Molcon v. Graterford Prison et al

Filing 7

MEMORANDUM (Order to follow as separate docket entry). Signed by Honorable Matthew W. Brann on 7/17/2017. (jn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL MOLCON,
Plaintiff,
v.
GRATERFORD PRISON, ETAL.,
Defendants.

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No.: 4:17-CV-905
(Judge Brann)

MEMORANDUM OPINION
JULY 17, 2017
I.

BACKGROUND
Michael Molcon, an inmate confined at the Lackawanna County Prison,

Scranton, Pennsylvania initiated this pro se civil rights action pursuant to 42
U.S.C. § 1983. Along with his complaint, Molcon submitted an in forma pauperis
application. For the reasons set forth below, Plaintiff’s action will be dismissed,
without prejudice, as legally frivolous pursuant to the screening provisions of 28
U.S.C. § 1915.
Named as Defendants are the State Correctional Institution, Graterford,
Pennsylvania (SCI-Graterford), two prison employees Correctional Officer Natal,
Lieutenant Judge, and ten (10) SCI-Graterford inmates. Plaintiff is also proceeding
against the State Correctional Institution, Frackville, Pennsylvania (SCI-Frackville)
and six(6) prisoners confined at that facility. Other Defendants include Warden
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Mickey Ameigh of the Wyoming County Prison, Tunkhannock, Pennsylvania;
Mike Sillip, who is vaguely described as being a staff member of Saint Michael’s
School in Wyoming County; and Jerry Pitkus, an employee of Wyoming County
Children and Youth.
Plaintiff states that he has been sexually assaulted and abused since his
childhood. His initial claim contends that he was assaulted by another boy when
he was a child at Saint Michael’s School for Boys in Wyoming County and
Defendant Pitkus failed to take any action. This alleged attack apparently
transpired at some point prior to 1993.
The Complaint next asserts that while in state prison between 1993-2002
Molcon was repeatedly raped by other prisoners. Plaintiff further avers that when
he later returned to county prison he was raped by another prisoner. Finally,
Plaintiff vaguely asserts that he was raped by several people at SCI-Graterford
between 2007-2016. The complaint seeks compensatory damages and injunctive
relief.
II.

DISCUSSION
Title 28 U.S.C. § 1915 imposes obligations on prisoners who file civil

actions in federal court and wish to proceed in forma pauperis under 28 U.S.C.
§ 1915, e.g., that the full filing fee ultimately must be paid (at least in a non-habeas
suit) § 1915(e)(2)provides:

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(2) Notwithstanding any filing fee, or any portion
thereof, that may have been paid, the court shall dismiss
the case at any time if the court determines that (A) the
allegation of poverty is untrue; or (B) the action or appeal
(i) is frivolous or malicious; (ii) fails to state a claim on
which relief may be granted; or (iii) seeks monetary relief
against a defendant who is immune from such relief.
When considering a complaint accompanied by a motion to proceed in
forma pauperis, a district court may rule that process should not be issued if the
complaint is malicious, presents an indisputably meritless legal theory, or is
predicated on clearly baseless factual contentions. Neitzke v. Williams, 490 U.S.
319, 327-28 (1989); Wilson v. Rackmill, 878 F.2d 772, 774 (3d Cir. 1989).
Indisputably meritless legal theories are those “in which either it is readily apparent
that the plaintiff’s complaint lacks an arguable basis in law or that the defendants
are clearly entitled to immunity from suit ... .” Roman v. Jeffes, 904 F.2d 192, 194
(3d Cir. 1990) (quoting Sultenfuss v. Snow, 894 F.2d 1277, 1278 (11th Cir. 1990)).
The United States Court of Appeals for the Third Circuit has added that “the
plain meaning of ‘frivolous’ authorizes the dismissal of in forma pauperis claims
that . . . are of little or no weight, value, or importance, not worthy of serious
consideration, or trivial.” Deutsch v. United States, 67 F.3d 1080, 1083 (3d Cir.
1995). It also has been determined that “the frivolousness determination is a
discretionary one,” and trial courts “are in the best position” to determine when an
indigent litigant’s complaint is appropriate for summary dismissal. Denton v.

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Hernandez, 504 U.S. 25, 33 (1992).
A.

SCI-Graterford and SCI-Frackville

The United States Supreme Court has ruled that a § 1983 action brought
against a “State and its Board of Corrections is barred by the Eleventh Amendment
unless [the State] has consented to the filing of such a suit.” Alabama v. Pugh, 438
U.S. 781, 782 (1978). The Third Circuit similarly concluded that the Pennsylvania
Board of Probation and Parole could not be sued because “it is not a ‘person’
within the meaning of Section 1983.” Thompson v. Burke, 556 F.2d 231, 232 (3d
Cir. 1977).
Courts have also repeatedly recognized that a prison or correctional facility
is not a person for purposes of civil rights liability. See Fischer v. Cahill, 474 F.2d
991, 992 (3d Cir. 1973); Philogene v. Adams County Prison, Civ. No. 97-0043,
slip op. at p. 4 (M.D. Pa. Jan. 30, 1997) (Rambo, C.J.); Sponsler v. Berks County
Prison, Civ. A. 95-1136, 1995 WL 92370, at *1 (E.D. Pa. Feb. 28, 1995).
Pursuant to the above standards, SCI-Graterford and SCI-Frackville are
clearly not persons for purposes of § 1983 and therefore not subject to civil rights
liability. See Thompkins v. Doe, No. 99-3941, slip op. at 3 (3d Cir. March 16,
2000).1

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There is no claim by Plaintiff that his constitutional rights were violated as the result of any
prison policy, custom or practice. See Monell v. Department of Social Servs., 436 U.S. 658,
690-91 (1978).
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B.

Inmate Defendants

As noted earlier, the named Defendants include ten (10) SCI-Graterford
inmates and six (6) prisoners who were confined at SCI-Frackville. Molcon
indicates that these inmates sexually assaulted him.
A plaintiff, in order to state an actionable civil rights claim, must plead two
essential elements: (1) that the conduct complained of was committed by a person
acting under color of law, and (2) that said conduct deprived the plaintiff of a
right, privilege, or immunity secured by the Constitution or laws of the United
States. Groman v. Township of Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw
by Strain v. Strackhouse, 920 F.2d 1135, 1141-42 (3d Cir. 1990). There is no
indication that any of the inmate Defendants were employed by any federal or state
governmental entity.
There are also no allegations that any of the inmate Defendants were either
acting under color of state law or conspired with a state official to violate Molcon’s
constitutional rights. Accordingly, the inmate Defendants are entitled to entry of
dismissal.
C.

Statute of Limitations

The complaint contains allegations against the Defendants beginning with
Plaintiff’s tenure at Saint Michael’s School which he indicates transpired at some
point prior to 1993. This claim includes an assertion that Defendants Sillip and

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Pitkus failed to protect Molcon’s safety during that period. There are also
contentions pertaining to Plaintiff’s incarceration at a state correctional facility,
perhaps SCI-Frackville, between 1993-2002 and thereafter at a county prison,
presumably the Wyoming County Prison prior to 2007. Finally, Plaintiff raises
claims relating to his SCI-Graterford confinement between 2007-2016.
In reviewing the applicability of the statute of limitations to a civil rights
action, a federal court must apply the appropriate state statute of limitations which
governs personal injury actions. Wilson v. Garcia, 471 U.S. 261, 276 (1985). The
Supreme Court clarified its decision in Wilson when it held that courts “should
borrow the general or residual [state] statute for personal injury actions.” Owens v.
Okure, 488 U.S. 235, 250 (1989).
Pennsylvania’s applicable personal injury statute of limitations is two years.
See 42 Pa. Cons. Stat. Ann. § 5524(7); Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d
Cir. 1993). Furthermore, the statute of limitations “begins to run from the time
when the plaintiff knows or has reason to know of the injury which is the basis” of
his civil rights claim. Gentry v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir.
1991) (citations omitted).
The question of when a cause of action accrues is a question of federal law.
Smith v. Wambaugh, 887 F. Supp. 752, 755 (M.D. Pa. 1995). A civil rights claim
accrues when the facts which support the claim reasonably should have become

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known to the plaintiff.
Molcon’s pending Complaint is dated May 19, 2017, and will be deemed
filed as of that date. See Houston v Lack, 487 U.S. 266, 271 (1988)(a prisoner’s
complaint is deemed filed at the time it was given to prison officials for mailing to
the Court). It is apparent that Plaintiff obtained knowledge of the purported
violations of his constitutional rights at the time they occurred. Consequently, he
can only pursue claims which occurred within the two year period preceding the
filing date of this action.
Although the statute of limitations is an affirmative defense which may be
voluntarily waived, it has been recognized that a district court may voluntarily
dismiss as frivolous a complaint when it is apparent on its face that the statute of
limitations has expired. See Ray v. Kertes, 285 F.3d 287, 293 n. 5 (3d Cir. 2002)(a
district court has inherent power to sua sponte dismiss a complaint which facially
violates a bar to suit); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995); Miller v.
Hassinger, Civil No. 02-1520, slip op. at 4 (M.D. Pa. Sept. 30, 2002)(Muir, J.);
Norris v. Vaughn, Civil No. 00-1856, slip op. at 4 (M.D. Pa. Oct. 30,
2000)(Rambo, J.).
The claims against Defendant Pitkus and Sillip relating to Plaintiff’s stay at
St. Michael’s School at some point prior to 1993 are clearly barred by
Pennsylvania’s controlling statute of limitations. Dismissal will therefore be

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entered in favor of those two Defendants.
Second, based upon Plaintiff’s contention that he has been confined at SCIGraterford since 2007 and his vague assertion that he was raped at another state
prison between 1993-2002, the claims pertaining to SCI-Frackville, the Wyoming
County Prison and its Warden defendant Ameigh likewise appear to be time
barred.2 Dismissal will also be entered in favor of Defendant Ameigh.
Finally, any claims pertaining to Plaintiff’s SCI-Graterford incarceration
which occurred more then two years prior to the May 19, 2017 filing of this action
will also be dismissed as time barred.
D.

Failure to Protect

Remaining Defendants are two SCI-Graterford employees, Correctional
Officer Natal and Lieutenant Judge. Plaintiff generally alleges only that he was
raped by several people at SCI-Graterford between 2007-16. Other than being
listed as Defendants there is no mention of either Natal and Judge in the
Complaint.
In order to set forth a viable civil rights claim, each named defendant must
be shown, via the complaint’s allegations, to have been personally involved in the
events or occurrences giving rise to the assertion of constitutional misconduct. See
Rizzo v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,
2.

There is no allegation that Plaintiff has been housed at any other correctional facility other then
SCI-Graterford since 2007.
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546 F.2d 1077 (3d Cir. 1976). As explained in Rode v. Dellarciprete, 845 F.2d
1195, 1207 (3d Cir. 1988):
A defendant in a civil rights action must have personal
involvement in the alleged wrongs. . . . [P]ersonal involvement
can be shown through allegations of personal direction or of
actual knowledge and acquiescence. Allegations of
participation or actual knowledge and acquiescence, however,
must be made with appropriate particularity.
Rode, 845 F.2d at 1207.
The Eighth Amendment’s prohibition against cruel and unusual punishment
imposes duties on prison officials to provide prisoners with the basic necessities of
life, such as food, clothing, shelter, sanitation, medical care and personal safety.
See Farmer v. Brennan, 511 U.S. 825, 832 (1994); Helling v. McKinney, 509 U.S.
25, 31 (1993). Under Farmer, an inmate must surmount the high hurdle of
showing that a prison official actually knew or was aware of a substantial risk to
inmate safety and deliberately disregarded that risk. Beers-Capitol v. Whetzel, 256
F. 3d 120, 125 (3d Cir. 2001). This requirement of actual knowledge means that
“the official must both be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”
Farmer, 511 U.S. at 837.
In Davidson v. Cannon, 474 U.S. 344, 347-48 (1986), the Supreme Court
noted that although a lack of due care had resulted in serious injury to an inmate
plaintiff, “that lack of care simply does not approach the sort of abusive
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government conduct” which would warrant recovery under § 1983. Id. at 347-348.
Simply put, allegations of negligence “do not trigger constitutional protections.”
Whooten v. Bussanich, No. 07-1441, slip op. at 4 (3d Cir. Sept. 12, 2007)(citation
omitted).3
As previously noted, here there are no facts alleged in the Complaint
concerning either of the Remaining Defendants. Plaintiff does not maintain that he
was sexually assaulted by either Natal or Judge. There is also no discernible
allegation that either Natal or Judge failed to protect his safety. Since there are
no facts alleged which could support a claim that the Remaining Defendants or any
SCI-Graterford was aware that Plaintiff was facing a substantial risk of serious
harm and deliberately failed to take appropriate action, a viable claim of deliberate
indifference has not been stated under Farmer.
Moreover, based upon the criteria set forth in Rode, the personal
involvement requirement has also not been sufficiently satisfied by Molcon, since
there are no discernible allegations that the two Remaining Defendants were
personally involved in any conduct which violated the Plaintiff’s constitutional
rights.. Therefore, even if timely raised, the claims against the two Remaining
Defendants are subject to dismissal because Plaintiff has not alleged that either of

3.

There is no discernible request by Plaintiff that this Court exercise supplemental
jurisdiction over a state law negligence claim. See 28 U.S.C. § 1367.
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those officials was personally involved in any unconstitutional conduct.
III. CONCLUSION
Pursuant to the above discussion, the sparsely worded complaint does not set
forth a viable claim against any of the named Defendants. Since Molcon’s
Complaint is “based on an indisputably meritless legal theory,” his pending claim
will be dismissed, without prejudice, as legally frivolous. Wilson, 878 F.2d at 774.
An appropriate Order will enter.4
BY THE COURT:

s/ Matthew W. Brann
Matthew W. Brann
United States District Judge

4.

If Plaintiff feels that he can cure the deficiencies outlined herein through submission of an
amended complaint, he may file a motion for reconsideration within fourteen (14) days of the
date of this Memorandum. Any such motion for reconsideration should be accompanied by a
proposed amended complaint.
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