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Kissell v. Pennsylvania Department of Corrections

United States District Court, W.D. Pennsylvania

August 27, 2019

MICHAEL F. KISSELL, Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, Defendant.

          MEMORANDUM OPINION

          Cynthia Reed Eddy, Chief United States Magistrate Judge

         Presently 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 with prejudice.[1]

         I. Factual Allegations and Prior Litigation

         Plaintiff 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).

         Plaintiff 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).

         He 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).

         We take 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”).

         On 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”).

         In 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 judgment.

Kissell IV, 670 Fed. App'x at 767-768 (internal citations ...


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