Martinez v. Jones et al

Filing 22

MEMORANDUM (Order to follow as separate docket entry) re 10 MOTION to Dismiss filed by Snook, C/O Oister, B Jones, Long, Reading, Cooksey, Dorina Varner, Arbogast, Kinsey, John K. Murray, K.P. Reisinger, Chris Chambers, Simpson, Francoise, Ayers, Jeffrey Beard, Shirley Moore-Smeal, James C Barnacle, Leggore Signed by Honorable A. Richard Caputo on 3/24/14. (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JUAN MARTINEZ,
Plaintiff
v.
SGT. B JONES, et al.,
Defendants

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CIVIL NO. 3:CV-12-1547
(Judge Caputo)

MEMORANDUM
I.

Introduction
Juan Martinez, a former state inmate previously housed at the Camp Hill

State Correctional Institution (SCI-Camp Hill), in Camp Hill, Pennsylvania, filed this
civil rights action on August 6, 2012. (Doc. 1, Compl.) Named as defendants are
twenty-seven (27) employees of the Pennsylvania Department of Corrections (DOC)
and Joshua Yohe, an Assistant District Attorney of Cumberland County
Pennsylvania. Presently pending is the DOC defendants’ motion to dismiss
pursuant to Fed. R. Civ. P. 12(b). (Doc. 10.) For the reasons the follow, the DOC
defendants’ motion to dismiss will be granted in part and denied in part.

II.

Allegations of the Complaint
On March 28, 2010, following a verbal exchange, Sgt. Jones followed Mr.

Martinez to his cell. (Doc. 1, Compl., ECF pp. 63-64, ¶37.) After Sgt. Jones ordered
Mr. Martinez’s cellmate out of the cell, he started to bait Mr. Martinez into a physical
altercation. (Id.) When Mr. Martinez refused to fight Sgt. Jones, he was ordered to
wait outside the cell while Sgt. Jones searched it. (Id.) During the course of the cell
search some of Mr. Martinez’s property was destroyed. (Id.)
While waiting outside his cell, Mr. Martinez conversed with other inmates. Mr.
Martinez said that “Sgt. Jones is crazy, he came up here to fight me, this niggas out
of pocket.” (Id. ¶ 38.) Hearing this, Sgt. Jones grabbed Mr. Martinez by the neck
and dragged him back into the cell while punching him. (Id.) Only intending to
defend himself, Mr. Martinez struck Sgt. Jones twice. Sgt. Jones fell to one knee.
(Id.) Mr. Martinez immediately stepped away from Sgt. Jones and asked him if he
was “O.K.”. (Id.) At that moment, CO Cooksey entered the cell. (Id.) Sgt. Jones
said “fuck him up.” CO Cooksey tackled Mr. Martinez who was then placed in
restraints. He was handcuffed behind his back. (Id.) Sgt. Jones then commenced
to kick and punch Mr. Martinez in the face. (Id.) CO Ayers, CO Arbogast and CO
Simpson entered the cell and joined in the assault of Mr. Martinez. (Id.)
Sgt. Jones, CO Arbogast, CO Simpson, CO Ayers, CO Francoise, Unit
Manager Chambers and CO Long are alleged to have issued Mr. Martinez a
fabricated misconduct for the March 28, 2010 event claiming he assaulted Sgt.
Jones. They also cleaned up the blood in his cell before photographing the area.

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Prior to photographing Mr. Martinez’s face, they placed a clear bag over his head to
distort his facial injuries. (Id. ¶ 40.) As a result of the assault, Mr. Martinez suffered
severe injuries to his face and both eyes as well as severe pain. (Id. ¶ 41.)
Later that day, Sgt. Snook and CO Simpson refused to provide Mr. Martinez
with his “supper” tray. (Id. ¶ 42.)

CO Francoise also destroyed some of his

property. (Id. ¶ 43.) The following day, CO Oister refused to give Mr. Martinez a
breakfast tray. (Id. ¶ 44.)
On March 30, 2010, Mr. Martinez went before Hearing Examiner K. P.
Reisinger and plead not guilty to the assault misconduct. (Id. ¶ 45.) He explained
his actions were in self defense. (Id.) Mr. Martinez claims the Hearing Examiner
was not impartial because she told him that “if it was me I would have rung your little
neck.” (Id.) Ms. Reisinger also refused Mr. Martinez’s request to review the B-Block
surveillance camera footage in connection with this incident. (Id.)
Mr. Martinez appealed the Ms. Reisinger’s guilty findings to the Program
Review Committee (PRC). (Id. ¶ 46.) His appeal was denied by the PRC without
any investigation. (Id.)
Mr. Martinez claims Superintendent Murray, Secretary Jeffrey Beard, Lt.
Reading, Shirley Moore-Smeal, Dorina Varner, James Barnacle, and several John
and Jane Does, had prior knowledge of the defendants’ assaultive behavior and
their efforts of falsifying assault misconducts against other inmates in effort to cover
up their own malfeasance. (Id. ¶ 47.) The Chief Hearing Examiner failed to conduct
an investigation into Mr. Martinez’s claims that he was issued a false misconduct or

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that the Hearing Examiner was biased.
Mr. Martinez also names Cumberland County of Pennsylvania Assistant
District Attorney Joshua Yohe as a defendant. He asserts that ADA Yohe conspired
with the DOC defendants to cover up the events of March 28, 2010 because he
refused to file criminal charges against them as requested by Mr. Martinez. (Id. ¶
49.) Finally, Mr. Martinez avers the DOC defendants violated several state criminal
statutes ranging from assault to theft.
On February 21, 2013, the Commonwealth Defendants filed a motion to
dismiss the Complaint as time barred. (Doc. 10.) Mr. Martinez filed his opposition
brief on July 8, 2013. (Doc. 14.) The motion to dismiss is now fully briefed and ripe
for disposition.

III.

Standard of Review
Title 28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions

in federal court and wish to proceed in forma pauperis. Section 1915(e)(2)(B) gives
the court the authority, at any time, to dismiss a complaint if it is frivolous, malicious,
fails to state a claim on which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).
The standard for reviewing a complaint under this section is the same as that for
determining a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See Allah v.
Seiverling, 229 F.3d 22, 223 (3d Cir. 2000).

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On a motion to dismiss, “[w]e ‘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.’” Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted).
A complaint need only contain “a short and plain statement of the claim,” Fed.
R. Civ. P. 8(a), and detailed factual allegations are not required. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 1964, 167 L.Ed.2d 929 (2007).
Nonetheless, a complaint must allege sufficient facts, if accepted as true, state “a
claim to relief that is plausible on its face.” Id., at 570, 127 S.Ct. at 1974. “A claim
has facial plausibility when a plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d
868 (2009). “[T]hreadbare recitals of a cause of action’s elements, supported by
mere conclusory statements, do not suffice.” Id., at 678, 129 S.Ct. at 1949. A
plaintiff's “[f]actual allegations must be enough to raise a right to relief above the
speculative level....” Twombly, 550 U.S. at 555, 127 U.S. at 1965. Likewise, a
plaintiff must demonstrate that each named defendant personally participated in the
deprivation of his rights. Iqbal, 556 U.S. at 676-77, 129 S.Ct. at 1948-49. The
“sheer possibility that a defendant has acted unlawfully” is not sufficient, and “facts
that are ‘merely consistent with’ a defendant's liability” falls short of satisfying the
plausibility standard. Id. at 678, 129 S.Ct. at 1949.

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The court is “ ‘not bound to accept as true a legal conclusion couched as a
factual allegation.’ ” Id. at 678, 129 S.Ct. at 1950 (quoting Twombly, 550 U.S. at
555, 127 S.Ct. at 1965); see also PA Prison Soc. v. Cortes, 622 F.3d 215, 233 (3d
Cir. 2010). If the “well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct,” the complaint should be dismissed for failing to
show “ ‘that the pleader is entitled to relief’ ” as required by Fed. R. Civ. P. (8)(a).
Iqbal, 556 U.S. at 679, 129 S.Ct. at 1950 (quoting Fed. R. Civ. P. 8(a)(2)).
In resolving a motion to dismiss pursuant to Rule 12(b)(6), a district court’s
“inquiry is normally broken into three parts: (1) identifying the elements of the claim,
(2) reviewing the complaint to strike conclusory allegations, and then (3) looking at
the well-pleaded components of the complaint and evaluating whether all of the
elements identified in part one of the inquiry are sufficiently alleged.” Malleus v.
George, 641 F.3d 560, 563 (3d Cir. 2011). If a party opposing a motion to dismiss
does not “nudge [his] claims across the line from conceivable to plausible, [the]
complaint must be dismissed.” Twombly, 550 U.S. at 570, 127 S.Ct. at 1974.
Pro se pleadings are held to a less stringent standard than formal pleadings
drafted by attorneys. See Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197,
2200, 167 L.Ed.2d 1081 (2007); Mala v. Crow Bay Marina, Inc., 704 F.3d 239, 245
(3d Cir. 2013). Pro se complaints are to be liberally construed. Higgs v. Attorney
General of the U.S., 655 F.3d 333, 339 (3d Cir. 2011). Additionally, they are to be
granted leave to file a curative amended complaint even when a plaintiff does not
seek leave to amend, unless such an amendment would be inequitable or futile.

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See DelRio-Mocci v. Connonlly Prop., Inc., 672 F.3d 241, 251 (3d Cir. 2012).
However, a complaint that sets forth facts which affirmatively demonstrate that the
plaintiff has no right to recover is properly dismissed without leave to amend.
Grayson v. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002).

III.

Discussion
A.

Statute of Limitations

The DOC defendants argue that all of Mr. Martinez’s claims should be
dismissed because they are barred by the applicable statute of limitations. (Doc.
11.)
Generally, a “[statute of] limitations defense must be raised in the answer,
since Rule 12(b) does not permit it to be raised by motion.” Robinson v. Johnson,
313 F.3d 128, 134-35 (3d Cir. 2002). “However, the law of this Circuit (the so-called
‘Third Circuit Rule’) permits a limitations defense to be raised by a motion under
Rule 12(b)(6), but only if the time alleged in the statement of a claim shows that the
cause of action has not been brought within the statute of limitations.” Id. at 135;
see also Ball v. Famiglio, 726 F.3d 448, 459 (3d Cir. 2013). “If the bar is not
apparent on the face of the complaint, then it may not afford the basis for a
dismissal of the complaint under Rule 12(b)(6).” Bethel v. Jendoco Constr. Corp.,
570 F.2d 1168, 1174 (3d Cir. 1978). Thus, defendants may only prevail on the
statute of limitations at the motion to dismiss stage if, and only if, it is apparent from
the face of the complaint that the cause of action is barred. Robinson, 313 F.3d at
135 (citation omitted).
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The statute of limitations for a § 1983 claim is the particular state’s statute of
limitations for personal injury actions. See Wallace v. Kato, 549 U.S. 384, 387, 127
S.Ct. 1091, 1094, 166 L.Ed.2d 973 (2007). In Pennsylvania, the statute of
limitations applicable to Mr. Martinez’s claims is two years. See Kach v. Hose, 589
F.3d 626, 634 (3d Cir. 2009); 42 PA. CONS. STAT. § 5524. A § 1983 claim accrues
“when the plaintiff has a complete and present cause of action, [citation omitted],
that is, when the plaintiff can file suit and obtain relief.” Wallace, 549 U.S. at 388,
127 S.Ct. at 1095 (internal quotations and citations omitted). “Because exhaustion
of prison administrative remedies is mandatory under the Prison Litigation Reform
Act, the statute of limitations applicable to § 1983 actions may be tolled while a
prisoner exhausts.” Paluch v. Sec'y Pa. Dep't of Corr., 442 F. App'x 690, 694 (3d
Cir. 2011) (nonprecedential); see also Thompson v. Pitkins, 514 F. App’x 88, 90 (3d
Cir. 2013) (nonprecedential) (same).
Mr. Martinez’s Complaint was filed on August 8, 2013. The events giving rise
to this Complaint primarily occurred on March 28, 2010, when Mr. Martinez was
allegedly assaulted by several of the defendants while others looked. (Doc. 1,
Compl.) Mr. Martinez also claims he was denied food on two occasions following
the assault, and that his personal property was destroyed by defendants. (Id.)
Defendants assert that Mr. Martinez should have filed his Complaint no later than
March 28, 2012, the final date on which they assert Mr. Martinez’s constitutional
rights were allegedly violated. (Doc. 11, Defs.’ Mot. to Dismiss Br.)

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A review of the Complaint reveals that Mr. Martinez claims to have exhausted
his available administrative remedies, at least with respect to his assault claim. The
allegations of the Complaint do not suggest the time it took for Mr. Martinez to
exhaust his administrative remedies. Thus, at this stage of the proceedings, the
Court cannot resolve the statute of limitations issue, as the tolling effect any
administrative remedy process properly pursued may have had on the limitations
period is unknown. Given the absence of this crucial information, the Court cannot
definitively hold that based on the face of the Complaint the action was untimely
filed. See Paluch, supra; Thompson, supra. Accordingly, Defendants’ motion to
dismiss cannot be granted on this basis. See Bethel, supra; Robinson, supra.

B.

Alleged Violations of the Pennsylvania Constitution
and Pennsylvania Crimes Code

Aside from charging defendants for violating his Eighth Amendment rights,
Mr. Martinez also advances state law claims for assault and battery as well as other
violations of the Pennsylvania Crimes Code1 against the DOC defendants. (Doc. 1,
ECF p. 69.)
Because Mr. Martinez cannot recover civil damages for alleged violations of
these criminal statutes, these claims are not properly before the Court and are not
subject to this Court's supplemental jurisdiction. See Barrett v. City of Allentown,
152 F.R.D. 50, 55-56 (E.D. Pa. 1993)(“Unless there is a clear congressional intent to

1

Title 18 of Pennsylvania's Consolidated Statutes is known as the “Crimes Code,”
which sets forth conduct that is deemed criminal and provides for criminal penalties for their
violation. 18 PA. CONS. STAT. § 101, et seq.

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provide a civil remedy, a plaintiff cannot recover civil damages for an alleged
violation of a criminal statute.”) Thus, these claims will be dismissed.
With respect to Mr. Martinez’s state law claims of assault and battery,
Defendants argue that the doctrine of sovereign immunity bars them.
The law provides that Commonwealth employees, such as DOC employees,
enjoy immunity from most state law claims. “Pursuant to section 11 of Article I of
the Constitution of Pennsylvania, ... the Commonwealth, and its officials and
employees acting within the scope of their duties, shall continue to enjoy sovereign
immunity and official immunity and remain immune from suit except as the General
Assembly shall specifically waive the immunity.” 1 PA. CONS. STAT. § 2310. The
Pennsylvania General Assembly has provided nine specific exceptions to the
general grant of immunity: (1) the operation of a motor vehicle in the control or
possession of a Commonwealth party; (2) health care employees; (3) care, custody
or control of personal property; (4) Commonwealth-owned property; (5) potholes or
other dangerous conditions; (6) care, custody or control of animals; (7) liquor store
sales; (8) National Guard activities; and (9) toxoids and vaccines. See 42 PA. CONS.
STAT. § 8522.
Although the Commonwealth Defendants are correct that the assault and
battery law claims asserted by Mr. Martinez are not included in the categories for
which sovereign immunity have been waived, the DOC employees are only entitled
to immunity to the extent that they acted within the scope of their employment. See
1 PA. CONS. STAT. § 2310. In Pennsylvania, “ ‘conduct is within the scope of
employment if, but only if: (a) it is the kind [the employee] is employed to perform;
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(b) it occurs substantially within the authorized time and space limits [and] (c) it is
actuated, at least in part, by a purpose to serve the master....’ ” Brumfield v.
Sanders, 232 F.3d 376, 380 (3d Cir. 2000) (quoting Restatement (Second) Agency
§ 228). “Under Pennsylvania law, even unauthorized actions taken by an employee
can fall within the scope of his or her employment if they are ‘clearly incidental’ to his
or her employer's objectives.” Brumfield, 232 F.3d at 381.
Taking the allegations of the pleading as true,“ ‘an assault committed by an
employee upon another for personal reasons or in an outrageous manner [which] is
not actuated by an intent to perform the business of the employer ... is not within the
scope of employment.’ ” Strothers v. Nassan, No. 08-1624, 2009 WL 976604, at
*10 (W.D.Pa. Apr.9, 2009) (quoting R.A. v. First Church of Christ, 748 A.2d 692, 700
(Pa.Super.Ct. 2000)). Thus, “ ‘the question of whether an individual has acted within
the scope of his or her employment is ordinarily a question of fact for the jury to
decide.’ ” Id. (citing Orr v. William J. Burns Int'l Detective Agency, 337 Pa. 587, 12
A.2d 25, 27 (Pa.1940)). Accordingly, the allegations of the Complaint are all
indicative of personal motivation to injure Mr. Martinez, and not of a desire of the
Defendants to perform or further the business of their employer. As such, the
Defendants are not entitled to sovereign immunity based on the pleadings.2 Thus,
Mr. Martinez will be permitted to proceed on his state law claims against the DOC
Defendants at this time.

2

However, if discovery reveals that the DOC Defendants acted pursuant to their
employment responsibilities, they remain free to assert sovereign immunity at a later stage
in this proceeding. See, e.g., Strothers, 2009 WL 976604, at *10.

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C.

Mr. Martinez Cannot Recover Monetary Damages
from Defendants in their Official Capacities

Defendants contend that they are entitled to Eleventh Amendment immunity
from Mr. Martinez’s claims for monetary damages against them in their official
capacities.
The Eleventh Amendment bars suits against a state and its agencies in
federal court that seek monetary damages. See Puerto Rico Aqueduct and Sewer
Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144, 113 S.Ct. 684, 687-88, 121
L.Ed.2d 605 (1993); Lombardo v. Pennsylvania, 540 F.3d 190, 194 (3d Cir. 2008).
Suits against state officials in their official capacities are really suits against the
employing government agency, and as such, are also barred by the Eleventh
Amendment. See Hafer v. Melo, 502 U.S. 21, 25-27, 112 S.Ct. 358, 361-62, 116
L.Ed.2d 301 (1991); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 70-71, 109
S.Ct. 2304, 2312, 105 L.Ed.2d 45 (1989). Furthermore, as the Pennsylvania
Department of Corrections is an executive department of the Commonwealth of
Pennsylvania, see 71 PA. CONS. STAT. § 61, it shares in the Commonwealth’s
Eleventh Amendment immunity. Lavia v. Pennsylvania, Dept. Of Corr., 224 F.3d
190, 195 (3d Cir. 2000). The Commonwealth of Pennsylvania has not waived its
rights under the Eleventh Amendment to be sued in federal court. See 42 PA. CONS.
STAT. § 8521(b); Laskaris v. Thornburgh, 661 F.2d 23, 25 (3d Cir. 1981).
Here, Mr. Martinez has sued each defendant in his individual and official
capacities. Accordingly, his claims for monetary damages against Defendants in
their official capacities will be dismissed.
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D.

Claims Against ADA Yohe

The Court will exercise its authority under 28 U.S.C. § 1915(e)(2)(B)(iii) and
sua sponte dismiss ADA Yohe from the case as he is entitled to prosecutorial
immunity.
Mr. Martinez seeks to impose liability on ADA Yohe for failing to prosecute his
criminal complaint. (Doc. 1, ECF p. 68.) However, any action against ADA Yohe is
barred by the doctrine of absolute prosecutorial immunity. A District Attorney is
entitled prosecutorial immunity with respect to a Plaintiff's request for monetary
damages if they are based on the District Attorney's performance of his or her
official duties in prosecuting a person. See Stankowski v. Farley, 487 F.Supp.2d 543
(M.D.Pa. 2007); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128
(1976); Radocesky v. Munley, 247 F. App’x. 363, 365 (3d Cir. 2007) (“The decision
whether or not to initiate or prosecute a case is completely discretionary with
prosecutors and also is absolutely immunized from a suit for damages.”)
Accordingly, any damage claims against ADA Yohe, for his decision not to
prosecute any of the DOC defendants at Mr. Martinez’s behest, is precluded by the
doctrine of absolute prosecutorial immunity and will be dismissed without leave to
amend.

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IV.

Conclusion
Based on the foregoing, Defendants’ Motion to Dismiss (Doc. 10) the

Complaint pursuant to Fed. R. Civ. P. 12(b)(6) will be granted in part and denied in
part. Additionally, pursuant to 28 U.S.C. § 1915(e)(2)(B), Plaintiff’s claims against
ADA Yohe are dismissed with prejudice.
An appropriate Order follows.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
Date: March 24, 2014

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