BROWN v. BEARD et al

Filing 120

ORDER AS FOLLOWS: THE REPORT AND RECOMMENDATION IS APPROVED AND ADOPTED IN PART, AND REJECTED IN PART; PLFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION ARE GRANTED IN PART AND OVERRULED IN PART; DEFTS' MOTIONS FOR SUMMARY JUDGMENT ARE GRA NTED IN PART AND DENIED IN PART; DEFTS' MOTIONS TO DISMISS ARE DENIED; PLFF'S MOTION TO STRIKE IS DENIED; AND PLFF'S SUPPLEMENTAL MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION IS DENIED, ETC.. SIGNED BY HONORABLE EDUARDO C. ROBRENO ON 1/15/14. 1/16/14 ENTERED AND COPIES MAILED TO PRO SE, COUNSEL AND E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ALTON BROWN,

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Plaintiff,
v.
JEFFREY A. BEARD, et al.,
Defendants.

CIVIL ACTION
NO. 13-465

O R D E R
AND NOW, this 15th day of January, 2014, after careful and
independent consideration of the Report and Recommendation of United
States Magistrate Judge Thomas J. Rueter (ECF No. 103) and
Plaintiff’s objections thereto (ECF No. 115),1 it is hereby ORDERED
as follows:
(1)

The Report and Recommendation is APPROVED and ADOPTED

in part, and REJECTED in part;2

1

The Court undertakes a de novo review of the portions of
the Report and Recommendation to which a party has objected. See 28
U.S.C. § 636(b)(1) (2006 & Supp. V 2011); Cont’l Cas. Co. v.
Dominick D’Andrea, Inc., 150 F.3d 245, 250 (3d Cir. 1998). The Court
“may accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1).
2

Magistrate Judge Rueter recommends that the Court grant
Defendants’ motions for summary judgment because the undisputed
facts show that Plaintiff’s claims are barred by the statute of
limitations. Report & Recommendation 11, ECF No. 103. For the
reasons that follow, the Court concludes that some – but not all –
of Plaintiff’s claims are time barred. The Court therefore adopts
in part and rejects in part Magistrate Judge Rueter’s Report and

Recommendation.
As Magistrate Judge Rueter explains, the statute of
limitations for actions brought under 42 U.S.C. § 1983 is governed
by the personal injury tort law of the state where the cause of
action arose – in this case, Pennsylvania. Kach v. Hose, 589 F.3d
626, 634 (3d Cir. 2009). Under Pennsylvania law, a plaintiff must
bring a § 1983 claim within two years of when that claim accrued.
42 Pa. Cons. Stat. § 5524(2). Federal law determines when a § 1983
claim accrues, and it provides that such a claim accrues “when the
plaintiff knew or should have known of the injury upon which its
action is based.” Kach, 589 F.3d at 634 (quoting Sameric Corp. v.
City of Phila., 142 F.3d 582, 599 (3d Cir. 1998)). More generally,
a cause of action has accrued when “the last event necessary to
complete the tort” takes place, “usually at the time the plaintiff
suffers an injury.” Id. Once an injury occurs and its cause is
known (or is reasonably knowable), a cause of action accrues even if
“the full extent of the injury is not known or predictable.” Id. at
634-35.
Plaintiff filed his complaint on October 22, 2010, which
means that the two-year limitations period began to run on October
22, 2008. Accordingly, any claims that accrued prior to that date
would generally be barred by the statute of limitations.
The Court agrees with Magistrate Judge Rueter that
undisputed evidence shows that some of Plaintiff’s claims accrued
before October 22, 2008. Plaintiff alleges that, from the time of
his transfer to SCI-Graterford in 2006 through the filing of the
complaint, he was kept in polluted and unventilated cells about half
of the time, which seriously harmed his health. He says that the
unventilated environment caused him to cough up mucus and blood,
suffer “severe headaches,” and experience asthma-like symptoms,
among other adverse effects. Compl. ¶¶ 40, 43, 47. He further
contends that Defendants knew of and ignored the health consequences
of his living conditions, and thus were deliberately indifferent to
his serious medical needs. According to Plaintiff, although the
harmful conditions at SCI-Graterford were “continuous and ongoing,”
he “only recently discovered that the conditions had,” over time,
“caused him substantial injuries to his lungs, and possibly heart.”
Compl. § 42.
But while it may be true that the scope of Plaintiff’s
injuries became apparent only recently, the medical records and
2

grievance reports obtained during limited discovery reveal that
Plaintiff knew he had been injured well before October 2008.
Indeed, as Magistrate Judge Rueter explains, Plaintiff complained of
headaches and breathing problems due to inadequate ventilation on
numerous occasions between 2006 and 2008. See Report &
Recommendation 7-8. Plaintiff does not contest the substance of
those records and reports (except to contend that chronic
obstructive pulmonary disease (“COPD”) was not recorded on his list
of chronic problems until after 2008). See Pl.’s Objections, ECF
No. 115; Pl.’s Decl., ECF No. 117; Pl.’s Mot. Sanctions, ECF No. 84.
It is therefore undisputed that Plaintiff knew of some of the
injuries upon which his action is based before October 22, 2008.
Moreover, because Plaintiff knew he was injured and knew the cause
of his injury, his claims accrued even if “the full extent of the
injury” may not have been “known or predictable” at that time.
Kach, 589 F.3d at 634-35. Accordingly, all of Plaintiff’s claims
regarding his living conditions prior to October 22, 2008, accrued
before that date, and thus are barred by the statute of limitations.
The Court also agrees with Magistrate Judge Rueter that
the “continuing violation doctrine” cannot help Plaintiff avoid a
strict application of the statute of limitations. That doctrine,
which is an “equitable exception to the timely filing requirement,”
allows an otherwise untimely action to be treated as timely “when a
defendant’s conduct is part of a continuing practice,” “so long as
the last act evidencing the continuing practice falls within the
limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d
Cir. 2001). The continuing violation doctrine permits a plaintiff
to obtain relief in “situations where the illegality of a
defendant’s conduct becomes apparent only over a period of time,”
and thus it would be unfair to penalize the plaintiff for his delay
in filing suit. Arneault v. O’Toole, 864 F. Supp. 2d 361, 391 (W.D.
Pa. 2012). The doctrine is inapplicable when the complained-of
conduct “consists of a discreet and actionable injury of which a
reasonable plaintiff would have been aware.” Id. The most
important factor courts consider when determining whether the
doctrine applies is the “degree of permanence” of defendant’s
actions. Cowell, 263 F.3d at 292. If the challenged act “had a
degree of permanence which should trigger the plaintiff’s awareness
of and duty to assert his/her rights,” the continuing violation
doctrine is generally unavailable. Id.
Plaintiff here complains of the relatively fixed
3

conditions of his confinement – the lack of windows, the sheets of
metal covering the cell fronts, the condition of the air ducts, and
the like. See Compl. ¶¶ 20-26. Those conditions “had a degree of
permanence” that should have triggered Plaintiff’s awareness of the
need to assert his rights. See Cowell, 263 F.3d at 292.
Furthermore, as discussed above, Plaintiff knew he was being harmed
by his living conditions, and so he was fully able to bring an
action within the proper time period. See Foster v. Morris, 208 F.
App’x 174, 178 (3d Cir. 2006) (holding that the lack of wheelchair
accessible restroom facilities “had a degree of permanence such that
they put [plaintiff] on notice of his duty to assert his rights”).
Therefore, as he has no excuse for sleeping on his rights, Plaintiff
cannot make use of the continuing violation doctrine’s equitable
exception to the statute of limitations.
Nonetheless, the Court disagrees with Magistrate Judge
Rueter that, because of those failings, Plaintiff’s entire action is
time barred. The statute of limitations does not bar claims that
accrued within two years of the filing of the complaint. Plaintiff
says that he was continuously exposed to unventilated conditions
from 2006 until the filing of the complaint. More to the point, he
alleges that Defendants continued their harmful actions after
October 22, 2008, causing him new injuries and exacerbating his
existing ones. Claims arising from that treatment cannot be time
barred, as the complained-of conduct and any resulting injuries
occurred within the two-year limitations period. See Kost v.
Kozakiewicz, 1 F.3d 176, 189 (3d Cir. 1993) (explaining that a
deliberate indifference claim alleging that plaintiff suffered eight
heatstrokes due to the unventilated conditions of his cell was
timely as long as “one or some of these heatstrokes did occur”
within the limitations period); see also Foster, 208 F. App’x at 178
(allowing plaintiff to seek recovery for alleged violations of the
Americans with Disabilities Act that occurred within the limitations
period, even when identical violations occurred prior to the
limitations period).
The Court will therefore adopt in part and reject in part
Magistrate Judge Rueter’s Report and Recommendation. The Court
agrees that Plaintiff cannot bring claims based upon his living
conditions prior to October 22, 2008, as those claims are barred by
the statute of limitations. He can, however, challenge the
conditions he experienced between that date and October 22, 2010, as
those claims accrued within two years of the filing of the
4

(2)

Plaintiff’s objections to the Report and

Recommendation are GRANTED in part and OVERRULED in part;3
(3) Defendants’ Motions for Summary Judgment (ECF No. 44 &
49) are GRANTED in part and DENIED in part;4
(4) Defendants’ Motions to Dismiss (ECF Nos. 8 & 12) are
DENIED;
(5) Plaintiff’s Motion to Strike (ECF No. 86) is DENIED;
and
(6) Plaintiff’s Supplemental Motion for a Temporary

complaint.
3

Plaintiff contends that the Court cannot grant summary
judgment to Defendants on the current evidentiary record, as
discovery was limited to medical records and grievance reports from
between 2006 and 2008. See Pl.’s Objections ¶¶ 1-3. Although he
explains in his accompanying declaration (ECF No. 117) that he needs
additional discovery to show that some of his claims did not accrue
until after October 2008, he does not explain how additional
discovery would alter the conclusion that claims arising from preOctober 2008 conduct are time barred. Therefore, to the extent that
Plaintiff contends that summary judgment on those claims is
inappropriate, his objections are overruled. Nonetheless, the Court
agrees that some of Plaintiff’s claims are not time barred, and that
he may be entitled to further discovery on those claims.
4

Defendants’ sole argument in their motions for summary
judgment is that Plaintiff’s claims are barred by the statute of
limitations. As discussed above, see supra note 2, the Court agrees
that the statute of limitations bars some of Plaintiff’s claims, and
thus it will grant summary judgment to Defendants on all claims
arising from conduct occurring before October 22, 2008. Summary
judgment is inappropriate, however, on claims arising from conduct
that occurred between October 22, 2008 and the filing of the
complaint, as those claims are not time barred.
5

Restraining Order and Preliminary Injunction (ECF No. 55) is DENIED.5
An appropriate scheduling order shall follow.

AND IT IS SO ORDERED.

/s/ Eduardo C. Robreno
EDUARDO C. ROBRENO,
J.

5

Plaintiff’s original motion for a temporary restraining
order (“TRO”) and preliminary injunction alleged that he was subject
to inadequate prison conditions at SCI-Graterford. On or around
July 2, 2013, Plaintiff was transferred from SCI-Graterford to SCISmithfield, and so the Court denied Plaintiff’s TRO motion as moot.
ECF No. 48. Then, on August 2, 2013, Plaintiff filed a supplemental
motion for a TRO and preliminary injunction, this time contending
that he is being housed in inadequate conditions at his new
facility.
ECF No. 55. He does not allege any new facts, however,
instead “rel[ying] on the statement of facts contained in his
original motion for TRO and Preliminary Injunction.” Pl.’s Mem.
Support Supp. Mot. TRO.
Plaintiff’s motion cannot succeed, as he has not
established a likelihood of success on the merits. See Kos Pharm.,
Inc. v. Adrex Corp, 369 F.3d 700, 708 (3d Cir. 2004) (providing that
a “party seeking a preliminary injunction must show: (1) a
likelihood of success on the merits; (2) that it will suffer
irreparable harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to the
nonmoving party; and (4) that the public interest favors such
relief”). First of all, the facts Plaintiff points to relate only
to his previous place of incarceration, and thus he has provided no
factual basis for the relief he seeks. Furthermore, Defendants in
this case are not responsible for his current conditions of
confinement, as they have no control over the conditions or medical
care provided at SCI-Smithfield. Plaintiff therefore must file a
new cause of action against the proper defendants in order to
achieve his requested relief.
6