JONES v. FITZGERALD et al

Filing 27

MEMORANDUM ORDER. It is hereby ORDERED that 7 Complaint is DISMISSED pre-service pursuant to the Prison Litigation Reform Act for failure to state a claim upon which relief can be granted. It is further ORDERED that 16 Report and Recommendation i s ADOPTED as the opinion of the Court. It is further ORDERED that 10 Motion to Appoint Counsel; 11 Motion to Appoint Counsel; 19 Motion to Submit Other Papers; 20 Motion for Discovery; and 24 Motion to Submit Other Papers, are DENIED AS MOOT. To the extent the 25 Motion to Supplement could be deemed a Motion to File an Amended or Supplemental Complaint, the Motion is DENIED as being futile. The Clerk is to mark the case CLOSED. Signed by Judge Mark R. Hornak on 6/30/14. (bdb)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JONATHAN PAUL JONES,
Plaintiff,
vs.

COUNTY EXECUTIVE RICH
FITZGERALD; DR. KARL WILLIAMS,
Medical Examiner; LAB TECH LORENZ,
Defendants.

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Civil Action No. 14-412
Judge Mark R. Hornak/
Magistrate Judge Maureen P. Kelly

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MEMORANDUM ORDER
The above-captioned prisoner civil rights complaint was received by the Clerk of Court
on March 28, 2014, and was referred to United States Magistrate Judge Maureen P. Kelly for
pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(l), and
Rule 72 of the Local Rules for Magistrate Judges.
The Magistrate Judge's Report and Recommendation, ECF No.16, filed on June 3, 2014,
recommended that Plaintiffs Complaint be dismissed for three independent reasons. First, all
actions asserted in the Complaint occurred between April 9, 1999 to October 18, 2000, and were
time barred under the applicable statute of limitations. Second, Plaintiff called into question the
validity of the DNA results which were utilized in Plaintiffs trial and such claims were barred
by Heck v Humphrey. Third, as to Plaintiffs False Claims Act claim, Plaintiff failed to state a
claim because he failed to allege the necessary elements of a False Claims Act claim. Service
was made on the Plaintiff at his address of record. Plaintiffwas given until June 20,2014 to file
objections.

Plaintiff filed his objections on June 12, 2014.

objections merits rejection of the Report or extended comment.

ECF No. 21. Nothing in those

In apparent response to the Report's finding the Complaint to be time barred, Plaintiff
asserts that he was "late in filing a response due to: safety and security concerns" in addition to
Plaintiffs assertion that "[r)ecently - plaintiff has learned: Lt. Goretski, has been intercepting his
outgoing and incoming mail. Plaintiff has had mail troubles since '20 10' in SCI -Coal." ECF
No. 21 at 1, ~ 4. To the extent that Plaintiff is attempting to invoke equitable tolling so as to toll
the statutes of limitations, Plaintiff fails to carry his burden of persuasion.
As explained by the United States Court of Appeals for the Third Circuit:
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. Ctr., 165 F.3d 236, 240 (3d Cir.1999). This occurs "(1)
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
Attorney of Westmoreland County, No. 08-cv-00934, 2010 WL 411766, at *5 (W.D.Pa. Jan. 28,
201 0) ("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 111, 113 (2d Cir. 2000)).
Furthermore, it is the Plaintiffs burden' to establish entitlement to equitable tolling. Harris v.
Homecomings Financial Services, Inc./Bank One, 377 F. App'x, 240, 243 (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

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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. 2010) ("Plaintiff bears the burden to show that equitable tolling is warranted.").
Herein, Plaintiff fails to explain why prior to 2010 (when he allegedly started to have
"trouble" with his mail at SCI-Coal), he could not have filed the Complaint, or what has changed
such that he could do so in March 2014 but not earlier. Consequently, Plaintiff has failed to
show that he acted with due diligence throughout the period of time he would have to seek
tolling.
The Report's finding that Plaintiffs Sixth Amendment claims are barred by Heck v.
Humphrey, 512 U.S. 477, 489-90 (1994) is only confirmed by Plaintiffs Objections, wherein he
argues that "the results of the labs were questionable and are not true. The blood sample was in
the name of John Paul Jones [whereas Plaintiff is named Jonathan Paul Jones]. The nurse only
withdrew one tube of blood from Jonathan Paul Jones. A[t] trial it changed to two (2) tubes of
blood from John Paul Jones. This is proof of a break in the chain of custody evidence." ECF
No. 21 at 2 to 3,

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12. See also id., at 4,

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20 ("those tests 'exonerated' Plaintiff').

The

foregoing demonstrates that Plaintiff is attempting to call into question his conviction via this
civil rights action notwithstanding that Plaintiff asserts "[t]his complaint is not about plaintiffs
criminal conviction." Id. at 3,

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16.

Any objections not specifically addressed have been considered but are not deemed to
have merited any comment.
For the reasons set forth herein, IT IS HEREBY ORDERED that Plaintiffs Objections
are overruled.

,..,vJ:

AND NOW, thi~~ay of June, 2014;
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IT IS HEREBY ORDERED that the Complaint is Dismissed pre-service

pursuant to the Prison Litigation Reform Act for failure to state a claim upon which relief can be
granted. Amendment would be futile.
IT IS FURTHER ORDERED that the Report and Recommendation, ECF No.

16, filed on June 3, 2014, by Magistrate Judge Kelly, is adopted as the opinion ofthe Court.
All pending motions are denied as moot. To the extent that ECF No. 25 could be
deemed a motion to file an amended or supplemental complaint, the motion is denied as being
futile, such amendment would not cure the deficiencies noted in the Report.
The Clerk is to mark the case closed.

~====MARK R. HORNAK
UNITED STATES DISTRICT JUDGE

Date: JunJ:J, 2014

cc:

The Honorable Maureen P. Kelly
United States Magistrate Judge
Jonathan Paul Jones
FT-2789
SCI Coal Township
1 Kelly Drive
Coal Township, PA 17866

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