Cibula v. Fox et al

Filing 47

MEMORANDUM (Order to follow as separate docket entry) (eo)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

JAMES CIBULA,

:
:
:
:
:
:
:
:

Plaintiff,
v.
CHARLES FOX, et al.,
Defendants.

1:12-cv-2065

Hon. John E. Jones III

MEMORANDUM
July 25, 2013
Presently before the Court are two motions to dismiss Plaintiff’s Amended
Complaint. The first motion (Doc. 32) was filed by Defendants Charles Fox,
Lloyd White, Michael Green, Jeffrey Imboden, Catherine McVey, Benjamin
Martinez, Matthew Mangino, Judith Viglione, and John Tuttle (hereinafter
collectively referred to as “Parole Defendants”).1 The second motion (Doc. 36)
was filed by Defendants Steinberg, Ruffo, Mahlmeister, Eckert, Burkhart, Hayden,
Reed, Laufer, Cole, Oppman, Kusiak, Roberts, and Smiley (hereinafter collectively

1

These Defendants are all alleged to be former or current members of the Pennsylvania
Board of Probation and Parole. Plaintiff’s Amended Complaint (Doc. 29) names for the first
time as part of this group Defendants Kimberly Barkley and Cynthia Daub. The docket indicates
that Alan Robinson, attorney for the Parole Defendants, has not yet entered an appearance on
behalf of these additional Parole Defendants. They are also not named as Moving Defendants in
the Motion to Dismiss (Doc. 32).
1

referred to as “Corrections Defendants”).2 For the reasons set forth below,
Defendants’ motions shall be granted.
I.

FACTUAL BACKGROUND3
On February 5, 2007, James Cibula (“Cibula” or “Plaintiff”) entered a plea

of nolo contendre in the Northampton County Court of Common Pleas to two
counts of making terroristic threats. (Doc. 29 ¶ 6). As part of the sentencing
process, a presentence report was prepared recommending a sentence of 0-3
months imprisonment, but Judge Emil Giordano instead imposed the maximum
sentence on each count, resulting in a combined sentence of five to ten years.
(Doc. 29 ¶¶ 8-10).
Cibula subsequently appealed his sentence to the Pennsylvania Superior
Court, which determined that the length of the sentence was not supported by the
record and was based on “an unspoken belief by the Judge that Plaintiff was guilty
of far greater crimes than those to which he pled” nolo contendre. (Doc. 29 ¶¶ 1821). The Superior Court accordingly vacated the sentence and remanded the case
back to Judge Giordano. (Doc. 29 ¶ 22).
2

Each of the Corrections Defendants is alleged to be an employee of the Pennsylvania
Department of Corrections.
3

In accordance with the applicable standard of review, the following facts are derived
primarily from the Amended Complaint (Doc. 29) and viewed in the light most favorable to the
Plaintiff.
2

On December 21, 2007, Judge Giordano re-sentenced Cibula to two
consecutive terms of six months to five years. (Doc. 29 ¶ 23). Approximately one
week later, Cibula was transferred to the State Correctional Facility at Mercer.
(Doc. 29 ¶ 26). At this time, Cibula had already served almost two years in prison
and was eligible for immediate parole. (Doc. 29 ¶ 27). Upon arriving at Mercer,
Department of Corrections employees or administrators recommended, without the
benefit of a hearing, that Cibula be evaluated as a sex offender and participate in a
sex offender program at the prison. (Doc. 29 ¶¶ 28, 29). Despite the fact that
Cibula had not been convicted of a sex offense, the Department of Corrections and
Pennsylvania Board of Probation and Parole (“Parole Board”) jointly determined
as a condition of Plaintiff’s release on parole that he complete a treatment program
for sex offenders. (Doc. 29 ¶¶ 32, 43). Cibula’s first request for parole was denied
on or about July 17, 2008, at least in part because the Parole Board stated that he
must be evaluated as a sex offender. (Doc. 29 ¶¶ 34, 35).
On October 23, 2008, Department of Corrections employee Stephen Laufer
submitted a Correctional Plan Evaluation to his superiors and the facility’s Parole
office indicating that Cibula had attended one session of the Sex Offender
Program. (Doc. 44-1 at 8). Laufer wrote the following in the evaluation’s
“Comments” section: “Inmate discharged from group due to existing information
3

regarding his case. Review of the record indicates all charges of sexual offending
withdrawn by the state. This failure should not be held against him unless new
information regarding the original charges is uncovered.” (Doc. 44-1 at 8).
Cibula applied for parole again in 2009, but his second request for parole
was denied on or about August 10, 2009, again at least partially due to his failure
to participate in a treatment program for sex offenders. (Doc. 29 ¶¶ 37, 38).
Cibula’s 2009 request was denied despite Department of Corrections Counselor
Foust’s support. (Doc. 29 ¶ 100). Counselor Foust stated in her recommendation
that “this decision was made based on inmate’s successful completion of
recommended program and continued misconduct-free behavior.” (Doc. 29 ¶ 101).
On February 3, 2010, the Parole Board issued an Administrative Action which
stated:
Based on the information provided to the Parole Board, you have not
attended and participated in a Department of Corrections program of
counseling or therapy designed for incarcerated sex offenders as
required by 42 Pa. C.S.A. Section 9718.1(a). Pursuant to 42 Pa.
C.S.A. Section 9718.1(b), your offense requires that you participate in
sex offender treatment in order to be eligible for parole. Therefore,
you will not be interviewed by the Parole Board for parole/reparole
until notification is provided by the Department of Corrections that
you have attended and participated in a Department of Corrections sex
offender treatment program.4

4

A copy of this document is attached to Plaintiff’s brief in opposition to Parole
Defendants’ motion. (Doc. 44-1 at 5).
4

After receiving the Administrative Action, Cibula did not apply for parole in 2010.
(Doc. 29 ¶ 44). On May 11, 2011, on its own volition and without petition from
Cibula, the Parole Board granted him parole. (Doc. 29 ¶ 45). Cibula was released
from prison on August 18, 2011. (Doc. 29 ¶ 48).
II.

PROCEDURAL HISTORY
On October 15, 2012, James Cibula filed a Complaint (Doc. 1) against

Charles Fox, Llyod White, Michael Green, Jeffrey Imboden, Catherine McVey,
Benjamin Martinez, Matthew Magino, Judith E. Viglione, and John Tuttle. On
November 7, 2012, Defendants filed a motion to dismiss Plaintiff’s complaint
(Doc. 8) and a brief in support thereof (Doc. 10). Cibula filed his brief in
opposition to the motion (Doc. 18) on January 15, 2013, and Defendants filed their
reply brief (Doc. 19) on January 29, 2013. By Order of February 26, 2013 (Doc.
22), we granted Defendants’ motion to dismiss but granted Plaintiff leave to amend
his complaint to more particularly allege facts supporting his allegation that
Defendants designated him as a sex offender without due process.
On March 28, 2013, Plaintiff filed his Amended Complaint (Doc. 29),
naming Kimberly Barkley and Cynthia Daub as additional Parole Defendants and
adding all of the Corrections Defendants. The Amended Complaint contains four
counts pursuant to 42 U.S.C. § 1983: (1) Count I, for violation of due process by
5

Corrections Defendants; (2) Count II, for violation of due process by Parole
Defendants; (3) Count III, for violation of Eighth Amendment protection from
cruel and unusual punishment by Corrections Defendants; and (4) Count IV, for
conspiracy by all Defendants to deprive Plaintiff of the rights identified in the
preceding counts.
On April 17, 2013, Parole Defendants filed their motion to dismiss (Doc. 32)
and brief in support of the motion (Doc. 33). On April 24, 2013, Corrections
Defendants filed their motion to dismiss (Doc. 36), with a brief in support (Doc.
41) following on May 8, 2013. Plaintiff filed briefs in opposition to the motions
(Docs. 44, 45) on May 24, 2013. No reply briefs were filed. Thus, the pending
motions have been fully briefed and are ripe for disposition.
III.

STANDARD OF REVIEW
In considering a motion to dismiss pursuant to Rule 12(b)(6), courts “accept

all factual allegations as true, construe the complaint in the light most favorable to
the plaintiff, and determine whether, under any reasonable reading of the
complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny,
515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche Holdings, Ltd., 292
F.3d 361, 374 n.7 (3d Cir. 2002)). In resolving a motion to dismiss pursuant to
Rule 12(b)(6), a court generally should consider only the allegations in the
6

complaint, as well as “documents that are attached to or submitted with the
complaint, . . . and any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, [and] items
appearing in the record of the case.” Buck v. Hampton Twp. Sch. Dist., 452 F.3d
256, 260 (3d Cir. 2006).
A Rule 12(b)(6) motion tests the sufficiency of the complaint against the
pleading requirements of Rule 8(a). Rule 8(a)(2) requires that a complaint contain
a short and plain statement of the claim showing that the pleader is entitled to
relief, “in order to give the defendant fair notice of what the claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). While a complaint
attacked by a Rule 12(b)(6) motion to dismiss need not contain detailed factual
allegations, it must contain “sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). To survive a motion to dismiss, a civil plaintiff must allege facts that ‘raise
a right to relief above the speculative level . . . .’” Victaulic Co. v. Tieman, 499
F.3d 227, 235 (3d Cir. 2007) (quoting Twombly, 550 U.S. at 555). Accordingly, to
satisfy the plausibility standard, the complaint must indicate that defendant’s
liability is more than “a sheer possibility.” Iqbal, 556 U.S. at 678. “Where a
7

complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of entitlement to
relief.’” Id. (quoting Twombly, 550 U.S. at 557).
Under the two-pronged approach articulated in Twombly and later
formalized in Iqbal, a district court must first identify all factual allegations that
constitute nothing more than “legal conclusions” or “naked assertions.” Twombly,
550 U.S. at 555, 557. Such allegations are “not entitled to the assumption of truth”
and must be disregarded for purposes of resolving a 12(b)(6) motion to dismiss.
Iqbal, 556 U.S. at 679. Next, the district court must identify “the ‘nub’ of the . . .
complaint – the well-pleaded, nonconclusory factual allegation[s].” Id. Taking
these allegations as true, the district judge must then determine whether the
complaint states a plausible claim for relief. See id.
However, “a complaint may not be dismissed merely because it appears
unlikely that the plaintiff can prove those facts or will ultimately prevail on the
merits.” Phillips, 515 F.3d at 231 (citing Twombly, 550 U.S. at 588 n.8). Rule 8
“does not impose a probability requirement at the pleading stage, but instead
simply calls for enough facts to raise a reasonable expectation that discovery will
reveal evidence of the necessary element.” Id. at 234.
IV.

DISCUSSION
8

A.

Parole Defendants’ Motion

Parole Defendants present several arguments in support of the notion that
Plaintiff’s claims against them in his Amended Complaint must be dismissed. The
arguments are altered slightly to account for our earlier ruling granting their
motion to dismiss Plaintiff’s original Complaint, but are essentially the same.
They argue that (1) they are entitled to absolute immunity; (2) Plaintiff’s claims are
barred by Heck v. Humphrey, 512 U.S. 477 (1994); and (3) Plaintiff’s allegations
are legally insufficient to state a claim. We shall address these arguments in turn.
1.

Absolute Immunity

Although qualified immunity is the general rule for executive officials
charged with constitutional violations, there are some situations that merit absolute
immunity from suit. See Butz v. Economou, 438 U.S. 478, 508 (1978). For
example, it has been long-established that judicial officers enjoy absolute
immunity from suit for money damages when carrying out judicial acts. See Stump
v. Sparkman, 435 U.S. 349, 355 (1978) (quoting Bradley v. Fisher, 80 U.S. 335,
347 (1871)). Parole Board members are not judicial officers; they are executive
officers carrying out state policy with respect to probation and parole. See
Thompson v. Burke, 556 F.2d 231, 238 (3d Cir. 1977). A Parole Board member’s
level of immunity varies depending upon the nature of his or her acts. When
9

probation and parole officers are acting in their “executive or administrative”
capacity they are entitled only to good faith qualified immunity, but when they are
“engaged in adjudicatory duties” they enjoy absolute immunity. Wilson v.
Rackmill, 878 F.2d 772, 775 (3d Cir. 1989).
In a parole board context, there are several acts that entitle the actor or actors
to absolute immunity. They include (1) hearing evidence; (2) making
recommendations as to whether to parole a prisoner; and (3) making decisions to
grant, revoke, or deny parole. See Wilson, 878 F.2d at 776; Harper v. Jeffries, 808
F.2d 281, 284 (3d Cir. 1986). However, the Third Circuit has held that absolute
immunity does not apply when a parole officer is engaged in executive,
administrative, or ministerial acts such as “(1) investigating allegations of parole
violations and crimes; (2) typing and signing warrants for arrest of parole violators;
(3) assisting police in initiating police investigations of crimes committed by
parolees; (4) providing false information that a parolee violated the terms of parole
or committed a crime; (5) performing the ‘general responsibilities’ of a parole or
probation officer; (6) presenting information to the parole board about a parole
violation; or (7) conducting a warrantless search of a parolee’s residence without
probable cause.” Simon v. Ward, 2001 WL 41127 *3 (E.D. Pa. Jan. 16,
2001)(citations omitted). Another district court within the Third Circuit has also
10

held that executive/administrative duties include carrying out a mandatory
statutory duty such as verifying information in a parolee’s record. See Jones v.
Johnson, 402 F.Supp. 992, 997 (E.D. Pa. 1975).
We held in our previous Order that Parole Defendants have absolute
immunity from suit based on their decisions to deny Plaintiff parole. (Doc. 22 at 910). However, we found that Plaintiff’s claims against the Parole Defendants
arising from other conduct, such as the issuance of the Administrative Action,
should not be dismissed until more information was gleaned through discovery to
allow us to make an informed ruling as to whether the other non-parole-decision
acts should be classified as adjudicative or merely executive/administrative. (Doc.
22 at 10). Now, Plaintiff has additionally alleged in his Amended Complaint that
the Parole Defendants, along with the Corrections Defendants, were directly
involved in the decision to classify him as a sex offender without first conducting a
hearing on the matter. (Doc 29 ¶¶ 31-32). The Parole Defendants have not
presented any new arguments regarding absolute immunity and thus we have no
reason to alter our opinion. Parole Defendants’ adjudicative decisions to deny him
parole are barred by absolute immunity, but Parole Defendants may only be
entitled to qualified immunity for their other alleged actions.
2.

Invalidation or Expungement of Plaintiff’s Conviction or
11

Sentence
There are two avenues under federal law by which a plaintiff can seek relief
on complaints related to imprisonment: (1) a petition for habeas corpus and (2) a
complaint under 42 U.S.C. § 1983. Challenges to the validity of any confinement
or to particulars affecting its duration are the province of habeas corpus. See
Preiser v. Rodroguez, 411 U.S. 475, 500 (1973). Requests for relief turning on
circumstances of confinement may be presented in a § 1983 action. See
Muhammad v. Close, 540 U.S. 749, 750 (2004). The Supreme Court discussed this
boundary separating habeas corpus and § 1983 in Heck v. Humphrey, 512 U.S. 477
(1994).
In Heck, the Supreme Court held that “in order to recover damages for
allegedly unconstitutional conviction or imprisonment, or for other harm caused by
actions whose unlawfulness would render a conviction or sentence invalid, a §1983
plaintiff must prove that the conviction or sentence has been reversed on direct
appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.” Id. at 486-487. When a state prisoner seeks
damages in a § 1983 suit, the district court must evaluate whether judgment in the
plaintiff’s favor would necessarily imply the invalidity of his or her sentence. Id.
12

at 487. If it would, and the sentence has not already been invalidated, the
complaint must be dismissed. Id.
Parole Defendants argue now, as they did in their previous motion to dismiss
(Doc. 8), that the holding in Heck mandates dismissal of this case. In our previous
Order, we held that “Cibula’s success in overturning the Parole Board’s denials of
parole would ‘necessarily demonstrate the invalidity of the Parole Board’s
decision[s].’ Williams, 453 F.3d at 177.” (Doc. 22 at 12). Thus, challenges to
those decisions were barred by Heck. However, we found that Plaintiff’s claims
based on his being classified as a sex offender, allegedly without due process, were
not barred by Heck because he would not necessarily have been paroled sooner if
not for being designated a sex offender. (Doc. 22 at 13). Plaintiff has now
amended his complaint to clarify that he is not challenging the parole denial
decisions themselves, but rather other conduct by the Parole Defendants that does
not necessarily imply the invalidity of his sentence. In accordance with our
previous ruling, we will not dismiss Plaintiff’s Amended Complaint as being
barred by Heck.
3.

Sufficiency of Plaintiff’s Claims

In our previous Order (Doc. 22), we noted that the Third Circuit has held
that inmates have a liberty interest in not being labeled as sex offenders and
13

therefore due process is required before sex offender conditions may be imposed
on an inmate who has not been convicted of a sexual offense. See Renchenski v.
Williams, 622 F.3d 315 (3d Cir. 2010). However, although a prisoner has the right
to challenge the alleged lack of due process he or she received prior to being
deemed a sex offender, we ultimately found Plaintiff’s Complaint to be “factually
insufficient.” (Doc. 22 at 14). Plaintiff alleged a violation of a recognized liberty
interest and could theoretically present a cognizable claim that he was denied due
process, but nowhere in the Complaint did he allege that the Parole Defendants
labeled him as a sex offender. Rather, Plaintiff merely alleged that Parole
Defendants considered that designation in determining whether to grant him
parole. That was not enough to state a claim, and so we dismissed the Complaint
with leave to amend.
Now that Plaintiff has filed his Amended Complaint, we find his pleadings
sufficient to state a claim. Although Parole Defendants contend that they
personally had no part in labeling Plaintiff a sex offender and only relied on
erroneous information provided to them by the Department of Corrections,
Plaintiff does aver in his Amended Complaint that the Parole Defendants played a
role in designating him a sex offender and mandating that he participate in a sex
offender treatment program in order to be considered for parole. (Doc. 29 ¶¶ 3114

32). The facts that Plaintiff alleges in connection to his designation as a sex
offender are directed primarily at Corrections Defendants rather than Parole
Defendants. (Doc. 29 ¶¶ 28-29). However, he has nonetheless alleged Parole
Defendants’ involvement in that designation. Construed in the light most
favorable to the Plaintiff, that alleged involvement is sufficient to state a claim.
B.

Corrections Defendants’ Motion

Corrections Defendants argue that Plaintiff’s claims against them must be
dismissed for four distinct reasons. Corrections Defendants argue that (1) the
Amended Complaint should be dismissed for insufficient process, (2) Plaintiff’s
claims are barred by the Eleventh Amendment, (3) Plaintiff’s claims are timebarred, and (4) Plaintiff’s conspiracy claim lacks specificity and therefore fails to
state a claim. We shall address these arguments in turn.
1.

Eleventh Amendment Immunity

The Eleventh Amendment of the United States Constitution prevents suits in
federal court for money damages against a state, or one of its agencies or
departments, unless the state has given its explicit consent to be sued. Pennhurst
State School & Hosp. v. Halderman, 465 U.S. 89, 97-100 (1984). A suit brought
against an individual acting is his or her official capacity is considered a suit
against the state for the purposes of sovereign immunity. See Will v. Mich. Dept.
15

of State Police, 491 U.S. 58, 71 (1989). Pennsylvania has identified nine specific
exceptions to sovereign immunity: (1) vehicle liability; (2) medical-professional
liability; (3) care, custody, or control of personal property; (4) Commonwealth real
estate, highways, and sidewalks; (5) potholes and other dangerous conditions; (6)
care, custody, or control of animals; (7) liquor store sales; (8) National Guard
activities; and (9) toxoids and vaccines. 42 P.S. § 8522(b). Clearly, none of the
exceptions apply here.
Plaintiff does not contest that the Corrections Defendants are immune from
suit for money damages in their official capacities. In his brief, Plaintiff clarifies
that he is not seeking money damages against any of the Defendants in their
official capacities, but rather sued them “individually and in their official capacity”
in order to indicate that they were acting under color of state law. (Doc. 45 at 9).
Plaintiff offers to clarify his pleadings to remove any reference to Defendants’
“official capacity,” but we will accomplish the same purpose by dismissing
Plaintiff’s Amended Complaint to the extent that it seeks money damages against
any and all Defendants in their official capacities. Plaintiff’s claims against
Defendants in their individual capacities are not affected by Eleventh Amendment
immunity so we now turn to Corrections Defendants’ statute of limitations
argument regarding those claims.

16

2.

Statute of Limitations

For the purposes of determining whether a section 1983 action is timebarred, federal courts apply the statute of limitations that would otherwise apply to
a personal injury case under state law. See Kost v. Kozakiewicz, 1 F.3d 176, 189190 (3d Cir. 1993). Thus, Pennsylvania law dictates a two-year statute of
limitations for section 1983 claims. See id. (citing 42 Pa. C.S. § 5524). The statute
of limitations “begins to run from the time when the plaintiff knows or has reason
to know of the injury which is the basis of the section 1983 action.” Genty v.
Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991).
Corrections Defendants argue that Plaintiff’s claims against them must be
dismissed because it is clear on the face of his Amended Complaint that his alleged
injuries occurred more than two years prior to the filing of the instant suit.
Plaintiff has alleged that he was designated a sex offender upon his arrival at SCI
Mercer on or about December 28, 2007. (Doc. 29 ¶¶ 26-29). Even if Plaintiff was
unaware of that designation at the time, he was certainly aware by February 3,
2010, when he received an Administrative Action from the Parole Board informing
him that he would not be considered for parole unless he participated in a sex
offender treatment program. (Doc. 29 ¶ 42). Although Plaintiff was imprisoned
until August 18, 2011, Corrections Defendants argue that he knew or had reason to

17

know of his injury no later than February 3, 2010, but failed to file his Complaint
until October 15, 2012 and failed to name the Corrections Defendants until the
filing of his Amended Complaint on March 28, 2013.
Plaintiff argues, in response, that although he knew of the injury more than
two years prior to filing his Complaint, there were continuing violations due to his
continuous and ongoing sex offender classification. Specifically, Plaintiff was
subjected to the “traumatic” experience of being considered by other inmates and
prison personnel to be a sex offender, which only ended on August 18, 2011 when
he was paroled. Plaintiff cites the continuing violations doctrine, an “equitable
exception to the timely filing requirement” which provides that “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; in
such an instance, the court will grant relief for the earlier related acts that would
otherwise be time barred.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d Cir.
2001).
In order to benefit from the continuing violations doctrine, a plaintiff must
show that the defendant’s conduct was truly continual and “more than the
occurrence of isolated or sporadic acts.” West v. Philadelphia Elec. Co., 45 F.3d
744, 755 (3d Cir. 1995). The Third Circuit has identified three factors that should

18

be considered in this inquiry: (1) subject matter - whether the violations constitute
the same type of discrimination, tending to connection them in a continuing
violation; (2) frequency - whether the acts are recurring or more in the nature of
isolated incidents; and (3) degree of permanence - whether the act had a degree of
permanence which should trigger the plaintiff’s awareness of and duty to assert his
or her rights and whether the consequences of the act would continue even in the
absence of a continuing intent to discriminate. See id. at 755 n. 9. The third factor,
degree of permanence, is the most important. Cowell, 263 F.3d at 292.
We find that the continuing violations doctrine does not apply in this
instance. We cannot locate in Plaintiff’s Amended Complaint any alleged acts by
the Corrections Defendants during the two year window prior to October 15, 2012
that could reasonably be considered part of a continuing violation. Plaintiff alleges
the Parole Board issued an Administrative Action on February 3, 2010, which
caused him not to apply for parole that year. (Doc. 29 ¶¶ 42, 44). The only
subsequent events noted in the Amended Complaint are the granting of Plaintiff’s
parole on May 11, 2011 and his release from prison on August 18, 2011. (Doc. 29
¶¶ 45, 48). Plaintiff’s parole and release are the only acts that Plaintiff alleges to
have taken place within the statute of limitations period.
The only allegation that could possibly support the idea of a continual

19

violation is Plaintiff’s contention that Corrections Defendants disclosed to prison
personnel and other inmates that he was a sex offender, which caused him to be
“taunted, spat upon, provoked to fight, punched, kicked, humiliated, and degraded
on numerous occasions by other prisoners.” (Doc. 29 ¶¶ 83, 84). By doing so,
they “perpetuated the myth and misinformation that Plaintiff was a sex offender.”
(Doc. 29 ¶ 102). Although Plaintiff considers these alleged disclosures and mythperpetuations to be new and continuing violations recurring constantly until the
date of his release from prison, we think it more reasonable to consider these
disclosures merely the consequences of the original act of deeming Plaintiff a sex
offender in 2007. Plaintiff was only labeled a sex offender once; the harms he
alleges are simply the result of others learning of that label.
Ultimately, we are convinced that the “degree of permanence” of the initial
decision to designate Plaintiff a sex offender precludes his continuing violations
theory. That initial designation was sufficiently permanent to trigger Plaintiff’s
awareness of and duty to assert his rights. Regardless of whether there was a
continuing intent to violate Plaintiff’s rights, it is clear that the consequences of
that designation would continue. Plaintiff has confirmed that the consequences did
in fact continue. The statute of limitations exists, in part, to prevent plaintiffs from
sleeping on their rights. See United States v. Richardson, 889 F.2d 37, 40 (3d Cir.

20

1989). “The continuing violations doctrine should not provide a means for
relieving plaintiff from their duty to exercise reasonable diligence in pursuing their
claims.” Cowell, 263 F.3d at 295. It would confound that policy rationale to allow
Plaintiff to proceed with claims that were not filed until nearly five years after he
was labeled a sex offender and more than two and a half years after he
unquestionably knew of that designation, its degree of permanence, and its
consequences. Because Plaintiff’s claims against Corrections Defendants are
barred by the statute of limitations, those claims shall be dismissed in their entirety.

In addition, although Parole Defendants did not raise the statute of
limitations in their motion to dismiss, it is apparent from the face of the Amended
Complaint that Plaintiff’s cause of action against Parole Defendants has similarly
not been brought within the applicable statute of limitations. Plaintiff has not
alleged acts by any Defendants, including the Parole Defendants, within the two
year prior to the filing of his Complaint for which they could be held liable. Thus,
we shall order sua sponte dismissal of Plaintiff’s claims against Parole Defendants
as well. See McPherson v. U.S., 392 Fed.Appx. 938, 943 (3d Cir. 2010) (holding
that a court may sua sponte dismiss a suit for failing to state a claim when a statute
of limitations defense is obvious from the face of the complaint). Plaintiff’s claims

21

against all Defendants are dismissed as time-barred.
3.

Sufficiency of Process & Conspiracy Claim

Corrections Defendants have also raised an objection to the manner in which
they were served and an argument that Plaintiff’s conspiracy claim against them
lacks specificity. Because we are dismissing the entirety of Plaintiff’s Amended
Complaint as time-barred, we need not discuss these issues.
V.

CONCLUSION
For the foregoing reasons, we shall grant Parole Defendants’ Motion to

Dismiss (Doc. 32) and grant Corrections Defendants’ Motion to Dismiss (Doc. 36).
An appropriate order shall issue.

22