Opinion
Civil Action 21-208
05-11-2022
KEITH ROSARIO, Plaintiff, v. WESTMORELAND COUNTY, PA; WESTMORELAND COUNTY COMMISSIONER; WARDEN WALTON; DEPUTY WARDEN LOWTHER; DEPUTY WARDEN SCHWARTZ; LIEUTENANT TOMASELLO; LIEUTENANT WOLFF; SERGEANT GILLETTE; SERGEANT BRADLEY; JOHN DOE 1-6. Defendants.
Robert J. Colville, District Judge
REPORT AND RECOMMENDATION
RE: ECF NO. 37
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Keith Rosario (“Plaintiff”), an inmate presently incarcerated at the State Correctional Institution Albion (“SCI-Albion), brings this pro se action arising out of allegations that he was assaulted by prison officials while incarcerated at the Westmoreland County Prison (“WCP”). ECF No. 14.
Presently before the Court is Motion to Dismiss filed by Defendants Sergeant Bradley (“Bradley”), Sergeant Gillette (“Gillette”), Deputy Warden Lowther (“Lowther”), Deputy Warden Schwartz (“Schwartz”), Lieutenant Tomasello (“Tomasello”), Westmoreland County, Warden Walton (“Walton”), and John Does 1-6 (“Defendants”). ECF No. 37. For the reasons that follow, it is respectfully recommended that Defendants' Motion to Dismiss be denied.
The same counsel has entered an appearance for all remaining defendants in this case. ECF Nos. 35 and 36. In this motion, he does not clearly specify whether he is attempting to move on behalf of some or all defendants.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Allegations
In his Amended Complaint, Plaintiff claims that he was transferred from the Washington County Correctional Facility (“WCCF”) to WCP on February 7, 2019. ECF No. 14 ¶¶ 6-8. Upon arrival, Plaintiff claims that prison officials refused to provide him with his legal documents, mail, or grievance forms, and he was verbally harassed. Id. ¶¶ 8-17. He was housed in a disciplinary unit with limited running water, foul odors, and no toilet paper, and he was only provided a “food loaf' instead of proper meals. Id. ¶¶ 18-20.
On February 9, 2019, Gillette and 6 to 8 other prison guards arrived at Plaintiff's cell in riot gear. Id. ¶ 23. Plaintiff asked Gillette what was happening, and he told Gillette that he only wanted his legal work. Id. ¶ 24. Gillette said that “he did not care, ” and the guards were there to extract Plaintiff from his cell “the easy way or the hard way.” Id.
Plaintiff was afraid to leave his cell. Id. ¶ 26. While Plaintiff was speaking, Gillette sprayed him with pepper spray. Id. ¶ 27. The guards then ambushed and beat Plaintiff. Id. ¶¶ 2933. During the assault, the guards shouted obscenities, racist remarks, and said that Plaintiff would not be filing grievances anymore. Id. ¶ 32. Plaintiff was assaulted for approximately 7-15 minutes. Id. ¶ 33.
After the assault, Plaintiff was placed in a restraint chair with a spit mask and cuffs that were too tight. Id. ¶¶ 34, 37-38. WCP medical staff did not properly attend to or document his
Although the motion requests that Plaintiff's Complaint be dismissed in its entirety, the motion was only filed on the docket on behalf of some of the named defendants. ECF No. 37. In the briefing, counsel vaguely calls the moving defendants “Westmoreland County, et al.” ECF No. 38 at 1. Above, the Court only refers to any specific defendants that counsel has identified by name as a moving defendant. injuries, and they applied alcohol to his open wounds. Id. ¶ 35.
On February 12, 2019, Bradley escorted Plaintiff to an intake changing area to be transported back to WCCF. Id. ¶ 42. Plaintiff demanded that his property be returned before he left. Id. ¶ 43. But Bradley threatened him with a “repeat of the other day, (2/9/19 assault)” if he did not comply. Id. ¶ 43. Plaintiff ultimately did not recover all of his property. Id. ¶ 48.
Based on these allegations, Plaintiff brings claims under the Fourth, Eighth, and Fourteenth Amendments, as well as a “Monell” claim, and claims for retaliation and conspiracy. Id. ¶¶ 1, 4, 54-58.
2. Procedural History
Plaintiff initiated the instant lawsuit by submitting a proposed complaint and motion for leave to proceed in forma pauperis (“IFP”), which were post-marked February 2, 2021 and docketed on February 8, 2021. ECF No. 1. IFP status was granted on April 9, 2021, and his original Complaint was filed on the same date. ECF Nos. 3 and 4.
On May 14, 2021, this Court issued a Report and Recommendation recommending that all of Plaintiff's claims in the initial Complaint be dismissed, sua sponte, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). ECF No. 10 at 1. The Report recommended that Plaintiff's claims against Defendant Westmoreland County Prison be dismissed with prejudice, as they were duplicative of Plaintiff's claims against Defendant Westmoreland County, PA. Id. It was recommended that Plaintiff be granted leave to amend all other claims. Id.
Plaintiff did not file objections to the Report, and Judge Colville issued an order on June 8, 2021, adopting the same as the Court's opinion. ECF No. 11. In the Order of June 8, Judge Colville confirmed that Defendant Westmoreland County Prison was dismissed with prejudice. Id. at 2.
On July 29, 2021, Plaintiff timely submitted an Amended Complaint. ECF No. 14. Because Plaintiff improperly re-pleaded claims against Westmoreland County Prison, the Court sua sponte dismissed the Westmoreland County Prison. ECF Nos. 15 and 16.
3. Motion to Dismiss
a. Defendants' Motion to Dismiss
Defendants filed the instant Motion to Dismiss and Brief in Support on February 8, 2022. ECF Nos. 37 and 38. In support of the Motion to Dismiss, Defendants argue that Plaintiff's claims arising out of his alleged assault are barred by the statute of limitations. Defendants argue that Plaintiff brings his claims under 42 U.S.C. § 1983, under which a two-year statute of limitations applies. Plaintiff's claims are untimely, they argue, because he did not “file suit” until July 29, 2021-more than two years after the alleged assault on February 9, 2019. ECF No. 37 at 2-4.
As discussed below, this is incorrect. July 29, 2021 is the date that Plaintiff filed his Amended Complaint, rather than the date he initiated this action.
b. Plaintiff's Response
Plaintiff filed a Response to the Motion to Dismiss on April 28, 2022. ECF No. 45. Plaintiff argues that Defendants' Motion to Dismiss is frivolous because he initiated this action on February 8, 2021, within the two-year statute of limitations. Id. ¶¶ 1-8. While he later filed an Amended Complaint on July 29, 2021, he argues, he did so pursuant to the Court's Order and not as a result of improper delay. Id. ¶¶ 4-6.
B. LEGAL STANDARD
In assessing the sufficiency of a complaint pursuant to a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the Court must accept as true all material allegations in the complaint and all reasonable factual inferences must be viewed in the light most favorable to the plaintiff. Odd v. Malone, 538 F.3d 202, 205 (3d Cir. 2008). The Court, however, need not accept bald assertions or inferences drawn by the plaintiff if they are unsupported by the facts set forth in the complaint. See Cal. Pub. Employees' Retirement Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the Court accept legal conclusions set forth as factual allegations. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Rather, “[f]actual allegations must be enough to raise a right to relief above the speculative level.” Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). Indeed, the United States Supreme Court has held that a complaint is properly dismissed under Fed.R.Civ.P. 12(b)(6) where it does not allege “enough facts to state a claim to relief that is plausible on its face, ” id. at 570, or where the factual content does not allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); see also Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (finding that, under Twombly, “labels, conclusions, and a formulaic recitation of the elements of a cause of action” do not suffice but, rather, the complaint “must allege facts suggestive of [the proscribed] conduct” and that are sufficient “to raise a reasonable expectation that discovery will reveal evidence of the necessary element[s] of his claim”).
Pro se pleadings and filings, “however inartfully pleaded, ” must be held to “less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). If the court can reasonably read pleadings to state a valid claim on which the litigant could prevail, it should do so despite failure to cite proper legal authority, confusion of legal theories, poor syntax and sentence construction, or the litigant's unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); U.S. ex rel. Montgomery v. Brierley, 414 F.2d 552, 555 (3d Cir. 1969) (A “petition prepared by a prisoner . . . may be inartfully drawn and should . . . be read ‘with a measure of tolerance'”); Freeman v. Department of Corrections, 949 F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d Cir. 1997) (overruled on other grounds); see also Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996) (discussing Fed.R.Civ.P. 12(b)(6) standard); Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990) (same).
However, there are limits to the court's procedural flexibility: “pro se litigants still must allege sufficient facts in their complaints to support a claim . . . they cannot flout procedural rules - they must abide by the same rules that apply to all other litigants.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citations omitted). Accordingly, because Plaintiff is a Pro se litigant, this Court will consider the facts and make inferences where it is appropriate.
C. DISCUSSION
Defendants move to dismiss Plaintiff's claims arising out of his alleged February 9, 2019 assault at WCP based on the statute of limitations. Plaintiff brings his claims under 42 U.S.C. § 1983. Section 1983 claims are governed by the limitations period applicable to personal injury actions of the state where the cause of action arose. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Under Pennsylvania law, personal injury claims must be brought within two years of the accrual of the claim. 42 Pa. Const. Stat. § 5524(7). Thus, a two-year statute of limitations applies.
Statute of limitations is an affirmative defense. Wisniewski v. Fisher, 857 F.3d 152, 157 (3d Cir. 2017) (citing Fed.R.Civ.P. 8(c)(1)). In the Third Circuit, a limitations defense may be raised by a motion under Rule 12(b)(6) “only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.” Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014) (quoting Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002)) (internal quotations omitted). “However, ‘[i]f the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6).'” Id. (quoting Robinson, 313 F.3d at 134-35.)
“Under the Federal Rules of Civil Procedure, a pleading is filed when it is delivered to a clerk or to a judge who agrees to accept it for filing.” Moody v. Conroy, 762 Fed.Appx. 71, 73 (3d Cir. 2019) (citing Fed.R.Civ.P. 5(d)(2)). As for prisoners, however, “under ‘[t]he federal prisoner mailbox rule[, ] . . . a document is deemed filed on the date it is given to prison officials for mailing.” Id. (quoting Pabon v. Mahonoy, 654 F.3d 385, 391 n. 8 (3d Cir. 2011)).
Upon review, the Motion to Dismiss should be denied on this basis. The alleged assault occurred on February 9, 2019. Therefore, Plaintiffwas required to file this action within two years, or by February 9, 2021.
In this case, Plaintiff mailed his proposed complaint and IFP motion on February 2, 2021, and it was docketed on February 8, 2021. ECF No. 1. Thus, under the federal prisoner mailbox rule, the Complaint is deemed filed on February 2, 2021. While the Court did not grant Plaintiff's IFP Motion and direct the Court to file his Complaint until April 9, 2021, the statute of limitations is tolled while the Court considers an IFP motion. Fields v. Schaffer, No. Civ. A. 03-2150, 2005 WL 78928, at *2 (E.D. Pa. Jan. 12, 2005). Thus, Plaintiff timely filed his original Complaint within the requisite two year limitations period.
Although Defendants argue that Plaintiff filed this action on July 29, 2021, this is incorrect. That is the date that Plaintiff filed his Amended Complaint-not the date that he initiated this action. Because the allegations in Plaintiff's Amended Complaint arise out of the same transaction or occurrence as his original Complaint, it relates back to the date of the original filing. See Fed R. Civ. P. 15(1)(B); ECF No. 4 at 8 (bringing claims arising out of February 9, 2019 assault). Therefore, the claims set forth in Plaintiff's Amended Complaint are not barred by the statute of limitations. For these reasons, the Motion to Dismiss should be denied.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Defendants' Motion to Dismiss, ECF No. 37, should be denied.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, United States District Court, 700 Grant Street, Room 3110, Pittsburgh, PA 15219. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011). Any party opposing objections may file their response to the objections within fourteen days thereafter in accordance with Local Civil Rule 72.D.2.