Opinion
Civil Action 21-192J
08-25-2022
JOHN SIMPSON, Plaintiff, v. W.L. GORE & ASSOCIATES, INC., et al., Defendants.
Re: ECF Nos. 27 and 28
Kim R. Gibson District Judge
REPORT AND RECOMMENDATION
MAUREEN P. KELLY UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
For the reasons that follow, it is respectfully recommended that all claims against Defendants W.L Gore & Associates, Inc. (“W.L. Gore”), Tyler Memorial Hospital, Geisinger Wyoming Valley Medical Center, and the various newly-named Doe Defendants should be dismissed with prejudice.
It is further recommended that Plaintiff's remaining federal constitutional claims based on his alleged denial of access to the courts, and his related claim under the Americans with Disabilities Act (“ADA”), raised against Defendants Smith, Wetzel, Wolf, and the Commonwealth of Pennsylvania, not be dismissed at this time. Allowing those claims to proceed should be without prejudice to these Defendants responding thereto in any manner permitted by the Federal Rules of Civil Procedure and the Local Civil Rules of this Court.
II. REPORT
A. Factual and Procedural Background
Plaintiff John Simpson (“Plaintiff”) is an inmate currently incarcerated at the State Correctional Institution at Houtzdale, Pennsylvania (“SCI-Houtzdale”). Plaintiff commenced the instant lawsuit by filing the initial Complaint in the United States District Court for the Middle District of Pennsylvania. ECF No. 1. In forma pauperis status was granted on July 19, 2021. ECF No. 8.
Also, on July 19, 2021, United States Magistrate Judge Martin C. Carlson issued a Report and Recommendation recommending that the Complaint be dismissed without prejudice. ECF No. 9. Claims against Defendant Smith were recommended for dismissal based on venue alone. Id. at 10-11. Recommendations for dismissal of the other Defendants were based on the applicable statute of limitations, lack of subject matter jurisdiction over Defendant Tyler Memorial Hospital and Defendant Luzerne County Prison not being a “person” under the meaning of 42 U.S.C. § 1983. Id. at 7-9 and 16. Judge Carlson further recommended that leave to amend be granted. Plaintiff failed to file timely objections, and Chief District Judge Matthew W. Brann issued an Order adopting the Report and Recommendation and granting general leave to amend on August 12, 2021. ECF No. 11.
On September 21, 2021, Plaintiff filed a Motion for Reconsideration or Relief from Judgment or Order of Dismissal, an untimely Amended Complaint, and a Motion to Accept Amended Complaint. ECF Nos. 12, 13 and 14. On September 24, 2021, Judge Brann denied reconsideration and accepted the Amended Complaint for filing. ECF No. 15.
On October 28, 2021, Judge Brann issued an Order explicitly dismissing Defendant Luzerne County Correctional Facility, and transferring this case to the Western District of Pennsylvania. ECF No. 16. The stated reason for the transfer was that Defendant Smith was the only remaining defendant, and was the Superintendent of SCI-Houtzdale, which is located in the Western District of Pennsylvania. Id. ¶ 3.
There is no Defendant Luzerne County Correctional Facility in the caption of the Amended Complaint. It is presumed that Judge Brann intended to dismiss Defendant Luzerne County Prison in his Order.
To date, Luzerne County Prison is the only Defendant that has been explicitly dismissed from this case.
The undersigned issued a Report and Recommendation on November 30, 2021, recommending that Defendants W.L. Gore and Tyler Memorial Hospital be stricken and dismissed for the reasons stated in the Report and Recommendation issued by the United States District Court for the Middle District of Pennsylvania on July 19, 2021. ECF No. 18 at 1.
Plaintiff responded with Objections, ECF No. 21, a document entitled “Plaintiff's Statement of Facts,” ECF No. 25, and a putative amended complaint, ECF No. 24-2. The gist of Plaintiff's response was that he submitted the incorrect amended complaint to the Middle District of Pennsylvania, and was attempting to rectify that mistake. See ECF No. 24 at 3 (“Plaintiff has come to the conclusion that the document filed by the Clerk at ECF No. 14 is not the Amended Complaint that Plaintiff believed he had mailed to the Court.”) (emphasis in original). On August 2, 2022, District Judge Kim R. Gibson adopted the Report and Recommendation of November 30, 2021, but allowed Plaintiff's Amended Complaint to be filed. ECF No. 27.
At the outset, the Amended Complaint makes specific reference to “Plaintiff's Statement of Facts.” ECF No. 25. Indeed, it makes little sense when read without considering that document. As such, and in light of Plaintiff's clear intent to incorporate “Plaintiff's Statement of Facts” by reference, this Court will consider that filing to be part of the Amended Complaint. On August 23, 2022, the Clerks' Office docketed “Plaintiff's Statement of Facts” as an exhibit to the Amended Complaint. ECF No. 28.
The factual allegations of the Amended Complaint and “Plaintiff's Statement of Facts” are consistent with the initial Complaint. See ECF No. 1.
Plaintiff alleges that an abdominal mesh manufactured by Defendant W.L Gore was implanted in him in 2004 at Defendant Tyler Memorial Hospital. ECF No. 28 ¶ 1. In 2013, the mesh was removed by Doe Defendants #1 and #2 during emergency surgery necessitated by a gunshot wound to Plaintiff's abdomen. Id. Doe Defendant #16 allegedly did not follow proper sanitation procedures at the hospital. Id. ¶ 21.
In 2015, Plaintiff was arrested and held in Luzerne County Prison, where he developed a MRSA infection. Id. ¶ 2. Plaintiff allegedly suffered from various symptoms related to the infection for a period of 15 months, but allegedly was denied care by Doe Defendants #3-9. Id.
On June 12, 2016, Plaintiff's condition became life-threatening, and he allegedly was transferred to Defendant Geisinger Wyoming Valley Medical Center for emergency treatment. It was then that he was informed that the mesh manufactured by Defendant W.L. Gore “had been known to cause MRSA infections[,]” and that pieces of the mesh that remained from his surgery in 2013 had caused his MRSA infection. Id. ¶ 3. Shortly thereafter, Plaintiff was returned to Luzerne County Prison by Doe Defendant #10 against the wishes of his treating doctors. Id. ¶ 4. Doe Defendants #11 and #12 allegedly confiscated Plaintiff's medicine, and various Doe Defendants allegedly continued to provide deficient medical care. Id. Plaintiff was transferred to the custody of the Pennsylvania Department of Corrections in July of 2016, where Doe Defendants #13-15 allegedly provided the same level of care that he received in the Luzerne County Prison. Id. ¶ 5.
A methicillin-resistant Staphylococcus aureus (“MRSA”) infection is a type of infection that is resistant to many antibiotics. See, e.g., https://www.mayoclinic.org/diseases-conditions/mrsa/symptoms-causes/syc-20375336 (last visited Aug. 25, 2022).
Plaintiff was transferred to SCI-Houtzdale in October of 2016, where be began to recover from the MRSA infection. Id. ¶ 6.
At some point in January of 2017, Plaintiff was able to attempt to investigate potential legal claims related to the MRSA infection. Id. However, his ability to access the prison's law library was limited to one hour a day, three days a week, and the law library lacked sufficient “typing computers.” Id. The research software was incomprehensible to Plaintiff due to his alleged “literacy issues and learning and intellectual disabilities.” Id. Law library staff also “could not provide Plaintiff with any real assistance beyond advising him that he needed to file a civil lawsuit, and acted as if Plaintiff was a nuisance to them.” Id.
Plaintiff found a fellow inmate to help him in March of 2021. Id. He asserts that the policies of Defendants Smith and Wetzel made it impossible to obtain access to adequate legal assistance until March of 2021. Id. Work on the initial Complaint was slowed even further because the entire prison was placed on lockdown due to COVID-19 from April 8, 2020, until June 8, 2021. Id. Plaintiff recently lost access to help from this inmate. Id.
This lawsuit was deemed filed on the date that Plaintiff placed the initial Complaint in the prison mail system at SCI-Houtzdale. Pursuant to the prisoner mailbox rule, the effective date presumably is the date of signing - July 1, 2021. ECF No. 1 at 18.
B. Legal Standard
28 U.S.C. § 1915 establishes the criteria for allowing an action to proceed IFP. Section 1915(e) requires the federal courts to review complaints filed by persons that are proceeding in forma pauperis and to dismiss, at any time, any action that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B). Thus, a court must dismiss, sua sponte, a complaint that lacks arguable merit in fact or law. Stackhouse v. Crocker, 266 Fed.Appx. 189, 190 (3d Cir. 2008) (citing Neitzke v. Williams, 490 U.S. 319, 325 (1989)).
The standard for reviewing a complaint under Section 1915(e)(2)(B) is the same as that for determining a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999); see also Banks v. Mozingo, No. 08-004, 2009 WL 497572, at *6 (W.D. Pa. Feb. 26, 2009). Under that Rule, dismissal is appropriate if, reading the complaint in the light most favorable to the plaintiff, and accepting all factual allegations as true, no relief could be granted under any “reasonable reading of the complaint” Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008).
A complaint must be dismissed even if the claim to relief is “conceivable,” because a plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The United States Court of Appeals for the Third Circuit has held that, when determining whether to dismiss a complaint for failing to state a claim upon which relief can be granted, a district court should apply a two-part test in order to determine whether a pleading's recitation of facts is sufficient. Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009). “First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Id. at 210-11 (citing Iqbal, 556 U.S. at 678). “Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a ‘plausible claim for relief.'” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at 679).
A court must employ less stringent standards when considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). In a Section 1983 action, a court must liberally construe a pro se litigant's pleadings and “‘apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.'” Higgins v. Beyer, 293 F.3d 683, 688 (3d Cir. 2002) (quoting Holley v. Dep't of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999)). “‘Since this is a § 1983 action, the [pro se] plaintiffs are entitled to relief if their complaint sufficiently alleges deprivation of any right secured by the Constitution.'” Higgins, 293 F.3d at 688 (quoting Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)).
That said, it is not proper for a court to assume that “the [plaintiff] can prove facts which [he or she] has not alleged, or that the defendants have violated the . . . laws in ways that have not been alleged.” Assoc.'d Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). A court further need not accept inferences drawn by a plaintiff if they are unsupported by the facts as set forth in the complaint. See California Pub. Employees' Ret. Sys. v. Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004).
Finally, the Third Circuit has held that, in civil rights cases, a court must give a plaintiff the opportunity to amend a deficient complaint - regardless of whether the plaintiff requests to do so - when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007).
C. Legal Analysis
1. Plaintiff's claims with respect to his injuries and medical care are time-barred.
Plaintiff asserts that the alleged acts and omissions Defendants W.L Gore, Tyler Memorial Hospital, Geisinger Wyoming Valley Medical Center, and the various Doe Defendants violated Pennsylvania state tort law, his rights under various amendments to the Constitution of the United States, and the ADA, 42 U.S.C. § 12131 et seq. ECF No. 28 ¶¶ 20-23. As Plaintiff is well-aware from the Report and Recommendation of July 19, 2021, these claims are time-barred. ECF No. 9 at 13-16.
Pennsylvania has a two-year statute of limitations for personal injury lawsuits. 42 Pa. C.S.A. § 5524. This limitations period applies to products liability claims. Flanagan v. Martfive, LLC, No. 16-1237, 2017 WL 661607, at *3 (W.D. Pa. Feb. 17, 2017).
Additionally, Pennsylvania's two-year statute of limitations applies to Plaintiff's constitutional claims. It is well-established that the statute of limitations of any Section 1983 claim is the forum state's statute of limitations for personal injury lawsuits. Mumma v. High Spec, Inc., 400 Fed.Appx. 629, 631 (3d Cir. 2010) (citing Wilson v. Garcia, 471 U.S. 261, 266-67 (1985) (overruled on other grounds)).
Further, courts have held that the same two-year statute of limitations applies to Plaintiff's claims under the ADA. Smith v. City of Philadelphia, 345 F.Supp.2d 482, 485 (E.D. Pa. 2004).
Giving Plaintiff every benefit of the doubt, it appears he had discovered his alleged injuries at the hands of Defendants W.L Gore, Tyler Memorial Hospital, Geisinger Wyoming Valley Medical Center, and the various Doe Defendants no later than January 30, 2017. As such, he had two years until January 30, 2019 to file his claims against these Defendants. He failed to do so.
In addition, Plaintiff has not shown entitlement to equitable tolling. The United States Court of Appeals for the Third Circuit has held that “[w]e have instructed that there are three principal, though not exclusive, situations in which equitable tolling may be appropriate: (1) where the defendant has actively misled the plaintiff respecting the plaintiff's 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.” Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994), abrogated on other grounds by Rotkiske v. Klemm, 890 F.3d 422, 428 (3d Cir. 2018).
Only the second potential basis for tolling potentially applies to the instant case. But as recognized by the Middle District of Pennsylvania, Plaintiff's general allegations of illiteracy are insufficient to equitably toll the statute of limitations. ECF No. 9 at 16. In the Amended Complaint, Plaintiff further concedes that he had access to the law library, and knew that he needed to file a civil lawsuit - apparently for years prior to actually doing so. ECF No. 28 ¶ 6. Though illiteracy, unnamed intellectual disability, and a COVID lockdown starting in March of 2020 interfered with his efforts, id., Plaintiff simply does not provide an extraordinary reason that he was not able to file suit over the period of roughly four-and-one-half years from January of 2017 to July of 2021.
The so-called “Third Circuit Rule” allows for the sua sponte dismissal, pursuant to 28 U.S.C. § 1915(e)(2)(B), of claims that, based on the face of the complaint, are barred by the statute of limitations. Mumma, 400 Fed.Appx. at 631. From the face of the Amended Complaint, it is clear that Plaintiff's claims directed toward Defendants W.L Gore, Tyler Memorial Hospital, Geisinger Wyoming Valley Medical Center, and the various Doe Defendants #1-16 are time-barred. Accordingly, they should be dismissed. As amendment would be inequitable or futile, dismissal should be with prejudice. See Fletcher-Harlee, 482 F.3d at 251.
2. Plaintiff's new claims for damages under the Pennsylvania Constitution should be dismissed.
In the Amended Complaint, Plaintiff makes reference to his rights under the Pennsylvania Constitution having been violated. ECF No. 28 ¶ 4. But Plaintiff cannot support a claim for damages on that basis because “neither Pennsylvania statutory authority, nor appellate case law has authorized the award of monetary damages for a violation of the Pennsylvania Constitution.” Jones v. City of Phila., 890 A.2d 1188, 1208 (Pa. Commw. Ct. 2006); see also Pocono Mountain Charter Sch. v. Pocono Mountain Sch. Dist., 442 Fed.Appx. 681, 687-88 (3d Cir. 2011) (“No Pennsylvania statute establishes, and no Pennsylvania court has recognized, a private cause of action for damages under the Pennsylvania Constitution.”) (citing Jones, 890 A.2d at 1208) (affirming dismissal of state constitutional claim for damages).
This position has consistently been adopted by Pennsylvania state courts, as well as the federal district courts within Pennsylvania. Sizer v. City of Phila. Dep't of Prisons No. 21-3051, 2021 WL 4893369, at *4 (E.D. Pa. Oct. 20, 2021) (collecting cases). Therefore, to the extent that Plaintiff seeks monetary relief under the Pennsylvania Constitution, his request should be denied given the lack of a recognized cause of action.
3. Plaintiff's remaining claims.
Plaintiff asserts that Defendants Smith, Wetzel, and Wolf, and the Commonwealth of Pennsylvania violated his federal constitutional rights, including his First Amendment right to access the courts, by not providing adequate assistance in the prison law library at SCI-Houtzdale. ECF No. 28 ¶ 24. This is the basis for his ADA claims against these Defendants as well. Id.
Plaintiff's claims against Defendants Smith, Wetzel, and Wolf, and the Commonwealth of Pennsylvania, should not be screened under Section 1915. Allowing those claims to proceed should be without prejudice to these Defendants responding thereto in any manner permitted by the Federal Rules of Civil Procedure and Local Civil Rules of this Court.
III. CONCLUSION
For the reasons stated herein, it is respectfully recommended that all claims against Defendants W.L Gore, Tyler Memorial Hospital, Geisinger Wyoming Valley Medical Center, and the various newly-named Doe Defendants should be dismissed with prejudice.
It is further recommended that Plaintiff's remaining federal constitutional claims based on his alleged denial of access to the courts, and his related claim under the ADA, against Defendants Smith, Wetzel, Wolf, and the Commonwealth of Pennsylvania, should not be dismissed at this time. Allowing those claims to proceed should be without prejudice to these Defendants responding thereto in any manner permitted by the Federal Rules of Civil Procedure and local civil rules of this Court.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Local Rule 72.D.2, the parties are permitted to file written objections in accordance with the schedule established in the docket entry reflecting the filing of this Report and Recommendation. Objections are to be submitted to the Clerk of Court, U.S. Courthouse, 208 Penn Traffic Building, 319 Washington Street, Johnstown, PA 15901. Failure to timely file objections will waive the right to appeal. Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Cir. 2011).
Respectfully submitted,