REED v. WETZEL et al

Filing 14

MEMORANDUM ORDER dismissing case as to defendants Nicoletti and the John Doe Defendants pursuant to the Prison Litigation Reform Act for failure to state a claim upon which relief can be granting and adopting 11 Report and Recommendation of Judge Kelly as the opinion of the Court. Signed by Judge David S. Cercone on 11/27/13. (njt)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYL VANIA

)

)
)
vs.
)
)
)
)
JOHN E. WETZEL, Secretary of
)
Corrections,' BRIAN CO~EMAN,
Superintendent; STEVEN GATES,
)
Deputy Superintendent,' H A R R Y )
NICOLETTI; CORRECTIONS OFFICERS)
JOHN DOE; RECORDS OFFICE JOHN
)
DOE,
)
Defendants. )
LEROY REED,

Plaintiff,

2:13cv477
Electronic Filing
Judge David Stewart Cercone/
Magistrate Judge Maureen P. Kelly

MEMORANDUM ORDER
The above-captioned pro se prisoner civil rights case was received by the Clerk of Court
on April 1,2003, and was referred to Magistrate Judge Cynthia Reed Eddy for pretrial
proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l), and Local
Civil Rules 72.C and D.
After Magistrate Judge Eddy recused herself, the case was referred to Magistrate Judge
Maureen P. Kelly. Magistrate Judge Kelly issued a Report and Recommendation ("the Report"),
ECF No. 11, recommending dismissal of the suit against only Defendants Nicoletti and the John
Doe Corrections Officers all of whom had allegedly abused Plaintiff between 2003 and 2005.
The Report concluded that Plaintiffs claims against these particular defendants were barred by
the applicable statute of limitations because the earliest that Plaintiff could be deemed to have
filed this suit, pursuant to the prisoner mail box rule, was March 26, 2013, more than 7 years
after the last alleged abuse by these particular defendants. Plaintiff was informed that he could
file objections. After being granted an extension of time in which to do so, Plaintiff filed his

objections. ECF No. 13. None of the objections merits rejection of the Report and only one of
the objections merits any comment.
Plaintiff alleges that he did in fact file a Civil Rights Complaint back on December 13,
2003 ("the 2003 Complaint"), against Defendants Nicoletti and the John Doe Defendants. ECF
No. 13 at I. But, he claims, the 2003 Complaint was never mailed out by the prison authorities.
Plaintiff also urges the Court to hold a hearing to establish this alleged fact that he tried to mail
out the 2003 Complaint but was thwarted in his efforts to do so. Id. at 6. We find that we do
not need to hold a hearing because even assuming the truth of the fact that Plaintiff alleges, i.e.,
that he attempted to file the 2003 Complaint but was thwarted, such would not save his claims
against Defendants Nicoletti and the John Doe Defendants.
We deem Plaintiffs assertions to constitute an argument for equitable tolling of the
statute of limitations. However, we find that Plaintiff has failed to carry his burden to show
entitlement to equitable tolling.
As explained by the Court of Appeals:
Equitable tolling applies when a plaintiff has "been prevented from filing in a
timely manner due to sufficiently inequitable circumstances." Seitzinger v.
Reading Hasp. & Med. etr., 165 F.3d 236, 240 (3d Cir.1999). This occurs "(I)
where the defendant has actively misled the plaintiff respecting the plaintiffs
cause of action; (2) where the plaintiff in some extraordinary way has been
prevented from asserting his or her rights; or (3) where the plaintiff has timely
asserted his or her rights mistakenly in the wrong forum." .... The plaintiff,
however must "exercise due diligence in preserving his claim." Irwin, 498 U.S. at
96, 111 S.Ct. 453. Equitable tolling is an extraordinary remedy which should be
extended only sparingly.
Hedges v. U.S., 404 F.3d 744, 751 (3d Cir. 2005) (footnote omitted). Moreover, "equitable
tolling is permitted only if the party has exercised due diligence throughout the period it seeks to
have tolled." Oporto v. Gonzales, 242 F. App'x 756, 758 (2d Cir. 2007); Truxal v. District

2

Attorney of Westmoreland County, No. 08-cv-00934, 2010 WL 411766, at *5 (W.D.Pa. Jan. 28,
201 O)("the party seeking equitable tolling must have acted with reasonable diligence throughout
the period he seeks to toll.")(quoting Warren v. Garvin, 219 F.3d Ill, 113 (2d Cir.2000)).
Moreover, it is the Plaintiffs burden to establish entitlement to equitable tolling. Ross v.
Buckeye Cellulose Corp., 980 F.2d 648, 661 (lIth Cir. 1993)("Once Buckeye raised the
limitations issue, appellants [i.e., Plaintiffs at the District Court level] bore the burden of proving
that equitable tolling of the limitations period was appropriate.")(footnote omitted). See also
Harris v. Homecomings Financial Services, Inc.lBank One, 377 F. App'x 240, 243-44 (3d Cir.
2010) ("In order to equitably toll a statute of limitations, a plaintiff must establish, in pertinent
part, that the defendant actively misled her about her claims or that some other extraordinary
circumstance prevented her from pursuing her claims. Moreover, she must demonstrate that she
diligently pursued her claims.")(emphasis added)(citations omitted); Carter v. Keystone, 360 F.
App'x 271, 273 (3d Cir. 201 O)(" Plaintiff bears the burden to show that equitable tolling is
warranted.") .
Instantly, even if the alleged interference with filing of the 2003 Complaint warranted
some amount of equitable tolling, Plaintiff would have to show that he was entitled to have the
statute of limitations tolled from, at the latest, 2005, when the alleged abuse ended, until March
26, 2013, when he is deemed to have initiated the current civil action. Plaintiff would have to
establish that throughout this time he acted with due diligence. Plaintiff utterly fails to carry his
burden to establish entitlement to have this period of more than seven years equitably tolled. He
fails to explain why it took him from December 2003 until March 26, 2013 to file the instant suit.

3

He simply has not demonstrated that he acted with the due diligence required throughout the
period he would need to have tolled.
Accordingly, after de novo review of the pleadings and the documents in the case,
together with the Report and

R~ommendation,

-~

the following order is entered:

1-1

AND NOW, this _ _ day of November 2013;

IT IS HEREBY ORDERED that the Complaint is dismissed as to Defendants Nicoletti
and the John Doe Defendants pursuant to the Prison Litigation Reform Act for failure to state a
claim upon which relief can be granted.

IT IS FURTHER ORDERED that the Report and Recommendation, ECF No. 11, filed
on September 4, 2013, by Magistrate Judge Kelly, is adopted as the opinion of the Court. The
case may continue in the normal course against the remaining Defendants

David Stewart Cercone
United States District Judge
cc:

Honorable Maureen P. Kelly
United States Magistrate Judge
(Via CMlECF Electronic Mail)
Leroy Reed
FH-3971
SCI Forest
P.O. Box 945

Marienville, PA 16239

(Via First Class Mail)

4