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


6-5-2006

Ramos v. Smith
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-5278




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Recommended Citation
"Ramos v. Smith" (2006). 2006 Decisions. Paper 954.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/954


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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-5278
                                   ________________

                           VICTOR RODRIGUEZ RAMOS,

                                                          Appellant,

                                            v.

                            JOSEPH V. SMITH, WARDEN

                                _____________________

                    On Appeal From the United States District Court
                       For the Eastern District of Pennsylvania
                                (D.C. No. 04-cv-00249)
                     District Judge: Honorable R. Barclay Surrick
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                     June 2, 2006

     Before: SLOVITER, SMITH AND VAN ANTWERPEN, CIRCUIT JUDGES

                                   (Filed June 5, 2006)

                                     OPINION
                              _______________________
PER CURIAM

             Victor Rodriguez Ramos appeals from the District Court’s order dismissing

his complaint for failure to exhaust administrative remedies. For the following reasons,

we will affirm.

             The circumstances giving rise to Ramos’ complaint occurred while he was
confined at the Federal Detention Center (“FDC”) in Philadelphia, Pennsylvania, from

June 2000 to February 2004.1 On or about January 28, 2002, Ramos was transferred from

general population at the FDC to the Special Housing Unit (“SHU”).

              On April 1, 2002, Ramos filed six separate prison grievances requesting:

(1) a return to general population; (2) access to the law library consistent with access

provided to inmates in general population; (3) contact visits with his attorneys and family

members; (4) permission to shave and get a haircut before court appearances; (5) the

ability to exercise consistent with inmates in general population; and (6) the ability to

listen to audiotapes provided by attorneys. Each of these administrative grievances was

denied. The parties agree that Ramos did not appeal these denials.

              In March 2004, Ramos filed his pro se complaint against the warden of the

FDC, Joseph Smith, which was amended after counsel was appointed. Ramos claimed

that his detention in the SHU violated his rights to be free from unlawful punishment

under the Due Process Clause of the Fifth Amendment and that his detention in the SHU

violated his procedural due process rights under the Fifth Amendment. Smith moved to

dismiss, arguing that Ramos had failed to exhaust his administrative remedies. In

response, Ramos argued that he had relied on the representations of counsel who told him

that his co-defendants’ attorneys would handle the appeals from the denial of his

administrative grievances. Additionally, Ramos argued that because he is illiterate,


  1
   Ramos is currently incarcerated at the United States Penitentiary in Allenwood,
Pennsylvania.

                                              2
“special circumstances” warranted excusing his failure to file appeals from the denial of

his administrative grievances.2

              The District Court dismissed the complaint with prejudice after concluding

that Ramos had failed to exhaust his administrative remedies and that he was now

procedurally barred from attempting to exhaust. Ramos timely filed a notice of appeal.3

              The Prison Litigation Reform Act (“PLRA”) requires that prisoners exhaust

their administrative remedies before bringing suit. See 42 U.S.C. § 1997e(a). “In

appropriate cases, failure to exhaust [administrative remedies] can be raised as a basis for

a motion to dismiss.” Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). Furthermore,

there is no “futility” exception to the administrative exhaustion requirement. See Nyhuis

v. Reno, 204 F.3d 65, 78 (3d Cir. 2000).

              Prisoners have twenty days following the date of an event to file an

administrative remedy request. See 28 C.F.R. § 542.14(a). If the inmate is not satisfied

with the response, he has twenty days to appeal that decision to the regional director. See

28 C.F.R. § 542.15(a). The inmate can then appeal the decision of the regional director to

the general counsel. See id. These time limits may be extended if an inmate



  2
    On appeal, Ramos raises additional arguments never raised in the District Court. We
will not consider these new arguments because “[i]t is generally well established that
failure to raise an issue in the District Court constitutes a waiver of that argument.” Gass
v. V.I. Tele. Corp., 311 F.3d 237, 246 (3d Cir. 2002).
  3
   We have appellate jurisdiction pursuant to 28 U.S.C. § 1291 and our review is de
novo. See Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2000).

                                             3
demonstrates a valid reason for the delay. See id.

              The parties agree that Ramos failed to appeal the denial of his

administrative grievances. Therefore, the only issue is whether this failure can be

excused. As previously noted, Ramos gives two reasons why exhaustion should be

excused: (1) that his counsel misled him by stating an appeal from his administrative

grievances would be filed on his behalf; and (2) that he is illiterate and was incapable of

drafting his appeals on his own. With respect to his illiteracy, the District Court correctly

noted that the warden is required to give an illiterate inmate the assistance required to

prepare and file an appeal. 28 C.F.R. § 542.16(b). Ramos does not claim that he asked

for and was refused assistance in filing his administrative appeals. We agree with the

District Court that this will not excuse his failure to exhaust.

              We also agree with the District Court that Ramos’ argument that counsel

misled him into believing an administrative appeal was filed on his behalf does not

warrant excusing the exhaustion requirement. First, only the inmate himself can appeal

the denial of an administrative grievance even though an inmate is allowed to obtain

assistance from outside sources. See 28 C.F.R. § 542.16(a). Obtaining attorney

assistance is not a valid reason for exceeding the time limit to file an appeal unless the

delay was caused by prison staff. Id. Furthermore, even after Ramos learned that an

administrative appeal was never filed on his behalf, he did not, nor has he ever, sought an

extension of time to file such an appeal. While Ramos’ administrative appeal could have

been rejected as untimely, the administrative process sets forth a procedure for him to

                                               4
appeal such a decision. See 28 C.F.R. § 541.17(c). Having not availed himself of this

procedure, and because he never filed an administrative appeal, Ramos has not exhausted

his claims and any attempt to appeal would be procedurally barred.

             For these reasons, we agree with the District Court that Ramos failed to

exhaust. We will affirm the District Court order dismissing Ramos’ complaint.




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