The opinion of the court was delivered by: District Judge Joy Flowers Conti
MEMORANDUM OPINION AND ORDER
On January 10, 2011, the above-captioned case was filed in this court and referred to a magistrate judge for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and the Local Rules of Court for Magistrate Judges.
The magistrate judge filed a report and recommendation on November 29, 2011 (ECF No. 20) recommending that defendants' motion to dismiss (ECF No. 9) be granted and that the complaint be dismissed with prejudice without the right to amend. Plaintiff Jauntez Tennyson ("plaintiff") was served with the report and recommendation at his listed address and advised that he had until December 16, 2011 to file written objections to the report and recommendation. No objections were filed within the time allotted. Consequently, on December 22, 2011, this court entered an order granting the motion to dismiss and closing the case (ECF No. 21).
On December 22, 2011, plaintiff filed objections to the report and recommendation (ECF No. 22) and a brief in support (ECF No. 23). For the reasons set forth below, the order dated December 21, 2011 will be vacated and the motion to dismiss will be granted on alternative bases. An appropriate order follows.
A. Relevant Procedural History
In his complaint, plaintiff complains about a misconduct that was issued against him on November 19, 2008, charging him with possession of dangerous or controlled substances. He claims that he was placed in prehearing confinement in the restricted housing unit ("RHU") and his custody level was raised to a Level 5, which is the maximum level. Plaintiff further claims that on November 26, 2008, defendant hearing examiner Kerri Cross ("Cross") conducted an in camera hearing with defendant Lt. Rohrbacher ("Rohrbacher"), rather than with the confidential source of information ("CSI") who had supplied information to Rohrbacher. Specifically, the CSI told Rohrbacher that he bought drugs from plaintiff and delivered them to the search team. Plaintiff asserts that this in camera hearing violated DOC procedures relating to CSIs and denied him his right to cross-examine witnesses. Plaintiff further claims that Rohrbacher issued the misconduct in retaliation for plaintiff's refusal to become a CSI himself.
On April 5, 2011, defendants filed a motion to dismiss complaint (ECF No. 9) and a brief in support (ECF No. 10) wherein they argued, inter alia, that plaintiff's claims were barred by the two-year statute of limitations period for filing civil rights claims in Pennsylvania. Plaintiff filed a response to the motion (ECF No. 16) and a brief in support (ECF No. 17). In his response, he makes the bare statement that his "claims are not time barred as explained in his pro se 1983 Civil Complaint form." (ECF No. 16, ¶ 2.) A review of his complaint, however, reveals no discussion concerning the timeliness of his claims. Moreover, he did not include any discussion of the timeliness of his claims in his brief in response to his opposition of defendants' motion.
In her report and recommendation (ECF No. 20), the magistrate judge determined that defendants' motion to dismiss complaint (ECF No. 9) should be granted. Specifically, she concluded that, because plaintiff's complaint was signed and dated December 29, 2010, he could not seek recovery under 42 U.S.C. § 1983 as to any of the events set forth in his complaint because they occurred outside the applicable statute of limitations period, i.e., over two years prior to his filing the complaint in this case. After plaintiff failed to file any objections within the specified time period, this court granted defendants' motion and adopted the report and recommendation. (ECF No. 21).
Plaintiff filed objections and a brief on December 22, 2011 (ECF Nos. 22, 23) wherein he argues, for the first time, that the limitations period should have been tolled during the time he was exhausting his administrative remedies. Specifically, he claims that he did not receive final review from the appeal of his misconduct until January 15, 2009. Thus, his two-year limitation period should not have expired until January 15, 2011. Consequently, he argues that, because his complaint was signed December 29, 2010, his claims are timely filed.
The Court of Appeals for the Third Circuit has not spoken on the issue. Several courts of appeals, however, have concluded that, because exhaustion is mandatory under the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a), the statute of limitations applicable to § 1983 actions must be tolled while a prisoner exhausts. See Shakuur v. Costello, 230 F. App'x 199, 201 (3d Cir. 2007) (citing Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown v. Morgan, 209 F.3d 595, 596 (6th Cir. 2000); and Harris v. Hegmann, 198 F.3d 153,158 (5th Cir.1999)). But see Braxton v. Zavaras, 614 F.3d 1156, 1162 (10th Cir. 2010) (declining to apply equitable tolling, reasoning that ample time for filing within the two-year limitations period remained after the exhaustion of remedies but that the plaintiff failed to pursue diligently his opportunity to file). Here, this court need not decide whether equitable tolling applies because defendants' motion to dismiss should be granted for the reasons set forth below.
B. Liability under 42 U.S.C. § 1983
Plaintiff asserts liability against defendants pursuant to 42 U.S.C. § 1983. In order to assert liability under 42 U.S.C. § 1983, a plaintiff must meet two threshold requirements. He must allege: 1) the alleged misconduct was committed by a person acting under color of state law; and 2) as a result, he was deprived of rights, privileges, or immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S. 527, 535 (1981), overruled in part on other grounds, Daniels v. Williams, 474 U.S. 327, 330-331 (1986).
Plaintiff alleges violations of his rights as protected by the Due Process Clause of the Fourteenth Amendment. In this regard, the Due Process Clause of the Fourteenth Amendment does not protect every change in the conditions of confinement having a substantial adverse impact on a prisoner. Meachum v. Fano, 427 U.S. 215, 224 (1976). The Due Process Clause shields from arbitrary or capricious deprivation only those facets of a convicted criminal's existence that qualify as "liberty interests." Hewitt v. Helms, 459 U.S. 460 (1983); Morrissey v. Brewer, 408 U.S. 471 (1972). The types of protected liberty interests are not unlimited. The interest must rise to more than an abstract need or desire and must be based on more than a unilateral ...