Thomas Wisniewski v. Fisher

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 14-4194

___________

THOMAS WISNIEWSKI,

Appellant

v.

JON D. FISHER; R. SUE HANNAH; JAY B. WHITESEL;

LISA HOLLIBAUGH; CHARLES MITCHELL;

MANDY BISER; BRIAN LIGHTNER; MARY ANNE

MORDER;

FRANK CAMPOPIANO; ROBIN RUTTER; DANIEL

MYERS;

JOSEPH EICHENLAUB; JEFFREY OAKS;

F. SHOOP; DOUG LOY; M. SHEETZ; J. DELINE;

KEVIN SMITH; GREGORY BARNETT;

MARK HARLAN; RENEE LUBERT; TITUS

MOOLATHARA;

BETH MCCREARY; WILLIAM DREIBELBIS; JULIE

COWLER;

JOSH MAHUTE; DORINA VARNER

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 3-13-cv-02642)

District Judge: Honorable Malachy E. Mannion

____________________________________

Argued January 17, 2017

____________________________________

Before: AMBRO, VANASKIE AND SCIRICA, Circuit

Judges

(Filed: May 16, 2017)

Richard L. Heppner, Jr., Esq. [ARGUED]

Reed Smith

225 Fifth Avenue

Suite 1200

Pittsburgh, PA 15222

Michael P. Yingling, Esq.

Reed Smith

10 South Wacker Drive

40th Floor

Chicago, IL 60606

Counsel for Appellant

Debra S. Rand, Esq. [ARGUED]

Pennsylvania Department of Corrections

Office of Chief Counsel

1920 Technology Parkway

Mechanicsburg, PA 17050

Counsel for Appellee

2

_________________

OPINION OF THE COURT

__________________

VANASKIE, Circuit Judge.

Appellant Thomas Wisniewski, appeals from an order

of the United States District Court for the Middle District of

Pennsylvania dismissing his amended complaint for failure to

state a claim. For the reasons set forth below, we will reverse

in part the District Court’s order and will remand for further

proceedings.

I.

In 2013, Wisniewski filed a civil rights action pursuant

to 42 U.S.C. § 1983, naming as defendants officials and

employees of the State Correctional Institution at Smithfield

(“SCI-Smithfield”) in Huntingdon, Pennsylvania, where he is

confined. In a sprawling amended complaint, Wisniewski

asserted claims of First Amendment retaliation and violations

of his Fourth, Eighth, and Fourteenth Amendment rights.

Wisniewski’s amended complaint alleged that he

worked as an Inmate Legal Reference Aide in the prison’s

law library. Perceiving staffing shortages and believing that

other library policy decisions were harming the ability of

inmates to access the courts, he registered complaints with

prison officials and filed inmate requests about the issues. He

asserted that, in turn, he was subject to additional scrutiny

when, in his library position, he provided legal assistance to

qualified inmates who had been assigned to his caseload by

3

prison officials. An inmate specifically assigned to

Wisniewski’s caseload based on his mental health diagnosis

sought assistance in preparing a grievance challenging a yard

policy. In order to assist the inmate, Wisniewski obtained a

draft grievance from another inmate regarding the same topic

to use as a template. Prison officials discovered the draft

grievance in Wisniewski’s possession and confiscated it

based on their suspicions that it was from a notoriously

litigious inmate and was similar or identical to multiple other

grievances that had been filed. A questionnaire originating

from the attorney for the same litigious inmate was also

discovered during a subsequent search of Wisniewski’s cell.

Based on his possession of these documents, Wisniewski was

charged with, and found guilty of, engaging in or encouraging

unauthorized group activity, possession or circulation of a

petition, possession of contraband, and lying to an employee.

Certain defendants supported the misconduct charge by

claiming that the documents were “petitions” prohibited

under prison policy, despite the fact that neither of the

documents had the requisite three or more signatures to be

considered a petition under prison guidelines. Accordingly,

the misconduct charge was ultimately dismissed, but not until

Wisniewski had already spent nearly 90 days in the Restricted

Housing Unit (“RHU”) as a result of the charges.

Wisniewski alleged that, in addition to contriving these

charges and issuing a guilty verdict for conduct that did not

contradict prison guidelines, the defendants engaged in a

series of additional actions in retaliation for helping his

assigned inmate prepare a grievance. These retaliatory acts

included removing him from his law library position,

tampering with his television, denying him yard time,

delaying his release from disciplinary confinement,

4

interfering with his access to legal materials, and limiting his

access to a photocopier to copy legal materials. Wisniewski

filed multiple grievances challenging the allegedly

unconstitutional conduct.

The defendants filed a motion to dismiss. The

Magistrate Judge recommended granting defendants’ motion,

and the District Court, over Wisniewski’s objections, adopted

the Magistrate Judge’s report in its entirety and dismissed the

amended complaint with prejudice. Specifically, the District

Court dismissed all of Wisniewski’s claims arising out of

events that occurred more than two years prior to the filing of

the complaint based on the statute of limitations. The District

Court then dismissed the two remaining First Amendment

retaliation claims, which related to his limited access to the

photocopier and his removal from his Inmate Legal Reference

Aide position, for failure to state a claim. The District Court

determined that helping a fellow inmate to prepare a

grievance was not protected conduct under the First

Amendment, and that limiting access to a photocopier did not

constitute an adverse action sufficient to support a First

Amendment retaliation claim. Wisniewski timely appealed.1

II.

This Court has jurisdiction pursuant to 28 U.S.C. §

1291 and exercises plenary review over the District Court’s

dismissal of Wisniewski’s amended complaint. See Allah v.

1

We appointed counsel to represent Wisniewski on appeal.

Appointed counsel performed admirably and was of immense

assistance to the Court. We express our sincere appreciation

to counsel for the excellent representation of Wisniewski on

appeal.

5

Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To survive

dismissal pursuant to Federal Rule of Civil Procedure

12(b)(6), “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)). This Court will affirm a district court’s dismissal for

failure to state a claim “only if, accepting all factual

allegations as true and construing the complaint in the light

most favorable to the plaintiff, [it] determine[s] that the

plaintiff is not entitled to relief under any reasonable reading

of the complaint.” McGovern v. City of Phila., 554 F.3d 114,

115 (3d Cir. 2009).

A.

To state a claim for retaliation, a prisoner must allege

that: (1) he was engaged in constitutionally protected conduct,

(2) “he suffered some ‘adverse action’ at the hands of prison

officials,” and (3) “his constitutionally protected conduct was

‘a substantial or motivating factor’ in the decision” to take

that action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.

2001) (citation omitted). The District Court concluded that

Wisniewski failed to allege that he engaged in

constitutionally protected activity because, pursuant to Shaw

v. Murphy, 532 U.S. 223 (2001), inmates do not possess an

independent First Amendment right to provide legal

assistance to fellow inmates. We conclude, however, that

Wisniewski’s allegations regarding his retaliation claim based

on his removal from his Inmate Legal Reference Aide

position, are sufficient to survive a motion to dismiss.

“[A]n inmate’s constitutional rights are ‘necessarily

limited.’” Newman v. Beard, 617 F.3d 775, 781 (3d Cir.

6

2010) (quoting Waterman v. Farmer, 183 F.3d 208, 213 (3d

Cir. 1999)). Nevertheless, “it is settled law that an inmate

‘retains those First Amendment rights that are not

inconsistent with his status as a prisoner or with the legitimate

penological objectives of the corrections system.’” Id.

(quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)); see

also Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a

prison regulation impinges on inmates’ constitutional rights,

the regulation is valid if it is reasonably related to legitimate

penological interests.”). In Shaw, on which the District Court

relied, the Supreme Court declined to give prisoner-to-

prisoner legal assistance any First Amendment protection

“above and beyond the protection normally accorded

prisoners’ speech.” 532 U.S. at 231. Instead, the Supreme

Court held that prisons may, if consistent with Turner v.

Safley, 482 U.S. 78 (1987), restrict inmates from assisting

other inmates in legal matters. Id. at 228-232.

Wisniewski alleged that as an Inmate Legal Reference

Aide, he was responsible for assisting inmates assigned to his

caseload prepare legal documents, including grievances. In

performing those duties, he obtained a copy of a draft

grievance to use in assisting his assigned inmate prepare a

grievance challenging the prison’s yard policy. Wisniewski

alleged that when prison officials discovered that this material

belonged to a notoriously litigious inmate and was used in the

filing of multiple other grievances challenging the same

policy, they contrived misconduct charges, of which he was

ultimately cleared, and engaged in a series of retaliatory

actions, including arranging for his removal from his law

library position. Wisniewski’s amended complaint plausibly

alleged that his conduct in assisting his assigned inmate

prepare a grievance, which was both pursuant to his job duties

7

and in accordance with prison regulations, was not

inconsistent with legitimate penological interests, and

therefore could fall within the limited First Amendment rights

that prisoners retain.2 See, e.g., Newman, 617 F.3d at 781.

Cf. Johnson v. Avery, 393 U.S. 483, 486-90 (1969)

(protecting the right of access to courts by prohibiting state

prison officials from actively interfering with inmates’

attempts to prepare legal documents).

With respect to the second element, the termination of

prison employment constitutes adverse action sufficient to

deter the exercise of First Amendment rights, satisfying the

second element of a retaliation claim at this stage of the

litigation.3 See, e.g., Williams v. Meese, 926 F.2d 994, 998

(10th Cir. 1991)(“[A prisoner] has no right to a job … [but]

prison officials cannot punish [him for] exercising his first

amendment rights by denying him certain job assignments or

2

Nonetheless, prison officials may still demonstrate that their

actions were reasonably related to legitimate penological

interests. See, e.g., Carter v. McGrady, 292 F.3d 152, 159

(3d Cir. 2002) (concluding that there was no genuine issue of

material fact that prison officials’ actions were “‘reasonably

related to legitimate penological interests,’ and that [plaintiff]

would have been disciplined notwithstanding his jailhouse

lawyering.” (quoting Turner, 482 U.S. at 90)). However, we

cannot say, at this stage, that Wisniewski’s allegations were

insufficient to survive a Rule 12(b)(6) dismissal.

3

At oral argument, counsel for Wisniewski withdrew the

retaliation claim based upon limits imposed on his access to a

photocopier.

8

transferring him from one job to another”). His amended

complaint also adequately alleged a causal link between his

provision of legal assistance and his job removal.4

Accordingly, accepting as true the factual allegations

in the complaint and all reasonable inferences that can be

drawn therefrom, we conclude that Wisniewski’s allegations

regarding his job removal state a plausible claim for relief

sufficient to survive Rule 12(b)(6) dismissal.

4

Wisniewski also argues on appeal that his job removal was

additionally in retaliation for complaints he made about

staffing shortages in the library. The District Court did not

directly address this claim before dismissing the complaint,

but we believe that Wisniewksi’s allegations raise his right to

relief above the speculative level. Wisniewski’s complaints

to prison officials and inmate requests implicate conduct

protected by the First Amendment. See Mitchell v. Horn, 318

F.3d 523, 530 (3d Cir. 2003). Moreover, his amended

complaint suggests a pattern of retaliation beginning with his

complaints to prison staff about the prison’s implementation

of library policies and culminating with the loss of his

position as an Inmate Legal Reference Aide. Accordingly,

construing Wisniewski’s amended complaint liberally, we

believe that he adequately alleged a causal connection

between those complaints and his job removal. Cf. Lauren

W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.

2007) (noting ways to establish causal link, including through

“a pattern of antagonism coupled with timing”); Marra v.

Phila. Hous. Auth., 497 F.3d 286, 303-05 (3d Cir. 2007)

(concluding that evidence of a pattern of antagonist behavior

was sufficient to support a causal link).

9

B.

We also conclude that the District Court erred in

dismissing, at this stage, Wisniewski’s remaining claims

based on the statute of limitations. The running of the statute

of limitations is an affirmative defense. See Fed. R. Civ. P.

8(c)(1); Bradford-White Corp. v. Ernst & Whinney, 872 F.2d

1153, 1161 (3d Cir. 1989). A complaint is subject to

dismissal for failure to state a claim on statute of limitations

grounds only when the statute of limitations defense is

apparent on the face of the complaint. Schmidt v. Skolas, 770

F.3d 241, 249 (3d Cir. 2014). Wisniewski filed his complaint

on October 25, 2013. The statute of limitations applicable to

§ 1983 claims in Pennsylvania is two years. See Knoll v.

Springfield Twp. Sch. Dist., 763 F.2d 584, 585 (3d Cir.

1985). “A [§] 1983 cause of action accrues when the plaintiff

knew or should have known of the injury upon which [his]

action is based.” Sameric Corp. of Del. v. City of Phila., 142

F.3d 582, 599 (3d Cir. 1998). Although Wisniewski argues

that his claims are timely presented because he suffered a

continuing wrong, we agree that the District Court properly

concluded that the continuing violations doctrine does not

apply to Wisniewski’s claims, as defendants’ actions “had a

degree of permanence which should trigger [his] awareness of

and duty to assert his[] rights.” See Cowell v. Palmer Twp.,

263 F.3d 286, 292 (3d Cir. 2001). Accordingly, absent tolling

of the statute of limitations, Wisniewski’s claims accruing

before October 2011 were time-barred.

This Court has held, however, that because exhaustion

of prison administrative remedies is mandatory under the

Prison Litigation Reform Act (“PLRA”), the statute of

limitations applicable to § 1983 actions should be tolled while

a prisoner pursues the mandated remedies. Pearson v. Sec’y

10

Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015). Although

Wisniewski’s amended complaint revealed that certain

instances of allegedly unconstitutional conduct occurred more

than two years prior to the filing of the complaint, such as the

confiscation of his leg brace for two days while he was

housed in the RHU, the allegations did not rule out the

possibility that the statute of limitations should have been

tolled while Wisniewski exhausted his administrative

remedies. For example, Wisniewski alleged multiple

instances of retaliatory conduct from approximately April

2011 through November 2011, during which time he was also

filing numerous related grievances. We cannot say, therefore,

that it was apparent on the face of the amended complaint that

all claims accruing prior to October 2013 were necessarily

barred by the statute of limitations. We conclude that the

District Court erred in dismissing these claims as barred by

the statute of limitations without considering whether

Wisniewski properly exhausted administrative remedies and

whether and to what extent the limitations period should be

tolled. We express no view as to whether Wisniewski’s

underlying claims will prevail or whether defenses, such as

the statute of limitations, will prove to be dispositive.5

III.

For the foregoing reasons, we will reverse the District

Court’s order to the extent it dismissed the First Amendment

retaliation claim based on Wisniewski’s job removal and to

the extent it dismissed the remaining claims on statute of

5

Our decision also does not preclude the District Court from

considering other bases for dismissal of the claims on

remand.

11

limitations grounds. We remand for further proceedings

consistent with this opinion.

12