Douglas v. Joseph

Filing 65

MEMORANDUM re Mtn to Dismiss/for Summary Judgment 51 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 2/12/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NIGEL NICHOLAS DOUGLAS,
Plaintiff
vs.
ROD JOSEPH,
Defendant

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CIVIL NO. 1:CV-13-1136
(Judge Caldwell)

MEMORANDUM
I.

Introduction
On April 23, 2013, the pro se plaintiff, Nigel Douglas, a federal inmate

formerly housed at the United State Penitentiary in Allenwood, Pennsylvania, filed this
diversity action pursuant to 28 U.S.C. § 1332, raising Pennsylvania state-law claims of
replevin and conversion.1 Douglas claims that in July 2010 defendant, Rod Joseph,
illegally seized and wrongly detained his paintings, drawings and related art supplies after
Douglas was placed in the Special Housing Unit (SHU) at Allenwood. (Doc. 50, Am.
Compl.) He estimates the value of his original paintings, and assorted art supplies, to be
$527,000. (Id., ECF p. 1).
Presently before the court is Joseph’s motion to dismiss, or in the alternative,
for summary judgment. (Doc. 51). The motion is properly supported with a statement of
undisputed facts, brief, and exhibits. (Docs. 54-55). Defendant moves to dismiss the
Amended Complaint on the following grounds: (1) lack of diversity jurisdiction; (2) the
1

Douglas is presently housed at USP-Victorville, in Victorville, California.

doctrine of res judicata; (3) Plaintiff’s failure to exhaust his administrative remedies; and (4)
the statute of limitations. (Doc. 54).
Douglas filed a response to Defendant’s statement of material facts, an
opposition brief, and supporting exhibits. (Docs. 60-61). He makes the following opposing
arguments. First, he meets the threshold $75,000 amount in controversy required for
diversity jurisdiction based on his good faith evaluation of his original artwork and its
sentimental value. Alternatively, the value of his lost property is an issue for the jury to
determine. Second, res judicata does not bar his present action as his previous Bivens
action was dismissed without an adjudication on the merits due to his failure to exhaust his
administrative remedies. Third, his failure to exhaust his administrative remedies does not
bar his present action raising exclusively state-law claims. Fourth, his September 2014
demand letter for the return of his property marks the starting point of the applicable twoyear statute of limitations for his state-law claims, making the action timely.
As Douglas has failed to provide competent proof that he has satisfied the
jurisdictional amount in controversy and his claim is barred by Pennsylvania’s two-year
statute of limitations, Defendant Joseph’s motion for summary judgment will be granted.

II.

Standard of Review

A.

Motion to Dismiss - Lack of Subject-Matter Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(1), a defendant may move to

dismiss on the ground that the court lacks subject-matter jurisdiction over the dispute. The

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Third Circuit has identified two types of challenges to the court’s jurisdiction under Rule
12(b)(1): (1) facial challenges which are based on the legal sufficiency of the claim as pled
on the face of the complaint; and (2) factual challenges which are based on the sufficiency
of jurisdictional facts. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir.
2015). Under Rule 12(b)(1), the applicable procedure depends on whether the challenge to
the court’s subject-matter jurisdiction is facial or factual. See Mortensen v. First Fed. Sav.
& Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977). When confronted with a facial attack, “the
court must consider the allegations of the complaint as true.” Id. at 891. The same is not
true when addressing a factual attack on the court’s jurisdiction. Id. When addressing
factual challenges to the court’s jurisdiction:
the burden of proving that jurisdiction exists lies with the plaintiff,
and “the trial court is free to weigh the evidence and satisfy itself
as to the existence of its power to hear the case.” Mortensen v.
First Fed. Sav. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
Furthermore, “no presumptive truthfulness attaches to the
plaintiff’s allegations,” and when the jurisdiction is intertwined with
the merits, “the existence of disputed material facts will not
preclude the trial court from evaluating for itself the merits of
jurisdictional claims.” Id.
Harris v. Kellogg Brown & Root Services, Inc., 724 F.3d 458, 464 (3d Cir. 2013), cert.
denied,

U.S.

, 135 S.Ct. 1152, 190 L.Ed.2d 910 (2015); see also Pennsylvania v.

Aichele, 757 F.3d 347, 358-59 (3d Cir. 2014). Additionally, when addressing a factual
dispute, the court may consider evidence outside of the pleadings. See Gould Elec. Inc. v.
United States, 220 F.3d 169, 176 (3d Cir. 2000).

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B.

Summary Judgment Standard
Summary judgment is proper where “the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). The court must determine “whether the pleadings,
depositions, answers to interrogatories, admissions on file, and affidavits show that there is
no genuine issue of material fact and whether the moving party is therefore entitled to
judgment as a matter of law.” MacFarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 271 (3d Cir.
2012)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d
265 (1986)). In reviewing a motion for summary judgment, the court must view all facts “in
the light most favorable to the non-moving party” and “all reasonable inferences [should be
drawn] in that party’s favor.” Scheidemantle v. Slippery Rock Univ. State Sys. of Higher
Educ., 470 F.3d 535, 538 (3d Cir. 2006).
“[T]he mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986). An issue is “genuine” if
supported by evidence such that a reasonable jury could return a verdict in the nonmoving
party’s favor. Id. at 248, 106 S.Ct. at 2510. A material fact is any fact that might affect the
outcome of a suit under the governing substantive law. Gonzalez v. Sec’y of Dept. of
Homeland Sec., 678 F.3d 254, 261 (3d Cir. 2012).

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“In considering a motion for summary judgment, a district court may not make
credibility determinations or engage in any weighing of the evidence; instead, the
non-moving party's evidence ‘is to be believed and all justifiable inferences are to be drawn
in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting
Anderson, 477 U.S. at 255, 106 S. Ct. at 2510).

III.

Statement of Facts
Between March 20, 2008 and September 20, 2010, Douglas was confined at

USP Allenwood. (Doc. 55, Def.’s Statement of Material Facts (DSMF ¶), ¶ 1; Doc. 61, Pl.’s
Resp. to Def.’s Statement of Material Facts (PSMF), ¶ 1). He has been housed at USP
Victorville since September 23, 2010. (DSMF ¶ ¶2; PSMF ¶ 2).
All individuals incarcerated in institutions operated by the BOP may challenge
any aspect of their confinement using the Bureau of Prisons’ (BOP) three-level
administrative remedy process. (DSMF ¶ ¶ 3; PSMF ¶ 3). Initially, an inmate is to
informally present the issue of concern to staff through an informal resolution attempt.
(DSMF ¶ ¶ 4; PSMF ¶ 4). If that does not resolve the issue, then the first level of review
starts with the inmate submitting a formal request for administrative relief to the warden.
(DSMF ¶ ¶ 5; PSMF ¶ 5). The warden then responds to the inmate’s complaint within 20
calendar days. (DSMF ¶ ¶ 6; PSMF ¶ 6). At the second level, an inmate dissatisfied with
the warden's response may submit an appeal to the Regional Director within 20 calendar
days. (DSMF ¶ ¶ 7; PSMF ¶ 7). If dissatisfied with the response from the Regional
Director, at the third level the inmate may submit an appeal to the BOP's Central Office
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within 30 calendar days. (DSMF ¶ ¶ 8; PSMF ¶ 8). The Regional Director has 30 days to
respond and the General Counsel has 40 days to respond. (DSMF ¶ ¶ ¶ 9; PSMF ¶ 9). No
administrative appeal is considered fully and finally exhausted until it has been considered
by the BOP's Central Office. (DSMF ¶ ¶ ¶ 10; PSMF ¶ 10).
From July 2010 (the date Douglas’s property was seized) until November 27,
2013, Douglas filed twenty-eight administrative remedies. (DSMF ¶ ¶ ¶ 15). Four of those
remedies concerned Douglas’s claim that Defendant Joseph illegally seized and wrongly
withheld his paintings, drawings and related art supplies after Douglas was placed in the
SHU. (DSMF ¶ ¶ ¶¶ 14-16). On January 4, 2011, Douglas filed Administrative Remedy
No. 620970-F1 with the Warden at USP Victorville complaining about the alleged loss of
personal property. (DSMF ¶ ¶ 17). On January 4, 2011, the Warden rejected the remedy
as untimely filed. (DSMF ¶ ¶ 18; PSMF ¶ 18). On February 7, 2011, Douglas filed
Administrative Remedy No. 620970-F2 with the Warden at USP Victorville. He again
complained about the alleged loss of property at USP Allenwood. (DSMF ¶ ¶ 19). His
remedy was rejected the same day as untimely filed and for being filed at the wrong level.
(DSMF ¶ ¶ 20; PSMF ¶ 20). On February 22, 2011, Douglas appealed the Warden’s
decision and filed Administrative Remedy No. 620970-R1 with the Regional Director’s
office. (DSMF ¶ ¶ 22). The Regional Director rejected the appeal on March 1, 2011,
agreeing with the Warden’s decision that the remedy was untimely filed. (DSMF ¶ ¶ ¶ 23).
On March 23, 2011, Douglas appealed the Warden’s and Regional Director’s rejections
and filed Administrative Remedy No. 620970-A1 with the Central Office. (DSMF ¶ ¶ ¶ 24;

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PSMF ¶ 24). On April 1, 2011, the Central Office rejected the appeal, concurring with the
Warden’s rationale that Douglas’s administrative remedy was untimely. (DSMF ¶ ¶ ¶ 25;
PSMF ¶ 25).

IV.

Discussion

A.

Lack of Subject-Matter Jurisdiction.
It is well settled that a federal court has the responsibility to ensure that it has

subject-matter jurisdiction before addressing the merits of a case. In re Orthopedic “Bone
Screw” Prods. Liab. Litig., 132 F.3d 152, 155 (3d Cir. 1997) (“If a case, over which the court
lacks subject matter jurisdiction was originally filed in federal court, it must be dismissed.”)
Federal district courts have diversity jurisdiction when the opposing parties
are citizens of different states and the amount in controversy, exclusive of interest and
costs, exceeds $75,000. 28 U.S.C. § 1332(a); see also Kaufman v. Allstate N.J. Ins. Co.,
561 F.3d 144, 148 (3d Cir. 2009). The party asserting federal jurisdiction bears the burden
of showing that the case is properly before the court. Frederico v. Home Depot, 507 F.3d
188, 193 (3d Cir. 2007). In diversity cases, a party’s good faith allegation of the amount in
controversy controls. Dardovitch v. Haltzman, 190 F.3d 125, 135 (3d Cir. 1999) (quoting
St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288, 58 S.Ct. 586, 590, 82
L.Ed. 845 (1938)). However, where a defendant or court challenges the plaintiff’s
allegations regarding the amount in question, the plaintiff who asserts subject-matter
jurisdiction has the burden of proving its existence and must produce sufficient evidence to

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justify its claims. See Carpet Group Int’l v. Oriental Rug Importers Ass’n, Inc., 227 F.3d 62,
69 (3d Cir. 2000). Where “it appears to a legal certainty that the plaintiff cannot recover the
jurisdictional amount”, the case will be dismissed. Frederico v. Home Depot, 507 F.3d 188,
197 (3d Cir. 2007); see also Dolin v. Asian American Accessories, Inc., 449 F. App’x 216,
218 (3d Cir. 2011)(nonprecedential).
The amount-in-controversy requirement “ensure[s] that diversity jurisdiction
does not flood the federal courts with minor disputes.” Exxon Mobil Corp. v. Allapattah
Servs., Inc., 545 U.S. 546, 552, 125 S.Ct. 2611, 2617, 162 L.Ed.2d 502 (2005).
In circumstances where “both actual and punitive damages are recoverable,
punitive damages are properly considered in determining whether the jurisdictional amount
has been satisfied.” Id. However, claims for punitive damages “must be stricken from the
amount in controversy” when they are unavailable as a matter of law. Id.
Douglas claims diversity jurisdiction under 28 U.S.C. § 1332 on the basis that:
(1) he is a resident of Texas or California and defendant Joseph is a resident of
Pennsylvania; and (2) he suffered damages in excess of $527,000. (Doc. 50, Am. Compl.,
ECF p. 1). The diversity of citizenship of the parties is undisputed.2 Defendant Joseph
argues that the action should be dismissed based on Douglas’s inability to prove, to a
degree of certainty, that the amount in controversy exceeds $75,000. (Doc. 54, Def.’s Br.

2

Traditionally, prisoners are presumed to retain the domicile they had before they were
incarcerated. They do not acquire a new domicile based on the state where they are incarcerated.
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 247 (3d Cir. 2013). Accordingly, although presently
incarcerated in California, Douglas’s domicile continues to be Virginia, where he resided before he
was incarcerated. (Doc. 50, ECF pp. 1-2).

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in Supp. Mot. to Dismiss, or in the alternative, Mot. for Summ. J.). Douglas counters that
he in “good faith” valued each of his original pieces of artwork and that they collectively
exceed the jurisdictional amount in controversy. He further argues that their actual value is
an issue for a jury to decide and cannot be presently addressed. He further contends that
defendant Joseph should produce the lost property for appraisal by an appropriate outside
party. (Doc. 60, Br. in Opp’n. to Def.’s Mot. for Summ. J., ECF pp. 2-3).
In terms of actual damages, Douglas has lost eight original pieces of artwork
and personal art supplies and has assigned them an estimated value of $527,000. Once
Defendant Joseph challenged Douglas’s representation of the amount in controversy,
Douglas had the burden to demonstrate, by a preponderance of the evidence to a legal
certainty, that he can recover the $75,000 jurisdictional threshold. Given the opportunity to
support his assertion of the requisite amount in controversy, Douglas provides no argument
or authority in support of a finding that he could possibility recover damages in excess of
$75,000.
“[E]stimations of the amounts recoverable must be realistic.” Samuel-Bassett
v. KIA Motors Am., Inc., 357 F.3d 392, 403 (3d Cir. 2004). When determining whether a
complaint premised on diversity jurisdiction meets the amount in controversy, “[t]he inquiry
should be objective and not based on fanciful, ‘pie-in-the-sky,’ or simply wishful amounts,
because otherwise the policy to limit diversity jurisdiction will be frustrated.” Id. “The
authority which the [diversity] statute vests in the court to enforce the limitations of its
jurisdiction precludes the idea that jurisdiction may be maintained by mere averment”.

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McNutt v. General Motors Acceptance Corp. of Indiana, 298 U.S. 178, 189, 56 S.Ct. 780,
785, 80 L.Ed. 1135 (1936).
Although he attaches sentimental and artistic value to his artwork, Douglas
provides no evidence for the court to utilize when evaluating the legal certainty of his claim
for damages. While the court appreciates the talent and effort involved in producing such
artwork, Douglas does not suggest that he has previously sold any of his works or that his
artwork has ever been appraised at a minimum of $30,000 (the lowest value he places on
any one of the missing pieces of art). Accordingly, Douglas has not met his burden of
proving the jurisdictional amount in controversy by a preponderance of the evidence that
his claim for damages is not legally certain to be less than $75,000. Contrary to Douglas’s
wishes, the issue of recoverable damages for the purpose of establishing diversity
jurisdiction cannot be left to a jury. We cannot avoid deciding defendant Joseph’s motion
or postpone it until later, as Douglas suggests, as Defendant’s motion challenges this
court’s very power to hear this case based on Douglas’s inability to establish diversity
jurisdiction. The court cannot find, based on the record before it, that the amount in
controversy exceeds the $75,000 threshold required by 28 U.S.C. § 1332.

B.

Statute of Limitations
“Replevin is an action at law to recover the possession of personal property

and to recover damages incurred as a result of the defendant’s illegal detention of plaintiff’s
property.” Fenton v. Balick, 821 F. Supp. 2d 775, 759 (E.D. Pa. 2011) (internal citation
omitted). Under Pennsylvania law, conversion is the deprivation of another’s right of
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property, or use or possession of a chattel, or other interference therewith, without the
owner’s consent and without legal justification. See Kennedy v. Consol Energy Inc., 116
A.3d 626 (Pa. Super. Ct. 2015). There is a two-year statute of limitations for claims of
conversion and replevin under Pennsylvania law. 42 PA. CONS. STAT. ANN. 5524(3) and (4).
See Robinson Coal Co. v. Goodall, 72 A.3d 685, 689-90 (Pa. Super. Ct. 2013) (“action for
taking, detaining or injuring personal property, including actions for specific recovery
thereof,” is subject to the two-year statute of limitations of 42 PA. CONS. STAT. ANN. §
5524(3).). In Pennsylvania, the statute of limitations begins to run when the cause of action
accrues. See Fine v. Checcio, 582 Pa. 253, 266, 870 A.2d 850, 857 (2005). The cause of
action accrues “when the plaintiff could have first maintained the action to a successful
conclusion,” id., 870 A.2d at 857, generally, “when the injury is inflicted.” Id., 870 A.2d at
857.
A statute-of-limitations defense may be raised by a Rule 12(b)(6) motion if the
limitations bar is apparent on the face of the complaint. Schmidt v. Skolas, 770 F.3d 241,
249-51 (3d Cir. 2014); see also Stephen v. Clash, 796 F.3d 281 (3d Cir. 2015).
Taking the factual allegations of the Complaint as true, we find that the claims
accrued, and the statutes of limitations began to run, when Joseph allegedly seized and
wrongfully detained Plaintiff’s property in July 2010, thereby inflicting the injury.
Accordingly, the state-law claims had to be filed within two years of July 2010. Douglas

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initiated this action in April of 2013. Thus, it is patently untimely.3 Based on the allegations
of the Complaint, the two-year statutes of limitations for conversion and replevin expired
prior to Douglas’ filing of this action. Accordingly, even if Douglas could show this court
had subject-matter jurisdiction, he could not seek recovery of the property or its value due
to the expiration of the statute of limitations.

C.

Exhaustion
Defendant Joseph argues that Douglas’s Amended Complaint must be

dismissed for failure to exhaust administrative remedies. He is mistaken. The Prison
Litigation Reform Act of 1995 (PLRA), does not apply. The PLRA specifically provides “[n]o
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.” 42 U.S.C. §
1997e(a)(emphasis added). Although Douglas is proceeding in federal court, he is
pursuing state-law claims. Thus, section 1997(e)(a) does not apply. Additionally, while
Pennsylvania does have its own PLRA, 42 PA. CONST. STAT. ANN. § 6601 et seq., it “does
not contain an exhaustion requirement comparable to that in Section 1997e(a) of the
federal PLRA.” Paluch, supra, 84 A.3d at 1113. Thus, Douglas was not required to
exhaust his administrative remedies prior to bringing this action in diversity.

3

Unlike federal law, there is no tolling of the statute of limitations for Pennsylvania state-law
claims during the period Douglas exhausted his administrative remedies. See Paluch v.
Palakovich, 84 A.3d 1109, 1113 (Pa. Commw. Ct. 2014).

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V.

Conclusion
Douglas has failed to carry his burden of establishing federal jurisdiction. He

has failed to show by a preponderance of the evidence that the amount in controversy
exceeds the jurisdictional threshold. Alternatively, his claims are barred by the statutes of
limitations applicable to replevin and conversion claims under Pennsylvania law.
We will issue an appropriate order.

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

Date: February 12, 2016

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