297 F.3d 201 | 3rd Cir. | 2002
Before: SLOVITER and McKEE, Circuit Judges and(cid:13) HAYDEN,* District Judge(cid:13) (Filed: June 10, 2002)(cid:13) _________________________________________________________________(cid:13) * Hon. Katharine S. Hayden, United States District Judge for the District(cid:13) of New Jersey, sitting by designation.(cid:13) Wendy Beetlestone (Argued)(cid:13) Schnader, Harrison, Segal & Lewis(cid:13) Philadelphia, PA 19103(cid:13) Attorney for Appellant(cid:13) Howard G. Hopkirk (Argued)(cid:13) Office of the Attorney General(cid:13) of Pennsylvania(cid:13) Harrisburg, PA 17120(cid:13) Attorney for Appellees(cid:13) OPINION OF THE COURT(cid:13) SLOVITER, Circuit Judge.(cid:13) Ali Ahmed, a former Pennsylvania prison inmate, appeals(cid:13) the District Court’s February 13, 2001 order denying his(cid:13) motion to amend his complaint against two state prison(cid:13) officers alleging excessive force. The District Court had(cid:13) previously dismissed Ahmed’s complaint on June 26, 2000(cid:13) on the ground that he had failed to exhaust administrative(cid:13) remedies prior to commencing suit, as required by the(cid:13) Prison Litigation Reform Act ("PLRA"), 42 U.S.C. S 1997e(a)(cid:13) (2001). Although the statute of limitations on Ahmed’s(cid:13) claim had expired, the District Court dismissed Ahmed’s(cid:13) complaint without prejudice. Because of the expiration of(cid:13) the statute of limitations, the District Court’s order was a(cid:13) final and appealable order which Ahmed failed to timely(cid:13) appeal. As will be developed hereafter, we are accordingly(cid:13) without jurisdiction to rule on the issues decided in the(cid:13) June 26 order. We are not under a similar limitation with(cid:13) respect to consideration of the new issues decided in the(cid:13) February 13 order, which Ahmed timely appealed. 1(cid:13) _________________________________________________________________(cid:13) 1. We express our appreciation to counsel for the appellant who was(cid:13) appointed in the District Court to represent Ahmed, who was pro se, and(cid:13) who continued her representation on appeal. Counsel is associated with(cid:13) the law firm of Schnader, Harrison, Segal & Lewis LLP, whose attorneys(cid:13) have consistently volunteered to represent pro se inmates in appeals at(cid:13) the request of this court. See, e.g., Booth v. Churner, 206 F.3d 289, 291(cid:13) n.1 (3d Cir. 2000), aff ’d, 532 U.S. 731 (2001).(cid:13) 2(cid:13) I.(cid:13) FACTS AND PROCEDURAL POSTURE(cid:13) According to Ahmed’s complaint, filed pursuant to 42(cid:13) U.S.C. S 1983, Officers Sromovski and Eichenberg(cid:13) assaulted him in his cell on April 3, 1998, while he was(cid:13) incarcerated at the State Correctional Institution at(cid:13) Mahanoy.2 Following this incident, Officer Sromovski filed a(cid:13) prison misconduct charge against Ahmed for assaulting an(cid:13) officer. The misconduct charge was filed pursuant to the(cid:13) Pennsylvania Department of Corrections’ Inmate(cid:13) Disciplinary and Restricted Housing Procedures, DC-ADM(cid:13) 801, under which prison officials may charge inmates with(cid:13) violations of prison rules. See, e.g., Ray v. Kertes, 285 F.3d(cid:13) 287, 290 (3d Cir. 2002). Inmates may appeal(cid:13) determinations of culpability through a process of(cid:13) administrative review. Id. at 291.(cid:13) According to Sromovski, after Ahmed’s cell door was(cid:13) accidently opened, Ahmed charged Sromovski, yelling an(cid:13) obscenity. Pending a hearing on the incident, Ahmed was(cid:13) confined to his cell. At the hearing, which took place on(cid:13) April 6, 1998, he was found guilty. Ahmed filed an appeal(cid:13) from that determination to the Program Review Committee(cid:13) on April 7, 1998. On April 9, the Program Review(cid:13) Committee sustained the decision of the hearing examiner(cid:13) on Ahmed’s misconduct charge. Ahmed appealed that(cid:13) determination on April 13 to the superintendent, who(cid:13) upheld the charge in a decision dated April 14.(cid:13) The matter also proceeded through the system within the(cid:13) prison designed to address inmate-initiated grievances. On(cid:13) April 8, Ahmed filed a claim regarding the April 3 incident(cid:13) pursuant to DC-804, the Consolidated Inmate Grievance(cid:13) Review System. Under the Grievance Review System, prison(cid:13) administrators investigate and attempt to resolve inmate(cid:13) grievances. At the conclusion of an investigation, a(cid:13) grievance officer provides the inmate with an Initial Review(cid:13) _________________________________________________________________(cid:13) 2. The facts of this dispute are set forth fully in the District Court’s(cid:13) opinion reported as Ahmed v. Sromovski, 103 F. Supp. 2d 838 (E.D. Pa.(cid:13) 2000), and need not be repeated here.(cid:13) 3(cid:13) Response, which includes "a brief rationale, summarizing(cid:13) the conclusions and any action taken or recommended to(cid:13) resolve the issues raised in the grievance." DC-ADM 804(cid:13) VI(B)(4), App. at 150. Inmates may appeal Initial Review(cid:13) Responses through two additional levels of administrative(cid:13) review.(cid:13) On April 23, 1998, a grievance officer completed an Initial(cid:13) Review Response to Ahmed’s April 8 grievance outlining the(cid:13) substance of the officer’s interviews and the written reports(cid:13) filed in the matter. According to the grievance officer, "You(cid:13) [Ahmed] stated you had numerous injuries but when seen(cid:13) by Medical no injuries were noted." App. at 266. The officer(cid:13) observed that "[y]our witnesses did little to help you," and(cid:13) concluded "[m]y biggest doubt of your allegations, how do(cid:13) you get punched in the face and pushed against a table(cid:13) and the RN who checked you stated that you have no(cid:13) injuries." App. at 266. Although the grievance officer(cid:13) expressed no clear result in that decision, the clear(cid:13) implication is that he had concluded no further action was(cid:13) warranted. Ahmed did not appeal the Initial Review(cid:13) Response within five days, as required by DC-ADM 804(cid:13) VI(C)(1), which provides for appeal "within five (5) days from(cid:13) the date of receipt by the inmate of the Initial Review(cid:13) decision. The inmate must appeal in this manner prior(cid:13) to seeking Final Review." App. at 150 (emphasis in(cid:13) original).(cid:13) On April 14, 1998, before completion of the Initial Review(cid:13) Response, Ahmed received a letter from the Superintendent(cid:13) of Prisons placing Ahmed on "restricted access to the(cid:13) grievance system." App. at 271. Restricted access, which is(cid:13) authorized under DC-ADM 804 V(C), "limited [Ahmed] to(cid:13) filing one grievance per month." App. at 271. This action(cid:13) was taken because prison authorities had determined(cid:13) Ahmed had filed numerous frivolous grievances. According(cid:13) to the Superintendent’s letter, Ahmed filed eighteen(cid:13) grievances from June 13, 1997 to April 9, 1998, or 4.4% of(cid:13) all prisoner grievances brought in that time frame.(cid:13) Although Ahmed concedes he often used the grievance(cid:13) procedures and was familiar with the prison’s procedures(cid:13) governing grievances, he contends that he was hampered in(cid:13) any appeal of the Initial Review Response because he did(cid:13) 4(cid:13) not have a copy in his cell of the handbook containing DC-(cid:13) ADM 804’s provisions. Br. of Appellant at 12. Ahmed also(cid:13) argues that he believed the grievance restriction precluded(cid:13) him from filing an appeal in April, although the letter(cid:13) placing him on grievance restriction referred only to the(cid:13) "filing" of grievances. However, he does not contend he was(cid:13) unaware of the relevant provisions nor does he explain why,(cid:13) if he believed he could not file an appeal of the Initial(cid:13) Review in April, he did not attempt to do so in the next(cid:13) month which would have been permitted under the one(cid:13) grievance per month restriction.(cid:13) In addition to filing his grievance, Ahmed submitted a(cid:13) request on May 22, 1998 to the Schuylkill County District(cid:13) Attorney’s office to file a criminal complaint against(cid:13) Sromovski and Eichenberg. The prosecutor’s office referred(cid:13) the matter to the Pennsylvania Department of Corrections(cid:13) Office of Professional Responsibility. That office sent the(cid:13) complaint back to S.C.I. Mahanoy, Ahmed’s place of(cid:13) incarceration, where the prison authorities prepared a(cid:13) report dated June 26, 1998. According to that report,(cid:13) "Inmate Ahmed’s allegations against CO Sromovski are(cid:13) clearly contradicted by the staff reports of the incident."(cid:13) App. at 276. The report concluded that "[b]ased on the(cid:13) reports submitted by the staff involved in the incident and(cid:13) Ahmed’s refusal to cooperate with the investigation,. . . no(cid:13) further action is necessary in this case." App. at 276. After(cid:13) reviewing the report, the Pennsylvania Department of(cid:13) Corrections Office of Professional Responsibility(cid:13) "determined the investigation satisfactory." App. at 298.(cid:13) Ahmed first filed an application to proceed in forma(cid:13) pauperis on a S 1983 complaint against Sromovski,(cid:13) Eichenberg and their supervisors in the United States(cid:13) District Court for the Eastern District of Pennsylvania on(cid:13) May 18, 1998. Although his initial attempts were rejected(cid:13) as deficient, Ahmed eventually complied with the filing and(cid:13) fee requirements, and on July 29, 1998, the District Court(cid:13) granted his motion to proceed in forma pauperis. Ahmed’s(cid:13) pro se complaint was filed with the District Court the same(cid:13) day. The complaint alleged that Sromovski and Eichenberg(cid:13) violated his Eighth Amendment rights. The defendants (also(cid:13) referred to collectively as the "Commonwealth"), represented(cid:13) 5(cid:13) by the state Attorney General, moved on September 14,(cid:13) 1998 to dismiss Ahmed’s complaint for failure to allege(cid:13) exhaustion.(cid:13) Two days later, Ahmed filed an administrative appeal(cid:13) under DC-ADM 804 from the April 23, 1998 Initial Review(cid:13) Response. It is unclear whether Ahmed’s appeal was in(cid:13) response to the Commonwealth’s motion raising the(cid:13) exhaustion issue. In any event, his appeal was swiftly(cid:13) denied as untimely by the prison superintendent, who(cid:13) observed, "You have five days in which to file your appeal(cid:13) with this office and it is now five months later." App. at(cid:13) 272. Ahmed immediately appealed that determination to(cid:13) the Chief Hearing Examiner, the final level of review(cid:13) provided for by the DC-804 grievance procedures. That(cid:13) appeal was rejected on the same ground. The District Court(cid:13) denied the defendants’ motion to dismiss on January 29,(cid:13) 1999.(cid:13) A year later, this court decided Nyhuis v. Reno , 204 F.3d(cid:13) 65 (3d Cir. 2000), holding that the exhaustion requirement(cid:13) of the PLRA set forth in 42 U.S.C. S 1997e(a) means "that(cid:13) no action shall be brought in federal court until such(cid:13) administrative remedies as are available have been(cid:13) exhausted." Id. at 78. The Commonwealth then filed a(cid:13) supplemental motion3 for summary judgment in light of(cid:13) Nyhuis addressing Ahmed’s failure to exhaust. The District(cid:13) Court, citing Nyhuis, reconsidered its January 29, 1999(cid:13) order denying the Commonwealth’s motion to dismiss and(cid:13) dismissed Ahmed’s complaint on June 26, 2000,4 for failure(cid:13) to exhaust administrative remedies prior to filing suit under(cid:13) the PLRA. The court designated that dismissal as without(cid:13) prejudice. Ahmed, 103 F. Supp. 2d at 846.(cid:13) By then, specifically by April 3, 2000, the statute of(cid:13) limitations on Ahmed’s S 1983 claim had expired, as it was(cid:13) more than two years since the incident that is the subject(cid:13) _________________________________________________________________(cid:13) 3. The Commonwealth had previously filed a motion for summary(cid:13) judgment on the merits, which was still pending.(cid:13) 4. The June order was decided on June 26, 2000, filed on June 27,(cid:13) 2000, and entered on June 28, 2000. We refer to it as the June 26(cid:13) order. It is reported at Ahmed v. Sromovski, 103 F. Supp. 2d 838 (E.D.(cid:13) Pa. 2000).(cid:13) 6(cid:13) of Ahmed’s complaint. See, e.g., Wilson v. Garcia, 471 U.S.(cid:13) 261, 275 (1985) ("We conclude that [S 1988] is fairly(cid:13) construed as a directive to select, in each State, the one(cid:13) most appropriate statute of limitations for allS 1983(cid:13) claims."); Knoll v. Springfield Twp. Sch. Dist., 763 F.2d 584(cid:13) (3d Cir. 1985) (applying, in light of Wilson v. Garcia, two(cid:13) year statute of limitations for S 1983 claims). A short time(cid:13) later, on July 2, 2000, Ahmed was released from prison. He(cid:13) filed a motion on July 31, 2000 for leave to file an amended(cid:13) complaint relating back to the date of the filing of his initial(cid:13) complaint. The District Court summarily denied Ahmed’s(cid:13) motion on February 13, 2001. Ahmed filed a notice of(cid:13) appeal from that order on March 5, 2001.(cid:13) II.(cid:13) DISCUSSION(cid:13) A.(cid:13) Exhaustion(cid:13) In addressing the merits of the District Court’s June 26(cid:13) order, the Commonwealth argues that the District Court(cid:13) correctly found that Ahmed had failed to exhaust his(cid:13) appeal of his initial grievance before filing his complaint.(cid:13) There is no dispute that Ahmed failed to file an appeal of(cid:13) his April 8, 1998 grievance to the final stages of prison(cid:13) review within the required five days and did not seek to do(cid:13) so until September of 1998, some two months after the(cid:13) District Court permitted him to proceed in forma pauperis(cid:13) on his complaint and five months after his grievance was(cid:13) denied at the initial stage. In Nyhuis, this court, after(cid:13) rejecting a futility exception to the PLRA’s exhaustion(cid:13) requirement, applied the PLRA literally. We stated:(cid:13) we are not prepared to read the amended language in(cid:13) S 1997e(a) as meaning anything other than what it says(cid:13) - i.e., that no action shall be brought in federal court(cid:13) until such administrative remedies as are available(cid:13) have been exhausted.(cid:13) 7(cid:13) Nyhuis, 204 F.3d at 78.(cid:13) Although Ahmed argues that the PLRA’s exhaustion(cid:13) requirement should be interpreted to permit prisoners to(cid:13) exhaust administrative remedies after they have filed a(cid:13) complaint in federal court, the Commonwealth replies that(cid:13) the administrative procedures available within the prison(cid:13) system must be exhausted before the inmate begins the(cid:13) federal suit.5(cid:13) However plausible we might find the Commonwealth’s(cid:13) argument were we free to reach it,6 the Commonwealth has(cid:13) raised a serious challenge to our jurisdiction to do so in its(cid:13) contention that Ahmed failed to file a timely notice of(cid:13) appeal. Because this court has held that failure to exhaust(cid:13) is not a jurisdictional defect, Nyhuis, 204 F.3d at 69 n.4,(cid:13) we cannot consider the exhaustion issue until we first(cid:13) reach the jurisdictional challenge. See Steel Co. v. Citizens(cid:13) for Better Env’t, 523 U.S. 83, 94 (1998). Only if we are not(cid:13) persuaded by the Commonwealth’s argument that we lack(cid:13) jurisdiction over Ahmed’s appeal would we be free to(cid:13) consider the exhaustion issue. We therefore turn to the(cid:13) jurisdiction issue.(cid:13) B.(cid:13) Failure to Timely Appeal(cid:13) The Commonwealth argues that this court lacks(cid:13) jurisdiction over Ahmed’s appeal because the District(cid:13) Court’s June 26 order dismissing the complaint was a final(cid:13) _________________________________________________________________(cid:13) 5. The exhaustion requirement of the PLRA provides that:(cid:13) No action shall be brought with respect to prison conditions under(cid:13) section 1983 of this title, or any other Federal law, by a prisoner(cid:13) confined in any jail, prison, or other correctional facility until such(cid:13) administrative remedies as are available are exhausted.(cid:13) 42 U.S.C. S 1997e(a).(cid:13) 6. In Nyhuis, we concluded "[T]he. . . rule . . . we believe Congress(cid:13) intended is that inmates first test and exhaust the administrative(cid:13) process, and then, if dissatisfied, take the time necessary to file a timely(cid:13) federal action." Nyhuis, 204 F.3d at 77 n.12.(cid:13) 8(cid:13) order which Ahmed failed to timely appeal. Ahmed(cid:13) responds that the District Court’s June 26 order specified(cid:13) that the dismissal was without prejudice. Ordinarily, an(cid:13) order dismissing a complaint without prejudice is not a(cid:13) final order as long as the plaintiff may cure the deficiency(cid:13) and refile the complaint. See, e.g., Welch v. Folsom, 925(cid:13) F.2d 666, 668 (3d Cir. 1991). On the other hand, if the(cid:13) plaintiff cannot cure the deficiency, an order dismissing a(cid:13) complaint without prejudice is a final and appealable order.(cid:13) Newark Branch, NAACP v. Harrison, N.J., 907 F.2d 1408,(cid:13) 1416 (3d Cir. 1990).(cid:13) The Commonwealth contends that Ahmed cannot cure(cid:13) the deficiency because a new complaint would be barred by(cid:13) the statute of limitations. This court has stated that(cid:13) although "[t]he principle is well-settled in this circuit that(cid:13) an order dismissing a complaint without prejudice is not a(cid:13) final and appealable order," that principle does not apply(cid:13) where the statute of limitations has run. Id. at 1416; see(cid:13) also Green v. Humphrey Elevator & Truck Co., 816 F.2d(cid:13) 877, 878 n.4 (3d Cir. 1987) (sustaining appellate(cid:13) jurisdiction over dismissal of complaint based on running(cid:13) of statute of limitations). This is consistent with the(cid:13) position of other courts. See, e.g., Gray v. Fid. Acceptance(cid:13) Corp., 634 F.2d 226, 227 (5th Cir. Unit B Jan. 1981)(cid:13) ("Since the district court’s order [denying plaintiffs’ timely(cid:13) motion to amend the court’s dismissal without prejudice](cid:13) was handed down after the statute of limitations had run,(cid:13) the dismissal is a final order for purposes of appeal.").(cid:13) Ahmed does not dispute that the statute of limitations on(cid:13) his claim had expired by the time he sought to amend the(cid:13) complaint. Because the statute of limitations on Ahmed’s(cid:13) claim expired in April, 2000, the June 26, 2000 order was(cid:13) a final and appealable order notwithstanding its(cid:13) designation as without prejudice.(cid:13) Under Federal Rule of Appellate Procedure 4, a civil(cid:13) litigant must file a notice of appeal "within 30 days after the(cid:13) judgment or order appealed from is entered." Fed. R. App.(cid:13) P. 4(a)(1)(A). Ahmed would have had to file a notice of(cid:13) appeal of the District Court’s June 26 order by July 28,(cid:13) 2000 or file a timely motion in the District Court for an(cid:13) extension of time. All parties agree that Ahmed did not file(cid:13) 9(cid:13) a notice of appeal by July 28, 2000 nor did he seek an(cid:13) extension.(cid:13) However, Ahmed argues that if he had been given leave(cid:13) to amend, which he proposed in his July 31 motion to(cid:13) amend, the amendments would have related back to the(cid:13) date of the original complaint, thereby enabling the(cid:13) complaint to avoid the bar of the statute of limitations.(cid:13) Federal Rule of Civil Procedure 15 provides that"[a]n(cid:13) amendment of a pleading relates back to the date of the(cid:13) original pleading" under certain circumstances. Fed. R. Civ.(cid:13) P. 15(c). But if the June 26 order was a final judgment,(cid:13) Ahmed could not use Rule 15 to amend the complaint.(cid:13) Although Rule 15 vests the District Court with considerable(cid:13) discretion to permit amendment "freely . . . when justice so(cid:13) requires," Fed. R. Civ. P. 15(a), the liberality of the rule is(cid:13) no longer applicable once judgment has been entered. At(cid:13) that stage, it is Rules 59 and 60 that govern the opening of(cid:13) final judgments. Fed. R. Civ. P. 59-60. As Wright and Miller(cid:13) observe "once a judgment is entered the filing of an(cid:13) amendment [under Rule 15] cannot be allowed until the(cid:13) judgment is set aside or vacated under Rule 59 or Rule 60."(cid:13) 6 Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane,(cid:13) Federal Practice & Procedure, S 1489, at 692-93 (2d ed.(cid:13) 1990). As those authors explain:(cid:13) To hold otherwise would enable the liberal amendment(cid:13) policy of Rule 15(a) to be employed in a way that is(cid:13) contrary to the philosophy favoring finality of(cid:13) judgments and the expeditious termination of(cid:13) litigation. Furthermore, the draftsmen of the rules(cid:13) included Rules 59(e) and 60(b) specifically to provide a(cid:13) mechanism for those situations in which relief must be(cid:13) obtained after judgment and the broad amendment(cid:13) policy of Rule 15(a) should not be construed in a(cid:13) manner that would render those provisions(cid:13) meaningless.(cid:13) Id. at 694 (footnote omitted).(cid:13) Ahmed argues that he is not subject to Rules 59(e) or(cid:13) 60(b) because there was "no entry of judgment and no final(cid:13) judgment following the District Court’s decision to dismiss."(cid:13) Reply Br. of Appellant at 14 n.3. According to Ahmed, "the(cid:13) 10(cid:13) [D]istrict [C]ourt dismissed the action rather than entering(cid:13) summary judgment. The [District C]ourt did not indicate(cid:13) anywhere in its opinion and order of June 26, 2000 that it(cid:13) was entering judgment." Id. This view of the District Court’s(cid:13) June 2000 order is not borne out by the record. The(cid:13) District Court’s order provides that: "IT IS ORDERED that:(cid:13) (1) Defendant’s supplemental motion for summary(cid:13) judgment . . . is GRANTED." Ahmed v. Sromovski, 103 F.(cid:13) Supp. 2d 838, 846 (E.D. Pa. 2000). Similarly, the docket(cid:13) entry records the June 26 order as "ORDER GRANTING(cid:13) DEFTS’ SUPPLEMENTAL MOTION FOR SUMMARY(cid:13) JUDGMENT," and notes, in an entry made the same day,(cid:13) that the case was closed. It is therefore evident that(cid:13) judgment was entered against Ahmed pursuant to the June(cid:13) 26 order.7(cid:13) Although Ahmed did not file a motion under either Rules(cid:13) 59 or 60, he did file the July 31, 2000 motion to amend the(cid:13) complaint, and the District Court’s denial of that motion in(cid:13) its February 13, 2001 order is properly before us. Ahmed(cid:13) does not contend that his motion to amend extended his(cid:13) time to file a notice of appeal. Despite Ahmed’s disclaimer(cid:13) of the applicability of Rule 59(e) or Rule 60, we are free to(cid:13) recharacterize the motion to amend to match the substance(cid:13) of the relief requested. See, e.g., In re Burnley, 988 F.2d 1,(cid:13) 2 (4th Cir. 1992) (observing courts have felt free to consider(cid:13) post-judgment motions as Rule 59(e) or Rule 60 motions).(cid:13) One of the principal commentators on federal procedure(cid:13) has noted that "[m]otions seeking to amend a complaint(cid:13) that are made after a judgment of dismissal have been(cid:13) entered have been construed as Rule 60(b) motions." 12(cid:13) James Wm. Moore, Moore’s Federal Practice, S 60.64, at 60-(cid:13) 196 (3d ed. 2002); see also Newark Branch, NAACP , 907(cid:13) F.2d at 1411 n.5 (treating motion improperly titled as(cid:13) motion for rehearing and reconsideration as motion to alter(cid:13) or amend judgment pursuant to Fed. R. Civ. P. 59(e));(cid:13) Odishelidze v. Aetna Life & Cas. Co., 853 F.2d 21, 24 (1st(cid:13) Cir. 1988) (construing motion for reconsideration as motion(cid:13) _________________________________________________________________(cid:13) 7. Appellant’s contention that the District Court’s judgment failed to(cid:13) comply with Rule 58 is without merit as the court’s order appears on a(cid:13) separate page from the court’s opinion characterized as "Explanation."(cid:13) 11(cid:13) under Rule 60(b)). Where, as here, the motion is filed(cid:13) outside of the ten days provided for under Rule 59(e) but(cid:13) within the year permitted under Rule 60(b), and the motion(cid:13) may be read to include grounds cognizable under the latter(cid:13) rule, we will consider it to have been filed as a Rule 60(b)(cid:13) motion. See, e.g., Venen v. Sweet, 758 F.2d 117, 122-23 (3d(cid:13) Cir. 1985) (treating "functional equivalent" of Rule 59(cid:13) motion untimely under that rule as timely motion under(cid:13) Rule 60(b)).(cid:13) The standard of review for Rule 60(b) motions is abuse of(cid:13) discretion. See, e.g., Coltec Indus., Inc. v. Hobgood, 280(cid:13) F.3d 262, 269 (3d Cir. 2002). When a party requests post-(cid:13) judgment amendment of a pleading, a court will normally(cid:13) conjoin the Rule 60(b) and Rule 15(a) motions to decide(cid:13) them simultaneously, as it "would be a needless formality(cid:13) for the court to grant the motion to reopen the judgment(cid:13) only to deny the motion for leave to amend." 6 Wright et al.,(cid:13) Federal Practice & Procedure S 1489, at 695. Therefore, "the(cid:13) fact that the amended pleading offered by the movant will(cid:13) not cure the defects in the original pleading that resulted in(cid:13) the judgment of dismissal may be a valid reason both for(cid:13) denying a motion to amend under Rule 15(a) and for(cid:13) refusing to reopen the judgment under Rule 60(b)." Id.(cid:13) We consider next whether any amendment to Ahmed’s(cid:13) complaint would be futile. Ahmed’s motion to amend his(cid:13) complaint, which the District Court denied by its February(cid:13) 13 order, sought to reflect (1) his untimely appeal of his(cid:13) administrative grievance subsequent to the commencement(cid:13) of this suit, and (2) his release from prison in July 2001.(cid:13) We turn first to Ahmed’s proposed amendment designed(cid:13) to cure the District Court’s dismissal because of Ahmed’s(cid:13) failure to exhaust his administrative remedies. 8 Ahmed has(cid:13) admitted that he did not file the necessary second step in(cid:13) _________________________________________________________________(cid:13) 8. At the time of the District Court opinion, we had not yet articulated(cid:13) our view as to whether the PLRA exhaustion requirement is an(cid:13) affirmative defense. See Ahmed, 103 F. Supp.2d at 842 n.13. Since that(cid:13) time we have held that the PLRA exhaustion requirement is an(cid:13) affirmative defense and a prisoner need neither plead nor prove(cid:13) exhaustion to proceed under the PLRA. Ray v. Kertes, 285 F.3d 287, 295(cid:13) (3d Cir. 2002).(cid:13) 12(cid:13) the administrative grievance process within the time(cid:13) required. Ahmed argues that he substantially complied with(cid:13) the prison’s administrative procedure, relying on the(cid:13) language in Nyhuis reflecting "our understanding that(cid:13) compliance with the administrative remedy scheme will be(cid:13) satisfactory if it is substantial." Nyhuis , 204 F.3d at 77-78.(cid:13) Whatever the parameters of "substantial compliance"(cid:13) referred to there, it does not encompass a second-step(cid:13) appeal five months late nor the filing of a suit before(cid:13) administrative exhaustion, however late, has been (cid:13) completed.9 It follows that Ahmed cannot cure the defect in(cid:13) his action by the proffered amendment of the complaint.(cid:13) Ahmed next argues that he should be permitted to(cid:13) amend his complaint to reflect that he has been released(cid:13) from prison. Therefore, he continues, the PLRA no longer(cid:13) applies to him and he can sue without meeting its(cid:13) exhaustion requirement. Understandably, the District Court(cid:13) did not consider this argument in its June 26 order(cid:13) because Ahmed had not then been released.(cid:13) The Commonwealth conceded at oral argument that a(cid:13) prisoner who has been released is not precluded by the(cid:13) PLRA from filing a S 1983 suit for incidents concerning(cid:13) prison conditions which occurred prior to his release. This(cid:13) view, which we adopt, follows the language of S 1997e(a),(cid:13) which states: "[n]o action shall be brought with respect to(cid:13) prison conditions . . . by a prisoner confined in any jail,(cid:13) prison, or other correctional facility until such administrative(cid:13) remedies as are available are exhausted." 42 U.S.C.(cid:13) _________________________________________________________________(cid:13) 9. See Perez v. Wis. Dep’t of Corr., 182 F.3d 532, 534-35 (7th Cir. 1999)(cid:13) (observing "Congress could have written a statute making exhaustion a(cid:13) precondition to judgment, but it did not. The actual statute makes(cid:13) exhaustion a precondition to suit"); Neal v. Goord, 267 F.3d 116, 122 (2d(cid:13) Cir. 2001) (holding that a prisoner may not fulfill the PLRA’s exhaustion(cid:13) requirement by exhausting administrative remedies after filing her(cid:13) complaint in federal court). Accord Jackson v. District of Columbia, 254(cid:13) F.3d 262, 269 (D.C. Cir. 2001); Freeman v. Francis, 196 F.3d 641, 645(cid:13) (6th Cir. 1999); Alexander v. Hawk, 159 F.3d 1321, 1328 (11th Cir.(cid:13) 1998); Garrett v. Hawk, 127 F.3d 1263, 1265 (10th Cir. 1997). But see(cid:13) Williams v. Norris, 176 F.3d 1089, 1090 (8th Cir. 1999) (permitting(cid:13) prisoner to continue action where he exhausted "at the time the court(cid:13) ruled").(cid:13) 13(cid:13) S 1997e(a) (emphasis added). Any other view would also be(cid:13) inconsistent with the spirit of the PLRA, which was(cid:13) designed to deter frivolous litigations by idle prisoners.10(cid:13) Although Ahmed would have been free of the strictures of(cid:13) the PLRA if he had filed a timely complaint after his release(cid:13) from prison, he is bound by the PLRA because his suit was(cid:13) filed on July 29, 1998, almost three years before he was(cid:13) released from prison. It follows that the proffered(cid:13) amendments would have been futile and the District Court(cid:13) did not abuse its discretion in denying Ahmed’s motion to(cid:13) amend.(cid:13) III.(cid:13) CONCLUSION(cid:13) For the reasons set forth, we will affirm the judgment of(cid:13) the District Court.(cid:13) _________________________________________________________________(cid:13) 10. We note that every court of appeals to have considered the issue has(cid:13) held that the PLRA does not apply to actions filed by former prisoners.(cid:13) See, e.g., Harris v. Garner, 216 F.3d 979-80 (11th Cir. 2000) (en banc)(cid:13) (determining PLRA not applicable to complaints filed by former prisoners(cid:13) for complaints regarding prison conditions prior to release, and(cid:13) concluding dismissals should be without prejudice to refiling on release),(cid:13) cert. denied, 532 U.S. 1065 (2001); Page v. Torrey, 201 F.3d 1136, 1139(cid:13) (9th Cir. 2000); Greig v. Goord, 169 F.3d 165, 167 (2d Cir. 1999), cert.(cid:13) denied, 532 U.S. 1065 (2001); Kerr v. Puckett, 138 F.3d 321, 323 (7th(cid:13) Cir. 1998) (determining PLRA not applicable to suit filed by inmate after(cid:13) he was released on parole); cf., Doe v. Washington County, 150 F.3d 920,(cid:13) 924 (8th Cir. 1998) (determining PLRA not applicable to suit by juvenile(cid:13) for complaint arising out of incident alleged to have occurred while he(cid:13) was held in pretrial detention). Similarly, other courts of appeals have(cid:13) held that other provisions of the PLRA do not apply to former prisoners.(cid:13) See, e.g., Harris, 216 F.3d at 976 (determining PLRA physical injury(cid:13) requirement does not apply to former prisoners); Janes v. Hernandez,(cid:13) 215 F.3d 541, 543 (5th Cir. 2000) (determining PLRA fee limit does not(cid:13) apply to former prisoners), cert. denied, 531 U.S. 1113 (2001); Doe, 150(cid:13) F.3d at 924 (same). In Abdul-Akbar v. McKelvie , 239 F.3d 307 (3d Cir.)(cid:13) (en banc), cert. denied, 533 U.S. 953 (2001), this court suggested the(cid:13) PLRA exhaustion requirement applies "only if the plaintiff is a prisoner(cid:13) at the time of filing." Id. at 314 (citing Greig, 169 F.3d at 167).(cid:13) 14(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 15