                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2006

Foster v. Morris
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4765




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2006

Recommended Citation
"Foster v. Morris" (2006). 2006 Decisions. Paper 79.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/79


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2006 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                       NOT PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT
                        ________________

                               No. 05-4765
                            ________________


                        WILLIAM E. FOSTER SR.

                                    v.

             ROBERT MORRIS, Individually and as Mayor of the
      Borough of Chambersburg; DOUGLAS W. HERMAN, Individually
        and as Judge; RAY ROSENBERRY, Individually and as former
      Warden, Franklin County Prison; FRANKLIN COUNTY PRISON;
BOROUGH OF CHAMBERSBURG; FRANKLIN COUNTY; FRANKLIN COUNTY
    PRISON BOARD OF TRUSTEE, John Does and Jane Does, Individually
            and in Official Capacity; CHAMBERSBURG MAYOR

                            ________________

              On Appeal From the United States District Court
                  For the Middle District of Pennsylvania
                         (D.C. Civ. No. 02-cv-0766)
               District Judge: Honorable Richard P. Conaboy
                            ________________

                Submitted Under Third Circuit LAR 34.1(a)
                            October 11, 2006


              Before: Rendell, Ambro and Roth, Circuit Judges


                       (Filed: December 18, 2006)

                            ________________

                                OPINION
                            ________________
PER CURIAM

       William E. Foster, Sr., appeals from the District Court’s order granting

Defendants’ motion for summary judgment. For the reasons that follow, we will vacate

the District Court’s judgment and remand the case for further proceedings.

       Foster is currently incarcerated in Mahanoy State Correctional Institution, in

Frackville, Pennsylvania (“SCI-Mahanoy”). Foster is a partial paraplegic. He is

paralyzed on his left side and requires the use of a wheelchair. While normally

incarcerated in a prison with services for the disabled, SCI-Mahanoy, he has been

transferred to the Franklin County Prison (“Franklin”) for brief periods for court

proceedings. The length of his stays varied; sometimes he was at Franklin for months at a

time, while other times he was there for only a few days. His most recent stay was from

April 16 to April 23, 2001.

       The undisputed summary judgment evidence shows that Franklin lacks handicap

accessible facilities. Foster’s wheelchair was unable to fit through the entrance to his cell,

the toilet in his cell was not at the proper height and lacked grab bars that would allow

him to transfer himself from his wheelchair, and Franklin also lacked any handicap

accessible showers. As a result, on November 1, 1999, Foster fell in the shower and

injured his back. Further, during the times that he spent in Franklin, Foster often had no

choice but to use his sink to bathe himself, has had difficulty using the toilets,

occasionally soiling himself as a result, and developed rashes and pressure sores.

       On May 3, 2002, he filed this pro se civil rights action protesting the conditions at

                                              2
Franklin.1 In his amended complaint he named Franklin County, the Borough of

Chambersburg, former Mayor Robert Morris, current Mayor Thomas L. Newcomer,

Judge Douglas W. Herman of the Franklin County Court of Common Pleas, the Franklin

County Prison, ex-Warden Ray Rosenberry, and eight members of the prison Board of

Trustees, as defendants. Foster’s complaint asserted claims under 42 U.S.C. § 1983, Title

II of the Americans with Disabilities Act (“ADA”), and in tort. It claimed that the lack of

handicap accessible facilities in Franklin violated the ADA, and that Defendants’ placing

him there exhibited deliberate indifference to his medical needs in violation of the Eighth

amendment as well as state tort law.2 Foster is seeking damages for physical and

emotional distress as well as declaratory and injunctive relief.

       Soon after he filed his complaint, the defendants filed a motion to dismiss under

FED. R. CIV. P. 12(b)(6), arguing that his claims were barred by the statute of limitations,

res judicata, and collateral estoppel. The District Court denied the motion, holding that

Foster’s claims might fit within the continuing violations exception to the statute of

limitations and that his suit was not barred by res judicata and collateral estoppel.

       When discovery was substantially complete, Defendants filed a motion for

summary judgment pursuant to FED. R. CIV. P. 56. In the motion, Defendants renewed

their statute of limitations argument and claimed that Foster had not exhausted his

  1
   Under Houston v. Lack, 487 U.S. 266 (1988), Foster’s complaint is deemed filed on
the date he turned it over to prison officials for mailing.
  2
    Foster also claimed that his rights under the Fifth Amendment were violated and that
he had been denied equal protection.

                                              3
administrative remedies. In Foster’s brief in opposition, he claimed that he had filed a

grievance on April 16, 2001, protesting the conditions at Franklin. The District Court

granted Defendants summary judgment, finding that the continuing violations doctrine

did not apply and his claims were barred by the applicable statute of limitations. In the

alternative, the District Court held that Foster’s suit was barred by 42 U.S.C. § 1997e(a)

because he had not exhausted administrative remedies. Foster filed a motion for

reconsideration to which he attached a copy of a grievance that claims to have filed on

April 16, 2001, complaining about the lack of handicap accessible facilities at Franklin.

Before the District Court could rule on the motion, Foster filed a notice of appeal.

       We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review of a District Court’s grant of summary judgment. See S&H Hardware & Supply

Co. v. Yellow Transp., Inc., 432 F.3d 550, 554 (3d Cir. 2005). In evaluating the

evidence, we take the facts in the light most favorable to the nonmoving party, and draw

all reasonable inferences in his favor. Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 343

F.3d 669, 680 (3d Cir. 2003). Summary judgment is appropriate when the record shows

that there is no need of a trial because “there is no genuine issue of material fact and []the

moving party is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(c); Celotex

Corp. v. Cattrett, 477 U.S. 317, 322 (1986).

                                               I

       The statute of limitations for bringing a civil rights suit under § 1983 is the same as

the state statute of limitations for bringing a personal injury action. See Kost v.

                                               4
Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993).3 In Pennsylvania, that period is two

years. Id.; see 42 Pa. CON. STAT. § 5524. Because Foster filed his complaint on May 3,

2002, he can only recover for those violations that occurred after May 3, 2000.

       Foster argues that he should be allowed to recover for earlier injuries, either

because the statute of limitations was tolled during the pendency of a products-liability

suit regarding his 1999 fall or due to the continuing violations doctrine. However, neither

theory will allow him to recover for injuries suffered prior to May 2, 2000.

       Like the limitations period, the tolling rules in § 1983 actions are taken from the

rules of the forum state, unless they conflict with federal law or policy. See 42 U.S.C.

§ 1988; Hardin v. Straub, 490 U.S. 536, 539 (1989). The Pennsylvania statute of

limitations contains a “savings clause,” 42 PA. CONS STAT. § 5535(a)(1), which allows a

party to file a suit “upon the same cause of action within one year after the termination [of

a timely commenced civil action.]” However, this provision does not apply to “[a]n

action to recover damages for injury to the person . . . caused by the wrongful act . . . of

another.” § 5535(a)(2)(i). Because § 1983 and the ADA borrow their statutes of

limitations from Pennsylvania’s statute of limitations for personal injury actions, and

because Foster’s suit seeks to “to recover damages for injury to the person caused by the

wrongful act of another,” Pennsylvania’s statutory tolling for the period of pendency of a

prior civil action does not apply.

  3
   Because the ADA does not contain a statute of limitations, it too borrows the state
limitations period for personal injury actions. See Nieves-Marquez v. Puerto Rico, 353
F.3d 108, 118 (1st Cir. 2003).

                                              5
       The continuing violations doctrine is an equitable exception to a strict application

of a statute of limitations where the conduct complained of consists of a pattern that has

only become cognizable as illegal over time. Cowell v. Palmer Twp., 263 F.3d 286, 292

(3d Cir. 2001). “[W]hen a defendant's conduct is part of a continuing practice, an action

is timely so long as the last act evidencing the continuing practice falls within the

limitations period; in such an instance, the court will grant relief for the earlier related

acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd. of

Carpenters, 927 F.2d 1283, 1295 (3d Cir.1991). However,

    [i]n order to benefit from the doctrine, a plaintiff must establish that the
    defendant's conduct is “more than the occurrence of isolated or sporadic acts.”
    Regarding this inquiry, we have recognized that courts should consider at least
    three factors: (1) subject matter-whether the violations constitute the same type of
    discrimination, tending to connect them in a continuing violation; (2)
    frequency-whether the acts are recurring or more in the nature of isolated
    incidents; and (3) degree of permanence-whether the act had a degree of
    permanence which should trigger the plaintiff's awareness of and duty to assert
    his/her rights and whether the consequences of the act would continue even in the
    absence of a continuing intent to discriminate. The consideration of “degree of
    permanence” is the most important of the factors.

Cowell, 263 F.3d at 292 (citations omitted). The violations at issue in Foster’s suit – e.g.

lack of grab bars on his toilet and wheelchair accessible shower – had a degree of

permanence such that they put Foster on notice of his duty to assert his rights each time

he was transferred to Franklin. Thus, the continuing violations doctrine is inapplicable in

this case.

       Appellees argue that Foster’s suit only attempts to recover for damages that he

suffered during his fall in 1999 and, as a result, the entire suit is barred by the statute of

                                               6
limitations. We do not agree. Pro se complaints “however inartfully pleaded are held to

less stringent standards than formal pleadings drafted by lawyers” and should be liberally

construed. Hughes v. Rowe, 449 U.S. 5, 9 (1980). While the only date mentioned in

Foster’s complaint is the date of his fall in the shower in 1999, the conditions he

complains of (e.g., lack of handicap accessible facilities to wash himself) and the relief he

requests (e.g., an injunction to bar him from being transferred to Franklin until its

facilities comply with the ADA) indicate that he seeks to recover for injuries that he

sustained during all of his visits to Franklin. Further, there is nothing in his complaint

which limits his suit to just the 1999 incident. Accordingly, Foster’s suit is not

completely barred by the statute of limitations. Specifically, he is still entitled to recover

for any violations that occurred during his April 2001 stay at Franklin.

                                              II

       A prisoner is barred from bringing an action under § 1983 or any other federal law

“until such administrative remedies as are available have been exhausted.” 42 U.S.C.

§ 1997e(a). To determine whether a prisoner has exhausted his administrative remedies,

we look to the prison’s grievance procedure. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir.

2004). The grievance procedure at Franklin is described in the Franklin County Inmate

Handbook: “An Inmate Request Slip will be used for submitting a grievance. The

Warden may respond to your grievance personally or send your grievance to a staff

member who has specific responsibility for handling matters related to your complaint.”

(App. at A-317.) There is no appeals process.

                                               7
       Failure to exhaust administrative remedies is an affirmative defense, and the

burden of pleading and proving non-exhaustion rests with the defendants. Ray v. Kertes,

285 F.3d 287, 295 (3d Cir. 2002). In a motion for summary judgment, where the movants

have the burden of proof at trial, “they [have] the burden of supporting their motion for

summary judgment ‘with credible evidence . . . that would entitle [them] to a directed

verdict if not controverted at trial.’” In re Bressman, 327 F.3d 229, 237 (3d Cir. 2003)

(quoting Celotex Corp., 477 U.S. at 331(Brennan, J., dissenting)). If “the motion does not

establish the absence of a genuine factual issue, the district court should deny summary

judgment even if no opposing evidentiary matter is presented.” Nat’l State Bank v. Fed.

Reserve Bank of N.Y., 979 F.2d 1579, 1582 (3d Cir. 1992) (internal quotations omitted).

We review the facts in the light most favorable to the non-moving party, and draw all

reasonable inferences in his favor. Morton Int’l, Inc., 343 F.3d at 680. In this instance,

the motion for summary judgment and supporting materials were insufficient to

demonstrate that there is no genuine issue of material fact. Thus, the District Court

should have denied the motion despite Foster’s failure to produce admissible evidence in

opposition.

       Defendants’ brief in support of their motion for summary judgment asserts that

Foster never filed any grievances relating to the lack of handicap accessible facilities at

Franklin. Defendants attach two unrelated grievances that they contend are the only

grievances that Foster filed during his time at Franklin. However, the motion, brief, and

supporting documents contain no affidavits or any other statements from anyone with

                                              8
personal knowledge that would entitle them to a directed verdict if not controverted at

trial. Notably, Defendants produced no affidavits or other statements from anyone at

Franklin who had searched through their record of grievances and could attest that the

two grievances attached to the motion are, in fact, the only grievances that were filed by

Foster. Thus, they did not satisfy their initial burden to establish the absence of a

genuine issue of material fact regarding whether Foster filed any additional grievances

protesting the conditions at Franklin. See Nat’l State Bank, 979 F.2d at 1582-83 (finding

that plaintiff’s motion for summary judgment supported only by affidavit of person with

no personal knowledge of relevant facts was insufficient to establish an absence of a

genuine issue of material fact).4



                                             III

       The Defendants have not shown Foster’s claims for declaratory and injunctive

relief are moot. An inmate's transfer from the objectionable facility generally moots

equitable and declaratory claims because there is no reasonable likelihood that he will

again be exposed to the complained of conditions. Abdul-Akbar v. Watson, 4 F.3d 195,

207 (3d Cir. 1993). However, where prison authorities have undertaken to voluntarily

change a policy, “a claim will not be rendered moot if there remains the possibility that

plaintiffs will be disadvantaged in the same fundamental way.” Sutton v. Rasheed, 323


  4
   For this reason we need not, and do not, pass on the April 16, 2001, grievance that
Foster submitted with his never-ruled-upon motion for reconsideration.

                                              9
F.3d 236, 248 (3d Cir. 2003) (internal quotations omitted). From the record, there

appears to have been a policy whereby inmates were routinely transferred to Franklin for

court proceedings. In the years preceding his suit, Foster was repeatedly transferred to

Franklin and Defendants provided no evidence that this practice will change after these

proceedings conclude.

       Other than the fact that Foster’s most recent court appearance did not involve a

transfer to Franklin, the only relevant evidence in the record consists of two statements by

Foster that are wholly speculative. (See Appellee Br. at 25-26.) Foster, in his deposition,

responded to the Defendants’ attorney’s question of whether he thought that he would be

transferred again to Franklin by saying “[t]here’s no intention to bring me back.” (App.

at A-209.) And in his opposition to the Defendants’ motion for summary judgment,

Foster claims that, since he filed his suit, Franklin has stopped housing wheelchair-bound

inmates. (App. at A-46.) This assertion is contradicted by an affidavit accompanying the

opposition, from a wheelchair-bound prisoner who spent one week at Franklin in 2003

and described the same lack of handicap accessible facilities as Foster. (App. at A-87.)

Thus, the record does not demonstrate that there is no likelihood that Foster will be

transferred back to Franklin after the conclusion of his case.

       Because there were genuine issues of material fact and the Defendants were not

entitled to judgment as a matter of law, the District Court erred in granting the

Defendants’ motion for summary judgment. Accordingly, we will vacate the District

Court’s judgment and remand the case for further proceedings.

                                             10
