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


6-10-2008

Santiago Pena-Ruiz v. Kevin Solorzano
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-1747




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ALD-214                                                            NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ___________

                                          No. 08-1747
                                          ___________

                                SANTIAGO PENA-RUIZ,
                                                               Appellant

                                                v.

                   KEVIN S. SOLORZANO, in his individual capacity
                     ____________________________________

                     On Appeal from the United States District Court
                               for the District of New Jersey
                                 (D.C. Civil No. 07-02488)
                     District Judge: Honorable Jerome B. Simandle
                      ____________________________________

         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
                                    May 30, 2008

             Before: SLOVITER, FISHER and HARDIMAN, Circuit Judges

                                      (Filed: June 10, 2008)
                                            _________

                                           OPINION
                                           _________

PER CURIAM

       Santiago Pena-Ruiz, a federal prisoner proceeding pro se, appeals from the District

Court’s orders dismissing his complaint. For the reasons that follow, we will summarily

affirm the District Court’s orders.
                                              I.

       Pena-Ruiz is currently incarcerated at the Federal Correctional Institution at

Florence, Colorado. On May 20, 2007, he filed a complaint under Bivens v. Six

Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), in the United States District

Court for the District of New Jersey. In the complaint, Pena-Ruiz alleged that in 2004,

while he was incarcerated at a federal prison in New Jersey, he had been sexually

assaulted by the defendant, Corrections Officer Kevin Solorzano. According to Pena-

Ruiz, Solorzano was later convicted for this and other sexual assaults at the prison. By

order entered July 18, 2007, the District Court, acting sua sponte, dismissed the complaint

on the ground that it was barred by the governing statute of limitation.

       Several months later, on October 29, 2007, Pena-Ruiz notified the court that he

had not received a copy of the order dismissing his complaint, and asked the court to

accept a belated motion for reconsideration in which he argued that he was entitled to

equitable tolling of the two-year limitation period. The District Court granted his request

and re-opened the matter in order to consider Pena-Ruiz’s motion for reconsideration.

Upon further review, however, the District Court again concluded that the complaint was

time-barred. The District Court specifically considered Pena-Ruiz’s arguments in support

of equitable tolling, but found that there was no basis to toll the running of the limitation




                                              2
period. Therefore, on January 25, 2008, the court entered a second order dismissing the

complaint.1 The present appeal followed.

                                            II.

       We first address the issue of our jurisdiction. As noted above, the District Court

entered an order dismissing the complaint on July 18, 2007. The order, however, was not

set out in a separate document in accordance with Federal Rule of Civil Procedure 58(a).

See In re Cendant Corp. Sec. Litig., 454 F.3d 235, 243 (3d Cir. 2006) (holding that an

order containing extensive factual background does not satisfy the separate document

rule). Therefore, judgment was not “entered” until 150 days later, on December 14, 2007.

See Fed. R. Civ. P. 58(c)(2)(B). Meanwhile, on October 29, 2007, Pena-Ruiz had filed a

motion for reconsideration, which the District Court construed as a motion under Rule

59(e). Because this motion was filed “no later than 10 days after the entry of the

judgment,” see Fed. R. Civ. P. 59(e), the 60-day period for Pena-Ruiz to appeal from the

July 18, 2007 order did not begin to run until January 25, 2008, the date the order

disposing of that motion was entered. See Fed. R. App. P. 4(a)(4)(A). Pena-Ruiz mailed

out his notice of appeal on or before February 25, 2007. Therefore, his notice of appeal

was timely with respect to the District Court’s July 18, 2007 order dismissing the


       1
         In this order, the District Court also stated that Pena-Ruiz’s motion for
reconsideration was “denied.” This appears to be a mistake, however, given that, in the
preceding memorandum opinion, the court thoroughly reconsidered its previous ruling
that the complaint was time-barred. Therefore, we will construe the District Court’s order
as granting the motion for reconsideration while dismissing the complaint.

                                             3
complaint as well as the court’s January 25, 2008 order dismissing the complaint upon

reconsideration.2 See Fed. R. App. P. 4(a)(1)(B). Accordingly, we have jurisdiction to

review both orders.

                                              III.

         In his notice of appeal, Pena-Ruiz claims that the District Court erred in dismissing

his complaint as time-barred. As an initial matter, we note that the District Court

arguably should have provided the parties with an opportunity to weigh in prior to

dismissing the complaint. See, e.g., Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (holding

that sua sponte dismissal of a complaint is proper only if it appears on the face of the

complaint that it is barred by the applicable statute of limitations). We need not reach this

question, however, or the merits of the District Court’s decision, because Pena-Ruiz

failed to satisfy the administrative exhaustion requirement that is a prerequisite to this

suit.3

         2
       To the extent that Pena-Ruiz appeals from the District Court’s order denying his
motion for reconsideration, we believe that, as discussed in note 1, supra, the District
Court actually ruled in his favor on that motion.
         3
         Although failure to exhaust administrative remedies is generally an affirmative
defense to be pleaded by the defendant, we have recognized that a district court has the
inherent power to dismiss sua sponte a complaint such as this one which facially violates
a bar to suit. See Ray v. Kertes, 285 F.3d 287, 295 n.5 (3d Cir. 2002) (citing Booth v.
Churner, 206 F.3d 289, 293 n.2 (3d Cir. 2000) (“Booth concedes that he did not avail
himself of either the intermediate or final review process.”) and Nyhuis v. Reno, 204 F.3d
65, 66 (3d Cir. 2000) (stating that plaintiff “argues that he did not avail himself of the
administrative process because it could not provide him with two of the three forms of
relief that he seeks in the present action”)). Given that here, Pena-Ruiz conceded in his
complaint that he did not attempt to exhaust his administrative remedies, we may affirm

                                               4
       Under the Prison Litigation Reform Act of 1996 (the “PLRA”), a prisoner is

required to pursue all avenues of relief available within the prison’s grievance system

before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C.

§ 1997e(a); Booth, 206 F.3d at 291. This “exhaustion requirement applies to all inmate

suits about prison life, whether they involve general circumstances or particular episodes,

and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S.

516, 532 (2002). The Federal Bureau of Prisons (“BOP”) has established an

administrative remedy procedure, which is set forth at 28 C.F.R. § 542, et seq.

       In his complaint, Pena-Ruiz concedes that he did not attempt to exhaust the

administrative remedies available to him at the prison. Pena-Ruiz explains his reasons for

declining to do so as follows:

       Plaintiff did not exhaust his administrative remedies due to the sensitive
       nature of this matter and for fear of retaliation. Furthermore, the Defendant,
       Kevin S. Solorzano is no longer employed in the Federal Bureau of Prisons.
       And lastly, Plaintiff is seeking monetary damages, something an
       administrative remedy cannot provide.

(Compl., at ¶ 11.) These justifications, however, do not except him from the exhaustion

requirement. First, this Court has made clear that the exhaustion requirement is

mandatory, see Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007), and has not

recognized “sensitive” subject matter or “fear of retaliation” as a basis for excusing a

prisoner’s failure to exhaust. Second, whether Solorzano is still employed by the BOP is



the District Court’s dismissal on that ground without remanding the matter.

                                              5
not relevant to the administrative remedy procedure. Finally, the Supreme Court has

specifically rejected the futility argument that Pena-Ruiz makes here, and has emphasized

that “[e]ven when the prisoner seeks relief not available in grievance proceedings, notably

money damages, exhaustion is a prerequisite to suit.” Porter, 534 at 988; see also Booth,

532 U.S. at 741 (holding that the exhaustion requirement of the PLRA applies to

grievance procedures “regardless of the relief offered through administrative

procedures”); Nyhuis v. Reno, 204 F.3d 65, 87 (3d Cir. 2000) (same). Therefore, Pena-

Ruiz was required to take advantage of the administrative remedy procedures

notwithstanding the fact that they could not provide him with the monetary relief he seeks

in this federal action.

                                           IV.

       For the foregoing reasons, we will summarily affirm the District Court’s orders

dismissing the complaint. See Third Cir. LAR 27.4 and I.O.P. 10.6.




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