PEW v. TORMA, et al
Filing
220
MEMORANDUM OPINION that this Court lacks subject matter jurisdiction over Plaintiffs Motions for Permanent Injunction to Enforce the Settlement Agreement and Sanctions (ECF No. 219 ), that venue in this District is improper and the motion should be denied. Signed by Magistrate Judge Lisa Pupo Lenihan on 07/01/2015. (jmb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
ALFONSO PERCY PEW,
Plaintiff,
vs.
JOANNE TORMA, DAVE
ROBERTS, T’SHANNA KYLER,
THOMAS A. FULCOMER,
WILLIAM J. LOVE, JEFFERY A.
BEARD, PHILIP L. JOHNSON,
MECHLING, WILLIAM TERZA,
VICUSI, LIEUTENANT 2 CULP,
EVANS, WILLIAM A. STICKMAN,
NIXON, JAMES META, CAROL A.
DEWITT, COREY A. BISH,
Defendants.
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No. 03-1728
Magistrate Judge Lisa Pupo Lenihan
ECF No. 219
MEMORANDUM ORDER
Alfonso Percy Pew (hereinafter “Plaintiff”) has filed a Motion for Permanent Injunction
on Settlement Agreement and a Motion for Sanctions. (ECF No. 219). Plaintiff’s motions will be
denied, as this Court lacks subject matter jurisdiction and venue is improper in this District.
I. FACTS AND PROCEDURAL HISTORY
Plaintiff is an inmate at the State Correctional Institution at Camp Hill (“S.C.I. Camp
Hill”), located in Cumberland County, Pennsylvania, and Defendants are employees of the
Pennsylvania Department of Corrections who have interacted with Plaintiff during his stay at
various state correctional institutions.1 In 2003, Plaintiff complained that the Defendants denied
his requests for dietary accommodations based on his religious needs, and claimed that the
1
Plaintiff served his sentence in numerous state correctional institutions before being transferred to S.C.I. Camp
Hill. Plaintiff transferred between these Pennsylvania State Correctional Institutions from the beginning of his
original lawsuit against the Defendants: S.C.I Rockview in Centre County; S.C.I. Smithfield in Huntingdon County;
S.C.I. Frackville in Schuylkill County; and S.C.I. Mahoney in Schuylkill County.
1
Defendants violated the First Amendment of the Constitution and Religious Land Use and
Institutionalized Persons Act of 2000, Pub. L. No. 106-274, 114 Stat. 803 (2000).
The case was set for trial on October 10, 2006. On September 29, 2006 pro bono counsel
for Plaintiff filed a Joint Motion for Stay alleging that the parties were involved in settlement
negotiations and an agreement was imminent. (ECF No. 141). The Court granted the stay and a
conference was held on October 13, 2006. At the conference counsel reported that the case had
been settled. (ECF No. 143). A Notice of Settlement was filed on December 26, 2006, (ECF No.
146) which included a Settlement Agreement and a Release of Claims signed by Plaintiff on
November 17, 2006. Pursuant to the Release of Claims, Plaintiff agreed to discontinue his action
against Defendants pursuant to a settlement agreement (hereinafter “Settlement Agreement”).
(ECF No. 146-1). The Settlement Agreement also called for Defendants to supply and Plaintiff to
accept a diet that would comply with Plaintiff’s religious needs. (ECF No. 146-1). Finally, the
Settlement Agreement contemplated, and the Court agreed, that the Court would retain
jurisdiction for the purpose of enforcing its terms.
Shortly thereafter Plaintiff filed the first of many motions to enforce the settlement
agreement, alleging that the diet he was being provided was not adequate and not in compliance
with the terms of the agreement. (ECF No. 149).2 The Court ordered two responses, including a
requirement that the nutritional value of the meals be addressed by Defendant. (docket entries
dated 3/24/10 and 5/19/10). After considering the evidence presented the first motion to enforce
2
This initial motion included complaints that Plaintiff was not being provided with an adequate portion of breakfast
cereal, not being given “healthy” jelly or peanut butter, not being provided with an adequate rotation of vegetables
and fruits or healthy bean paste, etc. He also complained about the milk product- cheap soy milk powder, and
averred that he was periodically deprived of portions of his meals.
2
was denied. (ECF No. 155). Plaintiff filed seven subsequent motions to enforce3, all alleging
similar violations. (See ECF Nos. 157, 162, 170, 177, 184, 188, 196).
On November 11, 2014, the Court referred Plaintiff to the Pro Se Prisoner Mediation
Program4 (ECF No. 199) and also, on December 11, 2014 held a hearing regarding the issues
raised, with Plaintiff appearing via videoconference from his place of incarceration. (ECF No.
203). Also at this time, the Court secured representatives from the University of Pittsburgh
School of Law to try to assist Plaintiff, observe the hearing and to later represent his interests.
(ECF Nos. 199, 203 & 205).
Following much discussion, both in and out of the courtroom, a proposal was made that
the case be re-opened and a second settlement agreement be agreed to that would not involve
court oversight. (ECF No. 205).
Thereafter, Defendants filed a stipulation of dismissal under Federal Rule of Civil
Procedure (“Rule”) 41(a)(1)(A)(ii) (ECF No. 208), to which Plaintiff agreed pursuant to his
signing of a new settlement agreement (hereinafter “Second Settlement Agreement”) and
Release of Claims dated February 10, 2015 (ECF No. 207-1). The Court subsequently entered an
order declaring the original Settlement Agreement null and void, and dismissing Plaintiff’s
underlying case with prejudice. (ECF No. 209).
Although the Court did not retain enforcement powers over the second agreement, in an
effort to ensure compliance, the Court continued to hold status conferences to ensure Plaintiff’s
receipt of meals that complied with his religious dietary restrictions.5 ECF Nos. 213, 215. For
3
Along with a few third circuit appeals.
Through the Pro Se Prisoner Mediation Program, the United States District Court for the Western District of
Pennsylvania offers representation and a neutral mediator at no cost to its incarcerated pro se litigants who have
filed civil rights cases with the court.
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These conferences were held virtually via telephone or video. Before each conference, the Court ordered
corrections officers, including the Defendants, to ensure Plaintiff’s virtual presence at the scheduled conference
times.
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reasons unknown to the Court, Plaintiff refused to attend a conference that was to be held for his
benefit on April 17, 2015 (ECF No. 216).6 A dietary representative present at the conference
informed the Court that Plaintiff had been receiving the diet established in the Second Settlement
Agreement, and that he had not recently made any verbal or written complaints to dietary
employees at S.C.I. Camp Hill. Despite the representative’s statements reflecting Plaintiff’s
positive condition, Plaintiff continued to notice the Court about health issues (ECF No. 217) and
the Defendants’ failure to comply with the Second Settlement Agreement (ECF No. 218).
Plaintiff now seeks to enforce the Second Settlement Agreement through a Motion for
Permanent Injunction and a Motion for Sanctions (ECF No. 219).
II. JURISDICTION
While the Parties have not challenged the Court’s subject matter jurisdiction to consider
Plaintiff’s present motions, the Court has an obligation to determine sua sponte whether subject
matter jurisdiction is appropriate. Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006). The present
jurisdictional inquiry must begin with the nature of the documents signed by the parties, which
purported to dismiss Plaintiff’s underlying action against the Defendants pursuant to Rule
41(a)(1)(A)(ii) (ECF No. 207-1 & 208).
A. Dismissals Under Federal Rule of Civil Procedure 41
Federal Rule of Civil Procedure 41(a)(1) provides that parties may choose to voluntarily
dismiss an action:
(A) Without a Court Order. Subject to Rules 23(e),
23.1(c), 23.2, and 66 and any applicable federal
statute, the plaintiff may dismiss an action
without a court order by filing: (i) a notice of
dismissal before the opposing party serves as
either an answer or motion for summary
6
Scott Whalen, a representative attending the conference for S.C.I. Camp Hill, advised the Court that Mr. Pew
refused to come to the phone for the conference call.
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judgment; or (ii) a stipulation of dismissal
signed by all parties who have appeared.
Under Rule 41(a)(1)(A)(ii), parties can dismiss a complaint without a court order by
filing a stipulation of dismissal signed by all the parties. The Third Circuit has held, and most
other circuit courts agree, that a dismissal under Rule 41(a)(1)(A)(ii) is immediate and automatic,
requiring no further judicial approval. First Nat’l Bank of Toms River v. Marine City, Inc., 411
F.2d 674, 677 (3d Cir. 1969). See also SmallBizPros, Inc. v. MacDonald, 618 F.3d 458, 463 (5th
Cir. 2010) (holding that “any action by the district court after the filing of . . . a stipulation [under
Rule 41(a)(1)(A)(ii)] can have no force or effect because the matter has already been dismissed .
. . .”); Gambale v. Deutsche Bank AG, 377 F.3d 133, 139 (2d Cir. 2004) (“Generally . . . a
plaintiff’s filing in the district court of a stipulation of dismissal signed by all parties pursuant to
Rule 41(a)(1)(A)(ii) divests the court of its jurisdiction over a case, irrespective of whether the
district court approves the stipulation.”). A signed stipulation of dismissal under Rule
41(a)(1)(A)(ii) therefore technically automatically divests a court of subject matter jurisdiction,
rendering any subsequent actions by the court regarding the matter ineffective. See Anago
Franchising, Inc. v. Shaz, L.L.C., 677 F.3d 1272, 1281 (11th Cir. 2012) (holding that a court’s
dismissal order issued after a settlement agreement is technically ineffective concerning the
parties due to lack of subject matter jurisdiction).
B. Dismissals Under Rule 41(a)(1)(A)(ii) and Corresponding Dismissal Orders
While Rule 41(a)(1)(A)(ii) automatically divests a court of subject matter jurisdiction, the
Third Circuit has continuously examined later dismissal orders to find whether a district court
has explicitly or implicitly agreed to retain subject matter jurisdiction over a corresponding
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settlement agreement through supplemental jurisdiction.7 See, e.g., Sander Sales Enterprises,
Ltd. v. Saks, Inc., 245 F. App’x 108 (3d Cir. 2007); Marwood v. Elizabeth Forward Sch. Dist., 93
F. App’x 333 (3d Cir. 2004); Shaffer v. GTE North, Inc., 284 F.3d 500 (3d Cir. 2002); Bowen v.
Monus (In re Phar-Mor, Inc. Sec. Litig.), 172 F.3d 270 (3d Cir. 1999) (examining dismissal
orders to determine whether a district court retained jurisdiction over certain settlement
agreements). In doing so, the Third Circuit has repeatedly followed a unanimous Supreme Court
decision, which held that a court could retain subject matter jurisdiction if it issued a dismissal
order with explicit language to that effect or that specified terms of the corresponding settlement
agreement. Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 381-82 (1994). However,
absent either of these components in a dismissal order, a court does not retain jurisdiction unless
there is some independent basis for subject matter jurisdiction. Id. at 382.
The present parties signed a stipulation of dismissal pursuant to Rule 41(a)(1)(A)(ii)
(ECF Nos. 207 & 208) and this Court subsequently entered an order dismissing the case with
prejudice (ECF No. 209).8 Neither the stipulation nor the dismissal order contains any of the
acknowledged components in order for the Court to appropriately retain subject matter
jurisdiction over any actions related to enforcing the Second Settlement Agreement.
Accordingly, while subject matter jurisdiction over Plaintiff’s previous federal claims was
7
Precedent case law uses the term “ancillary jurisdiction” to describe what is now widely referred to by courts as
“supplemental jurisdiction.” Congress codified much of the common law doctrine of ancillary jurisdiction as part of
“supplemental jurisdiction” in 28 U.S.C. § 1367, which provides in part that “district courts shall have supplemental
jurisdiction over all claims that are so related to claims in the action within such original jurisdiction that they form
part of the same case or controversy under Article III of the United States Constitution.” This opinion refers to the
prior doctrine of “ancillary jurisdiction” with the updated and more general term of “supplemental jurisdiction.”
8
Voluntary dismissals under Rule 41(a) are presumed to be without prejudice. See Fed. R. Civ. P. 41(a)(1)(B).
However, the parties or the court can generally decide to dismiss the action with prejudice by including language to
this effect. See, e.g., McKenzie v. Davenport-Harris Funeral Home, 834 F.2d 930, 934 (11th Cir. 1987) (“Under
Rule 41(a)(1)[A](ii)[,] where the stipulation does not state that the dismissal is with prejudice, it must be considered
without prejudice.”).
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appropriate pursuant to 28 U.S.C. § 1331, the Court lacks subject matter jurisdiction to decide
Plaintiff’s present motions.
1. “Retaining Jurisdiction” Provision in the Dismissal Order
This Court’s dismissal order does not contain any provision purporting to preserve
subject matter jurisdiction over the parties’ Second Settlement Agreement. In order for a court to
have supplemental jurisdiction over a settlement agreement in this manner, there must be some
explicit reference to a court’s desire to retain subject matter jurisdiction over the matter in the
dismissal order itself. See Kokkonen, 511 U.S. at 381 (stating that the court might have had
subject matter jurisdiction to enforce the settlement agreement “if the parties’ obligation to
comply with the terms of the settlement agreement had been part of the order of dismissal . . . .”
for example in a “provision [‘]retaining jurisdiction[’] over the settlement agreement . . . .”).
In Sander Sales, 245 F. App’x at 109, the court used the following language: ‘“without
prejudice to the right, upon good cause shown within 45 days, or until August 17, 2004, to
reopen the action if the settlement is not consummated.”’ The dismissal order stated that the
terms of the settlement were ‘“incorporated herein by reference and the Court shall retain
jurisdiction over the settlement agreement to enforce its terms.”’ Id. (emphasis added). The court
held that this language properly preserved the court’s jurisdiction over the settlement agreement.
Id. at 111.
While the original Settlement Agreement invited Plaintiff to enforce it by filing a motion
with the Court (ECF 146-1 at ¶ 4), the Court declared the Settlement Agreement null and void,
which Plaintiff recognized by signing the Second Settlement Agreement (ECF No. 207-1 at ¶ 6).
The Second Settlement Agreement contains no similar language. The Court’s dismissal order
(ECF No. 209) does not contain a similar provision to the “retaining jurisdiction” provision in
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the dismissal order at issue in Sander Sales, 245 F. App’x at 109, which conferred supplemental
jurisdiction over the parties’ settlement agreement. The dismissal order here states that the
“[p]arties have engaged in settlement discussions” and that they have “mutually agreed and
entered into a settlement agreement covering all claims in the . . . [underlying] case” (ECF No.
209). The dismissal order briefly references the settlement agreement as “attached” in “Exhibit
A” (ECF No. 209). The order thus does not contain a “retaining jurisdiction” provision sufficient
to confer supplemental jurisdiction over Plaintiff’s present motions seeking to enforce the
Second Settlement Agreement.
2. Incorporation of Settlement Terms in a Court’s Dismissal Order
The Court’s dismissal order does not sufficiently incorporate the Second Settlement
Agreement to retain jurisdiction under Kokkonen, 511 U.S. at 381-82. While the Third Circuit
followed Kokkonen in concluding that a district court retains jurisdiction to the extent that it
incorporates a settlement agreement into its dismissal order, it has consistently held that the order
must itself explicitly incorporate the terms of the agreement in order to do so. See Marwood, 91
F. App’x at 335 (holding that a district court retained jurisdiction because the judge’s dismissal
order clearly incorporated the settlement agreement by explicitly setting out the terms of
agreement). The Court of Appeals for this Circuit recognizes that even when a judge indicates
approval and awareness of a settlement agreement, this does not necessarily mean that the terms
of the settlement agreement are a part of that judge’s order. Kokkonen, 511 U.S. at 381. Namely,
“[a] dismissal order’s mere reference to the fact of settlement does not incorporate the terms of
the settlement agreement into the dismissal order.” Bowen, 172 F.3d 270, 274 (3d Cir. 1999)
(citing Miener v. Missouri Dep’t of Mental Health, 62 F.3d 1126, 1128 (8th Cir. 1995)).
8
In Kokkonen, 511 U.S. at 381-82, a petitioner’s suit was dismissed pursuant to Rule
41(a)(1)(A)(ii) because the parties arrived at a settlement agreement. The Supreme Court
reversed the judgment of the Third Circuit that granted the respondent’s motion to enforce the
settlement agreement, explaining that the dismissal order did not sufficiently incorporate the
terms of the settlement in order to allow the court to examine motions related to enforcing it. Id.
The Third Circuit has since indicated that a phrase in the dismissal order reading “pursuant to the
terms of Settlement” does not sufficiently incorporate the terms of a settlement agreement in
order for a court to retain jurisdiction over it. Bowen, 172 F.3d at 774-75
This Court’s dismissal order, like the dismissal order at issue in Bowen, 172 F.3d at 77475, only briefly refers to the Second Settlement Agreement. The order simply references the
Agreement to provide context behind the reasons for dismissal with prejudice (ECF No. 209).
The dismissal order does not explicitly incorporate any terms of the agreement, nor does it
indicate the binding nature of the terms of the Second Settlement Agreement on the parties.
Thus, the dismissal order does not “sufficiently incorporate” the parties’ Second Settlement
Agreement under the standard articulated by both the Supreme Court and the Third Circuit. See
Kokkonen, 511 U.S. at 381-82; Bowen, 172 F.3d 274-75.
3. Independent Basis for Jurisdiction
The Second Settlement Agreement is a contract to be enforced by state courts, and there
is no independent basis for jurisdiction over its enforcement. Where there is no independent basis
for jurisdiction over a settlement agreement, a federal court lacks supplemental jurisdiction over
the settlement agreement, because such an agreement is “more than just a continuation or
renewal of the dismissed suit….” Kokkonen, 511 U.S. at 378.
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In Kokkonen, the Court held that the district court lacked subject matter jurisdiction when
the respondent sought enforcement of a settlement agreement, as opposed to re-opening of his
dismissed suit which appropriately held federal court jurisdiction. Id. Similarly here, Plaintiff
wishes to enforce a settlement agreement, not to re-open the lawsuit that this Court has
dismissed. The Court’s reasoning in Kokkonen, 511 U.S. at 378, is instructive in this case. The
Second Settlement Agreement between the Plaintiff and Defendants is a contract, and on its face
does not establish an independent basis for jurisdiction.
As federal courts are courts of limited jurisdiction, the party seeking federal jurisdiction
has the burden of establishing subject matter jurisdiction. Id. at 377 (citations omitted).
Plaintiff’s current Motions related to enforcing the Second Settlement Agreement are contractual
in nature and belong in state court unless the Plaintiff can establish a separate basis for federal
jurisdiction. Plaintiff has failed to present the Court with a separate basis for which it could
exercise subject matter jurisdiction over the Second Settlement Agreement, so the Court cannot
rule on his present motions.
III. VENUE
The Western District of Pennsylvania is an improper venue for bringing the motions
related to enforcing the Second Settlement Agreement. 28 U.S.C. § 1391(b) provides in relevant
part that a civil action is properly brought in:
(1) a judicial district in which any defendant
resides, if all defendants are residents of the
State in which the district is located
(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred, or a substantial part of property that is
the subject of the action is situated.
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Plaintiff’s residence is located in the Middle District of Pennsylvania for purposes of
venue pursuant to 28 U.S.C. § 1391(b)(1).9 While Plaintiff has been placed in multiple
correctional institutions, the Second Settlement Agreement he now seeks to enforce arose out of
events that occurred during Plaintiff’s stays in multiple Pennsylvania State Correctional
Institutions, all of which are located in the Middle District of Pennsylvania. See supra note 1.
Plaintiff also filed each motion related to enforcing the original and second Settlement
Agreements, including the present motions, during his stays in State Correctional Institutions in
the Middle District of Pennsylvania. See supra note 1. Proper venue over the Plaintiff’s case lies
in the Middle District of Pennsylvania under both 28 U.S.C. §§ 1391(b)(1) and (2).
Thus, even if the Plaintiff could meet his burden of proving this Court’s subject matter
jurisdiction over his Motions, which this Court finds he does not, he must file these Motions in
the United States District Court for the Middle District of Pennsylvania and cease filing motions
related to the matter in this District.
IV. CONCLUSION
For the reasons set forth above, this Court lacks subject matter jurisdiction over
Plaintiff’s Motions for Permanent Injunction to Enforce the Settlement Agreement and Sanctions
(ECF No. 219), and venue in this District is improper. An Order consistent with this Opinion will
be entered.
________________________________
Dated: July 1, 2015
Lisa Pupo Lenihan
U.S. Magistrate Judge
9
At the time Plaintiff filed the present motions (ECF No. 219), his residence was at S.C.I. Camp Hill in Cumberland
County, Pennsylvania, which is located in the Middle District of Pennsylvania.
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cc:
Alfonso Percy Pew
BT-7263
SCI-Camp Hill
2500 Lisburn Road
Camp Hill, PA 17001
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