                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-1-2007

Shakuur v. Costello
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1164




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Recommended Citation
"Shakuur v. Costello" (2007). 2007 Decisions. Paper 1148.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1148


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                                                    NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-1164


                                STEPHEN A. SHAKUUR,
                                               Appellant

                                             v.

                     THOMAS J. COSTELLO, COMMISSIONER;
                      GLOVER, OFFICER; SHIELDS, OFFICER;
                               MOORE, OFFICER


                     On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                           D.C. Civil Action No. 05-cv-2918
                           (Honorable Michael M. Baylson)


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   April 25, 2007
         Before: SCIRICA, Chief Judge, FUENTES and SMITH, Circuit Judges

                                   (Filed May 1, 2007)


                               OPINION OF THE COURT


PER CURIAM.

       Stephen Shakuur appeals the dismissal of his civil rights complaint by the United

States District Court for the Eastern District of Pennsylvania. We will affirm the District

Court’s order.
                                              I.

       According to Shakuur’s complaint, on October 14, 2002, he was assaulted by a

correctional officer at Currant-Fromhold Correctional Facility, a facility in the

Philadelphia Prison System (PPS). Shakuur alleges that he sustained severe head and

face injuries in the altercation, necessitating extensive medical treatment, and causing

ongoing migraine headaches and pain. Shakuur names three correctional officers and the

commissioner of the prison system as defendants. The defendants filed a motion to

dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that Shakuur’s

claim was time-barred. After receiving Shakuur’s response to the motion to dismiss, the

District Court granted the motion.

       Shakuur appealed and is proceeding in forma pauperis. We declined to dismiss the

appeal pursuant to 28 U.S.C. 1915(e)(2)(B), and by order entered November 2, 2006,

directed the parties to address whether the applicable statute of limitations should be

tolled during any period that Shakuur might have been exhausting administrative

remedies. Shakuur has filed a “Motion by Appellant for Oral Argument and/or

Appointment of Counsel.”

                                             II.

       We have jurisdiction pursuant to 28 U.S.C. § 1291 and we exercise plenary review

over the decision to grant a Rule 12(b)(6) motion to dismiss. See Weston v.

Pennsylvania, 251 F.3d 420, 425 (3d Cir. 2001). We can affirm the District Court’s order



                                              2
on any ground supported by the record. See Tourscher v. McCullough, 184 F.3d 236, 240

(3d Cir. 1999).

       We must determine “whether ‘the time alleged in the statement of a claim shows

that the cause of action has not been brought within the statute of limitations.’” Cito v.

Bridgewater Township Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989) (citations omitted).

Applying that standard, we agree with the District Court that Shakuur’s suit was untimely.

The statute of limitations for a personal injury action in Pennsylvania is two years. See

42 Pa. Cons. Stat. Ann. § 5524. According to Shakuur, the assault against him occurred

on October 14, 2002. Shakuur did not initiate this lawsuit until June 20, 2005,

approximately eight months past the date the statute of limitations expired. Unless there

is reason to toll a statute of limitations, the complaint was untimely.

       Though this Court has not spoken on the issue, several courts of appeals have

concluded that, because exhaustion is mandatory under the PLRA, the statute of

limitations applicable to § 1983 actions must be tolled while a prisoner exhausts.1


   1
     See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005) (agreeing with “the
uniform holdings of the circuits that have considered the question that the applicable
statute of limitations must be tolled while a prisoner completes the mandatory exhaustion
process”); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001) (holding “a federal court
relying on the Illinois statute of limitations in a § 1983 case must toll the limitations
period while a prisoner completes the administrative grievance process”); Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir. 2000) (because PLRA prevents bringing § 1983
action until administrative remedies are exhausted, state statute of limitations tolled while
prisoner exhausted); Harris v. Hegmann, 198 F.3d 153, 158 (5th Cir. 1999) (state law
precedent dictates that PLRA’s exhaustion requirement prevents state statute of
limitations from running until prisoner has exhausted).

                                              3
However, because Shakuur has not properly attempted to exhaust administrative

remedies, we need not reach this issue. We take judicial notice of PPS’s internal

grievance procedures.2 The briefs submitted by the parties clarify that Shakuur has not

undertaken any of the steps of the grievance procedure. See Jones v. Bock, 127 S. Ct.

910, 923 (2007) (prison’s own requirements define proper exhaustion). Accordingly, we

agree with the District Court’s decision to grant defendants’ motion to dismiss on the

basis of the untimeliness of the complaint.

       We, therefore, will affirm the judgment of the District Court. Shakuur’s motion

for counsel/oral argument is denied.




   2
    PPS has grievance procedures for inmate complaints that allege violations of
constitutional rights. See Nelson v. Warden of Currant-Fromhold Corr. Facility, 461 F.
Supp. 2d 316, 318 (E.D. Pa. 2006). The inmate completes a multi-part grievance form
and retains a copy. See Harvey v. City of Philadelphia, 253 F. Supp. 2d 827, 830 (E.D.
Pa. 2003). The inmate must submit the form within 10 days of the events giving rise to
the grievance. See Nelson, 461 F. Supp. 2d at 319 n.3. If the inmate feels he is being
denied access to the normal procedures, he may forward his grievance directly to the
Commissioner. See Harvey, 253 F. Supp. 2d at 830.

                                              4
