Cole v. Ferranti et al

Filing 118

ORDER 1. The Report and Recommendation of Magistrate Judge Smyser (Doc.(113) is ADOPTED IN PART and REJECTED IN PART to the following extent: a. The Defendants Motion for Summary Judgment (Doc. 91) is DENIED. b. The Plaintiffs Motion for Summary Judgment (Doc. 96) is DENIED. 2. This case is REMANDED to Magistrate Judge Smyser for further pre-trial management. (eo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JAMES COLE,
Plaintiffs,
v.
SETH FERRANTI and
GORILLA CONVICT
PUBLISHING,
Defendants.

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4:10-cv-426
Hon. John E. Jones III
Hon. J. Andrew Smyser

MEMORANDUM AND ORDER
September 2, 2011
THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:
This matter is before the Court on the Report and Recommendation
(“R&R”) of Magistrate Judge J. Andrew Smyser (Doc. 113), filed on August 3,
2010 which recommends that Defendants’ Motion for Summary Judgment (Doc.
91) be granted and that Plaintiff’s Motion for Summary Judgment (Doc. 96).
Specifically, Magistrate Judge Smyser concludes that Defendants are entitled to
judgment as a matter of law because Plaintiff filed the instant action outside of the
applicable one-year statute of limitations applied to libel actions in Pennsylvania.
Plaintiff filed objections to the R&R. (Docs. 115-117). Accordingly, this matter is
ripe for disposition. For the reasons set forth below, the Court will reject the R&R
and remand this matter to Magistrate Judge Smyser for further pre-trial

management.
I.

BACKGROUND
Pro se Plaintiff James Cole (“Plaintiff” or “Cole”) filed this action against

pro se Defendants Seth Ferranti and Gorilla Convict Publications (collectively
“Defendants”) on February 25, 2010. Both Cole and Defendant Ferranti are
federal inmates. The Plaintiff claims that Defendant Ferranti authored and that
Defendant Gorilla Convict Publications published a book entitled Street Legends.
Plaintiff claims that despite previously instructing Defendant Ferranti not to use his
name in the book Street Legends, the Defendants nonetheless included false and
defamatory statements about him in the book. These statements center around
Plaintiff’s alleged involvement with the criminal organization called the Junior
Black Mafia, which Plaintiff denies. Plaintiff also alleges that the quotations
attributed to him within the book are false. Plaintiff filed the instant action
contending that the Defendants committed libel and slander against him.
On March 3, 2011, we issued a Memorandum and Order (Doc. 72) adopting
in part and rejecting in part a previous R&R (Doc. 60) issued by Magistrate Judge
Smyser, thereby dismissing Plaintiff’s slander claim. The matter was remanded to
Magistrate Judge Smyser for further pretrial management. Thereafter, the instant
cross-Motions for Summary Judgment were filed. As noted above, Magistrate

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Judge Smyser recommends that the Defendants’ Motion for Summary Judgment be
granted and that this action be dismissed, because Plaintiff’s claim was filed
outside the applicable statute of limitations for libel actions. Plaintiff filed
objections to the R&R, which we shall now consider herein.
II.

STANDARD OF REVIEW
When objections are filed to the report of a magistrate judge, the district

court makes a de novo determination of those portions of the report or specified
proposed findings or recommendations to which objections are made. 28 U.S.C. §
636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may
accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. Id. Although the standard of review is de novo, 28 U.S.C. §
636(b)(1) permits whatever reliance the district court, in the exercise of sound
discretion, chooses to place on a magistrate judge’s proposed findings and
recommendations. Raddatz, 447 U.S. at 674-75; see also Mathews v. Weber, 423
U.S. 261, 275 (1976); Goney v. Clark, 749 F.2d 5, 7 (3d Cir. 1984).
III.

DISCUSSION
Magistrate Judge Smyser recommends that summary judgment be granted in

favor of the Defendants on the basis that Plaintiff’s action was filed outside the
one-year statute of limitations applied to libel actions in Pennsylvania.

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Specifically, Magistrate Judge Smyser concluded that Plaintiff’s action accrued in
April 2008, when Street Legends was published, and that Plaintiff cannot avail
himself of any tolling of the statute.
In his objections, Plaintiff argues that he did not have the full opportunity to
address the statute of limitations arguments in his brief in opposition to summary
judgment. He also asserts that the Magistrate Judge’s inferences concerning
Plaintiff’s ability to learn of the book’s publication in April of 2008 are
unreasonable.
Recognizing Plaintiff’s pro se status, as well as his condition as an inmate,
we shall decline to adopt the Magistrate Judge’s recommendation to grant
summary judgment on statute of limitations grounds at this time.1 Accordingly, we
shall deny the pending Motions for Summary Judgment. We shall remand this
matter back to Magistrate Judge Smyser to give the Plaintiff additional opportunity
to develop the record regarding the statute of limitations issue, as well as any other
issues that the Magistrate Judge sees fit.
NOW, THEREFORE IT IS HEREBY ORDERED THAT:
1.

The Report and Recommendation of Magistrate Judge Smyser (Doc.

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Without further development of the record, we are not entirely comfortable with the
inferences drawn by the Magistrate Judge related to the tolling of the statute limitations issue.
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113) is ADOPTED IN PART and REJECTED IN PART to the
following extent:
a.

The Defendants’ Motion for Summary Judgment (Doc. 91) is
DENIED.

b.

The Plaintiff’s Motion for Summary Judgment (Doc. 96) is
DENIED.

2.

This case is REMANDED to Magistrate Judge Smyser for further
pre-trial management.

s/ John E. Jones III
John E. Jones III
United States District Judge

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