Harrell v. Grady

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

TRE HARRELL, : Civil No. 1:20-CV-01156

:

Plaintiff, :

:

v. :

:

ALLESHA GRADY, et al., :

:

Defendants. : Judge Jennifer P. Wilson

MEMORANDUM

Before the court is a motion to dismiss the second amended complaint

pursuant to Fed. R. Civ. P. 12(b)(6) filed by Defendant Allesha Grady (“Grady”).

(Doc. 49.) Plaintiff Tre Harrell was previously a parolee and his parole was

revoked in 2018. (Doc. 48.) Plaintiff alleges that Grady forged his signature on

the revocation forms, thus depriving him of his constitutional rights in the parole

revocation process and resulting in this 42 U.S.C. § 1983 action. For the following

reasons, the court will grant Grady’s motion to dismiss the second amended

complaint as the action is barred by the statute of limitations.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff initiated this action by filing a complaint pursuant to 42 U.S.C. §

1983 in July of 2020. (Doc. 1.) Following an initial screening under 42 U.S.C. §

1915(e)(2)(B)(ii), this court dismissed the complaint, but provided Plaintiff time to

file an amended complaint in August of 2021. (Doc. 12.)

In October of 2021, Plaintiff filed an amended complaint naming ten

defendants: Allesha Grady (“Grady”) and nine members of the Pennsylvania Board

of Probation and Parole (“the Board”). (Doc. 16.) The nine defendants who were

members of the Board moved to dismiss the complaint on June 9, 2022. (Docs. 28,

29.) Defendant Grady answered the complaint on June 13, 2022, and did not join

the motion to dismiss. (Doc. 29.) On February 15, 2023, the court granted the

nine board member defendants’ motion and dismissed them as defendants in this

action. (Docs. 33, 34.) The court then entered a case management order

scheduling the remaining phases of litigation for all claims raised against

Defendant Grady. (Doc. 35.) Following a status conference on July 26, 2023, the

court amended this case management order. (Doc. 37.)

On July 31, 2023, Defendant Grady filed a motion for judgment on the

pleadings pursuant to Fed. R. Civ. P. 12(c) and a brief in support. (Docs. 38, 39.)

Following briefing, the court granted Defendant Grady’s motion because Plaintiff

failed to overcome the favorable-termination rule established in Heck v.

Humphrey, 512 U.S. 477 (1944). (Docs. 46, 47.) However, based on the

pleadings, it appeared that Plaintiff could cure the deficiency, and the court granted

Plaintiff leave to file a second amended complaint. (Id.)

Plaintiff filed a second amended complaint. (Doc. 48.) The second

amended complaint alleges that on May 6, 2017, Plaintiff was released on

Pennsylvania state parole on an approved home plan in Philadelphia. (Id., ¶ 8.)

On March 25, 2018, he was arrested in Atlantic City, New Jersey by Atlantic City

police officers and detained in the Atlantic County Justice Facility for a warrant

issued by the Board. (Id., ¶ 9.) He was extradited to Pennsylvania on April 9,

2018, and held at State Correctional Institution Graterford (“SCI-Graterford”)

pending disposition of the alleged parole violations. (Id., ¶ 10.)

On April 12, 2018, Defendant Grady served a notice of charges and hearing.

(Id., ¶ 11.) Plaintiff admits that he acknowledged the notice stating a preliminary

hearing was scheduled to take place at SCI-Graterford on April 20, 2018 at 9:00

a.m. with a signature. (Id.) Plaintiff alleges that Defendant Grady attempted to

coerce him into waiving his rights to a preliminary hearing, a violation hearing,

and the right to counsel at these hearings, and that he refused to sign such waivers.

(Id.) Plaintiff alleges that he returned form PBPP-72 to Defendant Grady with

only the waiver of panel hearing section signed. (Id., ¶ 21.) Likewise, he alleges

that he returned the PBPP-72T form with only the admission section signed, and

the waiver of violation hearing and counsel sections unsigned. (Id.) Plaintiff

alleges that Defendant Grady forged his signature on the PBPP-72T form waiver of

violation hearing and counsel sections in retaliation for Plaintiff requesting GPS

ankle monitoring history as evidence. (Id.)

Plaintiff also alleges a series of procedural events that resulted in his parole

being revoked on July 6, 2018. (Id., ¶¶ 13–24.)

Plaintiff alleges that he appealed the determination on July 13, 2018. (Id., ¶

25.) This appeal was successful, and the Board rescinded its July 6, 2018 decision.

(Id., ¶¶ 26–41; Doc. 48-1.)

Defendant Grady has filed a motion to dismiss the second amended

complaint pursuant to Fed. R. Civ. P. 12(b)(6) alleging that the action is time-

barred. (Docs. 49, 50.) Plaintiff has filed a brief in opposition. (Doc. 51.)

Defendant Grady has not filed a reply. The court will now address this pending

motion.

JURISDICTION AND VENUE

The court has jurisdiction over Plaintiff’s action pursuant to 28 U.S.C. §

1331, which allows a district court to exercise subject matter jurisdiction in civil

cases arising under the Constitution, laws, or treaties of the United States. Venue

is proper in this district because the alleged forgery giving rise to the claims

occurred at SCI-Gaterford, which is located within this district. See 28 U.S.C. §

118(b).

STANDARD OF REVIEW

In order “[t]o survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible on its face “when the

plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Id. (quoting

Twombly, 550 U.S. at 556). “Conclusory allegations of liability are insufficient” to

survive a motion to dismiss. Garrett v. Wexford Health, 938 F.3d 69, 92 (3d Cir.

2019) (quoting Iqbal, 556 U.S. at 678–79). To determine whether a complaint

survives a motion to dismiss, a court identifies “the elements a plaintiff must plead

to state a claim for relief,” disregards the allegations “that are no more than

conclusions and thus not entitled to the assumption of truth,” and determines

whether the remaining factual allegations “plausibly give rise to an entitlement to

relief.” Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) abrogated on other

grounds by Mack v. Yost, 968 F.3d 311 (3d. Cir. 2020).

When ruling on a motion to dismiss under Rule 12(b)(6), the court must

“accept all factual allegations as true, construe the complaint in the light most

favorable to the plaintiff, and determine whether, under any reasonable reading of

the complaint, the plaintiff may be entitled to relief.” Phillips v. County of

Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (quoting Pinker v. Roche Holdings,

Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)). In addition to reviewing the facts

contained in the complaint, the court may also consider “exhibits attached to the

complaint, matters of public record, as well as undisputedly authentic documents”

attached to a defendant’s motion to dismiss if the plaintiff’s claims are based upon

these documents. Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196

(3d Cir. 1993)).

The pleadings of self-represented plaintiffs are to be liberally construed and

held to a less stringent standard than formal pleadings drafted by attorneys. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); Fantone v. Latini, 780 F.3d 184, 193

(3d Cir. 2015), as amended (Mar. 24, 2015). Self-represented litigants are to be

granted leave to file a curative amended complaint even when a plaintiff does not

seek leave to amend, unless such an amendment would be inequitable or futile.

See Est. of Lagano v. Bergen Cnty. Prosecutor’s Off., 769 F.3d 850, 861 (3d Cir.

2014); see also Phillips, 515 F.3d at 245. A complaint that sets forth facts which

affirmatively demonstrate that the plaintiff has no right to recover is properly

dismissed without leave to amend. Grayson v. Mayview State Hosp., 293 F.3d

103, 106 (3d Cir. 2002).

DISCUSSION

The court will dismiss the claims against Defendant Grady because the

action is barred by the statute of limitations.

The limitations period for civil actions brought under 42 U.S.C. § 1983 is

determined by state law. Wallace v. Kato, 549 U.S. 384, 387 (2007). Under

Pennsylvania law, the applicable statute of limitations for civil rights actions

asserted under 42 U.S.C. § 1983 is two years. See 42 Pa. Cons. Stat. § 5524. The

date when a civil rights action accrues, however, is a matter of federal law.

Wallace, 549 U.S. at 388. “[U]nder federal law, . . . the limitations period begins

to run from the time when the plaintiff knows or has reason to know of the injury

which is the basis of the section 1983 action.” Montgomery v. De Simone, 159

F.3d 120, 126 (3d Cir. 2008) (quoting Genty v. Resolution Trust Corp., 937 F.2d

899, 919 (3d Cir. 1991)).

According to the complaint, Plaintiff received a copy of the forged

documents on May 11, 2018. (Doc. 48, ¶ 18.) As of this date, Plaintiff should

have been aware of the alleged forgery by Defendant Grady. This means the

statute of limitations expired on May 11, 2020. This court received and filed

Plaintiff’s original complaint bringing claims against Defendant Grady on July 8,

2020. (Doc. 1.) The complaint was signed June 28, 2020. (Id., p. 20.)1 Therefore,

the complaint was filed outside the statute of limitations.

However, Plaintiff appears to argue that he was required to exhaust the

administrative appeal process before bringing an action in federal court and could

1 For ease of reference, the court utilizes the page numbers from the CM/ECF header.

not do so prior to the statute of limitations expiring. (Doc. 51, pp. 3–4.) The court

construes this argument as asserting that the statute of limitations was tolled.

In Pearson v. Sec'y Dep't of Corrections, 775 F.3d 598, 603 (3d Cir. 2015),

the Third Circuit Court of Appeals officially held that the Prison Litigation

Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e et seq., is a statutory

prohibition that tolls Pennsylvania’s statute of limitations while a prisoner exhausts

his administrative remedies. Id. at 604. The PLRA requires prisoners to

exhaust available administrative remedies before suing prison officials for

alleged constitutional violations. See id. § 1997e(a); Ross v. Blake, 578 U.S.

632, 639, 642 (2016) (explaining that only “available” remedies must be

exhausted). Proper exhaustion is mandatory, even if the inmate is seeking

relief—like monetary damages—that cannot be granted by the administrative

system. See Woodford v. Ngo, 548 U.S. 81, 85 (2006). An inmate “must

exhaust available remedies, but need not exhaust unavailable ones.” Ross, 578

U.S. at 642.

Therefore, the question before the court is whether administrative

remedies were available to Plaintiff and thus a prerequisite to filing this

action under the PLRA and tolling the statute of limitations.

Turning to potential available administrative remedies, the court

acknowledges that Pennsylvania law allows an interested party to appeal a

parole revocation decision. See 37 Pa. Code § 73.1(a)(1). “The scope of

review of an appeal will be limited to whether the decision is supported by

substantial evidence, an error of law has been committed or there has been a

violation of constitutional law.” 37 Pa. Code § 73.1(a)(2). The requirement

to exhaust administrative remedies is applicable to alleged unconstitutional

acts of the Board. See DeFoy v. McCullough, 393 F.3d 439 (3d Cir. 2005);

28 U.S.C. § 2254(c).

The court acknowledges that Plaintiff is alleging constitutional

violations. (Doc. 28, ¶ 47.) However, he is alleging that the source of the

alleged constitutional violation is the forging of his signature by Defendant

Grady, and not the decision of the Board. If he were seeking review of the

Board’s decision, a petition for habeas corpus would be the proper federal

relief, not a civil rights claim pursuant to § 1983. See 28 U.S.C. § 2254(a).

Therefore, 37 Pa. Code § 73.1(a)(1) did not provide an administrative

remedy for the claim asserted against Defendant Grady. Defendant Grady is

not a member of the Board; she is the supervising parole agent. (Doc. 48, ¶

6.) Since no administrative remedy was available, there was no requirement

to exhaust administrative remedies prior to filing this action. Tolling of the

statute of limitations “is not appropriate where resort to an agency is not a

prerequisite to review in federal court.” Smith v. City of Philadelphia, 345

F.Supp.2d 482, 488 (E.D. Pa. 2004). As such, there is no tolling of the statute of

limitations under the PLRA in this action. Therefore, the action is barred by the

statute of limitations, and the claims will be dismissed with prejudice.

CONCLUSION

For the foregoing reasons, all the claims raised against the Defendant Grady

are dismissed with prejudice.

An appropriate order follows.

s/Jennifer P. Wilson

JENNIFER P. WILSON

United States District Judge

Middle District of Pennsylvania

Dated: February 14, 2024