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Eric M. Miscovitch v. Lt. Judge

April 30, 2012


The opinion of the court was delivered by: Rufe, J.


Before the Court is Defendants' Motion to Dismiss Plaintiff's First Amended Complaint. For the reasons set forth herein, Defendants' Motion is granted as to Plaintiff's claims against Defendant Graterford Superintendent David DiGuglielmo and denied as to Plaintiff's claims against Defendants Lieutenant Charles Judge and Sergeant Jeffrey Zimmerman.


Plaintiff Eric Miskovitch is an inmate previously housed in the Restricted Housing Unit ("RHU") of SCI Graterford. *fn2 Between his arrival at SCI Graterford on September 20, 2005, and his temporary transfer to Pittsburgh on December 21, 2006, he filed over 60 grievances against RHU staff. *fn3 Upon returning from Pittsburgh on February 12, 2007, he discovered that several personal items were missing from his cell, to which only RHU staff had access. *fn4 On March 24, 2007, Sergeant Zimmerman planted contraband-a corrections officer's uniform catalog-in Plaintiff's cell so that Plaintiff would fail a cell search and be denied release from the RHU. *fn5

Finally, from April 15, 2007 to April 22, 2007, the floor of his RHU section was covered in inmates' urine and feces, which seeped under his cell door and into the ventilation system. *fn6

Lieutenant Judge ordered RHU staff and inmate janitors not to clean the floor until April 22, the day before an inspection. *fn7 Plaintiff complained to Superintendent DiGuglielmo about the waste on April 20, 2007, but DiGuglielmo took no action until July 2007 when he ordered an investigation. *fn8 Plaintiff claims that the three incidents were acts of illegal retaliation against him, motivated by his exercise of his First Amendment rights to file grievances against prison personnel. He also alleges that he was subjected to cruel and unusual punishment when he was exposed to human waste on the floor outside his cell door for eight days.

Plaintiff first raised these claims in a proposed "Supplement to Complaint" filed in the Western District of Pennsylvania in November 2008. *fn9 On April 21, 2009, a magistrate judge in the Western District of Pennsylvania denied Plaintiff's motion for leave to supplement his complaint, finding that the claims raised in the proposed Supplement were situated in this District. Plaintiff filed objections to the magistrate's decision. The district court judge denied the objections on May 7, 2009. Plaintiff then filed his pro se Complaint in this District on June 15, 2009, naming only corrections officers Judge and Zimmerman as defendants. On December 14, 2011, having obtained counsel, Plaintiff filed an Amended Complaint, which added DiGuglielmo as a defendant. *fn10 Counts I-III of the Amended Complaint allege that Defendants stole Plaintiff's possessions, planted contraband, and refused to clean the floor in retaliation for Plaintiff's grievances against SCI Graterford staff. *fn11 Count IV alleges that the 8-day exposure to human waste was cruel and unusual punishment. *fn12


Dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate where a plaintiff's "plain statement" does not possess enough substance to show that plaintiff is entitled to relief. *fn13 In determining whether a motion to dismiss is appropriate the court must consider only those facts alleged in the complaint, accepting the allegations as true and drawing all logical inferences in favor of the non-moving party. *fn14 Courts are not bound to accept as true legal conclusions couched as factual allegations. *fn15 Something more than a mere possibility of a claim must be alleged; the plaintiff must allege "enough facts to state a claim for relief that is plausible on its face." *fn16 The complaint must set forth direct or inferential allegations respecting all the material elements necessary to sustain recovery under some viable legal theory. *fn17 The court has no duty to "conjure up unpleaded facts that might turn a frivolous action . . . into a substantial one." *fn18


A. Statute of Limitations

A district court may dismiss a complaint on a 12(b)(6) motion for failure to file within the statute of limitations only if it can determine, before the factual record is fully developed, when the claim accrued and whether any tolling periods apply. *fn19 In addition to the complaint, at this stage in the litigation the Court may consider matters of public record, exhibits to the complaint, and undisputedly authentic documents attached to the motion to dismiss. *fn20

"The length of the statute of limitations for a [42 U.S.C.] § 1983 claim is governed by the personal injury tort law of the state where the cause of action arose." *fn21 In Pennsylvania, this period is two years. *fn22 While the statute of limitations itself is a matter of state law, the accrual date of a §1983 claim is a matter of federal law, and under federal law, the statute of limitations begins to run when plaintiff has a "complete and present cause of action." *fn23

Therefore, Plaintiff's claims accrued on the "days when the alleged incidents on which each claim is based occurred, since that is ...

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