The opinion of the court was delivered by: Judge Conner
Hilton Karriem Mincy ("Mincy" or "plaintiff"), a state inmate, who, at all relevant times, was incarcerated at the State Correctional Institution at Mahanoy, Frackville, Pennsylvania ("SCI-Mahanoy"), initiated this civil rights action pursuant to 42 U.S.C. § 1983 on April 30, 2007, alleging that his constitutional rights were violated. (Doc. 1.) The matter is proceeding via a second amended complaint, which was filed on May 24, 2010, and alleges First Amendment retaliation claims. (Doc. 44.) Presently pending is plaintiff's motion for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 (Doc. 80) on Counts II, III and V of the second amended complaint. Also pending is defendants' motion for summary judgment on all claims. (Doc. 150.) For the reasons set forth below, plaintiff's motion will be denied and defendants' motion will be granted. Plaintiff has also recently filed a motion for sanctions (Doc. 196), motion to amend the complaint (Doc. 198), and motion to stay the ruling on defendants' motion for summary judgment (Doc. 200). These motions will be denied.
The procedural history underlying this matter is Byzantine and somewhat problematic. Therefore, the court will set forth the same in detail to place the instant motions in their proper context.
On February 22, 2007, plaintiff filed numerous claims, in a single complaint, naming seventy-seven defendants from the State Correctional Institution at Albion ("SCI-Albion") and SCI -Mahoney, including Klem, Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower. This complaint was docketed under Civil Action Number 1:07-CV-340. See Mincy v. Klem (Mincy I), Civ. A. No. 1:07-CV-340 (M.D. Pa. Feb. 22, 2007). The court conducted a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A and thereafter ordered plaintiff to file an amended complaint that comported with Federal Rules of Civil Procedure 8 and 20. (See Mincy I, Doc. 4.) Rather than file an amended complaint, however, plaintiff commenced a new action by filing a new complaint, which was assigned the above-captioned docket number. (See Doc. 4.) The court ordered the new complaint withdrawn and directed it to be filed as an amended complaint under the docket number associated with Mincy I, closing the above-captioned civil action number. (See id.) This apparently caused plaintiff some bemusement, as he immediately filed a notice of appeal in the above-captioned matter, (see Doc. 5), and a motion for reconsideration in Mincy I. (See Mincy I, Doc. 12.) After his amended complaint was docketed in Mincy I, but before any further action was taken by the court, plaintiff also filed a notice of appeal in Mincy I. (See Mincy I, Docs. 14-15.) The court thereafter dismissed plaintiff's complaint in Mincy I for its failure to adhere to the federal pleading requirements of Rule 8. (See Mincy I, Doc. 17.) The Third Circuit Court of Appeals recognized that the appeals in Mincy I and the above-captioned litigation concerned identical subject matter and consolidated both appeals under the appellate docket associated with the above-captioned matter. (See Doc. 7 (reproducing Third Circuit order in Mincy v. Klem (Mincy II), No. 07-2689 (3d Cir. June 21, 2007))). In a per curiam opinion dated December 16, 2008, the Third Circuit vacated this court's dismissal order in Mincy I and remanded the case for further consideration, also under the above-captioned docket number. (Doc. 9.)
The Third Circuit Court of Appeals found that "[t]he District Court
correctly ordered Mincy to file an amended complaint using a form-
complaint, because his original one was unduly long. However, in light
of the liberal construction given to pro se pleadings, we cannot
conclude that Mincy's amended form-complaint does not satisfy Rule 8.
His averments under the "Statement of Claim" section of the
form-complaint plainly allege that the Defendants have retaliated
against him for filing lawsuits, grievances and complaints against
prison officials, as a means of deterring him from exercising his
First Amendment rights." See Mincy II, 303 F. App'x 106 (3d Cir.
2008). Therefore, in accordance with the Mandate containing the Third
Circuit's Judgment and Opinion (Doc. 9), Mincy's form complaint (Doc.
was ordered served on defendants Klem, Beard and Brooks, the only
defendants specifically named in the form complaint.*fn1
On February 26, 2009, Mincy filed a motion to separate the parties. (Doc. 11.) On March 24, 2009, defendants moved to dismiss plaintiff's complaint. (Doc. 16.) After review of plaintiff's brief in opposition to defendants' motion to dismiss, wherein he sought to amend his complaint to clarify the action and separate the SCI-Mahanoy parties and claims from the SCI-Albion parties and claims (Doc. 20), the motion to separate the parties was granted, Mincy was directed to file proposed amended complaints separating the different claims and parties, and defendants' motion to dismiss was denied without prejudice. (Doc. 22, at ¶¶ 1, 5.)
On September 1, 2009, Mincy filed two separate proposed amended complaints; one contained claims against SCI-Mahanoy defendants (Doc. 24) and the other asserted claims against SCI-Albion defendants (Doc. 23). The proposed amended complaint containing the SCI-Albion claims was docketed (Doc. 26) and immediately transferred to the United States District Court for the Western District of Pennsylvania where it was opened as Mincy v. McConnell, Civ. A. No. 1:09-CV-236 (W.D. Pa. Sept. 10, 2009). The proposed amended complaint involving the SCI-Mahanoy claims which, in addition to defendant Klem, now included defendants Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower was docketed (Doc. 27), and ordered served on all defendants named therein (Doc. 25).
Defendants moved to dismiss the complaint and, on February 16, 2010, the motion was granted in part and denied in part and resulted in Mincy being afforded the opportunity to file a second amended complaint containing the claims that defendants Vance, Gower, Wetzel and Murphy issued him retaliatory misconducts, and the claims alleging retaliatory theft of property, retaliatory destruction of property, and retaliatory transfer. (Doc. 36, at 13-14.) The second amended complaint was filed on May 24, 2010, and again named Klem, Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower. (Doc. 44.) Defendants filed a waiver of reply and included therein the affirmative defense that Mincy's claims are barred by the applicable statute of limitations. (Doc. 45, at 5.) The matter proceeded through extensive discovery. Plaintiff's motion for partial summary judgment and defendants' cross motion for summary judgment are now ripe for disposition.
Through summary adjudication the court may dispose of those claims that do not present a "genuine issue as to any material fact" and for which a jury trial would be an empty and unnecessary formality. See FED. R. CIV. P. 56(c). The burden of proof is upon the non-moving party to come forth with "affirmative evidence, beyond the allegations of the pleadings," in support of its right to relief. Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); FED. R. CIV. P. 56(e); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a matter of law, to sustain a judgment in favor of the non-moving party on the claims. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986); see also FED. R. CIV. P. 56(c), (e). Only if this threshold is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
A. Statute of Limitations
Defendants argue that defendants Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower are entitled to judgment as a matter of law because the applicable statute of limitations expired before the filing of the plaintiff's amended complaint and the claims do not relate back such that they can overcome this procedural bar. (Doc. 159, at 2.)
Federal civil rights statutes do not contain a specific statute of limitations for § 1983 actions. Therefore, the district court utilizes the applicable state statute of limitations which governs personal injury actions. See Wallace v. Kato, 549 U.S. 384, 387-88 (2007); Wilson v. Garcia, 471 U.S. 261, 276 (1985); Urrutia v. Harrisburg Cnty. Police Dept., 91 F.3d 451, 457 n. 9 (3d Cir. 1996). Pennsylvania's applicable personal injury statute of limitations is two years. See 42 Pa. Cons. Stat. § 5524(7); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993).
Plaintiff first argues that the statute of limitations argument is without merit because the court ordered service of the complaint found at Doc. 1 in Mincy I, which named all of the defendants "from the very start." (Doc. 167, at 8.) He is mistaken. The original complaint in Mincy I was never served because it was in clear violation of the pleading rules set forth in the Federal Rules of Civil Procedure. (See Mincy I, Doc. 4.) Rather, on January 15, 2009, in accordance with the Court of Appeals' Mandate, the form-complaint filed on April 30, 2007 (Doc. 1), was ordered served on defendants Klem, Beard and Brooks. Mincy received notice of the service order and notice of the issuance of summonses to Klem, Beard, and Brooks. (Doc. 10; January 15, 2009, docket entry remarks and receipts.) Defendants Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower were first named in this action in Mincy's proposed amended complaint (Doc. 24) filed on September 1, 2009, and docketed as his amended complaint (Doc. 27) on September 10, 2009, well beyond the expiration of the statute of limitations. If a complaint is amended to include an additional defendant after the statute of limitations has run, the amended complaint is not time-barred if it "relates back" to a timely filed amended complaint. Singletary v. Pennsylvania Dept. of Corr., 266 F.3d 186 (3d Cir. 2001). Under the rule, a plaintiff seeking to have a complaint "relate back" must show that: (1) the claim or defense set forth in the amended complaint arose out of the conduct, transaction or occurrence set forth in the original complaint; (2) within 120 days following the filing of the complaint, the party or parties to be added received notice of the institution of the suit and would not be prejudiced in maintaining a defense; and (3) the party sought to be added knew that, but for a mistake concerning his or her identity, he or she would have been made a party to the action. See Garvin v. City of Phila., 354 F.3d 215, 222 (3d Cir. 2003) (citing Fed.R.Civ.P. 15(c), 4(m); Singletary v. Pa. Dep't of Corr., 266 F.3d 186, 194 (3d Cir. 2001)). However, "an amended complaint will not relate back if the plaintiff had been aware of the newly named parties when she filed her original complaint and simply chose not to sue them at that time." See Garvin, 354 F.3d at 221--22; Lape v. Pennsylvania, 157 F. App'x 491, 497 (3d Cir. 2005) (applying the Garvin rule in the context of a § 1983 claim).
Defendants concede that the claims set forth in the second amended complaint arise out of the same conduct originally pled, but argue that plaintiff cannot establish that new defendants, Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower, had notice of the action or that there was a mistake of identity regarding them. (Doc. 159, at 12-13.)
Mincy counters by arguing that defendants had implied notice, which may be demonstrated by establishing that the proposed new defendant either shared an attorney or had an "identity of interest" with the originally named defendant. Singletary, 266 F.3d at 196. He relies on the shared attorney theory which requires a showing that there was a "communication or relationship" between the shared attorney and the newly named defendants prior to the expiration of the 120-day period. Garvin, 354, F.3d at 225. In support, he states the following:
Again, this action was originally filed on February 22, 2007, under Civil Action No. #1:07-CV-0340. (See Mincy v. Klem, et al., 1:07-CV-0340).
Plaintiff personally sent a letter and copies of the Complaint to the office of Chief Counsel for the Pennsylvania Department of Corrections. (See "Plaintiff's Counter", at ¶¶ 83-84, and corresponding Appendix G).
Soon thereafter, plaintiff received correspondence from the Deputy Chief Counsel for the Pennsylvania Department of Corrections Office of Chief Counsel, in response [(]See id., at 85.)
Assistant Counsel Laura J. Neal has always been counsel for the defendants named in this action. (See id., at 85.)
Assistant Counsel, Laura J. Neal, is employed by the Office of Chief Counsel for the Pennsylvania Department of Corrections; the same entity and office.
Therefore it is clear that in 2007 defendants had "implied notice" of this suit by and through their shared attorney, which is the Office of Chief Counsel for the Pennsylvania Department of Corrections. (Doc. 167, at 9.) This argument fails. First of all, the correspondence from the Pennsylvania Department of Corrections, Governor's Office of General Counsel, dated March 21, 2007, advised Mincy that his "letter will be forwarded to the assigned attorney if and when the above action is served on the Department and an attorney has been appointed." (Doc. 167, at 28.) Because the original complaint in Mincy I was never served, and the action was subsequently dismissed for failure to comply with an order of court, no attorney was ever appointed in that matter. See Mincy v. Klem (Mincy I), Civ. A. No. 1:CV-07-340 (M.D. Pa. Feb. 22, 2007). Moreover, Attorney Laura J. Neal did not become involved in this matter until March 10, 2009, the date on which she entered her appearance on behalf of defendants Klem, Beard and Brooks. (Docs. 14.) Thus, Mincy is unable to establish that within 120 days following the filing of the complaint, the party or parties to be added received notice of the institution of the suit and would not be prejudiced in maintaining a defense. Accordingly, Mincy's amended pleading does not satisfy the relation back requirements. The claims set forth in the second amended complaint (Doc. 44) against defendants Chmielewski, Temperine, Gavin, Williams, Kornasky, Derfler, Wetzel, Kmieciak, Kerschner, Brought, Bronsburg, Meyers, Hryciyna, Vance, Murphy, and Gower are barred by the statute of limitations and defendants are entitled to an entry of summary judgment.
In the exercise of caution, particularly in light of the complex procedural history of his case, the court will alternatively consider the merits of each of Mincy's First Amendment retaliation claims.
B. Merits of First Amendment ...