Opinion
Civil Action No. 05-5768.
June 26, 2006
ORDER-MEMORANDUM
AND NOW, this 26th day of June, 2006, "Commonwealth Defendants' Motion to Dismiss" is granted. Fed.R.Civ.P. 12(b)(6). Plaintiff's complaint is dismissed with prejudice.
"A motion to dismiss pursuant to Rule 12(b)(6) should be granted only if, `accepting as true the facts alleged and all reasonable inferences that can be drawn therefrom' there is no reasonable reading upon which the plaintiff may be entitled to relief." Vallies v. Sky Bank, 432 F.3d 493, 494 (3d Cir. 2006), quoting Colburn v. Upper Darby Twp., 838 F.3d 663, 665-66 (3d Cir. 1988). Defendants are Michael Dugal, William Ferrara, Mark Knapp, James Opalka, Hugh Owens, Jerome Strickland, Joseph Tyrell, Golden and Prsylbowski, all employees of the Pennsylvania Department of Corrections.
This is a prisoner civil rights case commenced pursuant to 42 U.S.C. § 1983. Plaintiff Carlos Colon's pro se complaint alleges that on August 13, 2003, he was assaulted by guards at SCI-Graterford. Complaint, ¶¶ 1-10. As a result of the assault, he lost several teeth. Complaint, ¶¶ 11-12. The complaint alleges that plaintiff filed several grievances concerning the assault, but received no relief. Complaint, ¶¶ 13-15. On November 23, 2005, plaintiff filed this civil rights complaint. Defendants argue for dismissal on the grounds that (1) the complaint is barred by the applicable two-year statute of limitations, (2) the claim is procedurally defaulted, and (3) the Eleventh Amendment bars any claims against defendants in their official capacities. Defendants' motion is granted, as follows:
On November 2, 2005, plaintiff filed a motion to proceed in forma pauperis, which was initially denied. On November 23, 2005, plaintiff was granted leave to proceed in forma pauperis, his complaint was filed and summonses issued. On December 23, 2005, plaintiff's petition to appoint counsel was granted. On May 8, 2006, that order was vacated. On June 21, 2006, plaintiff filed his pro se response to defendants' motion to dismiss.
Copies of the grievances filed by plaintiff, and responses thereto, are attached to defendants' motion. They include grievance no. 60566, filed August 25, 2003, which was denied (complaining of lack of light and water in plaintiff's cell); grievance no. 64035, filed on October 6, 2003, which was resolved (complaining partial was not returned following removal of teeth); and grievance nos. 64679 and 67804, which were denied, and an appeal dismissed (complaining of an assault on October 9, 2003, while plaintiff was in the custody of guards in transit to court). None of these grievances refer to the August 13, 2003 incident. See Exhibits "A" through "D" to defendants' motion. On April 19, 2004, plaintiff refiled grievance no. 67804, this time describing the August 13, 2003 incident. The grievance was denied as untimely (not filed within 15 working days of the incident), and as having already been investigated and denied through appeal. See Exhibit "E" to defendants' motion. No further appeal was taken.
These documents, which are referenced in plaintiff's complaint, may be considered in the context of a 12(b)(6) motion without converting it to a motion for summary judgment. Pryor v. National Collegiate Athletic Ass'n., 288 F.3d 548, 560 (3d Cir. 2002).
• Section 1983 claims are governed by the state statute of limitations applicable to personal injuries. Sameric Corp. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998). In Pennsylvania, the applicable limitations period is two years. 42 Pa.C.S.A. § 5524. Here, plaintiff filed his complaint more than two months after the applicable statute of limitations expired, and his claim is time-barred.
In his complaint, plaintiff acknowledges that the statute of limitations is two years, but argues that he was unable to file suit within that time frame because he needed access to a law library, and because he was transferred between prisons. Complaint, ¶ 16. However, plaintiff was able to file four grievances, and to pursue one through appeal during this time. In his response to defendants' motion, plaintiff argues that defendants have not shown that they will suffer prejudice in the defense of this action due to the passage of time. Plaintiff's response at 4. However, defendants are not required to do so. Plaintiff's arguments are not persuasive.
• The Prison Litigation Reform Act, 42 U.S.C.A. § 1997e(a), requires prisoners to exhaust any administrative remedies before filing a civil rights complaint in federal court. This includes a requirement that prisoners comply with prison grievance procedures. Spruill v. Gillis, 372 F.3d 218, 230-31 (3d Cir. 2004). Failure to timely comply with grievance procedures bars a prisoner from proceeding with a claim in federal court. Id. at 227-32. Here, plaintiff was required to submit a grievance addressing the August 13, 2003 incident within 15 working days of the incident. See Booth v. Churner, 206 F.3d 289, 293 n. 2 (outlining grievance procedure); DC-ADM 804, Inmate Grievance Systems Policy (available athttp://www/cor.state.pa.us/). He was then required to appeal a denial of his grievance, and to appeal to the Secretary's Office of Inmate Grievances and Appeals if his immediate appeal was unsuccessful. Id. Plaintiff did not file a grievance addressing the August 13, 2003 incident until April 19, 2004, nearly eight months after the fifteen day deadline expired. Further, he did not appeal the denial of that grievance. Plaintiff's claim is procedurally defaulted, and his complaint must be dismissed.Lock v. Nash, 150 Fed.Appx. 157, 159 (3d Cir., Oct. 6, 2005) (where grievance filed one week late, claim was procedurally defaulted and related claim in federal court properly dismissed), citing Spruill, 372 F.3d, at 230-31.
In response, plaintiff argues that he filed many grievances, and complained verbally to prison superintendents, but that his grievances were never returned, or were returned in the negative, favoring prison staff. He also argues that he could not file grievances for fear of retaliation. Plaintiff's response at 3-4. However, plaintiff's argument is belied by his filing of four grievances after the August 13, 2003 assault, none of which mentioned that incident. See Exhibits "A" through "D" to defendants' motion.
• The defendants are sued in their official capacities as employees of the Pennsylvania Department of Corrections. However, "neither a State nor its officials acting in their official capacities are `persons' under § 1983." Will v. Michigan Dep't. of State Police, 491 U.S. 58, 71 (1989). Moreover, the Eleventh Amendment bars suits by private parties against states, state agencies, state officials, and employees acting in their official capacities. Atascadero State Hospital v. Scanlon, 473 U.S. 234, 241 (1985); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981). Plaintiff's claims are procedurally barred.
In his response to defendants' motion, plaintiff states that he "Reserved the Right to Further his Complaint and to Amend his Complaint so as to proceed with a New 1983 Civil Complaint Against the Real responsible actors." Plaintiff's response at 5. Though Rule 15(a) of the Federal Rules of Civil Procedure would permit plaintiff to amend his pleading at this stage, in view of the technical bars to plaintiff's claim, amendment would be futile, and plaintiff's claim is dismissed with prejudice, without leave to amend.
"Rule 15(a) of the Federal Rules of Civil Procedure permits a party to amend a pleading `once as a matter of course at any time before a responsive pleading is served.'" Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000). A motion to dismiss is not a responsive pleading under Rule 15(a). Centifanti v. Nix, 865 F.2d 1422, 1431 n. 9 (3d Cir. 1989), citing Reuber v. United States, 750 F.2d 1039, 1062 n. 35 (D.C. Cir. 1984); McDonald's v. Hall, 579 F.2d 120, 121 (1st Cir. 1978). See also 2 James Wm. Moore, et al., Moore's Federal Practice § 12.34[5] (3d ed. 2000) ("Because a motion to dismiss for failure to state a claim is not a `responsive pleading,' a plaintiff may amend the complaint once without leave, even during the pendency of a motion to dismiss, if the defendant has not served an answer.")
Foman v. Davis, 371 U.S. 178, 182 (1962) (citing "futility of amendment" as appropriate basis for denial of motion for leave to amend).