MISKOVITCH v. JUDGE et al

Filing 41

MEMORANDUM THAT THIS COURT WILL DISMISS PLFF'S CLAIMS AGAINST DEFT. DIGUGLIELMO, AS THEY WERE NOT FILED WITHIN THE APPLICABLE STATUTE OF LIMITATIONS. HOWEVER, PLFF. MAY PURSUE HIS CLAIMS AGAINST DEFTS. JUDGE AND ZIMMERMAN. AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 4/30/12. 5/1/12 ENTERED AND COPIES E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
____________________________________
ERIC M. MISCOVITCH,
:
Plaintiff,
:
:
CIVIL ACTION
v.
:
NO. 09-2699
:
LT. JUDGE, et al.,
:
Defendants.
:
____________________________________:
MEMORANDUM OPINION AND ORDER
Rufe, J.

April 30, 2012

Before the Court is Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint.
For the reasons set forth herein, Defendants’ Motion is granted as to Plaintiff’s claims against
Defendant Graterford Superintendent David DiGuglielmo and denied as to Plaintiff’s claims
against Defendants Lieutenant Charles Judge and Sergeant Jeffrey Zimmerman.
I.

FACTUAL AND PROCEDURAL BACKGROUND1
Plaintiff Eric Miskovitch is an inmate previously housed in the Restricted Housing Unit

(“RHU”) of SCI Graterford.2 Between his arrival at SCI Graterford on September 20, 2005, and
his temporary transfer to Pittsburgh on December 21, 2006, he filed over 60 grievances against
RHU staff.3 Upon returning from Pittsburgh on February 12, 2007, he discovered that several

1

The facts as stated herein are those alleged in the first amended complaint, which are presumed to be true
for the purpose of this motion.
2

Am. Compl. ¶ 4.

3

Am. Compl. ¶ 88.

1

personal items were missing from his cell, to which only RHU staff had access.4 On March 24,
2007, Sergeant Zimmerman planted contraband—a corrections officer’s uniform catalog—in
Plaintiff’s cell so that Plaintiff would fail a cell search and be denied release from the RHU.5
Finally, from April 15, 2007 to April 22, 2007, the floor of his RHU section was covered in
inmates’ urine and feces, which seeped under his cell door and into the ventilation system.6
Lieutenant Judge ordered RHU staff and inmate janitors not to clean the floor until April 22, the
day before an inspection.7 Plaintiff complained to Superintendent DiGuglielmo about the waste
on April 20, 2007, but DiGuglielmo took no action until July 2007 when he ordered an
investigation.8 Plaintiff claims that the three incidents were acts of illegal retaliation against him,
motivated by his exercise of his First Amendment rights to file grievances against prison
personnel. He also alleges that he was subjected to cruel and unusual punishment when he was
exposed to human waste on the floor outside his cell door for eight days.
Plaintiff first raised these claims in a proposed “Supplement to Complaint” filed in the
Western District of Pennsylvania in November 2008.9 On April 21, 2009, a magistrate judge in
the Western District of Pennsylvania denied Plaintiff’s motion for leave to supplement his
complaint, finding that the claims raised in the proposed Supplement were situated in this

4

Am. Compl. at ¶¶ 36, 39, 43. The missing items included a television, a radio, cosmetics, family photos,
mail, drafts of his novel, clothing, and food items. Am. Compl. at ¶ 42.
5

Am. Compl. at ¶¶ 55-56, 58.

6

Am. Compl. at ¶¶ 71-72.

7

Am. Compl. at ¶¶ 78-79.

8

Am. Compl. at ¶¶ 77, 104, 111.

9

Miskovitch v. Lt. Hostoffer, et al., No. 06-1410, Doc. No. 79 (W .D. Pa. Nov. 26, 2008).

2

District. Plaintiff filed objections to the magistrate’s decision. The district court judge denied
the objections on May 7, 2009. Plaintiff then filed his pro se Complaint in this District on June
15, 2009, naming only corrections officers Judge and Zimmerman as defendants. On December
14, 2011, having obtained counsel, Plaintiff filed an Amended Complaint, which added
DiGuglielmo as a defendant.10 Counts I-III of the Amended Complaint allege that Defendants
stole Plaintiff’s possessions, planted contraband, and refused to clean the floor in retaliation for
Plaintiff’s grievances against SCI Graterford staff.11 Count IV alleges that the 8-day exposure to
human waste was cruel and unusual punishment.12
II.

STANDARD OF REVIEW
Dismissal of a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted is appropriate where a plaintiff’s “plain
statement” does not possess enough substance to show that plaintiff is entitled to relief.13 In
determining whether a motion to dismiss is appropriate the court must consider only those facts
alleged in the complaint, accepting the allegations as true and drawing all logical inferences in
favor of the non-moving party.14 Courts are not bound to accept as true legal conclusions

10

On December 23, 2009, at Plaintiff’s request, the Court referred this case to the Prisoner’s Civil Rights
Panel for appointment of counsel. As there was a sizable waiting list of plaintiffs seeking counsel from the Panel,
there was a significant delay before counsel was appointed for Plaintiff. Ultimately, the firm of Dilworth Paxson
LLP agreed to represent plaintiff, and counsel entered their appearances on October 18, 2011. Counsel were granted
leave to file an amended complaint on or before December 14, 2011, and timely filed the amended complaint.
11

Am. Compl. at ¶¶ 96, 102.

12

Am. Compl. at ¶ 109.

13

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007).

14

ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); Fay v. Muhlenberg Coll., No. 07-4516, 2008
W L 205227, at *2 (E.D. Pa. Jan. 24, 2008).

3

couched as factual allegations.15 Something more than a mere possibility of a claim must be
alleged; the plaintiff must allege “enough facts to state a claim for relief that is plausible on its
face.”16 The complaint must set forth direct or inferential allegations respecting all the material
elements necessary to sustain recovery under some viable legal theory.17 The court has no duty to
“conjure up unpleaded facts that might turn a frivolous action . . . into a substantial one.”18
III.

DISCUSSION
A.

Statute of Limitations

A district court may dismiss a complaint on a 12(b)(6) motion for failure to file within the
statute of limitations only if it can determine, before the factual record is fully developed, when
the claim accrued and whether any tolling periods apply.19 In addition to the complaint, at this
stage in the litigation the Court may consider matters of public record, exhibits to the complaint,
and undisputedly authentic documents attached to the motion to dismiss.20
“The length of the statute of limitations for a [42 U.S.C.] § 1983 claim is governed by the
personal injury tort law of the state where the cause of action arose.”21 In Pennsylvania, this

15

Twombly, 550 U.S. at 555, 564.

16

Id. at 570.

17

Id. at 562.

18

Id. at 562 (citing McGregor v. Indus. Excess Landfill, Inc., 856 F.2d. 39, 42-43 (6th Cir. 1988).

19

Oshiver v. Leven, Fishbein, Sedran & Berman, 38 F.3d 1380, 1391 n.1 (3d Cir. 1994)(“W hile the
language of Fed. R. Civ. P. 8(c) indicates that a statute of limitations defense cannot be used in the context of a
12(b)(6) motion, an exception is made where the complaint facially shows noncompliance with the limitations period
and the affirmative defense clearly appears on the face of the pleading.”)
20

Delaware Nation v. Pennsylvnia, 446 F.3d 410, 413 at n.2 (3d Cir. 2006); Pryor v. Nat’l Collegiate
Athletic Assoc., 288 F.3d 548, 560 (3d Cir. 2002).
21

Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (citing W allace v. Kato, 549 U.S. 384, 387 (2007)).

4

period is two years.22 While the statute of limitations itself is a matter of state law, the accrual
date of a §1983 claim is a matter of federal law, and under federal law, the statute of limitations
begins to run when plaintiff has a “complete and present cause of action.”23 Therefore, Plaintiff’s
claims accrued on the “days when the alleged incidents on which each claim is based occurred,
since that is when he knew of his injuries.”24
However, in the context of prisoner’s civil rights litigation under § 1983, the Prison
Litigation Reform Act (“PLRA”) makes the exhaustion of administrative remedies a pre-requisite
to filing a lawsuit.25 Therefore, the Court finds that the statute of limitations was tolled while
Plaintiff pursued his administrative remedies.26
Miskovitch alleges that his available administrative remedies were exhausted as to Count
I on May 18, 2007; as to Count II on May 8, 2007; and as to Counts III and IV on August 24,
2007.27 However, it is not clear from the face of the Complaint when the administrative remedies

22

42 Pa. Cons. Stat. § 5524(2) (requiring “[a]n action to recover damages for injuries to the person or for
the death of an individual caused by the wrongful act or neglect or unlawful violence or negligence of another” to be
commenced within two years).
23

W allace, 549 U.S. at 388.

24

Adderly v. Ferrier, 419 Fed. App’x 135, 137 (3d Cir. 2011); Sameric Corp. Of Del. v. City of Phila., 142
F.3d 582, 599 (3d Cir. 1998).
25

42 U.S.C. § 1997e(a).

26

W right v. O’Hara, No. 00-1557, 2004 W L 1793018, at * 6 (E.D. Pa. Aug. 11, 2004) (citing Burgh v.
Borough Council of Montrose, 251 F.3d 465, 470-71 (3d Cir. 2001)); Drain v. McLeon, 04-1589 (2007 W L 172349,
at *5 (E.D. Pa. Jan. 19, 2007) (tolling the statute of limitations on a § 1983 claim for exhaustion of administrative
remedies, citing the Sixth and Seventh Circuits). The Third Circuit has yet to decide this issue, but has recognized
that other circuits have found that the statute of limitations applicable to § 1983 claims is tolled while a prisoner
exhausts available administrative remedies. Adderly v. Ferrier, 419 F. App’x 135, 137 (3d Cir. 2011) (citing Brown
v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 2005); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001); Brown v.
Morgan, 209 F.3d 595, 596 (6th Cir. 2000)).
27

Am. Compl. ¶¶ 48, 70, 81.

5

were initiated. Therefore, it is impossible to calculate the tolling period for the exhaustion of
administrative remedies with precision at this stage in the litigation.
Additional equitable tolling may be available to a Plaintiff if the Court finds that he
“timely assert[ed] his or her rights mistakenly in the wrong forum.”28 This remedy is
“extraordinary” and extended “only sparingly.”29 The plaintiff must demonstrate that he
“exercised due diligence in pursuing and preserving [his] claim.”30 Here, the Court finds that
Miskovitch is entitled to equitable tolling because he timely asserted his claims, albeit in the
wrong forum, and demonstrated due diligence in preserving his claim by first pursuing
administrative remedies.31 As he was proceeding pro se at the time, and had other claims
properly pending before the Western District of Pennsylvania, the Court finds Miskovitch’s
mistake as to the proper forum was excusable. Accordingly, the Court will toll the statute of
limitations for the period between November 26, 2008, when Miskovitch filed his Supplement to
Complaint in the Western District of Pennsylvania, and May 7, 2009, when the Supplement was
dismissed.
After discovery is complete, and upon a proper motion from Defendants, the Court will
determine whether the claims against Zimmerman and Judge were asserted within the applicable
statute of limitations, applying the equitable tolling periods discussed above.

28

Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2009) (quoting Hedges v. United States,
404 F.3d 744, 751 (3d Cir. 2005)).
29

Santos, 559 F.3d at 197 (quoting Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 96 (1990)).

30

Id. (citing Irwin, 498 U.S. at 96).

31

See Adderly, 419 F. App’x at 137 (holding that plaintiff was entitled to equitable tolling for timely but
erroneously asserting his § 1983 claims in the Eastern District of Pennsylvania instead of the W estern District of
Pennsylvania).

6

Although DiGuglielmo was a named defendant in the Western District of Pennsylvania
action, Plaintiff did not assert claims against DiGuglielmo in his initial Complaint in this Court,
nor was DiGuglielmo served with that Complaint. Plaintiff added DiGuglielmo as a party when
he filed his Amended Complaint on December 14, 2011. The Amended Complaint was filed
more than four years after Plaintiff exhausted his administrative remedies on the relevant claims,
and more than two years after the Supplement to Complaint was dismissed by the Western
District of Pennsylvania. Therefore, even applying equitable tolling, Plaintiff’s claims against
DiGuglielmo are clearly out of time and will be dismissed.32
B.

Count II States a Claim of Retaliation

In Count II, Plaintiff alleges that Defendant Zimmerman planted contraband in his cell,
triggering a disciplinary action, which ultimately prevented Plaintiff’s release from the RHU to
general prison housing, in retaliation for multiple grievances Plaintiff had filed against SCI
Graterford personnel.
“A prisoner bringing a retaliation claim must show that: (1) the conduct that triggered the
alleged retaliation was constitutionally protected; (2) he suffered an adverse action at the hands
of prison officials that ‘was sufficient to deter a person of ordinary firmness from exercising his
[constitutional] rights’; and (3) there is ‘a causal link between the exercise of his constitutional
rights and the adverse action taken against him.’”33 Here, Defendants challenge Plaintiff’s
pleading of the second element of a retaliation claim, arguing that “[t]he filing of a prison

32

The Court notes that Miskovitch voluntarily withdrew Counts I and II as to DiGuglielmo. Doc. No. 38,

n.4.
33

Bonaparte v. Beck, 374 F. App’x 351, 353 (3d Cir. 2010) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d
Cir. 2001)).

7

disciplinary report is not actionable under 42 U.S.C. § 1983 as prohibited ‘retaliation’ unless the
report is, in fact, false.”34 Defendants argue that, as Miskovitch was found guilty of possessing
contraband through the internal disciplinary process, he is precluded from alleging that the
misconduct report was falsified. The Court disagrees. Although Plaintiff will need to produce
evidence to support his factual allegations of innocence at later stages of this litigation,35 the
finding of guilt during the internal disciplinary process does not require dismissal of the
retaliation claim at this point in the litigation.36 At this stage, the Court finds that Plaintiff has
sufficiently alleged that Defendants planted the contraband and filed a false misconduct report in
retaliation for his grievance filings.
C.

Failure to Exhaust Administrative Remedies

As noted above, pursuant to the PLRA, a prisoner must exhaust all available
administrative remedies before bringing a § 1983 with respect to prison conditions.37 Here,
Defendants argue not that Plaintiff has failed to exhaust, but only that Plaintiff has failed to
adequately allege exhaustion. Defendants mistakenly attribute the burden of pleading and
proving exhaustion to Plaintiff.
The Supreme Court has concluded that “failure to exhaust is an affirmative defense under
34

Quoting W alker v. Campbell, No. 09-282, 2011 W L 6153104, at *7 (W .D. Pa. Oct. 31, 2011).

35

Bonaparte v. Beck, 441 F. App’x 830, 832 (3d Cir. 2011) (affirming summary judgment where the
plaintiff did not produce evidence suggesting innocence).
36

Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003); see also Bonaparte v. Beck, 374 F. App’x 351, 35354 (3d Cir. 2010) (pro se plaintiff alleged that he filed a grievance against his supervisor and she then filed a false
incident report against him in retaliation; despite the fact that he was found guilty of the incident, the court held that
the plaintiff had alleged sufficient facts to defeat a motion to dismiss his retaliation claim).
37

42 U.S.C. § 1997e(a) provides: “No action shall be brought with respect to prison conditions under
section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional
facility until such administrative remedies as are available are exhausted.”

8

the PLRA, and that inmates are not required to specially plead or demonstrate exhaustion in their
complaints.”38 Rather, the defendant must plead and prove the affirmative defense of failure to
exhaust.39 Such a requirement is fair, as “it is considerably easier for a prison administrator to
show a failure to exhaust than it is for a prisoner to demonstrate exhaustion,” due to prison
officials’ greater legal expertise and better access to administrative records.40 Consequently, this
Court will not dismiss Plaintiff’s claims on the grounds of failure to adequately plead exhaustion
of administrative remedies.41
IV.

CONCLUSION
For the foregoing reasons, this Court will dismiss Plaintiff’s claims against Defendant

DiGuglielmo, as they were not filed within the applicable statute of limitations. However,
Plaintiff may pursue his claims against Defendants Judge and Zimmerman.
An appropriate order follows.

38

Jones v. Bock, 549 U.S. 199, 216 (2007).

39

Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002).

40

Id.

41

In their Reply brief, Defendants allege that Plaintiff erroneously started an appeal of the finding that he
was guilty of possessing the uniform catalog without first filing for immediate review. However, Count II challenges
the retaliatory act (planting of contraband in Plaintiff’s cell), not the resultant ruling of guilt. Therefore, without
further factual development, the Court cannot determine that Plaintiff failed to exhaust available administrative
remedies with regard to Count II.
Defendants also argue in their Reply brief that Plaintiff failed to allege retaliation in his administrative
complaints regarding the theft of his personal belongings and the unsanitary conditions outside his cell (Counts I and
III). As the burden is not on Plaintiff to plead exhaustion, and as Plaintiff has not had the benefit of discovery, the
Court will defer ruling on the adequacy of Plaintiff’s administrative complaints until the record is fully developed.

9