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


2-10-2006

Oriakhi v. USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2786




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"Oriakhi v. USA" (2006). 2006 Decisions. Paper 1604.
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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-2786


                                   FELIX ORIAKHI,

                                                            Appellant

                                            v.

                          UNITED STATES OF AMERICA
                      ____________________________________

                    On Appeal From the United States District Court
                        For the Middle District of Pennsylvania
                               (D.C. Civ. No. 01-cv-00850)
                     District Judge: Honorable Thomas I. Vanaskie
                    _______________________________________


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 14, 2005

            Before: ROTH, RENDELL AND AMBRO, CIRCUIT JUDGES

                               (Filed: February 10, 2006)

                              _______________________

                                     OPINION
                              _______________________

PER CURIAM

      Felix Oriakhi, a federal prisoner, filed an action pursuant to the Federal Torts

Claims Act (“FTCA”) and Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971),
alleging that Bureau of Prison (“BOP”) staff “stole [his] collection of female

pornographic magazines” and two microwave bowls, and improperly returned to the

publisher a book containing nudity that Oriakhi had ordered. The District Court

dismissed Oriakhi’s Bivens claim concerning the book for failure to exhaust

administrative remedies and, following a bench trial, entered judgment in favor of the

appellee on Oriakhi’s FTCA claim regarding the allegedly stolen property. This appeal

followed.

       On appeal, Oriakhi alleges that his Bivens claim should not have been dismissed

for failure to exhaust administrative remedies because he completed the exhaustion

process “before the defendant filed it[s] answer[] to appellant[’s] complaint.”

Appellant’s Brief, 7. Our review of the District Court’s dismissal of the Bivens claim for

failure to exhaust administrative remedies is plenary. See Jenkins v. Morton, 148 F.3d

257, 259 (3d Cir. 1998). The Prison Litigation Reform Act (“PLRA”) prohibits an inmate

from bringing a civil rights suit alleging specific acts of unconstitutional conduct by

prison officials “until such administrative remedies as are available are exhausted.” 42

U.S.C. § 1997e(a) (emphasis added). To satisfy this requirement, a prisoner must exhaust

all available administrative remedies prior to filing suit, including a Bivens action. See

Ahmed v. Dragovich, 297 F.3d 201, 209 & n.9 (3d Cir. 2002); Nyhuis v. Reno, 204 F.3d

65, 68 (3d Cir. 2000). Oriakhi’s complaint was filed in April 2001; he concedes that he

did not begin the BOP administrative review process until May 2001. Clearly, then,

Oriakhi’s administrative remedies were not exhausted prior to the initiation of suit. The

                                              2
fact that he completed the administrative review process before the District Court reached

the exhaustion question is of no consequence. Indeed, there appears to be unanimous

circuit court consensus that a prisoner may not fulfill the PLRA’s exhaustion requirement

by exhausting administrative remedies after the filing of the complaint in federal court.

See, e.g., Johnson v. Jones, 340 F.3d 624, 627-28 (8th Cir. 2003) (collecting cases and

holding that “the district court must look to the time of filing, not the time the district

court is rendering its decision, to determine if exhaustion has occurred”). Accordingly,

the District Court properly dismissed Oriakhi’s Bivens claim for failure to exhaust

administrative remedies.1

       With respect to his FTCA claim, Oriakhi challenges the District Court’s findings

of fact, its denial of his motion to compel discovery, and its refusal to permit him to

communicate by telephone with potential witnesses confined at other prisons. We review

the District Court's findings of fact for clear error. See Fed. R. Civ. P. 52(a); Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 709, 714 (1986). Under this standard, we may



   1
     We note that Oriakhi filed a separate complaint on October 18, 2002, alleging that he
had exhausted his administrative remedies. See Oriakhi v. Yates, et al., M.D. Pa. Civ.
No. 02-cv-1869. The District Court dismissed that action because Oriakhi did not timely
comply with its order to pay the filing fee or seek leave to proceed in forma pauperis.
Oriakhi did not appeal. Contrary to Oriakhi’s contention, see Appellant’s Brief, 13, the
District Court did not abuse its discretion in denying his request to consolidate the
underlying case with the action at M.D. Pa. Civ. No. 02-cv-1869. See In re Fine Paper
Antitrust Litig., 685 F.2d 810, 817 (3d Cir.1982) (holding that management of its docket
is committed to the sound discretion of the District Court). Not only had the other action
been dismissed, but the divergent issues presented in the two suits counseled against
consolidation.
                                               3
reverse a finding of fact only if it is “devoid of a credible evidentiary basis or bears no

rational relationship to the supporting data.” Shire US Inc. v. Barr Laboratories, Inc., 329

F.3d 348, 352 (3d Cir. 2003). The issue at trial was whether Oriakhi in fact possessed the

magazines and microwave bowls that he alleged were stolen by BOP staff during a search

of his cell. The District Court found that Oriakhi and his witnesses were not credible and

that circumstantial evidence undermined his claim. In particular, the District Court noted

that the magazines were not listed either in Oriakhi’s personal property records or in a log

of items confiscated during the cell search. Furthermore, Oriakhi and his witnesses

provided conflicting testimony concerning the time of the cell search and whether,

following such a search, BOP staff routinely provide inmates with confiscation slips

documenting any seized property. The witnesses also were unable to identify the titles of

the magazines Oriakhi allegedly possessed. Oriakhi presented no evidence concerning

the alleged theft of the bowls or their value. Consequently, after a thorough review of the

record, we find no clear error in the District Court’s factual findings.

       In addition, we discern no abuse of discretion with respect to Oriakhi’s discovery

and trial preparation issues. See Petrucelli v. Bohringer and Ratzinger, 46 F.3d 1298,

1310 (3d Cir. 1995) (applying “abuse of discretion standard when reviewing orders

regarding the scope and conduct of discovery”). Oriakhi filed a motion to compel

discovery after the appellee informed him that it would not respond to his second set of

interrogatories, which were served approximately one year after the expiration of the

court-ordered discovery period. The record confirms the District Court’s conclusion that

                                              4
Oriakhi failed to seek leave of court to extend the discovery period, and that the

interrogatories bore “no relationship to the responses provided to the first set of

interrogatories” or to the information required to be produced by a prior discovery order.

The District Court also properly denied Oriakhi’s motion for telephone access to potential

inmate witnesses. Recognizing “valid institutional security concerns” associated with

permitting such access, the District Court emphasized that Oriakhi would be permitted to

engage in expedited written communications with his witnesses via facsimile. Oriakhi

has not specifically identified how his ability to prepare for trial was prejudiced by this

limitation, or by his transfer to another prison prior to trial.

       For the foregoing reasons, we will affirm the judgment of the District Court.




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