February 13 order, which Ahmed timely appealed. 1
_________________________________________________________________

1. We express our appreciation to counsel for the appellant who was
appointed in the District Court to represent Ahmed, who was pro se, and
who continued her representation on appeal. Counsel is associated with
the law firm of Schnader, Harrison, Segal & Lewis LLP, whose attorneys
have consistently volunteered to represent pro se inmates in appeals at
the request of this court. See, e.g., Booth v. Churner, 206 F.3d 289, 291
n.1 (3d Cir. 2000), aff ’d, 532 U.S. 731 (2001).

                                2


I.

FACTS AND PROCEDURAL POSTURE

According to Ahmed’s complaint, filed pursuant to 42
U.S.C. S 1983, Officers Sromovski and Eichenberg
assaulted him in his cell on April 3, 1998, while he was
incarcerated at the State Correctional Institution at
Mahanoy.2 Following this incident, Officer Sromovski filed a
prison misconduct charge against Ahmed for assaulting an
officer. The misconduct charge was filed pursuant to the
Pennsylvania Department of Corrections’ Inmate
Disciplinary and Restricted Housing Procedures, DC-ADM
801, under which prison officials may charge inmates with
violations of prison rules. See, e.g., Ray v. Kertes, 285 F.3d
287, 290 (3d Cir. 2002). Inmates may appeal
determinations of culpability through a process of
administrative review. Id. at 291.

According to Sromovski, after Ahmed’s cell door was
accidently opened, Ahmed charged Sromovski, yelling an
obscenity. Pending a hearing on the incident, Ahmed was
confined to his cell. At the hearing, which took place on
April 6, 1998, he was found guilty. Ahmed filed an appeal
from that determination to the Program Review Committee
on April 7, 1998. On April 9, the Program Review
Committee sustained the decision of the hearing examiner
on Ahmed’s misconduct charge. Ahmed appealed that
determination on April 13 to the superintendent, who
upheld the charge in a decision dated April 14.

The matter also proceeded through the system within the
prison designed to address inmate-initiated grievances. On
April 8, Ahmed filed a claim regarding the April 3 incident
pursuant to DC-804, the Consolidated Inmate Grievance
Review System. Under the Grievance Review System, prison
administrators investigate and attempt to resolve inmate
grievances. At the conclusion of an investigation, a
grievance officer provides the inmate with an Initial Review
_________________________________________________________________

2. The facts of this dispute are set forth fully in the District Court’s
opinion reported as Ahmed v. Sromovski, 103 F. Supp. 2d 838 (E.D. Pa.
2000), and need not be repeated here.

                                3


Response, which includes "a brief rationale, summarizing
the conclusions and any action taken or recommended to
resolve the issues raised in the grievance." DC-ADM 804
VI(B)(4), App. at 150. Inmates may appeal Initial Review
Responses through two additional levels of administrative
review.

On April 23, 1998, a grievance officer completed an Initial
Review Response to Ahmed’s April 8 grievance outlining the
substance of the officer’s interviews and the written reports
filed in the matter. According to the grievance officer, "You
[Ahmed] stated you had numerous injuries but when seen
by Medical no injuries were noted." App. at 266. The officer
observed that "[y]our witnesses did little to help you," and
concluded "[m]y biggest doubt of your allegations, how do
you get punched in the face and pushed against a table
and the RN who checked you stated that you have no
injuries." App. at 266. Although the grievance officer
expressed no clear result in that decision, the clear
implication is that he had concluded no further action was
warranted. Ahmed did not appeal the Initial Review
Response within five days, as required by DC-ADM 804
VI(C)(1), which provides for appeal "within five (5) days from
the date of receipt by the inmate of the Initial Review
decision. The inmate must appeal in this manner prior
to seeking Final Review." App. at 150 (emphasis in
original).

On April 14, 1998, before completion of the Initial Review
Response, Ahmed received a letter from the Superintendent
of Prisons placing Ahmed on "restricted access to the
grievance system." App. at 271. Restricted access, which is
authorized under DC-ADM 804 V(C), "limited [Ahmed] to
filing one grievance per month." App. at 271. This action
was taken because prison authorities had determined
Ahmed had filed numerous frivolous grievances. According
to the Superintendent’s letter, Ahmed filed eighteen
grievances from June 13, 1997 to April 9, 1998, or 4.4% of
all prisoner grievances brought in that time frame.
Although Ahmed concedes he often used the grievance
procedures and was familiar with the prison’s procedures
governing grievances, he contends that he was hampered in
any appeal of the Initial Review Response because he did

                                4
not have a copy in his cell of the handbook containing DC-
ADM 804’s provisions. Br. of Appellant at 12. Ahmed also
argues that he believed the grievance restriction precluded
him from filing an appeal in April, although the letter
placing him on grievance restriction referred only to the
"filing" of grievances. However, he does not contend he was
unaware of the relevant provisions nor does he explain why,
if he believed he could not file an appeal of the Initial
Review in April, he did not attempt to do so in the next
month which would have been permitted under the one
grievance per month restriction.

In addition to filing his grievance, Ahmed submitted a
request on May 22, 1998 to the Schuylkill County District
Attorney’s office to file a criminal complaint against
Sromovski and Eichenberg. The prosecutor’s office referred
the matter to the Pennsylvania Department of Corrections
Office of Professional Responsibility. That office sent the
complaint back to S.C.I. Mahanoy, Ahmed’s place of
incarceration, where the prison authorities prepared a
report dated June 26, 1998. According to that report,
"Inmate Ahmed’s allegations against CO Sromovski are
clearly contradicted by the staff reports of the incident."
App. at 276. The report concluded that "[b]ased on the
reports submitted by the staff involved in the incident and
Ahmed’s refusal to cooperate with the investigation,. . . no
further action is necessary in this case." App. at 276. After
reviewing the report, the Pennsylvania Department of
Corrections Office of Professional Responsibility
"determined the investigation satisfactory." App. at 298.

Ahmed first filed an application to proceed in forma
pauperis on a S 1983 complaint against Sromovski,
Eichenberg and their supervisors in the United States
District Court for the Eastern District of Pennsylvania on
May 18, 1998. Although his initial attempts were rejected
as deficient, Ahmed eventually complied with the filing and
fee requirements, and on July 29, 1998, the District Court
granted his motion to proceed in forma pauperis. Ahmed’s
pro se complaint was filed with the District Court the same
day. The complaint alleged that Sromovski and Eichenberg
violated his Eighth Amendment rights. The defendants (also
referred to collectively as the "Commonwealth"), represented

                                5


by the state Attorney General, moved on September 14,
1998 to dismiss Ahmed’s complaint for failure to allege
exhaustion.

Two days later, Ahmed filed an administrative appeal
under DC-ADM 804 from the April 23, 1998 Initial Review
Response. It is unclear whether Ahmed’s appeal was in
response to the Commonwealth’s motion raising the
exhaustion issue. In any event, his appeal was swiftly
denied as untimely by the prison superintendent, who
observed, "You have five days in which to file your appeal
with this office and it is now five months later." App. at
272. Ahmed immediately appealed that determination to
the Chief Hearing Examiner, the final level of review
provided for by the DC-804 grievance procedures. That
appeal was rejected on the same ground. The District Court
denied the defendants’ motion to dismiss on January 29,
1999.

A year later, this court decided Nyhuis v. Reno , 204 F.3d
65 (3d Cir. 2000), holding that the exhaustion requirement
of the PLRA set forth in 42 U.S.C. S 1997e(a) means "that
no action shall be brought in federal court until such
administrative remedies as are available have been
exhausted." Id. at 78. The Commonwealth then filed a
supplemental motion3 for summary judgment in light of
Nyhuis addressing Ahmed’s failure to exhaust. The District
Court, citing Nyhuis, reconsidered its January 29, 1999
order denying the Commonwealth’s motion to dismiss and
dismissed Ahmed’s complaint on June 26, 2000,4 for failure
to exhaust administrative remedies prior to filing suit under
the PLRA. The court designated that dismissal as without
prejudice. Ahmed, 103 F. Supp. 2d at 846.

By then, specifically by April 3, 2000, the statute of
limitations on Ahmed’s S 1983 claim had expired, as it was
more than two years since the incident that is the subject
_________________________________________________________________

3. The Commonwealth had previously filed a motion for summary
judgment on the merits, which was still pending.

4. The June order was decided on June 26, 2000, filed on June 27,
2000, and entered on June 28, 2000. We refer to it as the June 26
order. It is reported at Ahmed v. Sromovski, 103 F. Supp. 2d 838 (E.D.
Pa. 2000).

                                6


of Ahmed’s complaint. See, e.g., Wilson v. Garcia, 471 U.S.
261, 275 (1985) ("We conclude that [S 1988] is fairly
construed as a directive to select, in each State, the one
most appropriate statute of limitations for allS 1983
claims."); Knoll v. Springfield Twp. Sch. Dist., 763 F.2d 584
(3d Cir. 1985) (applying, in light of Wilson v. Garcia, two
year statute of limitations for S 1983 claims). A short time
later, on July 2, 2000, Ahmed was released from prison. He
filed a motion on July 31, 2000 for leave to file an amended
complaint relating back to the date of the filing of his initial
complaint. The District Court summarily denied Ahmed’s
motion on February 13, 2001. Ahmed filed a notice of
appeal from that order on March 5, 2001.

II.

DISCUSSION

A.

Exhaustion
In addressing the merits of the District Court’s June 26
order, the Commonwealth argues that the District Court
correctly found that Ahmed had failed to exhaust his
appeal of his initial grievance before filing his complaint.
There is no dispute that Ahmed failed to file an appeal of
his April 8, 1998 grievance to the final stages of prison
review within the required five days and did not seek to do
so until September of 1998, some two months after the
District Court permitted him to proceed in forma pauperis
on his complaint and five months after his grievance was
denied at the initial stage. In Nyhuis, this court, after
rejecting a futility exception to the PLRA’s exhaustion
requirement, applied the PLRA literally. We stated:

       we are not prepared to read the amended language in
       S 1997e(a) as meaning anything other than what it says
       - i.e., that no action shall be brought in federal court
       until such administrative remedies as are available
       have been exhausted.

                                7


Nyhuis, 204 F.3d at 78.

Although Ahmed argues that the PLRA’s exhaustion
requirement should be interpreted to permit prisoners to
exhaust administrative remedies after they have filed a
complaint in federal court, the Commonwealth replies that
the administrative procedures available within the prison
system must be exhausted before the inmate begins the
federal suit.5

However plausible we might find the Commonwealth’s
argument were we free to reach it,6 the Commonwealth has
raised a serious challenge to our jurisdiction to do so in its
contention that Ahmed failed to file a timely notice of
appeal. Because this court has held that failure to exhaust
is not a jurisdictional defect, Nyhuis, 204 F.3d at 69 n.4,
we cannot consider the exhaustion issue until we first
reach the jurisdictional challenge. See Steel Co. v. Citizens
for Better Env’t, 523 U.S. 83, 94 (1998). Only if we are not
persuaded by the Commonwealth’s argument that we lack
jurisdiction over Ahmed’s appeal would we be free to
consider the exhaustion issue. We therefore turn to the
jurisdiction issue.

B.

Failure to Timely Appeal

The Commonwealth argues that this court lacks
jurisdiction over Ahmed’s appeal because the District
Court’s June 26 order dismissing the complaint was a final
_________________________________________________________________

5. The exhaustion requirement of the PLRA provides that:

       No action shall be brought with respect to prison conditions under
       section 1983 of this title, 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 exhausted.

42 U.S.C. S 1997e(a).

6. In Nyhuis, we concluded "[T]he. . . rule . . . we believe Congress
intended is that inmates first test and exhaust the administrative
process, and then, if dissatisfied, take the time necessary to file a timely
federal action." Nyhuis, 204 F.3d at 77 n.12.

                                8


order which Ahmed failed to timely appeal. Ahmed
responds that the District Court’s June 26 order specified
that the dismissal was without prejudice. Ordinarily, an
order dismissing a complaint without prejudice is not a
final order as long as the plaintiff may cure the deficiency
and refile the complaint. See, e.g., Welch v. Folsom, 925
F.2d 666, 668 (3d Cir. 1991). On the other hand, if the
plaintiff cannot cure the deficiency, an order dismissing a
complaint without prejudice is a final and appealable order.
Newark Branch, NAACP v. Harrison, N.J., 907 F.2d 1408,
1416 (3d Cir. 1990).

The Commonwealth contends that Ahmed cannot cure
the deficiency because a new complaint would be barred by
the statute of limitations. This court has stated that
although "[t]he principle is well-settled in this circuit that
an order dismissing a complaint without prejudice is not a
final and appealable order," that principle does not apply
where the statute of limitations has run. Id. at 1416; see
also Green v. Humphrey Elevator & Truck Co., 816 F.2d
877, 878 n.4 (3d Cir. 1987) (sustaining appellate
jurisdiction over dismissal of complaint based on running
of statute of limitations). This is consistent with the
position of other courts. See, e.g., Gray v. Fid. Acceptance
Corp., 634 F.2d 226, 227 (5th Cir. Unit B Jan. 1981)
("Since the district court’s order [denying plaintiffs’ timely
motion to amend the court’s dismissal without prejudice]
was handed down after the statute of limitations had run,
the dismissal is a final order for purposes of appeal.").
Ahmed does not dispute that the statute of limitations on
his claim had expired by the time he sought to amend the
complaint. Because the statute of limitations on Ahmed’s
claim expired in April, 2000, the June 26, 2000 order was
a final and appealable order notwithstanding its
designation as without prejudice.

Under Federal Rule of Appellate Procedure 4, a civil
litigant must file a notice of appeal "within 30 days after the
judgment or order appealed from is entered." Fed. R. App.
P. 4(a)(1)(A). Ahmed would have had to file a notice of
appeal of the District Court’s June 26 order by July 28,
2000 or file a timely motion in the District Court for an
extension of time. All parties agree that Ahmed did not file

                                9
a notice of appeal by July 28, 2000 nor did he seek an
extension.

However, Ahmed argues that if he had been given leave
to amend, which he proposed in his July 31 motion to
amend, the amendments would have related back to the
date of the original complaint, thereby enabling the
complaint to avoid the bar of the statute of limitations.
Federal Rule of Civil Procedure 15 provides that"[a]n
amendment of a pleading relates back to the date of the
original pleading" under certain circumstances. Fed. R. Civ.
P. 15(c). But if the June 26 order was a final judgment,
Ahmed could not use Rule 15 to amend the complaint.
Although Rule 15 vests the District Court with considerable
discretion to permit amendment "freely . . . when justice so
requires," Fed. R. Civ. P. 15(a), the liberality of the rule is
no longer applicable once judgment has been entered. At
that stage, it is Rules 59 and 60 that govern the opening of
final judgments. Fed. R. Civ. P. 59-60. As Wright and Miller
observe "once a judgment is entered the filing of an
amendment [under Rule 15] cannot be allowed until the
judgment is set aside or vacated under Rule 59 or Rule 60."
6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,
Federal Practice & Procedure, S 1489, at 692-93 (2d ed.
1990). As those authors explain:

       To hold otherwise would enable the liberal amendment
       policy of Rule 15(a) to be employed in a way that is
       contrary to the philosophy favoring finality of
       judgments and the expeditious termination of
       litigation. Furthermore, the draftsmen of the rules
       included Rules 59(e) and 60(b) specifically to provide a
       mechanism for those situations in which relief must be
       obtained after judgment and the broad amendment
       policy of Rule 15(a) should not be construed in a
       manner that would render those provisions
       meaningless.

Id. at 694 (footnote omitted).

Ahmed argues that he is not subject to Rules 59(e) or
60(b) because there was "no entry of judgment and no final
judgment following the District Court’s decision to dismiss."
Reply Br. of Appellant at 14 n.3. According to Ahmed, "the

                                 10


[D]istrict [C]ourt dismissed the action rather than entering
summary judgment. The [District C]ourt did not indicate
anywhere in its opinion and order of June 26, 2000 that it
was entering judgment." Id. This view of the District Court’s
June 2000 order is not borne out by the record. The
District Court’s order provides that: "IT IS ORDERED that:
(1) Defendant’s supplemental motion for summary
judgment . . . is GRANTED." Ahmed v. Sromovski, 103 F.
Supp. 2d 838, 846 (E.D. Pa. 2000). Similarly, the docket
entry records the June 26 order as "ORDER GRANTING
DEFTS’ SUPPLEMENTAL MOTION FOR SUMMARY
JUDGMENT," and notes, in an entry made the same day,
that the case was closed. It is therefore evident that
judgment was entered against Ahmed pursuant to the June
26 order.7

Although Ahmed did not file a motion under either Rules
59 or 60, he did file the July 31, 2000 motion to amend the
complaint, and the District Court’s denial of that motion in
its February 13, 2001 order is properly before us. Ahmed
does not contend that his motion to amend extended his
time to file a notice of appeal. Despite Ahmed’s disclaimer
of the applicability of Rule 59(e) or Rule 60, we are free to
recharacterize the motion to amend to match the substance
of the relief requested. See, e.g., In re Burnley, 988 F.2d 1,
2 (4th Cir. 1992) (observing courts have felt free to consider
post-judgment motions as Rule 59(e) or Rule 60 motions).

One of the principal commentators on federal procedure
has noted that "[m]otions seeking to amend a complaint
that are made after a judgment of dismissal have been
entered have been construed as Rule 60(b) motions." 12
James Wm. Moore, Moore’s Federal Practice, S 60.64, at 60-
196 (3d ed. 2002); see also Newark Branch, NAACP , 907
F.2d at 1411 n.5 (treating motion improperly titled as
motion for rehearing and reconsideration as motion to alter
or amend judgment pursuant to Fed. R. Civ. P. 59(e));
Odishelidze v. Aetna Life & Cas. Co., 853 F.2d 21, 24 (1st
Cir. 1988) (construing motion for reconsideration as motion
_________________________________________________________________

7. Appellant’s contention that the District Court’s judgment failed to
comply with Rule 58 is without merit as the court’s order appears on a
separate page from the court’s opinion characterized as "Explanation."

                                11


under Rule 60(b)). Where, as here, the motion is filed
outside of the ten days provided for under Rule 59(e) but
within the year permitted under Rule 60(b), and the motion
may be read to include grounds cognizable under the latter
rule, we will consider it to have been filed as a Rule 60(b)
motion. See, e.g., Venen v. Sweet, 758 F.2d 117, 122-23 (3d
Cir. 1985) (treating "functional equivalent" of Rule 59
motion untimely under that rule as timely motion under
Rule 60(b)).

The standard of review for Rule 60(b) motions is abuse of
discretion. See, e.g., Coltec Indus., Inc. v. Hobgood, 280
F.3d 262, 269 (3d Cir. 2002). When a party requests post-
judgment amendment of a pleading, a court will normally
conjoin the Rule 60(b) and Rule 15(a) motions to decide
them simultaneously, as it "would be a needless formality
for the court to grant the motion to reopen the judgment
only to deny the motion for leave to amend." 6 Wright et al.,
Federal Practice & Procedure S 1489, at 695. Therefore, "the
fact that the amended pleading offered by the movant will
not cure the defects in the original pleading that resulted in
the judgment of dismissal may be a valid reason both for
denying a motion to amend under Rule 15(a) and for
refusing to reopen the judgment under Rule 60(b)." Id.

We consider next whether any amendment to Ahmed’s
complaint would be futile. Ahmed’s motion to amend his
complaint, which the District Court denied by its February
13 order, sought to reflect (1) his untimely appeal of his
administrative grievance subsequent to the commencement
of this suit, and (2) his release from prison in July 2001.

We turn first to Ahmed’s proposed amendment designed
to cure the District Court’s dismissal because of Ahmed’s
failure to exhaust his administrative remedies. 8 Ahmed has
admitted that he did not file the necessary second step in
_________________________________________________________________

8. At the time of the District Court opinion, we had not yet articulated
our view as to whether the PLRA exhaustion requirement is an
affirmative defense. See Ahmed, 103 F. Supp.2d at 842 n.13. Since that
time we have held that the PLRA exhaustion requirement is an
affirmative defense and a prisoner need neither plead nor prove
exhaustion to proceed under the PLRA. Ray v. Kertes, 285 F.3d 287, 295
(3d Cir. 2002).

                                12


the administrative grievance process within the time
required. Ahmed argues that he substantially complied with
the prison’s administrative procedure, relying on the
language in Nyhuis reflecting "our understanding that
compliance with the administrative remedy scheme will be
satisfactory if it is substantial." Nyhuis , 204 F.3d at 77-78.
Whatever the parameters of "substantial compliance"
referred to there, it does not encompass a second-step
appeal five months late nor the filing of a suit before
administrative exhaustion, however late, has been
completed.9 It follows that Ahmed cannot cure the defect in
his action by the proffered amendment of the complaint.

Ahmed next argues that he should be permitted to
amend his complaint to reflect that he has been released
from prison. Therefore, he continues, the PLRA no longer
applies to him and he can sue without meeting its
exhaustion requirement. Understandably, the District Court
did not consider this argument in its June 26 order
because Ahmed had not then been released.

The Commonwealth conceded at oral argument that a
prisoner who has been released is not precluded by the
PLRA from filing a S 1983 suit for incidents concerning
prison conditions which occurred prior to his release. This
view, which we adopt, follows the language of S 1997e(a),
which states: "[n]o action shall be brought with respect to
prison conditions . . . by a prisoner confined in any jail,
prison, or other correctional facility until such administrative
remedies as are available are exhausted." 42 U.S.C.
_________________________________________________________________

9. See Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534-35 (7th Cir. 1999)
(observing "Congress could have written a statute making exhaustion a
precondition to judgment, but it did not. The actual statute makes
exhaustion a precondition to suit"); Neal v. Goord, 267 F.3d 116, 122 (2d
Cir. 2001) (holding that a prisoner may not fulfill the PLRA’s exhaustion
requirement by exhausting administrative remedies after filing her
complaint in federal court). Accord Jackson v. District of Columbia, 254
F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645
(6th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir.
1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). But see
Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) (permitting
prisoner to continue action where he exhausted "at the time the court
ruled").

                                13


S 1997e(a) (emphasis added). Any other view would also be
inconsistent with the spirit of the PLRA, which was
designed to deter frivolous litigations by idle prisoners.10
Although Ahmed would have been free of the strictures of
the PLRA if he had filed a timely complaint after his release
from prison, he is bound by the PLRA because his suit was
filed on July 29, 1998, almost three years before he was
released from prison. It follows that the proffered
amendments would have been futile and the District Court
did not abuse its discretion in denying Ahmed’s motion to
amend.

III.

CONCLUSION

For the reasons set forth, we will affirm the judgment of
the District Court.
_________________________________________________________________

10. We note that every court of appeals to have considered the issue has
held that the PLRA does not apply to actions filed by former prisoners.
See, e.g., Harris v. Garner, 216 F.3d 979-80 (11th Cir. 2000) (en banc)
(determining PLRA not applicable to complaints filed by former prisoners
for complaints regarding prison conditions prior to release, and
concluding dismissals should be without prejudice to refiling on release),
cert. denied, 532 U.S. 1065 (2001); Page v. Torrey, 201 F.3d 1136, 1139
(9th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999), cert.
denied, 532 U.S. 1065 (2001); Kerr v. Puckett, 138 F.3d 321, 323 (7th
Cir. 1998) (determining PLRA not applicable to suit filed by inmate after
he was released on parole); cf., Doe v. Washington County, 150 F.3d 920,
924 (8th Cir. 1998) (determining PLRA not applicable to suit by juvenile
for complaint arising out of incident alleged to have occurred while he
was held in pretrial detention). Similarly, other courts of appeals have
held that other provisions of the PLRA do not apply to former prisoners.
See, e.g., Harris, 216 F.3d at 976 (determining PLRA physical injury
requirement does not apply to former prisoners); Janes v. Hernandez,
215 F.3d 541, 543 (5th Cir. 2000) (determining PLRA fee limit does not
apply to former prisoners), cert. denied, 531 U.S. 1113 (2001); Doe, 150
F.3d at 924 (same). In Abdul-Akbar v. McKelvie , 239 F.3d 307 (3d Cir.)
(en banc), cert. denied, 533 U.S. 953 (2001), this court suggested the
PLRA exhaustion requirement applies "only if the plaintiff is a prisoner
at the time of filing." Id. at 314 (citing Greig, 169 F.3d at 167).

                                14
A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

                                15
