Opinion
Civil Action 20-912
04-01-2021
JEFFREY JOHN VALENTA, Plaintiff, v. BI INCORPORATED, PRETRIAL/PROBATION SERVICE, Western District of Pennsylvania and its agents, ERIC LAWSON, CHALENE SCOTT, TARA, Supervisor - Last Name Unknown, and VERN, Last Name Unknown, Defendants.
Cathy Bissoon, District Judge
REPORT AND RECOMMENDATION
RE: ECF NOS. 16 AND 22
MAUREEN P. KELLY, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
Plaintiff Jeffrey John Valenta (“Plaintiff”) filed this pro se action arising out of allegations that he was injured by a defective GPS ankle monitor. Presently before the Court is a Motion to Dismiss filed by Defendant BI Incorporated (“BI”), ECF No. 16, and a Motion to Dismiss, or in the Alternative, for Summary Judgment filed by Defendants Pretrial/Probation Service, Eric Lawson (“Lawson”), Chalene Scott (“Scott”), Tara Kessler (“Kessler”) and Verne Howard (“Howard”) (collectively, the “Probation Defendants”), ECF No. 22. For the reasons that follow, it is respectfully recommended that the Motions to Dismiss be granted.
Plaintiff identifies Tara Kessler and Verne Howard only by their first names “Tara” and “Vern” in his Complaint. The Probation Defendants have supplied these Defendants' last names in their Motion to Dismiss, which the Court refers to herein. ECF No. 23 at 1 n.1.
II. REPORT
A. FACTUAL AND PROCEDURAL BACKGROUND
1. Plaintiff's Complaint
Plaintiff initiated this action by filing a Motion for Leave to Proceed in forma pauperis (“IFP Motion”), accompanied by a proposed complaint, on June 19, 2020. ECF No. 1. After Plaintiff cured certain deficiencies, the Court granted Plaintiff's IFP Motion on August 4, 2020, and his Complaint was filed on the same day. ECF Nos. 2-6.
a. Factual allegations
In the Complaint, Plaintiff asserts claims against United States Probation Officers Lawson, Scott, Kessler and Howard (collectively, the “Probation Officers”), the Pretrial/Probation Service, and BI. ECF No. 6.
Following arraignment on federal criminal charges, Plaintiff alleges that he was granted release on bond with conditions of pretrial release, including electronic monitoring. Id. ¶ 10. Between August 10, 2015 and September 14, 2017, Plaintiff was equipped with a position monitoring device on his right ankle without any issue. Id. ¶ 11. At some point prior to September 15, 2017, the initial monitoring device was replaced with a GPS device manufactured by BI that was placed on Plaintiff's ankle (the “Ankle Monitor”). Id. ¶ 12.
On September 15, 2017, Plaintiff suffered a “serious fall” in his home when the strap of the Ankle Monitor got caught on the top step of the stairs. Id. ¶ 13. Plaintiff fell over ten feet down the stairs. Id. ¶ 14. He suffered injuries that required hospital emergency room care, including a concussion, rib contusions, leg and foot bruising and severe pain. Id. Plaintiff claims that Defendant Howard was present and saw his injuries, but he offered no assistance and left
Plaintiff to drive himself to the emergency room. Id. Plaintiff also asserts that BI should have provided a mechanism to prevent slack in the GPS device to prevent injuries from falls. Id. ¶ 16.
At some time between September 15, 2017 and June 25, 2018, at the direction of Probation Officers Lawson, Scott, Kessler and Howard, Plaintiff's Ankle Monitor was replaced with another GPS monitoring device manufactured by BI (the “Second Monitor”). Id. ¶ 17. The Second Monitor utilized a non-removable internal battery, which could only be recharged while attached to Plaintiff. Id. ¶ 18. Plaintiff claims that he was required, at times, to charge his device in public, and that he suffered fear, embarrassment, ridicule, and concern that he would be electrically shocked. Id.
Prior to Plaintiff's June 25, 2018 sentencing on the federal criminal charges, Plaintiff reported to the Probation Officers that the Second Monitor was causing him pain and discomfort from the heat that it generated while charging. Id. ¶ 19. He claims that the Second Monitor reached temperatures of over 130 degrees, and it sent inaccurate alerts to the Probation Officers, which caused them to call, question and admonish Plaintiff, resulting in disturbances, anxiety, and stress. Id. ¶ 20. In addition, the Second Monitor malfunctioned during a pretrial release violation hearing and his sentencing hearing. Id. ¶ 21.
Plaintiff's sentencing hearing took place on June 25, 2018. Id. ¶ 22. During the hearing, Plaintiff reported to his counsel that he was suffering pain and discomfort as a result of his ankle monitor. Id. Because of this pain, Plaintiff claims that he was too distracted to fully participate in his sentencing, in violation of his constitutional rights. Id. ¶ 23.
After his sentencing hearing, the Second Monitor was removed. Id. ¶ 24. Plaintiff observed “a red, blistered and weeping silver dollar sized burn” on his ankle where the Second Monitor came into contact with his skin. Id. Plaintiff claims that the Probation Officers did not properly assist him in addressing this burn, and that he suffered further irritation of the burn as a result of the shackles that the United States Marshal Service placed on him during his hour-and-a-half ride to the CCA Youngstown detention facility, where his burn was eventually treated. Id. ¶ 25.
Plaintiff's reference to CCA Youngstown appears to refer to Northeastern Ohio Correctional Center (“NEOCC”) in Youngstown, Ohio.
Plaintiff claims that he continues to experience sensitivity on his right ankle, and he experiences discomfort from wearing hosiery or footwear. Id. ¶ 26. Plaintiff also claims that he is unable to practice his profession as a wedding photographer to the extent that he did before the burn. Id. ¶ 27.
b. Plaintiff's claims
Plaintiff asserts two claims, which the Court refers to as Counts I and II for ease of reference.
i. “ Bivens” claim (Count I)
Plaintiff asserts his first claim (Count I) against the Probation Defendants, which he has styled as a “Bivens claim.” Id. ¶¶ 28-33. Plaintiff claims that the Probation Defendants “owed a duty of ordinary care” to Plaintiff by virtue of 18 U.S.C. § 3154 and the court order requiring Plaintiff's supervision by Pretrial/Probation during his pretrial release on electronic monitoring. Id. ¶ 29. He asserts that the Probation Defendants failed to exercise ordinary care because a reasonable person would have adjusted or removed the GPS ankle monitor that was causing him pain, suffering and anxiety. Id. ¶ 30. As a result of their negligence, Plaintiff claims that he suffered permanent injuries, including ankle pain and sensitivity, phantom vibrations, anxiety, loss of economic opportunity and financial harm, and depression. Id. ¶ 31. Plaintiff also claims that the United States is liable for the acts of its employees pursuant to the Federal Tort Claims Act. Id. ¶ 33.
Section 3154 of Title 18 of the United States Code pertains to “functions and powers relating to pretrial services.”
ii. Strict Liability (Count II)
Plaintiff asserts a products liability claim in Count II against BI. He claims that BI is liable for manufacturing and selling the ankle monitor in a defective and unreasonably dangerous condition that caused him harm. Id. ¶¶ 34-57.
2. Motions to Dismiss
Defendant BI filed its Motion to Dismiss and Brief in Support on November 30, 2020. ECF Nos. 16 and 17. Plaintiff filed his Response on December 29, 2020. ECF No. 25.
The Probation Defendants filed their Motion to Dismiss and Brief in Support on December 22, 2020. ECF Nos. 22 and 23. Plaintiff filed his Response on February 26, 2021. ECF No. 38. The Probation Defendants filed a Reply on March 10, 2021. ECF No. 39.
The Motions to Dismiss are now ripe for consideration.
B. LEGAL STANDARD
1. Federal Rule of Civil Procedure 12(b)(6)
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”).
2. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), “a court must grant a motion to dismiss if it lacks subject-matter jurisdiction to hear a claim.” In re Schering Plough Corp. Intron/Temodar Consumer Class Action, 678 F.3d 235, 243 (3d Cir. 2012). Rule 12(b)(1) motions can raise either a facial or factual challenge to the Court's subject-matter jurisdiction. Davis v. Wells Fargo, 824 F.3d 333, 346 (3d Cir. 2016). A facial attack challenges the sufficiency of the pleadings, whereas a factual attack challenges the sufficiency of jurisdictional facts. Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015). In resolving a facial attack, the Court must accept Plaintiff's well-pleaded factual allegations as true and draw all reasonable inferences in Plaintiff's favor. In re Horizon Healthcare Servs. Inc. Data Breach Litig., 846 F.3d 625, 633 (3d Cir. 2017). When resolving a factual attack, however, the Court may weigh and consider evidence outside the pleadings. Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3d Cir. 2000).
3. Pro se pleadings
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
1. Probation Defendants' Motion to Dismiss (ECF No. 22)
The Probation Defendants move to dismiss Plaintiff's Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and (b)(6), or in the alternative, under Federal Rule of Civil Procedure 56. ECF No. 23 at 5. In support of the Motion, the Probation Defendants argue that Plaintiff fails to plead a cognizable “Bivens” claim because (1) as a federal agency, Probation/Pretrial Service is immune from any Bivens claim; (2) to the extent Plaintiff's claim arises out of events that occurred prior to June 18, 2018, it is barred by the two-year statute of limitations for Bivens actions; (3) Plaintiff fails to state an Eighth Amendment claim, because he does not plead facts demonstrating either deliberate indifference or a “serious medical need;” and (4) the Probation Officers are entitled to qualified or quasi-judicial immunity. Id. at 6-14. If Plaintiff brings a negligence claim, instead, the Probation Defendants argue that the Court lacks jurisdiction because the only proper defendant for such a claim is the United States. Id. at 15-18.
In his Response in opposition, Plaintiff argues the Pretrial/Probation Service is not immune from suit because it is not entitled to qualified immunity. ECF No. 38 at 2-5. He also argues that the statute of limitations does not bar any portion of his claim because the discovery rule and equitable tolling apply. Id. at 6-11. Because he received a head injury in the September 15, 2017 fall, he argues that he did not immediately understand the full extent of his injury, and that he suffered mental incapacitation as a result. Id. at 7-11. With respect to the burn on his ankle, he argues that he did not see it until the ankle monitor was removed on June 25, 2018. Id. at 8-9. Finally, Plaintiff contends that he presents a viable Eighth Amendment claim, arguing that the government had a duty to provide reasonably healthy and safe conditions of “confinement, ” the choice of this ankle monitor was “punitive, ” his injuries are sufficiently serious to support an Eighth Amendment claim, and that the Probation Defendants are responsible for those injuries. Id. at 11-19.
In order to evaluate the Probation Defendants' Motion to Dismiss, the Court first considers the nature of Plaintiff's Bivens claim in Count I. As the United States Courts of Appeals of the Third Circuit has explained:
Bivens is the short-hand name given to causes of action against federal officials for alleged constitutional violations. In the eponymous case, the Supreme Court considered whether a “violation of [the Fourth Amendment] by a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct.” Bivens [v. Six Unknown Named Agents of Fed. Bureau of Narcotics], 403 U.S. [388, ] 389, 91 S.Ct. 1999 [(1971)]. The Court held that such a claim was cognizable and that the plaintiff was “entitled to recover money damages for any injuries he has suffered as a result of the agents' violation of the [Fourth] Amendment.” Id. at 397, 91 S.Ct. 1999. Thus was born an implied right of action to recover damages against federal officials for constitutional violations.Bistrian v. Levi, 912 F.3d 79, 88 (3d Cir. 2018).
For the reasons that follow, however, the Court should find that Plaintiff fails to state any claim that the Probation Defendants violated his constitutional rights. Although Plaintiff arguably appears to plead a negligence claim under the Federal Tort Claims Act (“FTCA”) in Count I, the Probation Defendants are not the proper defendants with respect to any such claim. Therefore, the Probation Defendants' Motion to Dismiss should be granted.
a. Violation of constitutional rights
In his Complaint, Plaintiff does not plead that the Probation Defendants violated any particular constitutional right. Instead, he claims that the Probation Defendants were negligent in failing to adjust or remove a GPS ankle monitor that caused him pain, suffering and anxiety, and that they breached a duty of care. ECF No. 6 ¶¶ 28-33.
In support of their Motion to Dismiss, the Probation Defendants suggest that the constitutional right at stake for this “Bivens claim” is the Eighth Amendment. ECF No. 23 at 7. Based on this view of Plaintiff's claim, the Probation Defendants argue, inter alia, that Plaintiff fails to state a claim that the Probation Defendants acted with deliberate indifference to a serious medical need, and therefore this claim should be dismissed. Id. at 7-10. In his Response, Plaintiff also argues that he is proceeding under the Eighth Amendment, pursuant to various theories of liability. ECF No. 38 at 11-18.
i. Eighth Amendment
Upon review, the Court should find that Plaintiff does not state an Eighth Amendment claim in Count I. As previously discussed, Plaintiff does not plead that the Probation Defendants violated the Eighth Amendment. Construing Plaintiff's pro se Complaint liberally, his allegations also does not give rise to any potential violation of the Eighth Amendment.
The Eighth Amendment prohibits the infliction of “cruel and unusual punishment” upon prisoners. U.S. Const. amend. VIII; see also Natale v. Camden Cnty. Correctional Facility, 318 F.3d 575, 581 (3d Cir. 2003). During the relevant time, however, Plaintiff was not a prisoner. Plaintiff pleaded guilty to a crime on November 29, 2017. United States v. Valenta, 2:15-cr-00161 (W.D. Pa 2015), at ECF No. 95; ECF No. 38 at 11. He was sentenced on June 25, 2018. ECF No. 6 ¶¶ 19, 22. In Count I, Plaintiff's claim arises out of the Probation Defendants' alleged “fail[ure]
to adjust or remove the malfunctioning ankle monitor . . .” Id. ¶ 31.Because the Second Monitor was removed at the conclusion of Plaintiff's sentencing hearing, the Probation Defendants' conduct at issue occurred (1) before he entered his guilty plea; and/or (2) before he was sentenced for his crime. See Id. ¶ 25.
Although Plaintiff includes factual allegations regarding the Probation Officers' conduct relative to his burn after the Second Monitor was removed, ECF No. 6 ¶ 25, he does not claim that the Probation Defendants are liable with respect to this conduct in Count I.
The Eighth Amendment does not apply until “after [the State] has secured a formal adjudication of guilt in accordance with due process of law.” Natale, 318 F.3d at 581 (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983)). Moreover, the United States Court of Appeals for the Third Circuit has held that convicted but unsentenced individuals maintain their status as pretrial detainees, as opposed to prisoners, for constitutional purposes. Fuentes v. Wagner, 206 F.3d 335, 341 (3d Cir. 2000); see also Athill v. Speziale, No. Civ. A. 06-4941, 2009 WL 1874194, at *8 (D. N.J. June 30, 2009). Because the Probation Defendants' purported misconduct or alleged failure to act occurred at or prior to Plaintiff's sentencing hearing, he does not state a claim pursuant to the Eighth Amendment in Count I.
ii. Fifth Amendment
While the Eighth Amendment only protects convicted prisoners from “cruel and unusual punishment, ” however, the Due Process Clause of the Fifth or Fourteenth Amendments protects pretrial detainees from purposeful infliction of punishment without due process of law. Hubbard v. Taylor, 399 F.3d 150, 158 (3d Cir. 2005). As a federal pretrial detainee, then, the Court considers whether Plaintiff instead pleads a claim for violation of his right to process under the Fifth Amendment. See, e.g., Bell v. Wolfish, 441 U.S. 520 (1979) (applying Fifth Amendment due process clause to federal pretrial detainees).
Again, Plaintiff does not expressly plead that the Probation Defendants violated his Fifth Amendment rights. Upon review, the Court cannot reasonably infer this cause of action in Count I.
Plaintiff claims that he was injured because the Probation Defendants' negligently failed to adjust or remove his ankle monitor, and that they breached a duty of ordinary care he was owed. As the United States Supreme Court has held, however, negligent conduct, even if it causes injury, does not constitute a deprivation of due process. Daniel v. Williams, 474 U.S. 327, 331 (1986) (“To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuries-old principle of due process of the law.”). Thus, Plaintiff also fails to state a claim under the Fifth Amendment in Count I.
For similar reasons, as presently pleaded, Plaintiff's purported Eighth Amendment claim would nevertheless fail even if he was a prisoner during any portion of the relevant time period. “It is well-settled that claims of negligence or medical malpractice, without some more culpable state of mind, do not constitute ‘deliberate indifference.'” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
b. Negligence
Despite his use of the term “Bivens, ” Plaintiff instead appears to be asserting a negligence claim under the FTCA. In Count I, Plaintiff alleges that the Probation Defendants engaged in negligent conduct and breached a duty of ordinary care, and he claims the United States is liable for the negligent acts or omissions of its employees under the FTCA. Therefore, the Court considers whether the Motion to Dismiss should be granted relative to Plaintiff's negligence claim.
With respect to any purported negligence claim, the Probation Defendants argue that the Court lacks jurisdiction to hear this claim. ECF No. 23 at 15. In particular, they argue that the Pretrial/Probation Service, as a federal agency, and the Probation Officers, as employees of that federal agency, are immune from suit under the FTCA. Id. Plaintiff can only bring a claim for negligence based on the alleged acts of a federal agency or its employees acting within the scope of their employment against the United States, which he has not done. Id. The Court cannot simply substitute the United States as a defendant, they argue, because Plaintiff did not exhaust his administrative remedies, and the statute of limitations has now passed. Id. at 16.
Plaintiff does not address this issue in his Response. See ECF No. 38.
Upon review, the Motion to Dismiss should be granted with respect to Plaintiff's negligence claim. Plaintiff brings this claim under the FTCA. The FTCA provides a limited waiver of the sovereign immunity of the United States, which gives the district courts exclusive jurisdiction over civil actions.
The Court concludes that Plaintiff is proceeding under the FTCA because he expressly refers to this statute in Count I, and his claim appears to arise out of acts within the Probation Officers' course of employment. ECF No. 6 ¶ 33; see also Roberts v. United States, 191 Fed.Appx. 338, 341 (6th Cir. 2006) (“When a federal employee acts within the scope of her employment and commits a tort, any relief for that tort must be sought against the Government under the [FTCA].”). Moreover, there is no apparent basis for exercising federal jurisdiction in this action to the extent that Count I is not asserted under the FTCA. Plaintiff brings state-law tort claims against the parties, and he does not plead facts demonstrating that the parties have diverse citizenship. Accordingly, it would still be appropriate to grant the Motion to Dismiss if Plaintiff's claim arguably did not arise under the FTCA.
Under the FTCA, federal prisoners may recover damages from the United States for injury sustained during confinement as a result of the negligent or wrongful act or omission by any Government employee, acting within the scope of his employment, under circumstances where a private person would be liable under the law of the place where the act or omission occurred.Perez-Barron v. United States, 480 Fed.Appx. 688, 691 (3d Cir. 2012) (citing 28 U.S.C. §§ 1346(b), 2674)).
In bringing an FTCA claim, a plaintiff may only sue the United States as a defendant, and he must first present the claims to a federal agency and receive a final decision before filing a lawsuit. Coffey v. Fed. Bureau of Prisons, No. 15-231, 2015 WL 2185518, at *4 (D. N.J. May 11, 2015) (citing 28 U.S.C. §§1346(b), 2675(a); McNeil v. United States, 508 U.S. 106 (1993)). Because courts have consistently held that federal agencies and employees, such as the Probation Defendants, cannot be sued under the FTCA, the Motion to Dismiss should be granted.
c. Leave to Amend
“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 v. Cty of Allegheny, 515 F.3d 224, 236 (3d Cir. 2008). Although Count I sounds in negligence for the reasons discussed above, Plaintiff suggests in his Response that he intended to plead a Bivens claim.
Upon review, Plaintiff should be granted leave to amend his Complaint as to the Probation Officers in order to assert a Bivens claim, as appropriate. At this preliminary stage, it is plausible that Plaintiff could state a claim the Probation Officers violated his constitutional rights by acting with deliberate indifference to a serious medical need. See, e.g., Wilson v. Zielke, No. 06-2450, 2009 WL 1285867, at *2-3 (E.D. Pa. Apr. 23, 2009) (denying motion for summary judgment with respect to Fourteenth Amendment claim of deliberate indifference to a serious medical need against probation officer involving “too-tight” ankle monitor that caused pain, swelling and numbness that could have resulted in adverse health consequences if not loosened, and of which plaintiff had notified the probation officer).
In his Complaint, Plaintiff alleges that he made “numerous complaints” to the Probation Officers that his ankle monitor was “malfunctioning to the point of causing pain, burning and permanent damage.” ECF No. 6 ¶¶ 3, 19, 20. He also alleges that he suffered “a red, blistered and weeping silver dollar sized burn, ” as a result of the malfunctioning ankle monitor, which ultimately required medical attention, and which continues to cause him pain and sensitivity. Id. ¶¶ 24-25, 31.
The Probation Defendants argue that the Probation Officers would be entitled to quasi-judicial immunity. Although probation officers enjoy quasi-judicial immunity when engaged in adjudicatory functions, Defendants do not address whether the Probation Officers were involved in adjudicatory functions relative to Plaintiff's claim. See Harper v. Jeffries, 808 F.2d 281, 284 (3d Cir. 1986).
Plaintiff's claims against Pretrial/Probation Service, however, should be dismissed with prejudice. As previously discussed, Pretrial/Probation Service is not a proper defendant with respect to Plaintiff's FTCA claim. Moreover, as a federal agency, it is immune from suit with respect to any potential Bivens claim. See Farrow v. W. Dist. of Pa. Parole & Prob., No. 08-0263, 2008 WL 597189, at *2 (W.D. Pa. March 4, 2008) (citing F.D.I.C. v. Meyer, 510 U.S. 471 (1994)). Accordingly, the Probation Defendants' Motion to Dismiss, ECF No. 22, should be granted with leave to amend relative to the Probation Officers only.
2. BI's Motion to Dismiss (ECF No. 16) a. Jurisdiction
In support of their Motion to Dismiss, BI argues that it should be dismissed because the Court lacks subject-matter jurisdiction. ECF No. 17 at 5-6. BI asserts that diversity jurisdiction does not exist because Plaintiff's claims do not plausibly exceed the $75,000 threshold. Id. In the alternative, it argues that the Court should not exercise supplemental jurisdiction with respect to Plaintiff's claims against BI because Plaintiff's state law tort claim against it arises out of “two isolated incidents” involving ankle monitors that it allegedly manufactured, distributed, and serviced; it would be significantly prejudiced by having to participate in this action given the number of other parties and unrelated claims; and declining supplemental jurisdiction would promote fairness and judicial economy. Id. at 7-8. Or, if the Court dismisses Plaintiff's federal claims against the Probation Defendants, it should also decline jurisdiction over BI pursuant to 28 U.S.C. § 1367(c)(3).
In response, Plaintiff argues that the Court has original jurisdiction because he satisfies the amount in controversy for diversity jurisdiction, based upon his good faith claim for damages, and that this is a controversy between citizens of different states. ECF No. 25 at 1-3. He also claims that it is proper to exercise supplemental jurisdiction because BI engaged in interstate commerce, and it would not be prejudiced by defending itself in a federal court. Id. at 3.
Upon review, BI's Motion to Dismiss should be granted. In order for diversity jurisdiction to arise under 28 U.S.C. §1332, (1) the amount in controversy must exceed $75,000 and (2) all plaintiffs must be of different citizenship than all defendants. The parties dispute whether Plaintiff satisfies the amount in controversy requirement. Even if Plaintiff arguably satisfies the amount in controversy, however, he fails to plead facts demonstrating that Plaintiff and all Defendants are citizens of different states. See Phillip v. Atlantic City Med. Ctr., 861 F.Supp.2d 459, 467 (D. N.J. 2012) (noting that plaintiff must plead facts establishing the basis for diversity of citizenship). Therefore, the Court cannot exercise diversity jurisdiction in this action.
Instead, federal jurisdiction arises out of Plaintiff's federal claim against the Probation Defendants which, for the reasons previously discussed, should be dismissed. The United States Court of Appeals for the Third Circuit has held that if federal counts of a complaint are dismissed, the Court should “ordinarily refrain exercising jurisdiction [over the state law claims] in the absence of extraordinary circumstances.” Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 195-96 (3d Cir. 1976); see also Borough of West Mifflin v. Lancaster, 45 F.3d 780, 788 (3d Cir. 1995) (“Under Gibbs jurisprudence, where the claim over which the district court has original jurisdiction is dismissed before trial, the court must decline to decide the pendent state claims unless considerations of judicial economy, convenience, and fairness to the parties provide an affirmative justification for doing so.”). At this preliminary stage of the litigation, there are no such extraordinary circumstances present. Accordingly, BI's Motion to Dismiss should also be granted.
b. Statute of Limitations
In the alternative, BI argues that Plaintiff's claim is barred by the statute of limitations. ECF No. 17 at 8-9. BI asserts that a two-year statute of limitations applies. Id. at 9 (citing 42 Pa. C.S.A. § 5524). To the extent Plaintiff's claim arises out of his September 15, 2017 fall, then, it argues that Plaintiff was required to file his lawsuit on or before September 15, 2019. Id. To the extent his claim arises out of events that occurred in June 2018, BI argues that the latest Plaintiff could filed his Complaint was June 25, 2020. Id. Because Plaintiff's Complaint was not filed until August 4, 2020, after the Court granted his IFP Motion, BI argues that Count II is time barred. Id.
In response, Plaintiff argues that his claim is not time barred based upon the application of the discovery rule and equitable tolling, and because he acted with reasonable diligence in pursuing his claim. ECF No. 25 at 4-7. With respect to his September 15, 2017 fall, he argues that he suffered a concussion, which caused mental incapacity and various symptoms that were not immediately apparent. Id. at 5-7. He also argues that, as to his June 2018 injury, he could not have known of the burn until the ankle monitor was removed, and that the statute of limitations was tolled upon his filing of the Complaint. Id. at 5-6.
Because BI's Motion to Dismiss should be granted for the reasons previously discussed, it is not necessary for the Court to consider BI's statute of limitations defense. In the event the Court considers this issue, however, the Court should grant the Motion to Dismiss only to the extent that Plaintiff's claim arises out of his September 15, 2017 fall.
Under Pennsylvania law, the statute of limitations for tort claims is two years. 42 Pa. C.S.A. § 5524. The limitations period generally begins to run “when an injury is inflicted.” Adams v. Zimmer US, Inc., 943 F.3d 159, 163 (3d Cir. 2019) (citing Wilson v. El-Daief, 964 A.2d 354, 361 (Pa. 2009)) (internal quotations omitted). “‘[W]here the plaintiff's injury or its cause was neither known or reasonably ascertainable, '” however, “the ‘discovery rule' tolls the statute of limitations.'” Id. (citing Nicolaou v. Martin, 195 A.3d 880, 892 (Pa. 2018); Fine v. Checcio, 870 A.2d 850 (Pa. 2005)).
As the United States Court of Appeals for the Third Circuit has described:
Under the Pennsylvania discovery rule, the “commencement of the limitations period is grounded on ‘inquiry notice' that is tied to ‘actual or constructive knowledge of at least some form of significant harm and of a factual cause linked to another's conduct, without the necessity of notice of the full extent of the injury, the fact of actual negligence, or precise cause.'” Gleason v. Borough of Moosic, 609 Pa. 353, 15 A.3d 479, 484 (Pa. 2011) (quoting Wilson, 964 A.2d at 364). The statute of limitations accordingly begins to run when the plaintiff knew, or exercising reasonable diligence, should have known (1) he or she was injured and (2) that the injury was caused by another. See Coleman v. Wyeth Pharms., 6 A.3d 502, 510-511 (Pa. Super. Ct. 2010).Id.
The inquiry into whether a party was able, in the exercise of a reasonable diligence, to know of his injury and its cause, ordinarily raises questions of fact for a jury to decide. Fine, 870 A.2d at 858; see also Adams, 943 F.3d at 164. “‘Where, however, reasonable minds would not differ in finding that a party knew or should have known [i]n the exercise of reasonable diligence of his injury and its cause, . . . the discovery rule does not apply as a matter of law.'” Adams, 943 F.3d at 164 (quoting Fine, 870 A.2d at 858-59).
Upon review, Plaintiff's claim is time barred to the extent his claim arises out of the September 15, 2017 fall. Plaintiff claims that he fell because his ankle monitor got caught on the stairs, and that he immediately sought medical attention for his injuries. ECF No. 6 ¶¶ 13-14. As of September 15, 2017, then, Plaintiff knew, or had reason to know, of his injury and its cause. Although Plaintiff argues that he did not know the full extent of his concussion injury until a later date and that it affected his mental cognition, a plaintiff need not know “the precise extent of [his] injuries before the statute will run.” Juday v. Merck, 730 Fed.Appx. 107, 110 (3d Cir. 2018).
Because Plaintiff did not file this lawsuit until more than two years later after the September 15, 2017 fall, his claim is therefore time barred relative to this incident.
To the extent Plaintiff's claim arises out of his June 2018 injury, however, the Motion to Dismiss should not be granted on statute of limitations grounds. As Plaintiff points out, he did not learn about the burn on his ankle until the Second Monitor was removed after his sentencing hearing on June 25, 2018, and he was not permitted to remove the monitor prior to this time as a condition of his release.
Plaintiff filed his original IFP Motion and proposed Complaint to commence this action on June 19, 2020. ECF No. 1. Thereafter, he cured certain deficiencies associated with his original filing on July 15, 2020, including filing a renewed IFP Motion using the Court's form IFP Motion. ECF No. 3. Courts have held that the statute of limitations is tolled while the Court considers an IFP Motion, and while plaintiff complies with a court order regarding the refiling of an IFP Motion in order to cure deficiencies. Fields v. Blake, 349 F.Supp.2d 910, 916 (E.D. Pa. 2004). Thus, although Plaintiff's Complaint was not filed until after the Court granted Plaintiff's IFP Motion on August 4, 2020, the statute of limitations was tolled as of when he initiated this lawsuit on June 19, 2020-less than two years after he allegedly discovered his burn. As a result, Plaintiff's claim is not time barred relative to his June 2018 injuries.
D. CONCLUSION
For the foregoing reasons, the Probation Defendants' Motion to Dismiss, ECF No. 22, should be granted, however, Plaintiff should be granted leave to amend his Complaint to assert a Bivens claim against the Probation Officers, only, as appropriate. The Court should also grant BI Incorporated's Motion to Dismiss, ECF No. 16.
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.