Diaz v. Smith et al

Filing 114

MEMORANDUM re MOTION to Strike 108 Amended Complaint 107 (Order to follow as separate docket entry) Signed by Honorable William W. Caldwell on 9/29/15. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOHN DIAZ,

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Plaintiff
vs.
K. SMITH, et al.,
Defendants

CIVIL NO. 1:CV-10-1659
(Judge Caldwell)

MEMORANDUM
I.

Introduction and Procedural History
Presently before the court is the defendants’ motion to strike the third

amended complaint. (Doc. 108). In August 2010, plaintiff Diaz filed a complaint setting
forth a series of constitutional violations that occurred at SCI-Smithfield between April 2007
and February 2009. (Doc. 1, Compl.) After the court resolved the defendants’ motion to
dismiss, and Diaz’s motion for reconsideration, only Diaz’s access-to-courts claims against
defendants Smith and Sullivan related to their confiscation of Diaz’s legal materials on July
9, 2008, July 1, 2008, and December 31, 2008, remained. Diaz filed a second amended
complaint as to these claims. (Doc. 88). On September 9, 2014, the court resolved the
defendants’ motion to dismiss the second amended complaint. (Docs. 103 and 104.)
In addressing that motion we reconfirmed the dismissal of any claim based on
conduct occurring before July 9, 2008, as time-barred. (Doc. 103, ECF pp. 7-8).
Specifically, Diaz’s Eighth Amendment claim related to his 90-day placement in disciplinary
custody was ruled time-barred and without merit. (Id., ECF pp. 9-10). However, we denied

the defendants’ motion to dismiss Diaz’s claim that defendants confiscated his legal
materials in retaliation for his exercise of his First Amendment rights. (Id., ECF pp. 10 13). We granted the defendants’ motion to dismiss with respect to Diaz’s access-to-courts
claim and gave Diaz the opportunity to file a third amended complaint alleging what injury
he suffered as a result of the loss of his legal papers. (Id., ECF pp. 13 - 15).
On November 12, 2014, Diaz filed a third amended complaint (Doc. 107).
Defendants Smith and Sullivan have filed a motion to strike the complaint, presumably
under Fed. R. Civ. P. 12(f), because it re-asserts claims that were previously dismissed by
the court as time-barred. (Doc. 108).1 For the reasons that follow, the court will strike the
third amended complaint and give Diaz a final opportunity to file a fourth amended
complaint limited to his post-July 9, 2008, claims of retaliation and access-to-courts.

II.

Discussion
Two of the claims presented in Diaz’s third amended complaint were

previously dismissed: (1) the claim that CO Smith and CO Sullivan issued him a false
misconduct on March 16, 2008; and (2) the Eighth Amendment conditions of confinement
claim related to the ninety days he spent in the Restricted Housing Unit following his receipt
of the March 16, 2008, misconduct. Both of these claims were previously dismissed as
time-barred, and no leave to amend was granted. (Docs. 34, the false-misconduct claim;
Docs. 103 and 104, the Eighth Amendment claim.)

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Rule 12(f) authorizes the court to “strike from a pleading . . . any redundant . . .

matter.”
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Diaz drafted the third amended complaint, but he is now represented by
counsel. Counsel argues inclusion of the two dismissed claims was proper because we
“advised that any third amended complaint [would supersede[ ] and nullif[y] the second
amended complaint. (Doc. 103, ECF p. 15). We gave this advice, however, only to ensure
that Plaintiff fully pled his two surviving claims in the third amended complaint as our next
sentence makes clear: “It should therefore contain his retaliation claim as well as an
amended access-to-courts claim because all causes of action alleged in the second
amended complaint which are not alleged, or reasserted, in the third amended complaint
are waived.” (Id.).
If Plaintiff was concerned about being able to appeal the dismissal of these
two claims, it was not necessary to reallege them in the third amended complaint. These
claims were futile because their dismissal as untimely was on the merits. See United
States ex rel. Atkinson v. Pa. Shipbuilding Co., 473 F.3d 506, 516 (3d Cir.2007)( “A
dismissal is on the merits when it is with prejudice or based on some legal barrier other
than want of specificity or particularity.”). Plaintiff could therefore have appealed their
dismissal even though they were not realleged in a subsequent pleading. Id. (“We believe
the proper rule allows plaintiffs to appeal dismissals despite amended pleadings that omit
the dismissed claim provided repleading the particular cause of action would have been
futile.”) (emphasis in original)footnote omitted).
Plaintiff will be given a final opportunity to file a Fourth Amended Complaint
that is limited to the following claims: (1) CO Smith and CO Sullivan’s alleged retaliatory

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confiscation of his legal materials on the following dates: July 9, 2008, November 1, 2008
and December 31, 2008; and (2) Diaz’s access-to-court claims based on the three times
CO Smith and CO Sullivan allegedly confiscated his legal materials from his cell. We have
previously outlined the pleading requirements for each of these claim in our September 9,
2014, Memorandum and Order, and the deficiencies of his prior complaints. See Docs.
103 and 104. If Diaz fails to submit a Fourth Amended Complaint, this action will proceed
strictly on his retaliation claim as outlined above. If he fails to reassert his retaliation claim
in his Fourth Amended Complaint, it will be deemed waived. No further amendments will
be permitted.
An appropriate order follows.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: September 29, 2015

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