United States District Court, W.D. Pennsylvania
MICHAEL F. KISSELL, Plaintiff,
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendant.
Cynthia Reed Eddy, Chief United States Magistrate Judge
pending before the Court is a motion to dismiss filed on
behalf of Defendant Pennsylvania Department of Corrections
(“DOC” or “Defendant”) (ECF No. 14)
with brief in support thereof (ECF No. 15). Plaintiff Michael
F. Kissel (“Plaintiff”) has responded with the
filing of a brief in opposition (ECF No. 17) and Defendant
has filed a reply (ECF No. 19). For the reasons stated
herein, the motion to dismiss will be granted on the grounds
of res judicata and the complaint will be dismissed
Factual Allegations and Prior Litigation
sues his former employer for retaliation pursuant to Title
VII, 42 U.S.C. § 2000e-3(a) arising out of an alleged
retaliation due to his “reporting sexual misconduct,
among other crimes.” (Compl. ¶ 31). In his
single-count Complaint Plaintiff “asserts that he was
discriminated against and retaliated against for making
charges, testifying, and assisting in an investigation
against the Defendant in violation of 42 U.S.C. §
2000e-3(a). As a result, the Plaintiff has suffered damages
in that he was harassed and forced to retire from his
employment.” (Compl. at ¶ 2).
began his employment on January 25, 1988 as a correctional
officer at SCI-Greensburg, and during his employment he
discovered numerous other employees committing sexual
misconduct and crimes. (Compl. at ¶ 12). He alleges upon
reporting this activity to his supervisors, he was later
harassed and subject to a hostile work environment, and was
terminated in June 1994 as a result. (Compl. at ¶¶
13-15). After a successful lawsuit Plaintiff was reinstated
in November 2004 at Defendant's facility in Somerset,
Pennsylvania. (Compl. at ¶ 16).
alleges that during the course of his employment after the
reinstatement, he continued to observe sexual misconduct on
the part of other employees and reported the same. (Compl.
¶ 17). As a direct result of Plaintiff's involvement
with reporting the same, and also due to his past involvement
with reporting such illegal behavior, the Defendant, through
its employees and supervisors, again began harassing the
Plaintiff and subjecting him to a hostile work environment.
(Compl. ¶ 18). He specifically alleges that
“Defendant's retaliatory conduct continued until
they in essence forced the Plaintiff to retire on or about
June 20, 2014.” (Compl. at ¶ 30).
judicial notice of the following prior litigation involving
this same plaintiff. On March 9, 2015, Kissell initiated a
pro se action in this Court at No.
3:15-cv-00058-KAP-KRG against the DOC and his union, the
Pennsylvania State Corrections Officers Association
(“PSCOA”). The defendants filed motions to
dismiss which were ultimately granted on June 22, 2015.
See Kissell v. Commonwealth of Pennsylvania Department of
Corrections, 2015 WL 11070890 (W.D.Pa. 2015)
(“Kissell I”). Kissell appealed this
decision to the United States Court of Appeals for the Third
Circuit, which affirmed in part, vacated in part, and
remanded for further proceedings. See Kissell v.
Department of Corrections, 634 Fed. App'x 876 (3rd
Cir. 2015) (“Kissell II”).
remand, Kissell filed an Amended Complaint, which the
defendants again moved to dismiss. The DOC's motion was
granted on March 21, 2016. See Kissell v. Commonwealth of
Pennsylvania Department of Corrections, 2016 WL 1271080
(W.D. Pa. 2016) (“Kissell III”). Kissell
appealed the dismissal to the United States Court of Appeals
for the Third Circuit, and the decision was affirmed. See
Kissell v. Department of Corrections, 670 Fed. App'x
766 (3rd Cir. 2016) (“Kissell IV”).
Kissell IV, the court summarized:
On remand, Kissell filed an amended complaint attempting to
reassert his Title VII claims and raising a § 1983 claim
against the D.O.C. and P.S.C.O.A. He has now filed two
complaints, along with objections that could be construed as
attempts to amend those complaints. The Magistrate
Judge's first report and recommendation determined that
Kissell's Title VII claims, to the extent that they were
against P.S.C.O.A., had only alleged passivity on the part of
the union and not discrimination.
The Magistrate Judge's second report and recommendation
concluded that Kissell had not stated a viable claim.
We agree with the Magistrate Judge's analysis. To state a
claim for retaliation, Kissell had to allege that: ‘1)
he engaged in conduct protected by Title VII; 2) his employer
took an adverse action against him either after or
contemporaneous with the protected activity; and 3) a causal
link exists between his protected conduct and the
employer's adverse action.' Kissell did not
sufficiently allege the second and third elements of
retaliation. Kissell also failed to plead facts sufficient to
allege discrimination on the basis of his sex, race, or
disability; failed to point to parties other than P.S.C.O.A.
or D.O.C. that these claims could be brought against; and
otherwise failed to provide any clarity such that the
District Court could fairly assess his claims. Given the
above analysis, and that Kissell has been given several
opportunities to amend his complaint, the District Court
properly dismissed Kissell's complaint without further
leave to amend.
Accordingly, we will affirm the District Court's
Kissell IV, 670 Fed. App'x at 767-768 (internal