The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KEVIN POWELL, : Civil No. 1:12-CV-02455
:
Plaintiff, :
:
v. :
:
PENNSYLVANIA DEPARTMENT OF :
CORRECTIONS, :
:
Defendant. : Judge Jennifer P. Wilson
MEMORANDUM
Before the court is the report and recommendation of Chief United States
Magistrate Judge Susan E. Schwab recommending that Defendant Pennsylvania
Department of Corrections’ (“DOC”) motion for summary judgment be granted as
to Plaintiff Kevin Powell’s (“Powell”) Americans with Disabilities Act of 1990
(“ADA”) and Rehabilitation Act of 1973 (“RA”) claims arising out of his time at
SCI-Smithfield, SCI-Fayette, and SCI-Somerset, and granted barring Powell from
recovering compensatory and punitive damages. (Doc. 153.) Judge Schwab
further recommends that the DOC’s motion be denied as to Powell’s ADA and RA
claims arising out of his time at SCI-Huntingdon. For the reasons that follow, the
court adopts the report and recommendation in full.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
Following a long procedural history, Powell’s second amended complaint
was accepted by the court on September 30, 2016, setting forth two counts for
violations of the ADA (Counts I and II), and one count for violation of the RA
(Count III) stemming from Powell’s multiple placements in the Restricted Housing
Unit (“RHU”) while incarcerated in the DOC. (Docs. 74-1, 93.) In permitting the
filing of the second amended complaint which added the allegations regarding
RHU placement in SCI-Smithfield, SCI-Fayette, and SCI-Somerset, the court
reasoned that the second amended complaint did not relate back to either of the
previous complaints for purposes of the relation-back doctrine. (Doc. 92, pp. 17–
21.) The court further stated that while the amendment is permitted, the DOC
could “raise the statute of limitations on a more developed record at the summary-
judgment stage.” (Id. at 23.)
The DOC subsequently filed a motion for summary judgment and
statement of facts on March 13, 2019, followed by a brief in support on March 27,
2019. (Docs. 132–135.) The DOC argued that Powell’s ADA and RA claims
arising from his time at SCI-Smithfield, SCI-Fayette, and SCI-Somerset were
barred by the statute of limitations, that Powell’s request for compensatory and
1 Because there are no objections to the thorough procedural history set forth by Judge Schwab in
the report and recommendation, the court recites only the necessary history here.
punitive damages was barred by the Prison Litigation Reform Act (“PLRA”), and
that Powell’s ADA and RA claims arising from his incarceration at SCI-
Huntingdon were barred by qualified immunity and failed on the merits.2 (Doc.
135.) Powell timely opposed the motion on May 17, 2019, and the DOC filed a
reply on May 31, 2019. (Docs. 138–151.)
Judge Schwab issued the pending report and recommendation on July 15,
2019. (Doc. 153.) Powell timely filed objections and a brief in support on July 29,
2019. (Doc. 154.) The DOC responded to Powell’s objections on August 5, 2019.
(Doc. 155.) Powell filed a reply brief on August 11, 2019. (Doc. 156.) Thus, this
matter is now ripe for review.
Powell was diagnosed with delusional disorder in 2009. (Doc. 153, p.14.)3
At numerous times throughout his incarceration, Powell was placed into the RHU
for disciplinary or administrative reasons. His time in different DOC institutions
and the RHU is summarized as follows:
Facility Dates in RHU Type of custody
Arrived at SCI-Smithfield on August 5, 2010.
SCI-Smithfield September 21, 2010, to Disciplinary custody for
November 19, 2010 misconduct report.
2 The DOC subsequently withdrew its argument regarding qualified immunity in its reply brief.
(Doc. 152, p. 1.)
3 For ease of reference, the court utilizes the page numbers located in the CM/ECF header.
SCI-Smithfield November 19, 2010, to Administrative custody pending
December 7, 2010 transfer to SCI-Fayette.
Transferred to SCI-Fayette on December 7, 2010.
SCI-Fayette December 7, 2010, to Administrative custody pending a
December 9, 2010 determination of Powell’s
custody level and housing needs.
SCI-Fayette May 2, 2011, to May 6, Administrative custody (records
2011 unclear as to reason).
September 2, 2011, to Disciplinary custody for fight
SCI-Fayette October 19, 2011 with another inmate.
SCI-Fayette October 19, 2011, to Administrative custody because
November 1, 2011 Powell was deemed to be in
danger from other inmates.
Transferred to SCI-Somerset on November 1, 2011.
SCI-Somerset November 1, 2011, to Administrative custody pending a
November 3, 2011 determination of Powell’s
custody level and housing needs.
SCI-Somerset November 16, 2011, to Disciplinary custody because
March 4, 2012 Powell was issued several
misconducts.
SCI-Somerset June 5, 2012, to June 28, Disciplinary custody due to a
2012 misconduct.
SCI-Somerset July 3, 2012, to Disciplinary custody due to a
September 15, 2012 series of misconducts.
(except for several days
when housed at SCI-
Rockview)
Transferred to SCI-Huntingdon on September 25, 2012.
SCI-Huntingdon September 25, 2012, to Administrative custody as a new
September 26, 2012 transfer.
SCI-Huntingdon November 2, 2012, to Administrative custody because
January 9, 2013 Powell was deemed to be a
danger to other inmates or be in
danger from other inmates.
SCI-Huntingdon February 8, 2013, to Disciplinary custody for several
August 5, 2013 misconducts.
Released from DOC custody in August 2013.
(Id. at 14–17.)
STANDARD OF REVIEW
When a party objects to a magistrate judge’s report and recommendation, the
district court is required to conduct a de novo review of the contested portions of
the report and recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3);
Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989). The district court may
accept, reject, or modify the magistrate judge’s report and recommendation in
whole or in part. 28 U.S.C. § 636(b)(1). The district court may also receive
further evidence or recommit the matter to the magistrate judge with further
instructions. Id. “Although the standard is de novo, the extent of review is
committed to the sound discretion of the district judge, and the court may rely on
the recommendations of the magistrate judge to the extent it deems proper.”
Weidman v. Colvin, 164 F. Supp. 3d 650, 653 (M.D. Pa. 2015) (citing Rieder v.
Apfel, 115 F. Supp. 2d 496, 499 (M.D. Pa. 2000)).
De novo review is not required for portions of a report and recommendation
to which no objections have been raised. Univac Dental Co. v. Dentsply Int’l, Inc.,
702 F. Supp. 2d 465, 469 (M.D. Pa. 2010) (citing Thomas v. Arn, 474 U.S. 140,
149 (1985)). Instead, the court is only required to “satisfy itself that there is no
clear error on the face of the record in order to accept the recommendation.” Id.
(quoting Fed. R. Civ. P. 72 advisory committee’s note to 1983 addition).
DISCUSSION
A. Powell’s objection to the recommendation that the applicable statute
of limitations bars his claims stemming from SCI-Smithfield, SCI-
Fayette, and SCI-Somerset is overruled.
Judge Schwab opines that Powell’s ADA and RA claims arising out of his
time at SCI-Smithfield, SCI-Fayette, and SCI-Somerset are time barred by the two-
year statute of limitations, which expired two-years from the date of transfer from
each institution, i.e. December 7, 2012, November 1, 2013, and September 25,
2014, respectively. (Doc. 153, pp. 18-23.) Judge Schwab further concludes that
actions taken at four different prisons to place Powell in the RHU for different
reasons are not sufficiently related to invoke the continuing-violation doctrine and
avoid the statute of limitations. (/d.)
Powell objects to this conclusion, arguing that the DOC’s policy and
practice for all prisons caused Powell to be confined in the RHU due to his mental
and emotional disability, which constitutes a continuing violation. (Doc. 154, pp.
2–6.) He argues that “[f]or each RHU confinement, when the paperwork has
survived, it shows that Mr. Powell’s impulsive speech is what offended prison staff
and caused them to relegate him to restrictive housing.” (Id. at 4.) According to
Powell, this impulsive speech was a symptom of his mental illness and intellectual
deficit, and following his release from prison, the DOC changed its disciplinary
procedures to account for behaviors due to a mental illness. (Id.) In sum, Powell
argues that the documentation submitted by Plaintiff and disregarded by the
magistrate judge, creates a genuine dispute of material fact regarding whether the
multiple RHU confinements were a single persistent pattern constituting a
continuing violation. (Id. at 4–5.) In opposition, the DOC argues that the
continuing-violation doctrine does not apply because placement in the RHU
occurred in four different institutions, with some time spent in general population
while at each institution. (Doc. 155, pp. 4–7.)
The court agrees with Judge Schwab that the actions taken by four separate
institutions with different decision-makers at different times are not sufficiently
related to invoke the continuing-violation doctrine. See Fogle v. Stack, 149 F.
App’x 860 (10th Cir. 2011) (finding that “each segregation decision was of a
discrete nature and . . . segregation decisions were made by different decision
makers across three different correctional facilities, thus making it inappropriate to
aggregate all such decisions into one continuing violation for limitations
purposes”); Bradshaw v. New Jersey, No. 18-CV-14089, 2019 WL 1930275
(D.N.J. May 1, 2019) (holding that plaintiff failed to show “any particular
continuing practice by any named Defendant’’); Peraza v. Helton, No. 3:12-CV-
1306, 2016 WL 6442254 (M.D. Pa. Nov. 1, 2016) (“Since Plaintiff[] asserts claims
based upon multiple acts allegedly taken by a variety of different individuals at
separate federal correctional institutions over a period of years which were each
actionable on their own, the continuing violation theory is not applicable.”). Thus,
the court overrules Powell’s objection and adopts the report and recommendation
in this regard.
B. The court adopts the recommendation that Powell is barred from
recovering compensatory damages for mental and emotional
injuries.
Judge Schwab concludes that section 1997e(e) of the Prison Litigation
Reform Act (““PLRA”’) precludes Powell from recovering compensatory damages
for his mental and emotional injuries because the alleged physical injury was de
minimis. (Doc. 153, pp. 24-28.) Objecting to the recommendation, Powell quotes
his alleged injuries from the second amended complaint and argues that his injuries
are cognizable under the ADA and RA because he alleges a “loss of access to
services, programs, and activities.” (Doc. 154, pp. 6-8.) He further argues that
section 1997e(e) does not impact the damages available under the ADA in this
case. (/d. at 8-9.) As to the de minimis nature of his injuries, Powell argues that
this is a question of fact for a jury to decide. (Id. at 9–10.) The DOC urges the
court to adopt Judge Schwab’s recommendation to prelude compensatory damages
for mental and emotional injuries and notes that Judge Schwab did not preclude
compensatory damages for loss of programs, services, and activities. (Doc. 155,
pp. 7–8.) The DOC then requests that the court preclude compensatory damages
based on loss of programs, services, and activities because there is no evidence of
subjective awareness by the DOC of Powell’s disability. (Id. at 8–9.)
Regarding the PLRA’s bar for compensatory damages, the court agrees with
Judge Schwab that Powell requests compensatory damages based on a mental or
emotional injury. Accordingly, Powell is required to establish “a less-than
significant-but more-than-de minimis physical injury as a predicate to allegations
of emotional injury.” Mitchell v. Horn, 318 F.3d 523, 536 (3d Cir. 2003).
Powell’s only alleged physical injury occurred in February 2013, where Powell’s
glasses were knocked off, he fell to floor, and struck his head. (Doc. 153, p. 27;
Doc. 77, ¶ 29.) The DOC provided medical progress notes indicating that Powell
refused medical treatment because he took “a couple of Motrin” and did not
require further medical attention. (Doc. 153, p. 27.) Judge Schwab appropriately
compared this alleged physical injury to case law in concluding that Powell’s
injury was de minimis, thus, barring compensatory damages for mental and
emotional injuries under the PLRA.
As articulated by the DOC, Judge Schwab did not preclude the recovery of
compensatory damages for loss of programs, services, and activities as Powell
alleged in his second amended complaint. However, the court will not heed the
DOC’s request to rule on whether Powell is precluded from recovering
compensatory damages where the DOC lacked subjective awareness of Powell’s
disability, because the DOC raised this argument for the first time in its opposition
to Powell’s objection, not in its motion for summary judgment or even objections
filed on its own behalf. See Dowell v. Bayview Loan Servs. LLC, No. 16-CV-
02026, 2017 WL 4230924, at *2 n.1 (M.D. Pa. Sept. 25, 2017) (declining to
address arguments not raised before the magistrate judge).
Accordingly, the court overrules Powell’s objection and adopts the report
and recommendation as to the PLRA’s bar on compensatory damages.
C. The court adopts the recommendation that Powell is precluded from
recovering punitive damages under the ADA and RA.
Judge Schwab opines that although punitive damages are not barred under
the PLRA as argued by the DOC, punitive damages are precluded under the ADA
and RA against government defendants. (Doc. 153, pp. 28-30.) Powell objects to
this conclusion arguing that Pennsylvania waived sovereign immunity for “suits
arising from negligence in the provision of health care by state agencies — like the
Department of Corrections — but not municipal agencies.” (Doc. 154, p. 12.)
10
The court agrees with the precedent cited in the report and recommendation
precluding punitive damages for ADA and RA claims against defendants such as
the DOC. See Doe v. Cty. of Centre, Pa., 242 F.3d 437, 457-58 (3d Cir. 2001);
Gaudino v. Stroudsburg Area Sch. Dist., No. 3:12-CV-02159, 2013 WL 3863955,
at *13 (M.D. Pa. July 23, 2013); CG. v. Scranton Sch. Dist., No. 3:07-CV-
01314, 2007 WL 4269816, at *8 (M.D. Pa. Dec. 3, 2007). While the
Commonwealth of Pennsylvania waives sovereign immunity in certain
circumstances, that has no bearing on the ADA and RA claims before the court.
Therefore, the court overrules Powell’s objection.
D. The uncontested portion of the report and recommendation are
adopted.
The parties do not object to Judge Schwab’s conclusion that the DOC’s
motion for summary judgment should be denied as to Powell’s ADA and RA
claims arising from his time at SCI-Huntingdon. (Doc. 153, pp. 30-35.) After
giving “reasoned consideration” to the uncontested portion of the report and
recommendation, the court finds that Judge Schwab’s analysis is well-reasoned and
fully supported by the record and applicable law. See City of Long Branch, 866
F.3d at 99 (quoting Henderson, 812 F.2d at 878). The court will adopt this portion
of the report and recommendation in full.
11
CONCLUSION
For the reasons stated herein, following de novo review of the contested
portions of the report and recommendation, and giving reasoned consideration to
the uncontested portions, the court adopts Judge Schwab’s report and
recommendation in full. Accordingly, the court grants the DOC’s motion for
summary judgment in part and denies the motion in part. An appropriate order will
issue.
s/Jennifer P. Wilson
JENNIFER P. WILSON
United States District Court Judge
Middle District of Pennsylvania
Dated: April 21, 2020