Toomes v. U.S.P. Cannon et al
Filing
10
MEMORANDUM (Order to follow as separate docket entry)Signed by Honorable James M. Munley on 6/26/17. (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THOMAS TOOMES,
:
:
Plaintiff
:
:
v.
:
:
U.S.P. CANAAN, UNITED
:
STATES OF AMERICA,
:
:
Defendants :
CIVIL ACTION NO. 3:17-cv-0744
(Judge Munley)
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Thomas Toomes (“Plaintiff”), at all relevant times, an inmate incarcerated at the
United States Penitentiary at Canaan (“USP-Canaan”), Waymart, Pennsylvania, filed this
action on April 27, 2017, pursuant to Bivens v. Six Unknown Fed. Narcotics Agents, 403
U.S. 388 (1971), and the Federal Tort Claims Act (FTCA”), 28 U.S.C. §§ 1346(b), 2401,
2671, et seq. (Docs. 1, 4-1). He names USP Canaan and the United States of America as
Defendants. (Id.)
Plaintiff seeks to proceed in forma pauperis. (Doc. 8). A federal court must
dismiss a civil action filed in forma pauperis if the court determines that the complaint
“fails to state a claim on which relief may be granted.” 28 U.S.C. §1915(e)(2)(B)(ii).
For the reasons set forth below, the Court concludes that the complaint is subject to
dismissal pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).
1
I.
STANDARDS OF REVIEW
The legal standard for dismissing a complaint for failure to state a claim pursuant
to § 1915(e)(2)(B)(ii) is identical to the legal standard used when ruling on Rule 12(b)(6)
motions. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999) (applying
FED.R.CIV.P. 12(b)(6) standard to dismissal for failure to state a claim under §
1915(e)(2)(B)).
A well-pleaded complaint must contain more than mere labels and conclusions.
See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544
(2007). In reviewing the legal sufficiency of a complaint, the Court must accept the truth
of the factual allegations. Morrison v. Madison Dearborn Capital Partners III L.P., 463
F.3d 312, 314 (3d Cir. 2006). Notably, the assumption of truth is inapplicable to legal
conclusions or to “[t]hreadbare recitals of the elements of a cause of action supported by
mere conclusory statements.” Iqbal, 556 U.S. at 678. The controlling question is
whether the complaint “alleges enough facts to state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 555 (rejecting the “no set of facts” language from
Conley v. Gibson, 355 U.S. 41, 45-46 (1957) and requiring plaintiffs to allege facts
sufficient to “raise a right to relief above the speculative level”); see also Iqbal, 556 U.S.
at 678 (explaining that Rule 8 requires more than “an unadorned, the-defendant
unlawfully-harmed-me accusation”); see also FED. R. CIV. P. 8(a) (stating that the
complaint should include “a short and plain statement of the claim showing that the
pleader is entitled to relief”).
2
Although the court is generally limited in its review to the facts contained in the
complaint, it “may also consider matters of public record, orders, exhibits attached to the
complaint and items appearing in the record of the case.” Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1384 n. 2 (3d Cir. 1994); see also In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997).
II.
ALLEGATIONS OF THE COMPLAINT
Plaintiff alleges that on August 29, 2013, while incarcerated at USP-Canaan, he
was assaulted by a corrections officer. (Doc. 1, pp. 1, 2; Doc. 4-1, pp. 1, 2). He alleges
that he suffered severe injuries requiring transport to an outside hospital. (Id. at 3, 4; Id.
at 3, 4). He seeks compensatory and punitive damages. (Id. at 4; Id. at 5).
III.
DISCUSSION
A.
Bivens Claim
A court may dismiss a complaint for failure to state a claim, based on a time-bar,
where “the time alleged in the statement of a claim shows that the cause of action has not
been brought within the statute of limitations.” Bethel v. Jendoco Construction Corp.,
570 F.2d 1168, 1174 (3d Cir. 1978) (citation omitted). Although the statute of limitations
is an affirmative defense which may be waived by the defendant, it is appropriate to
dismiss sua sponte under 28 U.S.C. § 1915(e)(2) a pro se civil rights claim whose
untimeliness is apparent from the face of the complaint. See Jones v. Bock, 549 U.S. 199,
214–15 (2007) (holding if the allegations of a complaint, “for example, show that relief is
3
barred by the applicable statute of limitations, the complaint is subject to dismissal for
failure to state a claim”).
Like civil rights claims brought pursuant to 42 U.S.C. § 1983, the statute of
limitations for Bivens claims is subject to the same statute of limitations that applies to
personal injury tort claims in the state in which such a claim arises. See Wallace v. Kato,
549 U.S. 384, 387 (2007); Kach v. Hose, 589 F.3d 626, 639 (3d Cir. 2009). Plaintiff’s
claim arose in Pennsylvania; thus, the applicable statute of limitations is Pennsylvania’s
two year statute of limitations for personal injury actions. 42 PA. CONS. STAT. ANN. §
5524(2).
The statute of limitations period accrues when the plaintiff knows or has reason to
know of the injury which is the basis of the section 1983 action. See Garvin v. City of
Phila., 354 F.3d 215 (3d Cir. 2003); Genty v. Resolution Trust Corp., 937 F.2d 899, 919
(3d Cir.1991). It is clear from the complaint that the Bivens claim accrued on August 29,
2013, the date of the alleged assault. This action was commenced on April 24, 2017, the
date on which the complaint was signed and presumably delivered to prison authorities
for mailing. See Houston v. Lack, 487 U.S. 266 (1988) (holding that that date on which a
prisoner delivers documents to prison authorities for mailing is considered the filing
date). (Doc. 1, p. 4). The filing of the complaint is well outside the applicable limitations
period. Consequently, the complaint is barred by the statute of limitations.
4
Further, the facts of the case reveal that Pennsylvania’s tolling exceptions are
unavailable to Plaintiff. “Under Pennsylvania tolling principles, the statute is tolled until
‘plaintiffs knew or using reasonable diligence should have known of the claim.’ Urland v.
Merrell-Dow Pharmaceuticals, Inc., 822 F.2d 1268, 1272 (3d Cir. 1987). ‘[T]he Supreme
Court of [Pennsylvania] views tolling of the statute of limitations in terms of the ‘knew or
should have known’ standard whether the statute is tolled because of the discovery rule or
because of fraudulent concealment.’ Id. at 1273.” Vernau v. Vic’s Mkt., Inc., 896 F.2d
43, 46 (3d Cir. 1990)
The “discovery rule ‘tolls the limitations period until the plaintiff learns of his
cause of action or with reasonable diligence could have done so’ and ‘is an exception to
the usual principle that the statute of limitations begins to run immediately upon accrual
regardless of whether or not the injured party has any idea what has happened to him.’
William A. Graham Co. v. Haughey (Graham II), 646 F.3d 138, 141, 150 (3d Cir.
2011).” Stephens v. Clash, 796 F.3d 281, 284 (3d Cir. 2015). Plaintiff’s case, however,
differs from cases in which the discovery rule has been applied. See e.g., Acker v.
Palena, 260 Pa. Super. 214, 393 A.2d 1230 (1978) (finding the rule applied in a case
where physician concealed an injury and offered assurances that the injury would resolve
with the passage of time); Anthony v. Koppers, 284 Pa. Super. 81, 425 A.2d 428 (1980)
(statute begins to run when plaintiff or plaintiff’s decedent first had reason to learn that
death of plaintiff’s decedent may have been caused by occupational exposure to
5
emissions from defendant’s coke ovens). The existence and cause of Plaintiff’s inuries
were known from the day of the assault. He immediately knew of his injuries, knew of
the operative cause of the injury, and knew of the relationship between the cause and the
injury.
Nor can he argue that the statute should be tolled because he was not aware of the
severity of his injury until some future date. “This proposition has never been accepted
to toll the statute of limitations in Pennsylvania. To satisfy the requirement that plaintiff
know, or through the exercise of reasonable diligence should know of the injury, a
plaintiff need only know of its existence. See Petri, supra, 453 A.2d at 346 (“Although
[plaintiff] was not immediately aware of the nature or extent of the damage, [the fact of
the injury] was obvious.”)” Cardone v. Pathmark Supermarket, 658 F. Supp. 38, 40
(E.D. Pa. 1987).
The fraudulent concealment exception allows tolling of the statute of limitations
where “through fraud or concealment the defendant causes the plaintiff to relax his
vigilance or deviate from the right of inquiry.” Ciccarelli v. Carey Can. Mines, Ltd., 757
F.2d 548, 556 (3d Cir.1985). Clearly this exception is inapplicable to the facts of
Plaintiff’s case.
6
B.
FTCA
Under the FTCA, a plaintiff may not bring suit against the United States “for
injury or loss of property ... caused by the negligent or wrongful act or omission of any
employee of the Government ... unless the claimant shall have first presented the claim to
the appropriate Federal agency and his claim shall have been finally denied by the agency
in writing.” 28 U.S.C. § 2675(a). “It is a jurisdictional prerequisite to a suit under the
FTCA that a plaintiff have exhausted all administrative remedies.” See Santos ex rel.
Beato v. United States, 559 F.3d 189, 193 (3d Cir. 2009) (finding that to make a claim
under the FTCA, a claimant first must file the claim with the administrative agency
allegedly responsible for the injuries) (citations omitted). Plaintiff does not allege that he
previously filed an administrative claim regarding the assault. Consequently, this Court
lacks jurisdiction to consider his claims under the FTCA. See e.g. Bialowas v. United
States, 443 F.2d 1047, 1049 (3d Cir. 1971); Bieregu v. Ashcroft, 259 F.Supp.2d 342,
354–55 (D.N.J. 2003) (noting at PLRA screening stage that a district court lacks
jurisdiction over an FTCA claim until the claimant has exhausted administrative
remedies) (citing McNeil v. United States, 508 U.S. 106 (1993); Deutsch v. United
States, 67 F.3d 1080, 1091 (3d Cir. 1995)).
Accordingly, Plaintiff's claims pursuant to the FTCA will be dismissed without
prejudice because Plaintiff has not met the jurisdictional requirement under 28 U.S.C. §
2675(a). See Bialowas, 443 F.2d at 1049 (holding that presentation of the claim to the
7
appropriate federal agency and a final denial by that agency as a jurisdictional
prerequisite to suit under the FTCA).1
IV.
LEAVE TO AMEND
Before dismissing a complaint or claims for failure to state a claim upon which
relief may be granted pursuant to the screening provisions of 28 U.S.C. § 1915, the court
must grant plaintiff leave to amend his complaint unless amendment would be inequitable
or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108, 114 (3d Cir. 2002).
In this case, it is clear that allowing Plaintiff leave to amend would be futile. The Bivens
claim is clearly barred by the statute of limitations and no tolling exceptions are available
to Plaintiff. In addition, even if Plaintiff can meet the jurisdictional prerequisite
Moreover, the FTCA claim also suffers from the statute of limitations bar. An FTCA
action must also comply with the applicable statute of limitations. Under federal law, tort
actions against the United States must be:
1
[P]resented in writing to the appropriate Federal agency within two years after
such claim accrues or unless action is begun within six months after the date of
mailing, by certified or registered mail, of notice of final denial of the claim by
the agency to which it was presented.
28 U.S.C. § 2401(b).
Plaintiff contends that he was assaulted on August 29, 2013. (Doc. 4-1, p. 1). He did not
commence the instant action until April 24, 2017. (Doc. 4-1, p. 5). Thus, it appears from the
face of the Complaint that Plaintiff failed to commence his lawsuit within the two year
applicable statute of limitations. Although the FTCA’s statute of limitation, 28 U.S.C. §
2401(b), is a procedural, and not a jurisdictional, time bar, see United States v. Kwai Fun Wong,
— U.S. —, 135 S.Ct. 1625, 1633 (2015), Plaintiff has not provided any reason for equitable
tolling. Accordingly, it appears that Plaintiff's FTCA claim is time barred and is subject to
dismissal on this basis as well.
8
applicable to the FTCA claim, it, too, is barred by the statute of limitations and no tolling
exceptions apply.
V.
CONCLUSION
Based on the foregoing, Plaintiff’s complaint (Docs. 1, 4-1) will be dismissed
pursuant to 28 U.S.C. §1915(e)(2)(B)(ii).
An appropriate Order will issue.
BY THE COURT:
s/James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
Dated:
June 26, 2017
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?