United States District Court, M.D. Pennsylvania
Richard Caputo United States District Judge
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 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”). 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
County Defendants 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.
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
Procedural History and Motions to Strike.
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).
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).
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 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).
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
the addition of Tompkins, Demy, and Perri as Plaintiffs in
this litigation did not violate Rule 20. Rule 20(a)(1)
(1) Plaintiffs. Persons may join in one action as plaintiffs
(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
(B) any question of law or fact common to all plaintiffs will
arise in the action.
Civ. P. (20)(a)(1).
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,
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
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
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 ¶
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).
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).
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
¶¶ 294-296). Defendant Maguire also continually
approached Demy during Black's ...