United States District Court, W.D. Pennsylvania
MEMORANDUM OPINION AND ORDER
PATRCIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
Steve Romansky, a prisoner at the State Correctional
Institution in Greene, Pennsylvania (SCI Greene), brings this
pro se civil rights action pursuant to 42 U.S.C.
§ 1983 against Defendants, Margaret M. Gorgan (the
clinical dietician at SCI Greene) and John Wetzel (Secretary
of the Pennsylvania Department of Corrections (DOC)).
asserts a claim under the Eighth Amendment to the United
States Constitution. According to his Complaint, Defendant
Gorgan "refused to investigate and correct my
calorie-deficient diet which a caused a weight loss of more
than seventy pounds." He further alleges that Defendant
Wetzel was made aware of this issue but refused to
investigate or correct it. Plaintiff states that this conduct
occurred starting on March 31, 2015 "and
continuing." He claims that he suffers from dizziness,
major energy loss, extreme difficulty in concentration and
other medical issues. (Compl. § IV(C).)
24, 2019, Defendants filed a motion to dismiss the Complaint
for failure to state a claim upon which relief could be
granted (ECF No. 16). Specifically, their motion argues that
Plaintiffs claims against both defendants are barred by
applicable statute of limitations because his complaints
about his diet date back to March 31, 2015. Defendants
further contend that Plaintiff fails to state a claim against
Defendant Wetzel because he was named only in his supervisory
role and was not alleged to have any actual involvement in
the actions underlying the complaint.
September 24, 2019, Plaintiff filed a response to the
Court's order (ECF No. 30). In his response, Plaintiff
indicates that he cannot obtain copies from the prison
library and that he has eye problems which make it difficult
for him to read. Nevertheless, he also states that "my
suffering started on March 31, 2015 when I was placed in the
RHU and my calorie deficient diet continued until January 22,
2019 when I was released from the RHU and I'm still
suffering the side effects of this deficient diet." (ECF
No. 30 at 2.) Thus, despite the issues that were raised by
Plaintiff in this response, the Court concludes that it can
reach the merits of Defendants' motion to dismiss at this
the Federal Rules of Civil Procedure, a statute of
limitations defense must be raised in the answer, since Rule
12(b) does not permit such a defense to be raised by motion.
Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir.
2002). As the court in Robinson explained, however,
a limitations defense can be raised by a motion under Rule
12(b)(6), "but only if the time alleged in the statement
of a claim shows that the cause of action has not been
brought within the statute of limitations." Id.
at 135. "If the bar is not apparent on the face of the
complaint, then it may not afford the basis for a dismissal
of the complaint under Rule 12(b)(6)." Id.
Congress did not establish a statute of limitations for civil
rights claims, federal courts "borrow" state
statutes of limitations governing analogous causes of action.
Wilson v. Garcia, 471 U.S. 262, 276 (1985) (for
claims brought under 42 U.S.C. § 1983). Under
Pennsylvania law, the statute of limitations for personal
injuries is two years, 42 Pa. C.S. § 5524(2), and that
statute is applied to § 1983 claims. Garvin v. City
of Phila., 354 F.3d 215, 220 (3d Cir. 2003).
date of accrual in a § 1983 action is determined by
federal law. A cause of action accrues "when the
plaintiff knew or should have known of the injury upon which
the action is based." Kach v. Hose, 589 F.3d
626, 634 (3d Cir. 2009). However, under the continuing
violation doctrine, "when a defendant's conduct is
part of a continuing practice, an action is timely so long as
the last act evidencing the continuing practice falls within
the limitations period." Montanez v. Secretary Pa.
Dep't of Corrections, 263 F.3d 472, 481 (3d Cir.
2014) (quoting Cowell v. Palmer Township, 263 F.3d
286, 292 (3d Cir. 2001)).
noted, Defendants argue that Plaintiffs claim is untimely
because it was not filed within two years of March 31, 2015,
when he alleges that the events underlying his claim first
occurred. Plaintiff alleges in his Complaint, however, that
the complained-of activity was "continuing."
action was commenced on December 10, 2018, when Plaintiff
handed his Complaint to prison officials, Houston v.
Lack, 487 U.S. 266, 271 (1988) and is deemed filed as of
that date. Viewing Plaintiffs allegations liberally
because he is a pro se litigant, Erickson v. Pardus,
551 U.S. 89, 94 (2007), he has alleged a continuing pattern
of conduct since March of 2015. Whether Plaintiff can sustain a
claim of a continuing violation cannot be determined on the
present record. See Hardin v. Aramark Food Servs.
Corp., 2017 WL 1658812, at *4 (CD. Ill. May 1, 2017)
(when plaintiff alleged that defendants continued to refuse
his request to revise his diabetic diet, their motion for
summary judgment as to the timeliness of this claim was
denied); Crichlow v. Fischer, 2017 WL 920753, at *4
(W.D.N.Y. Mar. 7, 2017) (prisoner alleged ongoing
deprivations of adequate food and access to showers and
laundry which could not be dismissed based on the statute of
limitations). Therefore, it cannot be determined at this
stage if the statute of limitations bars Plaintiffs claims.
second argument is that Plaintiff does not allege
"personal involvement" by Secretary Wetzel. "A
defendant in a civil rights action 'must have personal
involvement in the alleged wrongs to be liable,'
Sutton v. Rasheed, 323 F.3d 236, 249 (3d Cir. 2003)
(quotation omitted), and 'cannot be held responsible for
a constitutional violation which he or she neither
participated in nor approved,' C.H. ex rel. Z.H. v.
Oliva, 226 F.3d 198, 201 (3d Cir. 2000)."
Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir.
alleges, however, that Secretary Wetzel was made aware of
Plaintiffs deficient diet but refused to investigate and
correct the situation. Again, construing the pleadings
liberally in Plaintiffs favor, he claims that Secretary
Wetzel knew about his deficient diet but refused to
investigate or correct it. As a result, this claim cannot be
resolved at the pleadings stage and the motion to dismiss
will be denied.