Opinion
Civil Action 20-808
09-23-2022
LAMONT BULLOCK, Plaintiff, v. MIKE HICE, DEPARTMENT OF CORRECTIONS, WILLIAM NICHOLSON, STEPHANY WOODS, MARK DIALESANDRA, SUPERINTENDENT ROBERT GILMORE, SUPERINTENDENT MICHAEL ZAKEN, TRACEY SHAWLEY, JOHN WETZEL, JOHN MCANANY, DR. SMYTH, JAYAKUMAR, DR. JAY, DR. PARKS, RONALD LONG, PHYSICIAN ASSISTANT MARK HAMMER, CORRECTIONAL OFFICER ANGELO, CORRECTIONAL OFFICER W.T. HENRY, CORRECTIONAL OFFICER MCCRACKEN, CORRECTIONAL OFFICER MASCETTA, PHYSICIAN ASSISTANT FETTERMAN, DR. BAIRD, JOHN POKOL, STANLEY FALOR, CHARLES ROSSI and SAFETY MANAGER, Defendants.
J. Nicholas Ranjan, District Judge
REPORT AND RECOMMENDATION
RE: ECF NO. 59
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Lamont Bullock (“Plaintiff”), an inmate presently incarcerated at the State Correctional Institution at Greene (“SCI-Greene”), brings this pro se action against twenty-eight Defendants arising out of allegations that he was deliberately exposed to contaminated foods and other harmful substances, and that he was denied proper medical treatment. ECF No. 20.
Presently before the Court is a Motion to Dismiss Plaintiff s Amended Complaint, or in the Alternative Motion for Summary Judgment (“Motion to Dismiss”) filed by Defendant Dr. Ronald Long (“Dr. Long”). ECF No. 59. For the reasons that follow, it is respectfully recommended that the Motion to Dismiss be granted.
Dr. Long moves in the alternative for summary judgment. Because the Court should dismiss Plaintiff's claims under the Federal Rule of Civil Procedure 12(b)(6) standard for the reasons discussed below, it is not necessary to convert this motion into a motion for summary judgment under Federal Rule of Civil Procedure 56.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Factual Allegations
Plaintiff brings claims against numerous defendants, arising out of allegations spanning the course of over 20 years at 8 different correctional institutions. ECF No. 20. Broadly, Plaintiff claims that prison officials poisoned him by feeding him contaminated foods and beverages; used dirty needles to draw blood; and exposed him to harmful odors and dusts. Id. ¶¶ 23-25, 30, 59,48, 52-56. As a result, Plaintiff asserts that he developed various illnesses. Id. ¶ 23, 56, 59.
Plaintiff claims that he was diagnosed with Hepatitis-C and denied treatment as early as 1998. ECF No. 20 ¶¶ 3739. He was incarcerated at the State Correctional Institutions at Huntington, Smithfield, Greene, Pittsburgh, Graterford, Houtzdale, Fayette and Dallas. Id. ¶¶ 23, 35, 62, 67, 69 and 70.
Plaintiff claims that his medical records have been fabricated to conceal his illnesses and to falsely indicate that he suffers from paranoid thinking. Id. ¶¶ 31, 33, 36. He has been denied proper treatment, testing and diagnoses for those illnesses. Id. ¶¶ 22, 32- 43, 56-64. He believes that prison officials are plotting to cause his death. Id. ¶ 152.
Dr. Long was the Medical Director at the State Correctional Institution at Smithfield (“SCI-Smithfield”), where Plaintiff was incarcerated at times between 2006 and 2011. Id. ¶¶ 20, 69. Plaintiff also claims that Dr. Long was the Medical Director for the “Department of Correction[s] Middle District Region.” Id. ¶ 20.
Plaintiff claims that he was incarcerated at SCI-Smithfield beginning on July 3, 2006 and was transferred to SCI-Houtzdale on March 30, 2011. ECF No. 20 ¶ 69. However, it appears he was not incarcerated at SCI-Smithfield for this entire period of time, because he also refers to being at SCI-Dallas in December 2009. Id. ¶ 35.
As to Dr. Long, Plaintiff claims that he refused to order a second “HIV/AIDS” test after an original test dated August 18, 2006 showed a possible infection. Id. ¶¶ 32, 33. Dr. Long fabricated that the “diagnosis was normal,” and he had the medical results “whited[-]out.” Id. ¶¶ 33-34.
Plaintiff further alleges that he tested positive for HIV in a test on December 26,2009 while at the State Correctional Institution at Dallas (“SCI-Dallas”), but that Dr. Long removed the positive test results from the medical record and submitted those false results to a United States District Court. Id. ¶¶ 34-36.
Finally, Plaintiff claims that Dr. Long falsely testified under oath in 2010 that Plaintiff did not have diabetes or herpes. Id. ¶ 75.
2. Legal Claims
Plaintiff brings claims under the First, Eighth and Fourteenth Amendments, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act, along with claims under Pennsylvania law for battery, assault and negligence. Id. at 1, ¶¶ 22, 268-273. However, he only specifically pleads two of those claims against Dr. Long. Plaintiff claims that Dr. Long was deliberately indifferent to Plaintiffs medical needs in violation of the Eighth Amendment and ADA. Id. ¶ 270.
3. Prior Lawsuits
Plaintiff has initiated over 50 lawsuits in federal court. Of note, he previously brought lawsuits arising out of similar claims that he was exposed to diseases and that his medical records have been fabricated, including prior claims against Dr. Long.
Based on a PACER Case Locator search, the Court has located approximately fifty-seven lawsuits initiated by Plaintiff “Lamont Bullock,” “Lamont C. Bullock” or “Lamont Carlton Bullock” in federal courts in Pennsylvania. As discussed in footnote 6, Plaintiff also has filed lawsuits under the name Carlton L. Bullock.
For example, in 2010, Plaintiff brought a lawsuit in the United States District Court for the Middle District of Pennsylvania against various defendants, including Dr. Long. Bullock v. Dreibelbis, No. 10-1032 (M.D. Pa. May 14, 2010), at ECF No. I. He claimed that defendants were denying him medical treatment for various illnesses, including HIV, diabetes, and herpes, and that his medical records had been fabricated. Id. at 3-4.
Generally, in resolving a motion to dismiss, courts may consider only the allegations set forth in the complaint, any exhibits submitted with the complaint and matters of public record. Pension Benefit Guaranty Corp, v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993). “[J]udicial opinions and docket sheets are public records, of which this court may take judicial notice in deciding a motion to dismiss.” Zedonis v. Lynch, 223 F.Supp.3d 417,422 (M.D. Pa. 2017).
In 2015, Plaintiff initiated another lawsuit in this Court, Bullock v. Berrier, No. 15-00001 (W.D. Pa. Jan 15, 2015) against multiple defendants, including Dr. Long. He similarly claimed that defendants “placed the plaintiff in circumstances creating imminent danger of serious physical injury and ongoing danger based on defendants['] repeated denials of treatment for plaintiff's HIV, HEPATITUS LIVER DISEASES, HERPIE SIMPLEX VIRUS, [and] DIABETES,” and that defendants “fabricated medical records and test results to cover up their willful[] and deliberate conduct.” Id. at ECF No. 1-1.
Plaintiff filed Dreibelbis and Berrier under the name “Carlton L. Bullock.” Because his prisoner identification number for these lawsuits is the same as in this case (AS-1035), it is clear these cases were filed by the same individual.
In Berrier, the Court denied Plaintiffs request to proceed in forma pauperis (“IFP”) because he had three strikes under the Prison Litigation Reform Act (“PLRA”), and he was not under imminent danger of serious physical injury. Id. at ECF No. 21 (adopting Report and Recommendation, ECF No. 6). Based on affidavits from medical professionals who were familiar with Plaintiffs medical history, the Court found that “it is clear that Plaintiff is being treated appropriately for diseases that he has, and he has been tested for other diseases, which tests show he does not have, such as HIV, herpes and diabetes.” Id. at ECF No. 6. Because Plaintiff did not submit the filing fee and was not granted leave to proceed IFP, the action ultimately was dismissed.
This decision was affirmed on appeal. Bullock v. Berrier, No.15-3731 (3d Cir. 2016).
4. Procedural History
Plaintiff initiated this lawsuit on June 3, 2020 by filing a Motion for Leave to Proceed IFP, together with a proposed Complaint. ECF No. 3. After the Court identified certain deficiencies with Plaintiffs filing, he requested multiple extensions of time to submit the filing fee in lieu of proceeding IFP. ECF Nos. 2, 3, 7 and 11.
Plaintiff eventually paid the filing fee, and his original Complaint was filed on March 30, 2021. ECF Nos. 15 and 18. The operative Amended Complaint was filed on June 21, 2021. ECF No. 20.
5. Motion to Dismiss
Multiple defendants have filed pending dispositive motions. ECF Nos. 59, 63 and 77. Dr. Long filed the instant Motion to Dismiss and Brief in Support on December 8, 2021. ECF Nos. 59 and 60.
On March 10, 2022, Plaintiff filed an Omnibus Brief in Opposition to all of the pending dispositive motions, including Dr. Long's Motion to Dismiss. ECF No. 90. He also filed a Statement of Undisputed Material Facts and Declaration in further support. ECF Nos. 91 and 92.
Dr. Long filed a Reply Brief and Response to Plaintiffs Statement of Undisputed Material Facts. ECF Nos. 94 and 95. Without leave of Court, Plaintiff filed a Sur-Reply. ECF No. 98.
The Motion to Dismiss is now ripe for consideration.
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, “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). Because Plaintiff is proceeding pro se, the Court will liberally construe his Complaint and employ less stringent standards than when judging the work product of an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C. DISCUSSION
In support of the Motion to Dismiss, Dr. Long argues that Plaintiffs claims are barred by a two-year statute of limitations. ECF No. 60 at 7-9. He notes that Plaintiffs allegations against him relate to events that occurred in 2006,2009 and 2010-more than two years before he brought this lawsuit. Id. at 9. Because there is no basis for tolling the statute of limitations, Dr. Long argues, Plaintiffs claims should be dismissed. Id. at 8-9.
In response, Plaintiff argues that the statute of limitations does not bar his claims because he has been subjected to continuing, never-ending wrongs, and the statute of limitations does not commence until those wrongs have ceased. ECF No. 90 at 12. He also argues that the Court should entertain Plaintiffs claims because he raises “extraordinary circumstances,” and his claims against all Defendants arise out of the same series of transactions or occurrences. Id. at 13.
Plaintiffs claims under the Eighth Amendment and ADA are subject to a two-year statute of limitations. Specifically, Plaintiff brings his Eighth Amendment claim under 42 U.S.C. § 1983.
Defendants also move to dismiss Plaintiffs claim for fraud under the statute of limitations. ECF No. 60 at 8. Although Plaintiff claims that Dr. Long gave false testimony and fabricated medical records, he does not specifically plead a claim for fraud. Even if Plaintiff s allegations arguably raise any claim sounding in fraud, however, any such claim would also be barred by a two-year statute of limitations for the reasons discussed above. See Toy v. Metropolitan Life Ins. Co., 863 A.2d 1, 7 (Pa. Super. Ct. 2004) (action to recover damages for fraud is governed by a two-year statute of limitations under Pennsylvania law) (citing 42 Pa.C.S.A. § 5524(7)).
Section 1983 and ADA claims are both 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) (Section 1983); Disabled in Action of Pa. v. SEPTA, 539 F.3d 199, 208 (3d Cir. 2008) (ADA). 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.)
Upon review, Plaintiffs Eighth Amendment and ADA claims against Dr. Long are barred under the two-year statute of limitations. As Dr. Long points out, the only conduct at issue occurred in 2006, 2009, and 2010-more than 10 years before his Complaint was filed. Because Plaintiff filed claims arising out of the same alleged conduct as early as 2010, it is clear he was on notice of his potential claims more than two years before he filed this lawsuit. Thus, his claims are clearly time-barred based on the face of the Amended Complaint.
There is no apparent basis for tolling the statute of limitations. Although Plaintiff refers the Court to the continuing violations doctrine, this doctrine does not apply. Under the continuing violations doctrine, “when a defendant's conduct is part of a continuing practice, an action is timely so long as the last act evidencing the continuing practice falls within the limitations period; in such an instance, the court will grant relief for the earlier related acts that would otherwise be time barred.” Brenner v. Local 514, United Bhd, of Carpenters & Joiners of Am., 927F.2d 1283, 1295 (3d Cir. 1991). For this doctrine to apply, “[f]irst, [the plaintiff] must demonstrate that at least one act occurred within the filing period .... Next, the plaintiff must establish that the [alleged wrong] is more than the occurrence of isolated or sporadic acts.” Kimes v. Univ, of Scranton, 126 F.Supp.3d 477, 492 (M.D. Pa. 2015) (quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995), superseded in part by statute Lilly Ledbetter Fair Pay Act, Pub. L. No. 111-2, 123 Stat. 5 (2009)).
In this case, Plaintiff cannot satisfy either prong. His claims against Dr. Long arise out of discrete acts in 2006, 2009 and 2010, and none of those actions occurred within the statute of limitations. Thus, his claims are not timely. For these reasons, the Court should grant Dr. Long's Motion to Dismiss.
In the alternative, Dr. Long also argues that Plaintiff's claims should be dismissed because he is not subject to claims under the ADA, Plaintiff fails to state a claim for fraud or under the Eighth Amendment, and Plaintiff failed to exhaust his administrative remedies. ECF No. 60 at 913. Dr. Long also argues that Plaintiff's medical records show that he does not have HIV or diabetes. Id. at 4-5. Because Plaintiff's claims against Dr. Long are barred by the statute of limitations, it is not necessary to address those arguments.
D. CONCLUSION
For the foregoing reasons, it is respectfully recommended that the Court should grant Dr. Long's Motion to Dismiss, ECF No. 59. “If a complaint is vulnerable to Rule 12(b)(6) dismissal, a district court must permit a curative amendment, unless an amendment would be inequitable or futile.” Phillips, 515 F.3d at 236. Because Plaintiff does not implicate any potential claim that would be timely, it would be futile to allow him to amend his Complaint as to Dr. Long. Therefore, the Court should dismiss Plaintiffs claims against Dr. Long with prejudice.
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. 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 (14) days thereafter in accordance with Local Civil Rule 72.D.2.
The Honorable J. Nicholas Ranjan United States District Judge