Bookwalter v. Keen et al

Filing 29

MEMORANDUM re dft Edwards' mtn for summary jgmnt 26 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 4/3/17. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JOSEPH PAUL BOOKWALTER,
Plaintiff
vs.
WARDEN KEEN, et al.,
Defendants

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CIVIL NO. 1:CV-15-1291
(Judge Caldwell)

MEMORANDUM
I.

Introduction
The sole remaining defendant in this action, Counselor Edwards, an

employee of the Franklin County Prison (the Prison), seeks dismissal of the pro se plaintiff,
Joseph Bookwalter’s, failure-to-protect claim against him, arguing that it is time-barred.
(ECF No. 26, Mot. to Dismiss).
On March 6, 2017, we converted Counselor Edwards’ motion to dismiss to a
motion for summary judgment because Counselor Edwards’ motion relied on documents
outside of the complaint. (ECF No. 28, Order). Bookwalter was given twenty-one days to
file an opposition to Counselor Edwards’ motion for summary judgment. To date,
Bookwalter has failed to respond or otherwise oppose Counselor Edwards’s potentially
dispositive motion.
For the reasons that follow, the unopposed motion will be granted and the
case dismissed.

II.

Standard of Review
Federal Rule of Civil Procedure 56 sets forth the standards and procedures

for granting a motion for summary judgment. 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)). “[T]his standard provides that the 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).
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). An issue of material fact is “genuine” if supported by evidence such
that a reasonable jury could return a verdict in the non-moving party’s favor. Id. at 248, 106
S.Ct. at 2510.
In reviewing a motion for summary judgment, the court must view all facts and
draw all reasonable inferences “in the light most favorable to the party opposing the

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motion.” Blunt v. Lower Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014)(internal
quotation marks omitted). To prevail on summary judgment, the moving party must
affirmatively identify those portions of the record which demonstrate the absence of a
genuine issue of material fact. Santini v. Fuentes, 795 F.3d 410 (3d Cir. 2015) (citing
Celotex, 477 U.S. at 323, 106 S.Ct. 2553). If this burden is met, the nonmoving party “must
do more than simply show that there is some metaphysical doubt as to material facts.” Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (citation and
internal quotation marks omitted). Rather, the party opposing summary judgment “must set
forth specific facts showing that there is a genuine issue for trial.” Saldana v. Kmart Corp.,
260 F.3d 228, 232 (3d Cir. 2001)(citing Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). Failure to
properly support or contest an assertion of fact may result in the court considering the fact
undisputed for the purpose of the motion. Fed. R. Civ. P. 56(e).

III.

Statement of Facts
From the pleadings, declarations and exhibits submitted therewith, the

following facts are ascertained as undisputed or, where disputed, reflect Bookwalter’s
version of the facts, pursuant to this court’s duty to view all facts and reasonable inferences
in the light most favorable to the nonmoving party. Anderson, 477 U.S. at 255, 106 S.Ct. at
2510.
Between November 16 and December 23, 2013, Bookwalter was housed at
the Franklin County Prison, in Chambersburg, Pennsylvania. (ECF No. 1, Compl.) In
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November 2013, Bookwalter witnessed a female staff member having sex with a male
inmate in the F-Block Janitor’s closet. (Id., p. 5). Bookwalter reported this event via an
institutional request slip “which ended up getting into the hands of other inmates somehow
when only counselors had availability to access to (sic) them.” (Id.) Counselor Edwards
was the “only person who had access to the request slip [Bookwalter] put in that leaked its
way back to the block.” (Id., ¶ 22). Following this disclosure, Bookwalter was assaulted by
another inmate. (Id., ¶ 21). Bookwalter affirms that he exhausted all available
administrative remedies concerning his 2013 assault claim. (Id., p. 2).
On November 29, 2012, Bookwalter filed a grievance claiming that he was
assaulted (“jumped”) by another inmate after his request slip reporting staff fraternization
with inmates was “leaked.” (ECF No. 26-3, Inmate Grievance). Bookwalter was paroled
from the Prison effective December 23, 2012. (ECF No. 26-4, Parole Order).
Bookwalter filed this action on June 25, 2015. (ECF No. 1, Compl., p. 6).

IV.

Discussion
There is no specific statute of limitations for actions filed pursuant to 42

U.S.C. § 1983. Pearson v. Sec’y Dept. of Corr., 775 F.3d 598, 602 (3d Cir. 2015). Rather,
the United States Supreme Court has held that the statute of limitations for personal injury
actions in the state where the cause of action arose is to be employed. Wallace v. Kato,
549 U.S. 384, 387, 127 S.Ct. 1091, 1094, 166 L.Ed.2d 973 (2007); see also Estate of
Lagano, 769 F.3d at 859 - 60. As Pennsylvania has a two-year statute of limitations for
personal injury actions, the statute of limitations applicable to claims brought under § 1983
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in Pennsylvania is two years, subject to any state law tolling provisions which are not
inconsistent with federal law. See 42 PA. CONS. STAT. § 5524(7) (2014); Kach v. Hose,
589 F.3d 626, 634 (3d Cir. 2009); Lake v. Arnold, 232 F.3d 360, 368 - 69 (3d Cir. 2000).
The date when a § 1983 cause of action accrues is determined by federal
law. Under federal law, a civil rights cause of action accrues, and the statute of limitations
begins to run, “‘when the plaintiff knew or should have known of the injury upon which [his]
action is based.’” Kach, 589 F.3d at 634 (quoted cases omitted) (brackets added). A
“cause of action accrues even though the full extent of the injury is not then known or
predictable ... Were it otherwise, the statute would begin to run only after a plaintiff became
satisfied that he had been harmed enough, placing the supposed statute of repose in the
sole hands of the party seeking relief.” Wallace, 549 U.S. at 392, 127 S.Ct. at 1097 (internal
quotation marks and citations omitted).
The section 1983 statute of limitations is subject to tolling. First, the statute
is tolled while an inmate plaintiff exhausts his administrative remedies. See Pearson, 775
F.3d at 603 (“[T]he PLRA is a statutory prohibition that tolls Pennsylvania’s statute of
limitations while a prisoner exhausts administrative remedies.”) Second, the statute of
limitations may be equitably tolled when the plaintiff has been prevented from filing in a
timely manner due to sufficiently inequitable circumstances.1 See Cunningham v. M & T
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“[T]o benefit from the equitable tolling doctrine, plaintiffs have the burden of proving
three necessary elements: (1) that the defendant actively misled the plaintiff; (2) which prevented the
plaintiff from recognizing the validity of her claim within the limitations period; and (3) where the
plaintiff's ignorance is not attributable to her lack of reasonable due diligence in attempting to uncover
the relevant facts.” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 509 (3d Cir. 2006). “[T]here are few
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Bank Corp., No. 15-1412, 2016 WL 683373, at *2 (3d Cir. Feb. 26, 2016) (citing Santos ex
rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir. 2007)). Finally, “[t]he ‘discovery rule’
tolls the limitations period where the injured party is unable to know that he is injured and to
know what caused the injury, despite the exercise of reasonable diligence.” Brown v. Buck,
614 F. App’x 590, 593 (3d Cir. 2015)(nonprecedential).
Here, Bookwalter filed his action on June 25, 2015. Accordingly, any claims
accruing prior to June 25, 2013, are time-barred, unless tolled. Bookwalter claims he was
assaulted by another inmate after reporting that a female staff member was having sex with
an inmate. In his Complaint, he alleges this event occurred in November 2013 after
Counselor Edwards improperly leaked the contents of his request slip to others. However,
Counselor Edwards has produced an undisputed copy of Bookwalter’s grievance
concerning this issue, which reveals that the events complained of took place in November
2012, not 2013. A claim based on them would therefore be time-barred, unless tolled.
We see no grounds for tolling. We note that Bookwalter was paroled from the
Prison effective December 23, 2012. (ECF No. 26-4, Parole Order). Thus we can
conclude that any Prison administrative remedies terminated on that date as well. At the
latest then, Bookwalter had until December 23, 2014, to file his section 1983 claim against
Counselor Edwards. As Plaintiff’s Complaint was filed on June 25, 2015, his failure-to-

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facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct
diligence in the channel in which it would be successful. This is what is meant by reasonable diligence.”
Debiec v. Cabot Corp., 352 F.3d 117, 129 (3d Cir. 2003) (quotation omitted).

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protect claim against Counselor Edwards is untimely.
We will issue an appropriate order.

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

Date: April 3, 2017

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