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Leslie Mollett v. Leith

November 8, 2011


The opinion of the court was delivered by: Magistrate Judge Maureen P. Kelly

ECF No. 34


KELLY, Magistrate Judge

Pending before the Court is Defendants‟ Motion to Dismiss Plaintiff‟s Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. ECF No. 34. Defendants seek to dismiss the pro se action filed by Plaintiff Leslie Mollett ("Plaintiff" or "Mollett"), which alleges claims pursuant to 42 U.S.C. § 1983, on the grounds that the Defendants violated his rights under the First, Fourth, Fifth, Eighth and Fourteenth Amendments of the United States Constitution while he was incarcerated as a pre-trial detainee at the Allegheny County Jail. For the reasons set forth herein, Defendants‟ Motion to Dismiss is granted.


In the Prison Litigation Reform Act ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), Congress adopted major changes affecting civil rights actions brought by prisoners in an effort to curb the increasing number of often frivolous and harassing lawsuits brought by persons in custody. See Santana v. United States, 98 F.3d 752, 755 (3d Cir. 1996). The PLRA significantly amended the statutory provisions with respect to actions brought by prisoners who are proceeding in forma pauperis ("IFP"). The amended statute provides that "[n]otwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that: (A) the allegation of poverty is untrue; or (B) the action or appeal (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2). In the case at issue, Plaintiff has been granted IFP status, and is a prisoner within the meaning of 28 U.S.C. § 1915.*fn1 Thus, Section 1915(e)(2) is applicable. In applying the PLRA, not only is a court permitted to sua sponte dismiss a complaint which fails to state a claim, but it is required to do so by the mandatory language of "the court shall dismiss" utilized by Section 1915(e). See, e.g., Keener v. Pennsylvania Board of Probation and Parole, 128 F.3d 143, 145 n. 2 (3d Cir. 1997) (describing 28 U.S.C. § 1915(e)(2)(B) as "the PLRA provision mandating sua sponte dismissal of in forma pauperis actions that are frivolous or fail to state a claim."); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)("It is also clear that section 1915(e) not only permits but requires a district court to dismiss an in forma pauperis complaint that fails to state a claim.").

In performing the court's mandated function of review of complaints under 28 U.S.C. § 1915(e) to determine if they fail to state a claim upon which relief can be granted, a federal district court must apply the same standard applied to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). See, e.g., Powell v. Hoover, 956 F. Supp. 564, 568 (M.D. Pa. 1997)(applying Rule 12(b)(6) standard to claim dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii)); Tucker v. Angelone, 954 F. Supp. 134, 135 (E.D. Va. 1997) ("Under 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any claims made by inmates that "fail to state a claim upon which relief could be granted‟. This is the familiar standard for a motion to dismiss under Fed. R. Civ. P. 12(b)(6)."), aff'd, 116 F.3d 473 (Table) (4th Cir. 1997).

In reviewing complaints as mandated by 28 U.S.C. § 1915(e) and, consequently, utilizing the standards for a 12(b)(6) motion to dismiss, the complaint must be read in the light most favorable to the Plaintiff and all well-pleaded, material allegations of fact in the complaint must be taken as true. See Estelle v. Gamble, 429 U.S. 97 (1976). Dismissal is proper under Rule 12(b)(6), and hence, under Section 1915(e), where the court determines that the facts alleged, taken as true and viewed in a light most favorable to the plaintiff, fail to state a claim as a matter of law. See, e.g., Gould Electronics, Inc. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). Furthermore, because Plaintiff is pro se, courts accord an even more liberal reading of the complaint, employing less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519 (1972).

A Rule 12(b)(6) motion tests the legal sufficiency of the complaint. In order to survive a motion to dismiss for failure to state a claim, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 556 (2007) (rejecting the traditional 12(b)(6) standard set forth in Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). The issue is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer evidence to support his claim. Neitzke v. Williams, 490 U.S. 319 (1989).

With regard to certain of the allegations made by Plaintiff in this case, it is well-established that a court need not accept as true allegations contained in a complaint that are contradicted by matters of which the court may take judicial notice. Commonwealth Edison Co. v. United States, 46 Fed. Cl. 158, 160 n. 3 (Fed. Cl. 2000), aff'd, 271 F.3d 1327 (Fed. Cir. 2001).

In addition to the complaint, courts may consider matters of public record, orders, exhibits attached to the complaint and items appearing in the record of the case in disposing of a motion to dismiss under Rule 12(b)(6). Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 2 (3d Cir.1994); Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3d Cir.1990); see also Lloyd v. U.S., No. 99 C 3347, 1999 WL 759375, at *1 (N.D. Ill. Sept.3, 1999) ("As the court may take judicial notice of public records without converting a motion to dismiss to a motion for summary judgment, Henson v. CSC Credit Services, 29 F.3d 280, 284 (7th Cir. 1994), the court will take judicial notice of court records in conducting its initial review under § 1915A."). A court may also take judicial notice of the docket in Plaintiff‟s underlying criminal trial. See In re Congoleum Corp., 426 F.3d 675, 678 n. 2 (3d Cir. 2005) ("We take judicial notice of the state court proceedings insofar as they are relevant here."); Furnari v. Warden, Allenwood Federal Correctional Inst., 218 F.3d 250, 255 (3d Cir. 2000).

Further, the United States Court of Appeals for the Third Circuit has held that a court may, in certain circumstances, also take judicial notice of information "in the public realm," such as news reports, relating to a particular issue in a case.

We review the District Court's decision to take judicial notice of certain facts for abuse of discretion. NAHC, 306 F.3d at 1323. We see no basis to upset the District Court's decision to take judicial notice of newspaper articles supplied by appellees. The inquiry notice analysis is an objective one. Whether appellants read the articles or were aware of them is immaterial. They serve only to indicate what was in the public realm at the time, not whether the contents of those articles were in fact true. Cf. In re Merrill Lynch & Co. Research Reports Sec. Litig., 289 F.Supp.2d 416, 425 n. 15 (S.D.N.Y. 2003) ("The Court may take judicial notice of newspaper articles for the fact of their publication without transforming the motion into one for summary judgment."). Their publication is "not subject to reasonable dispute in that it is ... capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned." Fed. R. Evid. 201(b)(2); see Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n. 18 (9th Cir. 1999) ("We take judicial notice that the market was aware of the information contained in news articles submitted by the defendants.").

Benak ex rel. Alliance Premier Growth Fund v. Alliance Capital Management L.P., 435 F.3d 396, 401 (3d Cir. 2006).


All of the incidents underlying Plaintiff‟s Section 1983 claims against the Defendants relate to his alleged mistreatment while incarcerated at the Allegheny County Jail awaiting trial and sentencing for the shooting death of Corporal Joseph R. Pokorny, Jr., a Pennsylvania State Trooper. See, Commonwealth v. Mollett, 5 A.3d 291 (Pa. Super. 2010), appeal den., 14 A.3d 826 (Pa. 2011); and see CCP Allegheny County, Pennsylvania (CP-02-CR-0000254-2006) at*fn2

Plaintiff alleges that his constitutional rights were violated when: (1) he wrote a letter to jail staff expressing concern that published news articles regarding the distribution of a list of "jailhouse snitches" was "directed at him" and, as a result, he was placed in "the R.H.U." or "solitary confinement" without a hearing; (2) he was denied telephone and personal visitation with his attorney; (3) he was denied family visitation with his mother and with one of his girlfriends; (4) he was denied medical treatment for an unspecified illness; and (5) his personal property and legal materials were destroyed. For each of the violations, Plaintiff seeks injunctive and declaratory relief as well as monetary damages.

Defendants‟ Motion to Dismiss is predicated upon the application of the statute of limitations; the bar of certain of Plaintiff‟s claims pursuant to Heck v. Humphrey, 512 U.S. 477 (1994); Plaintiff‟s failure to allege facts establishing the personal involvement of each of the Defendants in the violation of Plaintiff‟s rights; Plaintiff‟s failure to state a claim against any of the Defendants for which relief may be granted; and the unavailability of declaratory or injunctive relief inasmuch as Plaintiff is no longer incarcerated at the Allegheny County Jail. ECF No. 34. Plaintiff has filed a brief in response to the Motion to Dismiss. ECF No. 38.


A.By operation of the "Prisoner Mailbox Rule," the applicable statute of limitations does not bar Plaintiff's claims regarding housing and visitation.

Section 1983 does not contain its own statute of limitations. However, it is well established that the federal courts look to the relevant state statute of limitations for personal injury claims to determine the applicable limitations period. Sameric Corp. Del., Inc. v. City of Philadelphia, 142 F.3d 582 (3d Cir. 1998). In this regard, federal courts sitting in Pennsylvania have adopted Pennsylvania‟s two year personal injury statute of limitations set forth at 42 Pa. Cons. Stat. § 5524 in determining that a Section 1983 claim must be filed no later than two years from the date the cause of action accrued. See Lave v. Arnold, 232 F.2d 360, 368 (3d Cir. 2000); Urrutia v. Harrisburg County Police Dept., 91 F.3d 451 (3d Cir. 1996). Furthermore, a claim under Section 1983 accrues when the plaintiff "knew or should have known of the injury upon which his claim is based." Sameric, 142 F.3d 599.

Here, the Amended Complaint makes apparent that on August 31, 2007, Plaintiff was aware of his claim regarding his purported improper placement in a restricted housing unit at the Allegheny County Jail without a hearing. As alleged by Plaintiff, while being escorted to "solitary confinement cell 8-e,"

(3) . Plaintiff asked Lt. Leon why he was being held/placed in solitary confinement and received no response.. On 08-31-2007, plaintiff filed a written complaint to Sgt Dickey asking why he was being unlawfully housed in solitary confinement.

(4) On 08-31-07, plaintiff filed a written complaint to Sgt. Dickey asking why he was being unlawfully ...

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