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Irizarry v. Shannon

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


April 16, 2010

ANGEL IRIZARRY, PLAINTIFF
v.
ROBERT SHANNON, DAVID KNEAL, AND MARY TONER, DEFENDANTS

The opinion of the court was delivered by: J. Andrew Smyser Magistrate Judge

(Judge Jones)

(Magistrate Judge Smyser)

REPORT AND RECOMMENDATION

The plaintiff, a state prisoner proceeding pro se, commenced this 42 U.S.C. § 1983 action by filing a complaint on April 16, 2009.

The plaintiff's claims relate to the monitoring of his incoming and outgoing mail while he was incarcerated at the State Correctional Institution at Frackville ("SCI-Frackville"). The complaint names the following three officials of SCIFrackville: Superintendent Robert Shannon, Security Captain David Kneal and Mailroom Supervisor Mary Toner.

The plaintiff alleges the following facts in his complaint.

In January of 2006, the plaintiff received a certified mail receipt indicating that defendant Kneal had sent a package to Sonja Stebbins, a detective with the Lancaster Police Department, regarding the plaintiff. Doc. 1, at 2, para. 1; Exhibit A.

On September 11, 2006, the plaintiff received a notice from defendant Toner informing him that his incoming and outgoing mail had been monitored from September 20, 2005 to September 7, 2006. Doc. 1, at 3, para 2; Exhibit C. The notice indicated that the monitoring had been suggested by defendant Kneal and approved by defendant Shannon. Id. The plaintiff alleges that the monitoring violated Department of Correction Policy DC-ADM 803. Doc. 1, at 3, para 2; Exhibit D.

On November 2, 2006, the plaintiff received a second notice from defendant Toner informing him that his mail had been monitored from October 17, 2006 to November 1, 2006. Doc. 1, at 3, para 3; Exhibit E.

On April 10, 2007, the plaintiff received a letter from a friend who was angry because duplicates of their private correspondence were made available to a third party who used the information to humiliate, degrade and embarrass the friend. Doc. 1, at 3, para 4; Exhibit B.

On April 24, 2007, the plaintiff submitted a grievance, Grievance No. 185632, regarding his mail being copied and sent to a third party. Doc. 1, at 3, para 5; Exhibit F. The grievance was returned to the plaintiff without action on the basis that it was not timely filed. Id. On April 27, 2007, the plaintiff applied for a reconsideration and it was granted, and the grievance was remanded to the grievance coordinator for further processing. Id.

On July 1, 2007, the plaintiff sent a letter to Grievance Coordinator Mr. Damitor inquiring as to the status of the plaintiff's grievance. Doc. 1, at 3, para 6; Exhibit G. On July 20, 2007, the plaintiff received notice that his grievance was denied. Doc. 1, at 3, para 6.

On July 24, 2007, the plaintiff filed an appeal to the institution's Deputy Superintendent Verano. Doc. 1, at 3, para 7; Exhibit H. When no response was given to the plaintiff, the plaintiff sent a letter to Mr. Verano inquiring as to the status of his appeal. Exhibit H. On the copy of the letter submitted by the plaintiff, there is a note from Mr. Verano notifying the plaintiff that his office was not the proper office for appeals at the facility level and directing the plaintiff to the Superintendent. Id.

On December 9, 2007, the plaintiff filed an appeal to the Superintendent. Id. In his appeal, the plaintiff alleged that Mr. Verano had a professional responsibility to forward his appeal to the proper office. Id. The Superintendent denied the plaintiff's appeal as untimely, noting that Mr. Verano did not have a responsibility to forward the plaintiff's mail. Id.

The plaintiff filed an appeal to the Chief Secretary's Office of Grievances and Appeals claiming that his mail was being inappropriately forwarded and duplicated in violation of his rights and that the denial of his appeal to the Superintend was incorrect. Doc. 1, at 3, para 8; Exhibit I. This appeal was also denied as untimely. Id.

The plaintiff seeks punitive damages as well as injunctive relief.

On June 29, 2009 the defendants filed a motion to dismiss the complaint. (Doc. 12). The defendants' motion to dismiss was granted in part and denied in part. (Doc. 30). The plaintiff's claims for monetary damages against the defendants in their official capacities were dismissed. The remainder of the defendants' motion to dismiss was denied.

On January 11, 2010, the defendants filed a motion for summary judgment. (Doc. 38). Also, on January 11, 2010, the defendants filed a statement of material facts, a brief and documents in support of their motion for summary judgment. The plaintiff filed a brief in opposition to the defendants' motion for summary judgment on February 24, 2010. This Report and Recommendation addresses that motion.

Summary judgment is appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). With respect to an issue on which the nonmoving party bears the burden of proof, the moving party may discharge that burden by "'showing'--- that is, pointing out to the district court --- that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Once the moving party has met its burden, the nonmoving party may not rest upon the mere allegations or denials of its pleading; rather, the nonmoving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2).

In their brief in support of the motion for summary judgment, the defendants argue that summary judgment should be granted because the plaintiff failed to file his complaint before the statute of limitations had run, or, in the alternative, because the plaintiff is inappropriately seeking to assert the rights of a third party rather than his own. (Doc. 39).

This is a 42 U.S.C. § 1983 action. Although 42 U.S.C. § 1983 does not specify any statute of limitations period, "federal courts must look to the statute of limitations governing analogous state causes of actions." Urrutia v. Harrisburg County Police Dep't, 91 F.3d 451, 457 n.9 (3d Cir. 1996). For § 1983 cases in Pennsylvania, the applicable statute of limitations period is two-years, borrowed from the state's statute of limitations for personal injury claims. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). In federal civil rights actions, the issue of accrual is determined by federal law, which provides that a cause of action accrues when the plaintiff knew or had reason to know of the injury forming the basis of the claim. Id.

In considering when the plaintiff knew or had reason to know of the injuries constituting his claims, we look to the complaint itself. In the complaint the plaintiff alleges that he received notice on September 11, 2006 informing him that his mail was being monitored. Under the applicable statute of limitations the plaintiff had until September 11, 2008 to file any § 1983 claims regarding that monitoring. The plaintiff alleges a second period of mail monitoring ranging from October 17, 2006 to November, 1 2006. The plaintiff alleges that he received notice of the monitoring on November 2, 2006. Therefore, the plaintiff would have had until November 2, 2008 to file a complaint with regard to any § 1983 claims regarding that period of monitoring. Finally, the plaintiff states in his complaint that he was informed by a friend on April 10, 2007 about the alleged duplication and distribution of his mail. Under the applicable statute of limitations the plaintiff would have had until April 10, 2009 to file a § 1983 action with regard to these allegations. The plaintiff dated his complaint April 9, 2009 but admits in his brief in opposition to the motion for summary judgment that he did not mail the complaint until April 13, 2009, which was received by this Court on April 16, 2009. It is clear that the plaintiff waited until after the applicable statute of limitations had run before filing this complaint.

In his brief in opposition to the motion for summary judgment, the plaintiff admits that the statue of limitations for his claims relating to the duplication and distribution of his mail had run on April 10, 2009 and that he had waited until April 13, 2009 to mail his complaint. The plaintiff maintains that his delay in filing is excusable for the following reasons: he was scheduled to have time in the law library the day before the statute of limitations ran, April 9, 2009, but this time was rescheduled by the institution for April 11, 2009; April 13, 2009 was the first opportunity he had to mail the complaint to the court because the correctional officers do not accept cash slip mail on Fridays or Saturdays, the two days prior; the defendants intentionally stalled his grievance appeal and thus delayed future litigation, and; the actions complained of are ongoing and injuries are still being incurred. The plaintiff asserts that the statute of limitations should be tolled for the above reasons.

Federal courts have recognized that the principles of equitable tolling may warrant consideration of an otherwise untimely cause of action where the plaintiff in some extraordinary way has been prevented from asserting a right despite the exercise of reasonable diligence. Lake v. Arnold, 232 F.3d 360, 370 (3d Cir. 2000). Situations in which the statute of limitations for federal claims may be equitably tolled include: "(1) where the defendant has actively misled the plaintiff respecting the plaintiff's cause of action; (2) where the plaintiff in some extraordinary way has been prevented from asserting his or her rights; or (3) where the plaintiff has timely asserted his or her rights mistakenly in the wrong forum." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Even when available to a plaintiff, "[t]he remedy of equitable tolling is extraordinary, and we extend it only sparingly." Santos v. United States, 559 F.3d 189, 197 (3d Cir. 2009).

The reasons set forth by the plaintiff in his brief in opposition to the motion for summary judgment indicate a lack of diligence in filing the complaint and do not evidence circumstances exceptional enough to justify the application of the principles of equitable tolling to his claims which are centered on distinct periods of mail monitoring. As the statute of limitations has run and there is no cause for equitable tolling, we do not find a need to make a determination as to whether the plaintiff was asserting his own rights or those of another in his complaint.

Based on the foregoing, it is recommended that the defendants' motion (Doc. 38) for summary judgment be granted in its entirety.

NOTICE

Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3 of the Rules of Court, M.D.Pa., which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

20100416

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