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


5-31-2007

Gordon v. Pugh
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4266




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Recommended Citation
"Gordon v. Pugh" (2007). 2007 Decisions. Paper 1054.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1054


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DLD-225                                                 NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                  ________________

                                      No. 06-4266
                                   ________________

                            JUKEN WASHINGTON GORDON,
                                          Appellant

                                             v.

 MICHAEL V. PUGH, Former Warden; RONALD LAINO, Med. Supervisor; DEVEN
          CHANMUGAM, M.D.; UNITED STATES OF AMERICA

                                   ________________

                     On Appeal From the United States District Court
                         For the Middle District of Pennsylvania
                              (D.C. Civ. No. 05-cv-01856 )
                       District Judge: Honorable Sylvia H. Rambo
                                   ________________

           Submitted For Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
                                    May 10, 2007

                Before:     BARRY, AMBRO and FISHER, Circuit Judges

                                   (Filed May 31, 2007)
                                    ________________

                                       OPINION
                                   ________________

PER CURIAM

       Juken Washington Gordon, a federal prisoner proceeding pro se and in forma

pauperis, appeals an order of the United States District Court for the Middle District of

Pennsylvania granting the defendants’ motion for summary judgment. For the following
reasons, we will dismiss the appeal pursuant to 28 U.S.C. § 1915(e)(2)(B).

       On September 14, 2005, Gordon filed a complaint in the District Court alleging

deliberate indifference to serious medical needs in violation of the Eighth Amendment

and medical malpractice. The alleged misconduct occurred while Gordon was

incarcerated at the United States Penitentiary at Allenwood (“USP-Allenwood”) in White

Deer, Pennsylvania. The complaint names as defendants Michael V. Pugh, the former

warden at USP-Allenwood; Ronald Laino, the prison’s medical supervisor; and Dr.

Deven Chanmugam, a physician who examined Gordon at the prison. Gordon attached

several exhibits to his complaint, including copies of administrative grievances and

medical records. The defendants responded by filing a motion to dismiss or, in the

alternative, for summary judgment. The District Court granted the motion for summary

judgment because the documentary evidence submitted by the parties showed that

Gordon’s claims were time barred. Gordon now appeals. Because he is proceeding in

forma pauperis, we will dismiss the appeal if it lacks an arguable basis in law or fact. See

28 U.S.C. § 1915(e)(2)(B); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

       Gordon alleges that the defendants violated the Eighth Amendment by acting with

deliberate indifference in denying him treatment for hepatitis B. This claim, which is

cognizable under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

403 U.S. 388 (1971), is subject to Pennsylvania’s two-year statute of limitations for

personal injury actions. See Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir. 1993)

(citing 42 PA. CONS. STAT. ANN. § 5524); Napier v. Thirty or More Unidentified Fed.

                                             2
Agents, Employees or Officers, 855 F.2d 1080, 1087 n.3 (3d Cir. 1988). Thus, for the

claim to be timely, Gordon must have filed it within two years of the date of accrual. We

agree with the District Court that the Bivens claim accrued no later than March 19, 2003,

when Dr. Chanmugam met with Gordon and denied his request for hepatitis treatment.

See Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991) (stating that a

claim accrues “when the plaintiff knows or has reason to know of the injury which is the

basis of the . . . action”). Gordon filed this Bivens action approximately thirty months

later. It is true that during a portion of this thirty-month period, Gordon was pursuing

administrative remedies in accordance with the exhaustion requirement applicable to

Bivens claims. See Nyhuis v. Reno, 204 F.3d 65, 68 (3d Cir. 2000). But even if we

accept that the limitations period tolled during the exhaustion period, the complaint is still

untimely. Gordon filed his grievance challenging the denial of hepatitis treatment on

September 9, 2003. This grievance remained pending until the Central Office of the

Federal Bureau of Prisons rejected Gordon’s final administrative appeal on December 29,

2003. Thus, tolling could only have occurred for three months and twenty days out of the

thirty-month period, rendering the Bivens action untimely by approximately two months

and ten days.

       We also agree with the District Court that Gordon’s medical malpractice claim is

untimely under the Federal Tort Claims Act (“FTCA”). A litigant bringing a tort claim

against the United States must file it “within six months after the date of mailing . . . of

notice of final denial of the claim by the agency to which it was presented.” 28 U.S.C. §

                                               3
2401(b). The Northeast Regional Office of the Federal Bureau of Prison denied Gordon’s

malpractice claim on May 4, 2004. The administrative opinion informed Gordon of the

six-month deadline for challenging the decision in federal court, but Gordon did not file

his FTCA claim within that time period. Instead, he inexplicably waited ten months after

expiration of the six-month period to file his complaint.

       Based on the foregoing analysis, we conclude the appeal lacks arguable merit.

Therefore, we will dismiss it pursuant to 28 U.S.C. § 1915(e)(2)(B). We deny

Appellant’s motion for appointment of counsel.




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