Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-8-2006

Ramos v. Hawk-Sawyer
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4597




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"Ramos v. Hawk-Sawyer" (2006). 2006 Decisions. Paper 231.
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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                           No. 03-4597


                       MANUEL RAMOS,
                                 Appellant

                                v.

          KATHLEEN HAWK-SAWYER; MARGARET
           HARDEN, WARDEN, FCI ALLENWOOD;
           DR. MCGLORI; MAXIMO R. VELASCO;
         ANTHONY BUSSANICH; PETER J. TERHAAR;
               UNITED STATES OF AMERICA


    APPEAL FROM THE UNITED STATES DISTRICT COURT
      FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                   D.C. Civil No. 00-cv-01957
       Magistrate Judge: The Honorable J. Andrew Smyser


             Submitted Under Third Circuit LAR 34.1(a)
                        November 7, 2006


Before: SCIRICA, Chief Judge, BARRY and ALDISERT, Circuit Judges

                 (Opinion Filed: November 8, 2006)


                            OPINION
BARRY, Circuit Judge

         Manuel Ramos, a federal prisoner, appeals from the Magistrate Judge’s order of

September 26, 2003. Because we write only for the parties, we will not restate the facts

and procedural history of the case except as necessary for our analysis.1 Ramos states

two issues for appeal. First, he challenges the conclusion of the District Court that

because he failed to exhaust his administrative remedies under the Prison Litigation

Reform Act (“PLRA”), the Eighth Amendment claim against defendants Velasco and

Bussanich should be dismissed. Second, he challenges the fact that the Magistrate Judge

would not permit his counsel to withdraw and denied the appointment of an expert

witness. We have jurisdiction under 28 U.S.C. § 1291. For the following reasons, we

will affirm.

                                              I.

         The conclusion of the Magistrate Judge that Ramos failed to comply with the

PLRA’s exhaustion requirement is a question of law reviewed de novo. Spruill v. Gillis,

, 226 (3d Cir. 2004); Mitchell v. Horn, 

, 529 (3d Cir. 2003).

Before prisoners may sue under the PLRA, they must exhaust “such administrative

remedies as are available[.]” 42 U.S.C. § 1997e(a). Exhaustion is mandatory, and

prisoners must exhaust all “available” remedies, even where the relief sought cannot be

granted as a result of the administrative process. Woodford v. Ngo, 

,

2382-83 (2006). Additionally, the PLRA requires “proper exhaustion,” meaning that the

   1
       We thank pro bono counsel for their able representation of Ramos in this matter.
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prisoner must comply with all the administrative requirements and not merely wait until

administrative remedies are no longer “available.” 

In 

, we held “that prison grievance procedures supply the yardstick” for determining

what steps are required for exhaustion.

       An “Administrative Remedy Program” allows a federal “inmate to seek formal

review of an issue relating to any aspect of his/her own confinement.” 28 C.F.R. §

542.10(a) (2006). Under the § 542 procedures, an inmate must file a request for

administrative relief (using Form BP-9) to the warden of the institution where he or she is

confined within twenty days of the date on which the basis for the request occurred. 28

C.F.R. § 542.14. If dissatisfied with the response at the prison level, the inmate may file

an appeal (using Form BP-10) to the Regional Director, and then to the General

Counsel’s office. The decision of the General Counsel is final. 28 C.F.R. § 542.15.

       Although before the District Court, Ramos raised a host of reasons why he

believed the exhaustion requirement did not apply or was not available to him, those

reasons are not reprised before us. Rather, he now admits that he failed to initiate and

thus exhaust the mandatory administrative procedure set forth in 28 C.F.R § 542.10 et

seq., the very first step of which would have been to file his complaint with the warden of

his prison. His only argument before us is that the administrative tort claim he filed with

the Northeast Regional Office of the Bureau of Prisons satisfied the exhaustion

requirement and that, although our case law would reject that argument, we should await

the Supreme Court’s decision in Ngo, a case which would decide whether “a prisoner

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satisf[ies] the [PLRA’s] administrative exhaustion requirement by filing an untimely or

otherwise procedurally defective administrative appeal.” Appellant’s Br. at 10-11,

quoting Brief for Petitioners, Woodford v. Ngo, 

(Dec. 29, 2005).

       On June of 2006, the Supreme Court decided Ngo, holding, as noted above, that

proper exhaustion of administrative remedies is necessary. In an extremely thorough

opinion, the Court left nothing to the imagination, concluding that construing § 1997e(a)

to require proper exhaustion serves the purposes of the PLRA. To suggest, as Ramos

implicitly does here, that noncompliance with the requisite procedures is sufficient

compliance with the exhaustion scheme of the PLRA would, in the words of the Court,

render that scheme “wholly ineffective” and “toothless,” and undercut the goals of the

PLRA. 

.

       The Magistrate Judge’s dismissal of the Eighth Amendment claim against

defendants Velasco and Bussanich was eminently correct.

                                            II.

       Ramos argues, next, that the Magistrate Judge abused his discretion in denying

Ramos’s counsel’s motion for leave to withdraw and denying his motion to appoint an

expert witness. Again, we disagree.

       Andrew J. Ostrowski was appointed by the Court to represent Ramos and entered

his appearance on September 13, 2002. On June 12, 2003, Ostrowski moved to withdraw

as counsel, alleging that he was “not financially able to incur the burden and expense of

procuring the [necessary] expert services.” A-0049. Defendant Terhaar, a surgeon, noted

                                             4
in his opposition to the motion that he was required to list this pending litigation on his

applications to hospitals for staff privileges and to insurance companies for approval to

treat their insureds, and had already done so for three years. By order dated June 19,

2003, the Magistrate Judge conditionally granted Ostrowski’s request, noting that “leave

to withdraw [would] be granted upon the entry of an appearance of other counsel on

behalf of the plaintiff.” App. Vol. 2 at A-0057. There is no indication that Ostrowski

made any effort to find replacement counsel. Rather, on July 22, 2003, Ostrowski, noting

the difficulty of communicating with Ramos and finding an expert witness in the area of

Pennsylvania or Colorado (where Ramos was then being held) and his own medical and

staffing issues, requested that he be granted an extension of time to reply to the summary

judgment motions, which had by then been filed by all defendants. He also requested that

an expert witness be appointed – an expert, he said, is “central” to his ability “to recover

on some aspects of his claims.” A-0059. The Magistrate Judge granted the extension of

time and denied the request to appoint an expert. Following Ostrowski’s response to the

motions for summary judgment, in which he reversed course and argued that an expert

was not necessary, those motions were granted.

       The Magistrate Judge did not abuse his discretion in refusing to appoint an expert.

Ostrowski had represented Ramos for over nine months when, on the eve of the close of

discovery, he first cited his inability to obtain an expert witness. Although denying the

motion, the Magistrate Judge alerted Ostrowski to the existence of funds for

reimbursement of fees incurred by pro bono lawyers for indigent clients. Ostrowski did

                                              5
not seek reconsideration of the denial or contest it in any way, and instead argued in his

response to the summary judgment motions that an expert witness was not needed

because the “matter under investigation is so simple, and the lack of skill; [sic] or want of

care so obvious.” Appellee’s Br. at 9 quoting Dkt. Entry 83 at 8-10.

       Even if this change of position did not constitute a waiver on appeal of the issue of

the earlier denial of the appointment of an expert, and we think it did, that denial surely

was not an abuse of discretion given, among other reasons, the very belated request and

the prejudice that further delay in an already three-year old case would have caused.

                                             IV.

       We will affirm the September 26, 2003 order of the District Court.




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