IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALEXANDER DRAIN : CIVIL ACTION

:

v. :

:

WILLIAM McLEOD, et al., : NO. 04-1589

MEMORANDUM AND ORDER

McLaughlin, J. January 19, 2007

The plaintiff, Alexander Drain, has sued various prison

officials under 42 U.S.C. § 1983 for allegedly depriving him of

his constitutionally protected rights by assaulting him and

transferring him into administrative segregation for several

months. The plaintiff has moved for leave to file a second

amended complaint. The Court will grant the motion without

prejudice to the defendants’ right to raise the issues of failure

to exhaust administrative remedies and failure to comply with

applicable statutes of limitations in a motion for summary

judgment.

I. BACKGROUND

This lawsuit arises from an alleged assault that took

place at Curran Fromhold Correctional Facility (“CFCF”) on

November 29, 2002. According to the plaintiff, four correctional

officers pulled him from his cell, placed him into another cell

and proceeded to punch and kick him in the head, chest, stomach

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 1 of 21
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and testicles. At the time of the attack, the plaintiff was able

to identify only two of the four correctional officers because

two of the officers had allegedly covered their nametags to

conceal their identities.

The plaintiff claims that he complained to CFCF

officials immediately after the incident. Instead of advising

him of his administrative remedies, CFCF officials left him in a

cell by himself, unable to communicate with other inmates or CFCF

staff members. On December 1, 2002, the plaintiff was

transferred to the Detention Center Prison Health Services Wing

(“PHSW”), where he was housed in the psychiatric ward. According

to the plaintiff, he neither received a handbook nor did he

receive any orientation regarding proper grievance procedures

while at CFCF or PHSW.

Upon arrival at PHSW, the plaintiff alleges that he

repeatedly asked for grievance forms. The guards at PHSW,

however, refused to provide the forms, simply telling the

plaintiff to “shut up.” This refusal to provide grievance forms

allegedly continued throughout his two-and-a-half month stay in

administrative segregation at PHSW. 

The plaintiff nevertheless continued to complain about

the assault. Soon after his arrival at PHSW, a social worker

alerted the Philadelphia Prison System (“PPS”) of the plaintiff’s

complaints, and on or about December 3, 2002, PPS sent a

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 2 of 21
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lieutenant to interview the plaintiff about the incident. At the

interview, the lieutenant took the plaintiff’s statement on an

“Inmate Account of Involvement in Use of Force Incident” form. 

This interview commenced an internal affairs investigation into

the matter. A few days after the commencement of the

investigation, a sergeant interviewed the plaintiff again,

informed the plaintiff that a full investigation would be

conducted and told the plaintiff that he needed to do nothing

more with regard to reporting the incident. 

After receiving no word as to the status of the

investigation for almost a year, the plaintiff sent a letter to

the internal affairs unit in October, 2003. He received no

reply. Over four years after its commencement, the investigation 

is still ongoing. 

On July 14, 2004, the plaintiff, proceeding pro se,

filed a complaint in this action, naming as defendants Warden

Walter Dunleavy, Deputy Warden Richard Pitt and Correctional

Officers William McCloud and Matthew Czarnecki. The plaintiff

also named as defendants John Does 1 and 2, who represent the two

correctional officers the plaintiff was unable to identify at the

time of the alleged assault. 

On January 5, 2005, the parties participated in a

status conference. At the status conference, the defendants 

suggested that the matter be put into civil suspense pending the

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 3 of 21
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resolution of the internal affairs investigation. The defendants 

were careful to note that the stay they sought “would not affect

Mr. Drain’s ability to add those individuals or anyone else that

might come out as a result of the investigation.” When

questioned about whether the plaintiff needed to do anything more

to exhaust his administrative remedies, the defendants stated

that although prisoners typically must follow a specific

grievance procedure, “a complaint was made [by the plaintiff] and

registered with internal affairs [] that would almost moot out

the necessity for [] other paperwork to be filed.” The plaintiff

subsequently agreed to the stay, and the Court entered an

appropriate order. The Court also offered to seek counsel for

the plaintiff should the internal affairs investigation uncover

any wrongdoing. The plaintiff accepted this offer.

Over the following year, the parties participated in

three more telephone conferences. Each time, the defendants

informed the Court that the internal affairs investigation had

not yet concluded and requested that the stay be continued. 

According to the defendants, continuance of the stay would be

beneficial because the internal investigation “will really be the

bulk of the discovery that will be needed to be done.” The Court

granted this request on March 10 and then again on May 17. At

the May 17 conference, the Court decided to begin seeking counsel

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 4 of 21
 The Court formally dismissed defendants Dunleavy and Pitt 1

on May 11, 2006, because they were not named as defendants in the

amended complaint.

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for the plaintiff immediately. The Court thereafter obtained

counsel, which was duly appointed on August 17, 2005.

On December 7, 2005, the parties participated in a

third telephone conference, where the defendants informed the

Court that the internal affairs investigation still had not yet

concluded. At that point, the parties agreed that the case

should be removed from civil suspense. The parties established a

discovery schedule and set a date on which the plaintiff could

file an amended complaint, which the plaintiff filed on May 8,

2006. 

The amended complaint named as defendants Czarnecki,

McLeod and John Does I-V. John Does I and II again represented 1

the two correctional officers who had allegedly concealed their

nametags while assaulting the plaintiff. John Doe III

represented a fifth correctional officer who allegedly acted as a

lookout while the assault was taking place, and John Does IV and

V represented the prison officials who were responsible for

transferring the plaintiff to PHSW and placing him in

administrative segregation. The plaintiff was unable to name the

actual defendants because he had not yet obtained such

information from the internal affairs investigation and because

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 5 of 21
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the plaintiff’s attorney was on medical leave until August 1,

2006, thereby delaying written discovery. 

On August 4, 2006, the plaintiff propounded written

discovery, requesting photographs of the correctional officers

who were on duty at the time of the alleged assault, as well as

documents relating to the plaintiff’s transfer to PHSW. On

September 15, 2006, the plaintiff received the photographs and

was for the first time able to identify Correctional Officers

Larry Hutley, Patrick Gordon and Eliezer Ramos, Jr., as the other

officers who were involved in the alleged assault. On October 3,

2006, the plaintiff received documents regarding his transfer to

PHSW and was consequently able to determine that Warden Dunleavy,

Deputy Warden Pitt and Shift Supervisor R. Shelton were the

individuals responsible for placing him in administrative

segregation.

On October 24, 2006, the plaintiff moved for leave to

file a second amended complaint to substitute the names of the

previously unidentified correctional officers and prison

administrators for John Does I-V. After receiving the

defendants’ opposition to the motion, the Court instructed both

parties to submit supplemental briefs addressing (i) what

administrative remedies were available to the plaintiff, (ii)

whether the plaintiff had properly exhausted these administrative

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 6 of 21
 Although the opposing parties provided different versions 2

of PPS’ administrative grievance procedures -- the defendants

provided the procedures that were in effect at the time of the

alleged assault, and the plaintiff provided the procedures that

became effective on July 29, 2005 -- the portion of the

procedures that is relevant to the case at hand is virtually

identical in both versions.

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remedies, and (iii) when, exactly, the plaintiff had exhausted

these administrative remedies.

Attached to their supplemental memoranda, the parties

provided PPS’ administrative grievance procedures. Under these 2

procedures, an inmate must file a written grievance within ten

days of a grievable event. The grievance is then evaluated by

the Warden of the relevant facility. If the prisoner is not

satisfied with the Warden’s decision, he may appeal to the

Commissioner. These procedures were developed by PPS to “provide

inmates an internal grievance procedure for administrative

resolution of complaints...so as to reduce the need for

litigation and afford [prison] staff the opportunity to review

and correct...[prison] operations.” 

II. ANALYSIS

Federal Rule of Civil Procedure 15(a) states that

“leave [to amend a pleading] shall be freely given when justice

so requires.” Fed. R. Civ. P. 15(a) (2006). Because Rule 15

embodies a liberal approach to pleading, the Supreme Court has

determined that leave to amend should be granted unless equitable

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 7 of 21
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considerations render such leave unjust. Foman v. Davis, 371

U.S. 178, 182 (1962). Factors to consider when deciding whether

leave to amend is unjust include bad faith, dilatory motive,

undue delay, undue prejudice and futility. Id. The United

States Court of Appeals for the Third Circuit has consistently

recognized that “prejudice to the non-moving party is the

touchstone for the denial of an amendment.” Arthur v. Maersk,

Inc., 434 F.3d 196, 204 (3d Cir. 1996) (quoting Cornell & Co.,

Inc. v. Occupational Safety & Health Review Comm’n, 573 F.2d 820,

823 (3d Cir. 1978)). 

 The defendants do not argue, and nothing in the record

suggests, that the plaintiff has acted in bad faith or possessed

a dilatory motive in moving for leave to amend. The defendants

instead argue that leave to amend should be denied because (i)

the plaintiff has exhibited undue delay, (ii) an amendment at

this juncture would unduly prejudice the newly named defendants,

and (iii) an amendment would be futile because the applicable

statute of limitations expired on November 29, 2004 –- two years

after the alleged assault.

A. Undue Delay

Delay alone is an insufficient ground for denying leave

to amend. Arthur, 434 F.3d at 204. Only undue delay –- delay

that places an unwarranted burden on the court or an unfair

burden on the opposing party –- will constitute a sufficient

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 8 of 21
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ground for denial. Cureton v. Nat’l Collegiate Athletic Ass’n,

252 F.3d 267, 273 (3d Cir. 2001). Delay will become undue when a

moving party has unjustifiably failed to take advantage of

previous opportunities to amend. Arthur, 434 F.3d at 204. The

question of whether delay is undue therefore hinges on the moving

party’s reasons for not amending sooner. Cureton, 252 F.3d at

273. 

In the case at hand, the delay was neither so great nor

so unjustified as to warrant refusal to grant leave to amend. 

Although the case was filed in mid-2004, the Court almost

immediately placed the action into civil suspense. Once the

Court ordered the case out of suspense, only ten and a half

months elapsed before the plaintiff filed this motion for leave

to amend. Furthermore, discovery during this time period was

complicated not only by the plaintiff’s status as an incarcerated

individual, but also by the fact that the plaintiff’s courtappointed attorney was on medical leave until August 1, 2006. 

Although the plaintiff has amended his complaint since

the case was ordered out of civil suspense, the plaintiff did

not, at the time of amendment, have knowledge of the newly named

defendants’ identities. The plaintiff has thus not failed to

take advantage of numerous opportunities to amend. On the

contrary, the plaintiff waited only one week after learning the

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 9 of 21
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identities of the newly named defendants before filing the

present motion.

B. Prejudice

Substantial or undue prejudice to the non-moving party

is a sufficient ground for denying leave to amend. Cureton, 252

F.3d at 273. The issue of prejudice hinges on the hardship to

the defendant. Id. More specifically, the United States Court

of Appeals for the Third Circuit has focused on whether the

proposed amendment would result in additional discovery, cost

and/or preparation on the part of the non-moving party. Id. 

In the case at hand, the proposed amendment will cause

the newly named defendants to suffer little or no prejudice. 

Substituting the newly named defendants for John Does I-V will

not substantially prolong discovery, the bulk of which defendants

have conceded will be accomplished by the internal affairs

investigation. Aside from requesting the newly named officers’

personnel files and certain documents relating to Mr. Drain’s

transfer, the plaintiff does not plan on propounding any

additional written discovery at all, and no depositions have yet

been taken. Finally, the defenses of the newly named defendants

will likely parallel those of the defendants who were already

named in the complaint, thereby minimizing the additional costs

imposed on the defendants by the proposed amendment. 

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 10 of 21
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C. Futility

Futility is a sufficient ground for denying leave to

amend. Foman, 371 U.S. at 182. An amendment is futile and thus

properly denied when the claims to be added are barred by the

applicable statute of limitations. Jablonski v. Pan Am. World

Airways, Inc., 863 F.2d 289, 292 (3d Cir. 1988). The applicable

statute of limitations for the claims the plaintiff seeks to add,

all of which arise under § 1983, is borrowed from the law of the

state in which the district court sits. Lake v. Arnold, 232 F.3d

360, 368 (3d Cir. 2000). In Pennsylvania, the governing statute

prescribes a two-year limitations period. 42 Pa. Cons. Stat. §

2254 (2006). In the case at hand, the events giving rise to the

plaintiff’s § 1983 claims occurred on November 29, 2002. The

statute of limitations on these claims would therefore have

expired on November 29, 2004, unless some sort of tolling

applies.

1. Tolling the Statute of Limitations While the

Plaintiff Exhausted His Administrative Remedies 

Before a prisoner may bring a § 1983 claim, the

Prisoner Litigation Reform Act (“PLRA”) requires that he or she

exhaust all available administrative remedies. 42 U.S.C. §

1997e(a) (2006). This requirement mandates proper exhaustion,

Woodford v. Ngo, 126 S. Ct. 2378, 2382 (2006), and it contains no

exception for futility. Nyhuis v. Reno, 204 F.3d 65, 78 (3d Cir.

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 11 of 21
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2000). Recognizing that fulfillment of such a strict requirement

could take a substantial amount of time, courts have uniformly

held that the statute of limitations on a § 1983 claim is tolled

while a prisoner exhausts his available administrative remedies. 

Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005); Johnson v.

Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown v. Morgan, 209

F.3d 595, 596 (6th Cir. 2000); Cooper v. Beard, No. 06-0171, 2006

WL 3208783, at *8 (E.D. Pa. November 2, 2006).

Because a determination of whether and when the

plaintiff exhausted his administrative remedies could affect the

timeliness of the claims contained in the proposed amendment, the

Court ordered the parties to submit supplemental memoranda to

clarify the matter. The plaintiff responded by arguing that the

internal affairs investigation constituted an administrative

remedy, and therefore its pendency tolled the statute of

limitations applicable to his claims. The defendants, on the

other hand, argue that the PPS administrative grievance system

constituted the plaintiff’s sole administrative remedy, and

therefore the pendency of the internal affairs investigation did

not toll the statute of limitations on the plaintiff’s claims. 

Two Unites States Courts of Appeals have considered the

question of whether an internal investigation constitutes an

administrative remedy that exists in addition to, or in lieu of,

a prison’s administrative grievance system; both have concluded

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 12 of 21
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that it does not. Panaro v. City of North Las Vegas, 432 F.3d

949, 953-54 (9th Cir. 2005); Freeman v. Francis, 196 F.3d 641,

644 (6th Cir. 1999). In Panaro, the United States Court of

Appeals for the Ninth Circuit explained that it was bound by the

literal command of the PLRA, which precludes an action by a

prisoner “until such administrative remedies as are available

have been exhausted.” 432 F.3d at 953 (citing 42 U.S.C. §

1997e(a)). According to the court, the PLRA’s exhaustion

requirement is directed at the prisoner’s administrative

remedies. Id. (emphasis in original). Although an internal

investigation may result in an adverse action against the prison

officials under scrutiny, it does not offer a remedy to the

prisoner. Id. The only potential remedy available to the

prisoner was through the prison’s administrative grievance

procedure. Id. Likewise, in Freeman, the United States Court of

Appeals for the Sixth Circuit concluded that because the PLRA’s

exhaustion requirement is directed at exhausting the prisoner’s

administrative remedies, internal investigations do not satisfy

the requirement of the statute. See 196 F.3d at 644 (emphasis in

original).

This Court agrees with the Sixth and Ninth Circuits: an

internal investigation does not constitute an administrative

remedy that is available in addition to, or in lieu of, a

prison’s administrative grievance procedure. Not only is this

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interpretation consistent with the language of the PLRA as

pointed out in Panaro and Freeman, but it is also consistent with

what the Supreme Court states are the two main purposes of an

exhaustion requirement: the protection of administrative agency

authority and the promotion of efficiency. Woodford, 126 S. Ct.

at 2385. 

Limiting a prisoner’s administrative remedies to a

prison’s grievance system protects administrative agency

authority not only by providing the agency with a proper

“opportunity to correct its own mistakes with respect to the

programs it administers before it is haled into federal court,”

but also by “discouraging disregard of the agency’s procedures.” 

Id. Such a limitation would also promote efficiency by

standardizing the procedures that a prisoner must follow in order

to exhaust. Indeed, PPS adopted its inmate grievance system to

“provide inmates an internal grievance procedure for

administrative resolution of complaints...so as to reduce the

need for litigation and afford [prison] staff the opportunity to

review and correct...[prison] operations.”

In the case at hand, it is undisputed that the

plaintiff did not comply with PPS’ two-tiered grievance system. 

Although his filling out an “Inmate Account of Involvement in Use

of Force Incident” form may constitute the timely filing of a

written grievance, the plaintiff neither followed up with the

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 14 of 21
 As discussed more fully below, these representations are 3

instead relevant to whether the statute of limitations on the

plaintiff’s claims should be equitably tolled.

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Warden, nor did he file an appeal with the Commissioner. The

plaintiff instead relied on the representations of various prison

officials, all of whom led the plaintiff to believe that the

commencement of the internal affairs investigation eliminated his

need to exhaust his administrative remedies. This reliance is

understandable; however, it does not convert the internal affairs

investigation into an administrative remedy. As discussed 3

above, the administrative remedies available to the prisoner were

outlined in PPS’ administrative grievance procedures. The

pendency of the internal affairs investigation therefore did not

toll the statute of limitations on the claims the plaintiff seeks

to add.

The Court is careful to note, however, that this

conclusion in no way constitutes a finding that the plaintiff’s

claims are barred for failure to exhaust administrative remedies. 

Under Third Circuit law, a prisoner may be excused from the

PLRA’s exhaustion requirement if his or her administrative

remedies were not “available” at the relevant time period. See

Mitchell v. Horn, 318 F.3d 523, 529 (3d Cir. 2003). In Mitchell,

for example, the court ruled that a prisoner’s administrative

remedies were not “available” when guards denied him access to

necessary grievance forms. Id. Likewise, in Brown v. Croak, the

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 15 of 21
 Although the United States Court of Appeals for the Third 4

Circuit has not directly addressed the issue in a reported

opinion, numerous district courts in the Third Circuit have 

assumed that § 1983 claims are subject to equitable tolling. See,

e.g., Edwards v. Media Borough Council, 430 F. Supp. 2d 445, 450-

51 (E.D. Pa. 2006). 

-16-

court ruled that administrative remedies were not “available”

when guards misled a prisoner into believing that he could not

file a grievance until after the conclusion of an internal

investigation, the completion of which was indefinitely delayed. 

312 F.3d 109, 111-13 (3d Cir. 2002). 

In the case at hand, the plaintiff has submitted

undisputed evidence that he was both denied access to necessary

grievance forms and led to believe that he could not proceed with

his case until after the conclusion of an internal investigation. 

The Court will therefore reserve judgment on whether the

plaintiff’s claims are barred for failure to exhaust

administrative remedies until such time as an appropriate motion

for summary judgment is submitted.

2. Equitable Tolling

Under Third Circuit law, a court may equitably toll a 4

statute of limitations when “the principles of equity would make

the rigid application of a limitation period unfair.” LaCava v.

Kyler, 398 F.3d 271, 275 (3d Cir. 2005). Courts have been

careful to point out, however, that equitable tolling should be

applied sparingly and “only in the rare situation where [it] is

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demanded by sound legal principles as well as the interests of

justice.” Id. The United States Court of Appeals for the Third

Circuit has set forth three circumstances in which equitable

tolling is appropriate: (i) where the defendant has actively

misled the plaintiff; (ii) where the plaintiff in some

extraordinary way has been prevented from asserting his or her

rights; and (iii) where the plaintiff has timely asserted his or

her rights, but has mistakenly done so in the wrong forum. Jones

v. Morton, 195 F.3d 153, 159 (3d Cir. 1999). In addition to

falling within one of these circumstances, a plaintiff must

exhibit reasonable diligence in attempting to investigate and

bring his claims. LaCava, 398 F.3d at 275-76.

In the case at hand, the plaintiff has submitted

undisputed evidence that he was repeatedly prevented from

asserting his rights by prison officials and their attorneys. 

According to the plaintiff, when he asked for grievance forms to

report the alleged assault, prison guards simply told the

plaintiff to “shut up.” The plaintiff nevertheless continued

complaining to anyone who would listen. His efforts eventually

led to the commencement of an internal affairs investigation. As

part of the investigation, the plaintiff was interviewed by a

sergeant, who misled the plaintiff into believing that he needed

to take no further action with regard to reporting his complaint.

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 17 of 21
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Even after commencing the present suit -- which was

filed before the expiration of the applicable statute of

limitations -- the plaintiff was further prevented from asserting

his rights. In his original complaint, he was unable to name

three of his attackers because they concealed their nametags. 

When this issue was addressed at the first status conference,

counsel for the defendants requested that the action be stayed

pending the resolution of the internal affairs investigation,

which would provide the defendant with all the information he

needed. Indeed, defense counsel was careful to note that the

stay “would not affect Mr. Drain’s ability to add those

individuals or anyone else that might come out as a result of the

investigation.” The defendant, proceeding pro se, relied on this

representation and agreed to the stay.

After a year of waiting, the Court ordered the case out

of civil suspense. At this point, the plaintiff’s attempts to

uncover the identities of the unknown “Doe” defendants were

further hampered by his court-appointed attorney’s need to take

medical leave. Upon learning the identities of the “Doe”

defendants, however, the plaintiff immediately moved for leave to

amend.

Given these undisputed facts, the Court will not find

that the plaintiff’s amendment is futile. Indeed, these facts

suggest that the plaintiff may be entitled to equitable tolling. 

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 18 of 21
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The state of the record, however, prevents this Court from making

such a finding at this stage. The Court will therefore GRANT the

plaintiff’s motion for leave to amend without prejudice to the

defendants’ right to raise the issue of failure to comply with 

applicable statutes of limitations in a motion for summary

judgment.

An appropriate Order follows. 

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 19 of 21
IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ALEXANDER DRAIN : CIVIL ACTION

:

v. :

:

WILLIAM McLEOD, et al., : NO. 04-1589

ORDER

AND NOW, this 19th day of January, 2007, upon

consideration of the plaintiff’s motion for leave to amend (Doc.

No. 49), the defendants’ opposition thereto (Doc. No. 51), the

plaintiff’s supplemental memorandum of law in support of his

motion for leave to amend (Doc. No. 56), the defendants’

supplemental memorandum of law in opposition to the plaintiff’s

motion for leave to amend (Doc. No. 57), and the plaintiff’s

reply thereto (Doc. No. 58), IT IS HEREBY ORDERED that the motion

is GRANTED for the reasons stated in the accompanying memorandum

without prejudice to the defendants’ right to raise the issues of

failure to exhaust administrative remedies and failure to comply

with applicable statutes of limitations in a motion for summary

judgment. Warden Walter Dunleavy, Deputy Warden Richard Pitt,

Shift Supervisor R. Shelton and Correctional Officers Larry

Hutley, Patrick Gordon and Eliezer Ramos, Jr., shall be

substituted as named defendants for John Does I-V.

Case 2:04-cv-01589-MAM Document 59 Filed 01/19/07 Page 20 of 21
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BY THE COURT:

/s/ Mary A. McLaughlin

MARY A. McLAUGHLIN, J.

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