Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
7-20-2004
Bowen v. USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3285
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Recommended Citation
"Bowen v. USA" (2004). 2004 Decisions. Paper 485.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3285
CHARLES BOWEN,
Appellant
v.
UNITED STATES OF AMERICA; BARBARA CADOGAN, Health
Administrator, F.C.I. Fairton; DHARAM MADAHAR, M.D., Health
Services Physician, F.C.I. Fairton, F.N.U. Oakafor; FEDERAL BUREAU
OF PRISONS; E. W. MORRIS, WARDEN,
Appellees
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civ. No. 99-cv-05803 )
District Judge: Honorable Jerome B. Simandle
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
July 15, 2004
Before: SLOVITER, BARRY and WEIS, Circuit Judges.
(Filed July 20, 2004)
_______________
OPINION
WEIS, Circuit Judge.
Plaintiff filed this suit under § 1983 alleging Eighth Amendment violations
by a number of defendants, most of whom were dismissed by consent. The surviving
1
claims are actions against Dr. Madahar and Mrs. Barbara Cadogan, health service
administrator at F.C.I. Fairton, New Jersey.
In the course of an altercation on the afternoon of December 15, 1997, a
fellow inmate stabbed plaintiff in the left eye with a pencil. Dr. Madahar examined
plaintiff within five minutes after the injury and could not see any foreign body in the eye.
An x-ray was taken and was read as negative. An eye patch was prescribed and plaintiff
was kept overnight in the infirmary. On the following morning, he was placed in
administrative detention.
Plaintiff continued to complain about pain in his eye. On December 18,
1997, he called to Mrs. Cadogan who was making rounds. She came to his cell and
allegedly said, “Bowen? We forgot about you.” Mrs. Cadogan arranged to have plaintiff
examined that afternoon by an opthamologist who directed that plaintiff be taken to the
Wills Eye Hospital in Philadelphia, Pennsylvania.
Plaintiff was admitted to the hospital on December 19, 1997 where a CT-
scan revealed a small part of a pencil point in his left eye. He was treated with steroids
for several days. Plaintiff asserts that he was told that had he been treated at the hospital
sooner, his prognosis would have been better.
Plaintiff filed an administrative remedy form BP-10 on February 23, 1998
with the Northeast Regional Office of the Bureau of Prisons alleging improper medical
treatment. He alleged that he used that form rather than a BP-9 addressed to the warden
2
because his request to obtain the latter was denied by the staff. The BP-10 form was
returned to plaintiff with instructions to file an administrative remedy request with the
warden. Plaintiff did not do so, although he did file several administrative remedy
requests to the warden on unrelated issues.
On M arch 4, 1998, plaintiff was transferred from Fairton to F.C.I.
Allenwood. He did not file any administrative remedy requests in connection with the
prior medical treatment until November 7, 2001. After an adverse ruling on that request,
the plaintiff’s appeal was denied as untimely.
In the interim, plaintiff had filed his complaint in the District Court on
December 13, 1999. The District Court granted summary judgment to the defendants on
June 21, 2002, finding that plaintiff had failed to timely exhaust his administrative
remedies. The court noted that plaintiff had failed to offer any evidence to explain the
delay in filing his BP-9 form for years after the injury occurred.
We also do not find any satisfactory explanation for the delay between
March 1998 and November 2001, a period of more than three years. In this connection,
we think it significant that during these years plaintiff filed requests for administrative
remedies arising from other grievances, thus demonstrating his familiarity with the
procedures. See Ahmad v. Dragovich, 297 F.3d 201 (3d Cir. 2002).
After our review of the record, we conclude that the District Court did not
err in dismissing the complaint for failure to comply with the exhaustion of remedies
3
required by 42 U.S.C. § 1997e(a). 1
Accordingly, the judgment of the District Court will be affirmed.2
1
Although the merits are not before us, we think it appropriate to comment
that it is highly unlikely that the medical treatment rendered in this case would constitute
a violation of the Eighth Amendment.
2
At the request of the Court, counsel for plaintiff agreed to take this appeal
on a pro bono basis. We thank counsel for his services and commend him for the
excellent preparation and briefing in this case.
4