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Fox v. Lackawanna County

United States District Court, M.D. Pennsylvania

November 2, 2017

TAMMY FOX, et al., Plaintiffs,
v.
LACKAWANNA COUNTY, et al., Defendants.

          MEMORANDUM

          A. Richard Caputo United States District Judge

         Presently before me are five (5) motions to dismiss (Docs. 50; 57; 59; 62; 65) and two motions to strike (Docs. 58; 63). The instant action involves allegations of sexual abuse of female inmates[1] by corrections officers at the Lackawanna County Prison (the “Prison”) and the ensuing cover-up and concealment of same by various officials of Lackawanna County (the “County”).[2] Plaintiffs claim that they were raped, sexually assaulted, and harassed by corrections officers while they were incarcerated in the Prison and thereafter when they were subject to court supervision. Yet, despite knowledge of this culture and the abuse female inmates were subjected to, the County, its Commissioners, Prison wardens, supervisory officials, and other employees allegedly did nothing and, to the contrary, prevented this misconduct from coming to light. The Second Amended Complaint raises claims pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 for violations of Plaintiffs' rights under the First, Fourth, Eighth and Fourteenth Amendments to the United States Constitution. Plaintiffs also assert a number of state law causes of action.

         Lackawanna County Defendants[3] and O'Malley in his individual capacity seek to strike Plaintiffs' amended complaint and Second Amended Complaint for failure to comply with the Federal Rules of Civil Procedure. For reasons set forth below, the motions to strike will be denied.

         Additionally, Defendants have moved to dismiss all claims filed by Tompkins, Demy, and Perri as barred by the applicable statute of limitations because these Plaintiffs were all last incarcerated in the Prison well over two (2) years before the filing of their claims. Further, all Defendants argue that Fox's claims regarding incidents of sexual abuse that occurred prior to June 21, 2014, the applicable date of a tolling agreement between the parties, should be dismissed as time barred. Plaintiffs Demy and Perri's claims will be dismissed with prejudice because it is clear from the face of the Second Amended Complaint that their causes of action were untimely filed and the statute of limitations was not tolled by the discovery rule, the fraudulent concealment doctrine, or federal equitable tolling principles. Conversely, Plaintiffs Fox and Tompkins' claims will not be dismissed because it is not apparent from the face of the Second Amended Complaint that their claims are barred by the statute of limitations.

         I. Background

         A. Procedural History and Motions to Strike.

         Fox commenced this action on July 22, 2014. (See Doc. 1, generally). After Defendants filed a number of motions to dismiss, (see Docs. 17; 39; 42), Fox filed a Motion for Extension of Time to File Response to Lackawanna County Defendants' Motion to Dismiss, in which she requested an extension of time “to respond to Lackawanna County Defendants' Motion to Dismiss and/or file an Amended Complaint.” (Doc. 43, 2). By Order dated November 7, 2016, Fox's motion for an extension was granted, and she was given until December 3, 2016 to file her “Response to Lackawanna Defendants' Motion to Dismiss and/or Amended Complaint . . . .” (Doc. 44).

         On December 3, 2016, Fox, joined by Tompkins, Demy, and Perri, filed an amended complaint. (See Doc. 47, generally). Subsequently, Plaintiffs Fox, Tompkins, Demy, and Perri filed the Second Amended Complaint on December 8, 2016. (See Doc. 48, generally). The docket notes that Plaintiffs' December 3, 2016 filing was an “incorrect image, incorrectly filed by counsel. Properly re-filed as Doc. 48.” (See Docket). Plaintiffs represent that the Second Amended Complaint “did no more than remove the District Attorney Defendant and add District Attorney staff to the initially filed John Doe Defendant party. No material change in the allegations of the Amended Complaint occurred in the Second Amended Complaint.” (Doc. 71, 2).

         O'Malley, in his individual capacity, and Lackawanna County Defendants filed standalone motions to strike the amended complaint and Second Amended Complaint. (See Docs. 58; 63). Lackawanna County Defendants and O'Malley argue that Plaintiffs' amended pleadings should be struck for failure to comply with Rule 15 of the Federal Rules of Civil Procedure and because the amendments were substantively improper insofar as they added new claims by new parties. (See Docs. 69; 74). Similarly, while not filed as an independent motion, Correctional Defendants[4] assert that the claims of Tompkins, Demy, and Perri were improperly added to the complaint in violation of Federal Rule of Civil Procedure 20. (See Doc. 76, 17-18).

         The motions to strike will be denied. Amendments to pleadings other than those made as a matter of course are governed by Rule 15(a)(2), which states that “a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Given the November 7, 2016 Order, the amended complaint filed on December 3, 2016 was proper. Further, because the Second Amended Complaint filed five (5) days later (and before any answers or Rule 12 motions were filed to the amended complaint) did no more than clarify the identity of the John Doe parties, the Second Amended Complaint will not be stricken.

         Further, the addition of Tompkins, Demy, and Perri as Plaintiffs in this litigation did not violate Rule 20. Rule 20(a)(1) states:

(1) Plaintiffs. Persons may join in one action as plaintiffs if:
(A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all plaintiffs will arise in the action.

         Fed. R. Civ. P. (20)(a)(1).

         Correctional Defendants argue that because Tompkins, Demy, and Perri “allege different sexual assaults allegedly undertaken by different Defendants they do not satisfy the two part test established in F.R.C.P. 20(1)(A) and (B).” (Doc. 76, 18).

         Joinder of these Plaintiffs pursuant to Rule 20 was permissible. Plaintiffs all allege that they suffered similar sexual assaults by multiple County employees (often by the same corrections officers) and that the abuse was permitted to continue, at least in part, due to County policies and practices of covering-up and concealing this wrongdoing. Thus, Plaintiffs assert a right to relief arising out of the same alleged occurrence or series of occurrences. See, e.g., Roe v. City of New York, 151 F.Supp.2d 495, 509 (S.D.N.Y. 2001). Likewise, the existence of this practice is a central question to the claims of all Plaintiffs. See id. Accordingly, joinder under Rule 20 was proper. Accord Hinson v. Norwest Fin. South Carolina, Inc., 239 F.3d 611, 618 (4th Cir. 2001) (“The joining plaintiffs alleged that they participated in the same kind of transaction in which the Hinsons had participated and that all the transactions involved similar loans from Norwest. The joining plaintiffs also alleged the same or similar types of violations committed by Norwest in these transactions. Finally, it appears that similar principles of law would have been applicable to both the original plaintiffs and the joined plaintiffs. While it is true that the factual circumstances of each transaction differed, we cannot say that it was an abuse of discretion for the district court to have permitted the joinder.”).

         B. Factual Allegations.

         1.Plaintiff Fox.

         Fox was incarcerated at the Prison on multiple occasions since April 4, 2007. (See Doc. 48, ¶¶ 50, 56, 75). Most recently, Fox was incarcerated at the Prison from June 7, 2015 through August 14, 2015. (See id. at ¶ 75). During her periods of incarceration, she was verbally harassed by, inter alia, Baum and Walsh, (see id. at ¶¶ 51-54), and sexually assaulted by Shnipes, Black, Johnson, and McMillan. (See id. at ¶¶ 57, 64-66, 69, 76-82, 88-90). Fox was also subject to assaults and harassment while she was on work release, house arrest, and/or probationary supervision. (See id. at ¶¶ 83-84, 94). Fox had mental health diagnoses prior to her incarceration at the Prison, but as a result of her treatment therein, her mental health issues have been exacerbated and she suffers from post-traumatic stress disorder. (See id. at ¶¶ 270-271).

         2. Plaintiff Tompkins.

         Tompkins was incarcerated at the Prison numerous times from November 10, 1998 until she was most recently released on November 15, 2013. (See id. at ¶ 96). While incarcerated, she was sexually harassed by multiple corrections officers, including Defendants Shandley, Baum, Cherelli, and Shnipes. (See id. at ¶ 101-103). Tompkins was sexually assaulted both while in the Prison and during periods of release by Shandley. (See id. at ¶¶ 109-111). She was also sexually assaulted repeatedly during her incarceration by Shnipes, Walsh, and Maguire. (See id. at ¶¶ 115-119, 125-128). Tompkins wrote letters to Prison supervisors, attempted to file grievances, and she personally informed Prison staff of the ongoing sexual abuse. (See id. at ¶¶ 112-113, 120). These letters, complaints, and grievances were destroyed and ignored. (See id. at ¶¶ 120-122). When Tompkins was released from the Prison in 2013 up until 2016, she was subject to court supervision. (See id. at ¶¶ 130-131). During this time, Maguire threatened to have her violated on probation and/or parole if she refused to have sex with him or reported his behavior. (See id. at ¶ 131). To this day, Tompkins remains on probation/parole. (See id. at ¶ 280).

         3. Plaintiff Demy.

         Demy was incarcerated in the Prison frequently between April 5, 2002 and December 19, 2012. (See id. at ¶ 137). Beginning in 2006, Black would rape Demy nearly daily while she was incarcerated, and Black would stalk her when she was released from the Prison. (See id. at ¶¶ 139-145, 172). Black pled guilty to his conduct. (See id. at ¶ 146). She was also physically and sexually assaulted on one occasion by Baum, Hart, and Novack. (See id. at ¶ 147-150, 180-183). Calpin and female corrections officers at the Prison were aware of Black's behavior, but they refused to help. (See id. at ¶¶ 152-154, 173).

         Demy has been diagnosed with mild mental retardation, has severe learning disabilities, has granted her daughter a Power of Attorney, and has a full-time in home caregiver. (See id. at ¶¶ 286-288). As a result of her treatment in the Prison, Demy was additionally diagnosed with depression. (See id. at ¶ 289).

         A Grand Jury was convened against Black in 2011 based on the sexual assaults of Demy at the Prison. (See id. at ¶ 290). During the course of Black's prosecution, Lackawanna County District Attorney William Fisher (“Fisher”) met with Demy on multiple occasions. (See id. at ¶ 293). Fisher, as well as County Detectives, told Demy to delay filing a civil suit until the conclusion of the prosecution. (See id. at ΒΆΒΆ 294-296). Defendant Maguire also continually approached Demy during Black's ...


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