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Collins v. Derose

March 26, 2009

JOHNNY COLLINS, PLAINTIFF
v.
WARDEN DOMINICK L. DEROSE, ET AL., DEFENDANTS



MEMORANDUM

I. Introduction

Johnny Collins, an inmate housed at the Forest State Correctional Institution ("SCI-Forest"), filed this pro se civil-rights action pursuant to 42 U.S.C. § 1983 against multiple named and unnamed Defendants. We are considering Defendants (1) C.O. Fred Wright, (2) C.O. Mike Venneri, (3) C.O. Scott Barlick, (4) C.O. Rowe, (5) C.O. Scott Richmond, (6) C.O. Tim Manwiller, (7) C.O. Gerald Walton, (8) C.O. Richard Tuttle, (9) Warden DeRose, (10) Leonard Carroll, (11) Major Dennis Stewart, (12) C.O. Bradley Osenga, (13) C.O. Hoerner, (14) C.O. Roell, (15) L.T. Steve Smith, (16) C.O. Mike Miller, (17) L.T. Neidigh, (18) C.O. Swords, (19) C.O. Joseph Hoose, (20) C.O. Juanita O'Brien, (21) L.T. Carnazzo, and (22) Richard Tuttle's motions to dismiss filed pursuant to the Federal Rules of Civil Procedure 12(b)(6). For the reasons discussed below, we will grant the motions as to some Defendants and deny them as to others. We will partially grant Defendants Emanual Rose and Joseph Hoose's motions to dismiss.

II. Background

On April 22, 2008, Plaintiff charges, among other things, that correctional officers at the Dauphin County Prison ("DCP") used excessive force against him and that he was harassed at SCI-Camp Hill after he was charged with aggravated assault on a police officer. There currently appear to be three grounds for relief, namely: (1) excessive force and lack of medical care beginning on April 16, 2006, while Plaintiff was an inmate at the DCP; (2) strip searches at the prison on April 16, 2006 and June 21, 2007; (3) Harassment when Plaintiff was later incarcerated at SCI-Camp Hill.

On June 6, 2008, we dismissed a number of Defendants from the action with prejudice, while we permitted the Plaintiff leave to amend his complaint as to others. On August 19, 2008, Plaintiff filed an Amended Complaint. On September 9, 2008, we issued an order reinstating some Defendants and dismissing others from the action. We also dismissed the verbal abuse claims against Defendants Smith, Carnazzo and Tuttle. On November 26, 2008, the Defendants filed the instant motion to dismiss.

III. Discussion

A. Standard of Review

In considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), we must accept as true any factual allegations in the complaint. Morrison v. Madison Dearborn Capital Partners III L.P., 463 F.3d 312, 314 (3d Cir. 2006). Although a court assumes all reasonable factual inferences in the light most favorable to the plaintiff, the court should reject "unsupported allegations," "bald assertions," or "legal conclusions." Buchanan v. Gay, 491 F. Supp.2d 483, 491 (D. Del. 2007) (quoting Amiot v. Kemper Ins. Co., 122 Fed. Appx. 577, 579 (3d Cir. 2004)). We will grant the motion to dismiss if it is clear that relief could not be granted under "any set of facts that could be proven consistent with the allegations." Ramadan v. Chase Manhattan Corp., 229 F.3d 194, 195 (3d Cir. 2000) (quoting Alexander v. Whitman, 114 F.3d 1392, 1397-98 (3d Cir. 1997)). "While a complaint attacked by a 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007)(citations ommitted). "Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp, 127 S.Ct. at 1965.

B. Exhaustion under the Prison Litigation Reform Act

The Prison Litigation Reform Act ("PLRA") provides that "[n]o action shall be brought with respect to prison conditions under section 1983...or any other Federal Law, by a prisoner confined in any...correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a). In Ray v. Kertes, 285 F.3d 287, 289 (3d Cir. 2002), the Third Circuit held that the failure to exhaust under the PLRA is an affirmative defense to be pleaded by the defendant. Id. at 295. The Court reasoned that "[P]rison officials are likely to have greater legal expertise and, as important, superior access to prison administrative records in comparison to prisoners." Id. (citations omitted). The Court of Appeals recognized, in appropriate cases, the possibility that future defendants may be able to raise failure to exhaust as the basis of a 12(b)(6) motion, where there is clear supporting evidence which cannot be overcome. Id. at n.8.

Defendants argue that the Plaintiff has not alleged that he exhausted administrative remedies. Their argument, however, fails to recognize that they have the burden of proving lack of exhaustion. Plaintiff is a prisoner who does not have access to the administrative records at DCP, and he has since been transferred to SCI-Camp Hill. While Ray recognized the possibility of success on a 12(b)(6) motion for failure to exhaust in appropriate situations, this is not such a situation. Defendants have the burden of proving that Plaintiff has not exhausted his administrative remedies. At this time, they have failed to meet their burden. Therefore, Defendants' failure to exhaust argument will be denied.

C. Statute of Limitations

Defendants Wright, Venneri and Barlick argue that the applicable statute of limitations bars Plaintiff's claims against them. Pls.' Br. In Supp. at 7. They argue that the statute of limitations began to run on April 16, 2006, the date of the alleged assault. Collins did not file his original complaint until April 22. 2008, two years and six days after the purported assault.

For claims brought pursuant § 1983, federal courts must apply the statute of limitations for analogous state actions. Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 457 n.9 (3d Cir. 1996). Section 1983 claims are analogous to personal injury tort actions and are subject to the state statute of limitations governing such claims. 287 Corporate Ctr. Assocs. v. Township of Bridgewater, 101 F.3d 320, 323 (3d Cir. 1996). The governing law here is Pennsylvania's two-year statute of limitations. 42 Pa.C.S.A. § 5524. The statute begins to run when a plaintiff knew or should have known of the violation of his rights. Bougher v. Univ. Of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989). A statute of limitations defense may be raised ...


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