                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-7-2005

Johnson v. Blaine
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4621




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Recommended Citation
"Johnson v. Blaine" (2005). 2005 Decisions. Paper 442.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/442


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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                       NO. 04-4621
                    ________________

                   RONNIE JOHNSON,

                              Appellant

                                v.

        SUPERINTENDENT CONNER BLAINE, JR.;
          JOHN J. MILLER, Deputy Superintendent;
    CAPTAIN DAVID GRAINY; LIEUTENANT REED;
LIEUTENANT JOHN DOE; SERGEANT LEONARD EUTSEY;
SERGEANT PETER MCKOSKY; SMITY, Correctional Officer;
  C.O.I WAYNE SPECHT; C.O.I. EDWARD BODGEN, JR.;
    C.O. I. DAVID FERRIER; C.O.I. ANTHONY TIBERI;
     C.O.I. ROBERT NELSON; C.O.I. MARK CROUCH;
  NURSE RONALD LIDUGVICH; NURSE LISA POMPURA
       _______________________________________

       On Appeal From the United States District Court
           For the Western District of Pennsylvania
                  (D.C. Civ. No. 04-cv-00063)
       District Judge: Honorable Thomas M. Hardiman
       _______________________________________

         Submitted Under Third Circuit LAR 34.1(a)
                     October 7, 2005

Before: SLOVITER, BARRY AND FISHER, CIRCUIT JUDGES.

                  (Filed October 7, 2005)
                _______________________

                       OPINION
                _______________________
PER CURIAM.

       Ronnie Johnson appeals the District Court’s order granting appellees’ motion to

dismiss his complaint. In a complaint dated January 12, 2004, Johnson alleged that in

October 2001, he was assaulted by several prison guards at the State Correctional

Institution at Huntingdon, Pennsylvania. He further alleged several acts by appellees

which he contended were done in retaliation for his complaining about the October 2001

incident and for the investigation that followed. Appellees filed a motion to dismiss and

argued that the assault claim was time-barred and any timely claims were unexhausted.

The District Court granted the motion and dismissed the complaint. Johnson filed a

timely notice of appeal.

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

over the District Court’s order granting appellees’ motion to dismiss. Gallo v. City of

Philadelphia, 161 F.3d 217, 221 (3d Cir. 1998). Johnson argued that his assault claim

was not time-barred because the final appeal of his grievance concerning that incident

was not denied until March 2002. Neither the Magistrate Judge nor the District Court

addressed Johnson’s argument that the limitations period should be tolled. In declining to

dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B), a motions panel of this Court

requested that the parties address this issue.

       In their brief on appeal, the appellees concede that the statute of limitations was

tolled while Johnson pursued his administrative remedies and that his complaint was



                                                 2
timely. With respect to the retaliation claims, appellees concede that Johnson was not

required to demonstrate compliance with the exhaustion requirement and that they bear

the burden of proof on this issue. See Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002).

       Accordingly, we will vacate the District Court’s order and remand the matter to the

District Court for further proceedings. Johnson’s motion for injunctive relief is denied.




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