Petition for Writ of Certiorari — Michael F. Kissell, Petitioner v. Pennsylvania Office of the Budget Legal Office, et al.

APPENDIX TABLE OF CONTENTS

Opinions and Orders

Opinion U.S. Court of Appeals

for the Third Circuit (May 12, 2025)............ la

Judgment, U.S. Court of Appeals for the

Third Circuit (May 12, 2025)................................. 9a

Memorandum Order, U.S. District Court

for the Western District of Pennsylvania

(July 1, 2024).................................................. 11a

Judgment, U.S. District Court

for the Western District of Pennsylvania

(July 1, 2024)......................................................... 13a

Magistrate Report and Recommendation,

U.S. District Court for the Western District

of Pennsylvania (June 14, 2024).................. 15a

App.la

OPINION, U.S. COURT OF APPEALS

FOR THE THIRD CIRCUIT

(MAY 12, 2025)

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MICHAEL F. KISSELL,

Appellant,

v.

PENNSYLVANIA OFFICE OF THE BUDGET

LEGAL OFFICE; BRIAN ZWEIACHER;

PATSY IEZZI; CHRISTOPHER P. SKATELL;

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS,

No. 24-2254

On Appeal from the United States District Court for

the Western District of Pennsylvania

(D.C. Civil Action No. 2:22-cv-01715)

District Judge: Honorable Christy Criswell Wiegand

Submitted Pursuant to Third Circuit LAR 34.1 (a)

February 4, 2025

Before: KRAUSE, PHIPPS, and ROTH,

Circuit Judges.

App.2a

OPINION*

PER CURIAM

Appellant Michael Kissell appeals the District

Court’s July 1, 2024 order adopting the Magistrate

Judge’s Report and Recommendation in full, granting

Defendants’ motions to dismiss, and dismissing his

complaint with prejudice. Because the District Court

properly dismissed Kissell’s complaint as barred by

sovereign immunity, res judicata, the statute of limit­

ations, and for failure to state a claim, we will affirm

the District Court’s order and judgment.

I.

Kissell filed his current suit against the Penn­

sylvania Department of Corrections (“DOC”), the Penn­

sylvania Office of the Budget Legal Office, and Brian

Zweiacher, a former Office of the Budget attorney, and

two of his former attorneys, Christopher Skatell and

Patsy lezzi, in December 2022. Defendants all filed

motions to dismiss the complaint. Kissell then filed

his first amended complaint which Defendants again

moved to dismiss. The District Court, based on the

Magistrate Judge’s recommendation, dismissed Kissell’s

complaint without prejudice for failure to comply with

Federal Rule of Civil Procedure 8. Kissell then filed

his second amended complaint.

Kissell’s second amended complaint alleged that

Defendants had been involved in a years-long conspiracy

to deprive him of the monetary award and reinstate­

ment he had won in a jury trial against his former

employer, the DOC. Kissell alleged that this conspiracy

* This disposition is not an opinion of the full Court and pursuant

to I.O.P. 5.7 does not constitute binding precedent.

App.3a

forced him to retire early from his reinstated position

and caused him to commit tax fraud, and violated his

rights under the First and Fourteenth Amendments,

42 U.S.C. § 1983, and 42 U.S.C. § 2000e-3(a) (Title VII),

among other related state law claims. Defendants again

moved to dismiss the complaint under Federal Rules

of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6).

The Magistrate Judge recommended that the

District Court dismiss with prejudice the entire second

amended complaint for, inter alia, failure to comply

with Rule 8, failure to state a claim, and as barred by

the relevant statutes of limitation, sovereign immunity,

and res judicata. The District Court adopted the Magis­

trate Judge’s report in full, granting Defendants’

motions to dismiss and dismissing with prejudice

Kissell’s second amended complaint. Kissell timely

appealed.

II.

The District Court had jurisdiction under 28

U.S.C. § 1331. We have jurisdiction pursuant to 28

U.S.C. § 1291. Our review of a dismissal under Federal

Rules of Civil Procedure 12(b)(1) and 12(b)(6) is

plenary. Bruni v. City of Pittsburgh, 824 F.3d 353, 360

(3d Cir. 2016); Elkadrawy v. Vanguard Grp., Inc., 584

F.3d 169, 172 (3d Cir. 2009). We review a dismissal for

failure to comply with Rule 8 for an abuse of discretion.

In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d

Cir. 1996). However, to the extent that the District

Court determined that Kissell’s complaint failed to state

a claim under the standard articulated by Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), and

reiterated in Ashcroft v. Iqbal, 556 U.S. 662, 677-79

(2009), our review is de novo. See Klotz v. Celentano

App.4a

Stadtmauer & Walentowicz LLP, 991 F.3d 458, 462

(3d Cir. 2021).

Under the Twombly-Iqbal standard, a pleading

“must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its

face.” Iqbal, 556 U.S. at 678 (cleaned up). Although

pro se pleadings must be held to “less stringent

standards than formal pleadings drafted by lawyers,”

Haines v. Kerner, 404 U.S. 519, 520 (1972), “pro se liti­

gants still must allege sufficient facts in their complaints

to support a claim.” Mala v. Crown Bay Marina, Inc.,

704 F.3d 239, 245 (3d Cir. 2013).

III.

After our de novo review of the record, we agree

that Kissell’s § 1983 claims against Defendants Skatell

and lezzi fail because they are not state actors. We are

also satisfied that Kissell’s § 1983 and state law

claims against the DOC and the Office of the Budget

are barred because of sovereign immunity, while his

Title VII claim against the DOC is barred by res

judicata. We further agree that all of Kissell’s claims

against Zweiacher are barred by the statute of

limitations. Finally, we agree that Kissell failed to state

a claim as to any of his remaining state law claims.

A.

Kissell’s § 1983 claims against Defendants Skatell

and lezzi fail because they are not state actors. “[A]

plaintiff seeking to hold an individual liable under

§ 1983 must establish that [they were] deprived of a

federal constitutional or statutory right by a state

actor.” Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009).

“A person may be found to be a state actor when (1) he

App.5a

is a state official, (2) he has acted together with or has

obtained significant aid from state officials, or (3) his

conduct is, by its nature, chargeable to the state.”

Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268,

277 (3d Cir. 1999) (cleaned up). “Attorneys performing

their traditional functions will not be considered state

actors solely on the basis of their position as officers of

the court.” Id. The District Court correctly found that

Skatell and lezzi could not be found to be state actors

based on the facts as alleged by Kissell. Additionally,

Kissell’s § 1983 conspiracy claim against Skatell and

lezzi fails because he did not “allege specific facts

showing an agreement and concerted action amongst

the defendants.” Tonkovich v. Kan. Bd. of Regents, 159

F.3d 504, 533 (10th Cir. 1998).

B.

Kissell’s § 1983 claims against the DOC and the

Office of the Budget are barred by sovereign immunity.

The Eleventh Amendment “make[s] states generally

immune from suit by private parties in federal court

[and] [t]his immunity extends to state agencies and

departments.” MCI Telecomm. Corp. v. Bell Atl.-Pa.,

271 F.3d 491, 503 (3d Cir. 2001) (cleaned up). Congress

did not override the states’ immunity from suit when

it enacted § 1983, see Quern v. Jordan, 440 U.S. 332,

345 (1979), and Pennsylvania has expressly not waived

its Eleventh Amendment immunity in federal courts.

42 Pa. Cons. Stat. Ann. § 8521(b). The District Court

correctly found that because the DOC and Office of the

Budget are state agencies and departments, they are

immune from civil rights suits under § 1983. We

further agree with the DOC and the Office of the

Budget that their Eleventh Amendment immunity in

federal courts extends to Kissell’s state law claims.

App.6a

See Pennhurst State Sch. & Hosp. v. Halderman, 465

U.S. 89, 103 n.12 (1984).

C.

To the extent Kissell brought Title VII claims

against any party apart from the DOC, his former

employer, the claims fail as a matter of law. “Title VII

prohibits unlawful employment practices by employers,”

see Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir.

2002), and it does not provide for individual liability.

See Sheridan v. E.I. DuPont de Nemours & Co., 100

F.3d 1061, 1078 (3d Cir. 1996). As for Kissell’s Title

VII claims against the DOC, we agree that they are

barred by res judicata.

This is the fourth time Kissell has argued before

us that the DOC violated his Title VII rights. Spe­

cifically, Kissell has argued that the DOC retaliated

against him for continuing to report sexual misconduct

after his reinstatement and created a hostile work

environment that forced him into early retirement.

See Kissell v. Dep’t of Corr., 634 F. App’x 876, 879 (3d

Cir. 2015) (per curiam) (“Kissell P); Kissell v. Dep’t of

Corr., 670 F. App’x 766, 767-68 (3d Cir. 2016) (per

curiam) (fKissell IP); Kissell v. Pa. Dep’t of Corr., 808

F. App’x 58, 59 (3d Ch'. 2020) (per curiam) (“Kissell IIP).

In Kissell I, we vacated to allow Kissell to file an

amended complaint. 634 F. App’x at 879-80. In Kissell

II, we then affirmed the District Court’s withprejudice dismissal of his Title VII claim against the

DOC because Kissell had “not sufficiently allege[d]

the second and third elements of retaliation.” 670 F.

App’x at 768. In Kissell III, we affirmed the District

Court’s dismissal of Kissell’s complaint on the grounds

of res judicata because “(1) a judgment on the merits

App.7a

was entered in Kissell II; (2) Kissell II and Kissell III

involve [d] the same set of parties (Kissell and the

DOC); and (3) the claims raised in Kissell III inarguably

[were] the same as those raised in Kissell II” Kissell

III, 808 F. App’x at 59. We agree that Kissell’s current

Title VII claims of retaliation, hostile work environment,

and forced retirement are also barred by res judicata

because they are inarguably the same claims he

brought before us in Kissell II and Kissell III.

D.

Kissell’s claims against Zweiacher in his personal

capacity are barred by the statute of limitations. “[W]e

permit a limitations defense to be raised by a motion

under Rule 12(b)(6) only if the time alleged in the

statement of a claim shows that the cause of action

has not been brought within the statute of limitations.”

Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014)

(cleaned up). Kissell identified his specific claims

against Zweiacher in Count I of his complaint. Within

Count I, Kissell specifically asserted the timeframe of

Zweiacher’s alleged actions ranged from 2005 when he

first was assigned to Kissell’s case to 2012 when

Kissell was advised that “overpayments were made in

his name and his wages would be attached.” Kissell

alleges under Count II, where he identified his specific

claims against lezzi, that his claims did not accrue

until December 8, 2020 when he received a transcript

of his 2004-2008 taxes, because only then did he realize

the full extent of the injury and that a conspiracy had

occurred. However, the facts as alleged in his complaint

indicate that Kissell knew in 2012 there were issues

with his taxes that had yet to be resolved. Because all

of his federal claims against Zweiacher rest on Kissell’s

tax issues, the District Court properly found that

App.8a

Pennsylvania’s discovery rule did not delay the accrual

of the statute of limitations. The same statute of

limitations bar applies to Kissell’s state law claims

against Zweiacher.

E.

Finally, to the extent any state law claims remain,

we agree that Kissell failed to include “factual alle­

gations to support any of [his] claims” sufficient to

meet the Twombly-Iqbal standard. Kissell’s complaint

offers “formulaic recitation [s] of the elements of a

cause of action” for his state law claims, Twombly, 550

U.S. at 555, while making “naked assertions devoid of

further factual enhancement.” Iqbal, 556 U.S. at 678.

The District Court correctly found that Kissell’s

“recitation of the elements” and his “assertions” did

not suffice to state a claim.

IV.

For the foregoing reasons, we will affirm the

District Court’s order and judgment. 1

1 Kissell brought a motion for Federal Rule of Civil Procedure 11

sanctions against Appellees Skatell and lezzi because “the

defendants^] representatives [on appeal] make the argument

that the appellant shows no inference or does not present facts

to support his assertions.” Dkt. No. 32 at 1. We deny Kissell’s

motion because the actions for which he seeks sanctions occurred

during the appeal and not during the District Court proceedings.

“On its face, Rule 11 does not apply to appellate proceedings . . .

[and] [n]either the language of Rule 11 nor the Advisory Committee

Note suggest that the Rule could require payment for any activities

outside the context of district court proceedings.” Cooter & Gell

v. Hartmax Corp., 496 U.S. 384,406 (1990). In any event, the conduct

Kissell complains about is not sanctionable under Rule 11(b) or

any other ethical rules.

App.9a

JUDGMENT, U.S. COURT OF APPEALS

FOR THE THIRD CIRCUIT

(MAY 12, 2025)

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

MICHAEL F. KISSELL,

Appellant,

v.

PENNSYLVANIA OFFICE OF THE BUDGET

LEGAL OFFICE; BRIAN ZWEIACHER; PATSY

IEZZI; CHRISTOPHER P. SKATELL;

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS,

No. 24-2254

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil Action No. 2:22-cv-01715)

District Judge: Honorable Christy Criswell Wiegand

Submitted Pursuant to Third Circuit LAR 34.1 (a)

February 4, 2025

Before: KRAUSE, PHIPPS, and ROTH,

Circuit Judges.

App.lOa

JUDGMENT

This cause came to be considered on the record

from the United States District Court for the Western

District of Pennsylvania and was submitted pursuant

to Third Circuit LAR 34.1 (a) on February 4, 2025. On

consideration whereof, it is now hereby

ORDERED and ADJUDGED by this Court that

the judgment of the District Court entered July 1,

2024 be and the same is hereby AFFIRMED. Costs

taxed against the appellant. All of the above in

accordance with the opinion of this Court.

ATTEST:

s/ Patricia S. Dodszuweit

Clerk

Dated: May 12, 2025

App.lla

MEMORANDUM ORDER,

U.S. DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA

(JULY 1, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

MICHAEL F. KISSELL,

Plaintiff,

v.

PENNSYLVANIA OFFICE OF THE BUDGET

LEGAL OFFICE; BRIAN ZWEIACHER;

PATSY IEZZI; CHRISTOPHER P. SKATELL;

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS,

Defendants.

No. 2:22-CV-01715-CCW

Before: Christy Criswell WIEGAND,

United States District Judge.

MEMORANDUM ORDER

This case has been referred to Chief United States

Magistrate Judge Richard A. Lanzillo for pretrial

proceedings in accordance with the Magistrates Act,

App.l2a

28 U.S.C. §§ 636(b)(1)(A) and (B), and Local Rule of

Civil Procedure 72.

On June 14, 2024, the Magistrate Judge issued a

Report, ECF No. 94, recommending that the Motion to

Dismiss, ECF No. 77, by Defendant Christopher P.

Skatell; the Motion to Dismiss, ECF No. 80, by

Defendants Pennsylvania Department of Corrections,

Pennsylvania Office of the Budget Legal Office, and

Brian Zweiacher; and the Motion to Dismiss, ECF No.

84, by Defendant Patsy lezzi be granted; and the

Second Amended Complaint, ECF No. 73, be dismissed

with prejudice. Service of the Report and Recom­

mendation (“R&R”) was made on the parties, and pro

se Plaintiff Michael F. Kissell has filed Objections. See

ECF No. 95.

After a de nova review of the pleadings and docu­

ments in the case, together with the R&R and the

Objections thereto, the following Order is entered:

The Motions to Dismiss, ECF Nos. 77, 80, 84, are

GRANTED; the Second Amended Complaint, ECF

No. 73, is DISMISSED WITH PREJUDICE; and the

R&R, ECF No. 94, is adopted as the Opinion of the

District Court.

IT IS SO ORDERED.

DATED this 1st day of July, 2024.

BY THE COURT:

/s/ Christy Criswell Wiegand

United States District Judge

App.l3a

JUDGMENT, U.S. DISTRICT COURT FOR THE

WESTERN DISTRICT OF PENNSYLVANIA

(JULY 1, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA

MICHAEL F. KISSELL,

Plaintiff,

v.

PENNSYLVANIA OFFICE OF THE BUDGET

LEGAL OFFICE; BRIAN ZWEIACHER;

PATSY IEZZI; CHRISTOPHER P. SKATELL;

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS,

Defendants.

No. 2:22-CV-01715-CCW

Before: Christy Criswell WIEGAND,

United States District Judge.

JUDGMENT

FINAL JUDGMENT is hereby entered in favor of

Defendants Pennsylvania Office of the Budget Legal

Office, Brian Zweiacher, Patsy lezzi, Christopher P.

Skatell, and the Pennsylvania Department of Correc-

App.l4a

tions, pursuant to Rule 58 of the Federal Rules of Civil

Procedure.

IT IS SO ORDERED.

DATED this 1st day of July, 2024.

BY THE COURT:

/s/ Christy Criswell Wiegand

United States District Judge

App.l5a

MAGISTRATE REPORT AND

RECOMMENDATION,

U.S. DISTRICT COURT FOR THE WESTERN

DISTRICT OF PENNSYLVANIA

(JUNE 14, 2024)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF

PENNSYLVANIA, PITTSBURGH

MICHAEL F. KISSELL,

Plaintiff,

v.

PENNSYLVANIA OFFICE OF THE BUDGET

LEGAL OFFICE; BRIAN ZWEIACHER;

PATSY IEZZI; CHRISTOPHER P. SKATELL;

PENNSYLVANIA DEPARTMENT OF

CORRECTIONS,

Defendants.

No. 2:22-CV-01715-CCW

Before: Christy Criswell WIEGAND,

United States District Judge, Richard A. LANZILLO,

Chief United States Magistrate Judge.

REPORT AND RECOMMENDATION

RICHARD A. LA ZILLO, CHIEF UNITED STATES

MAGISTRATE JUDGE.

App.l6a

I.

Recommendation

Pro se Plaintiff Michael F. Kissell (“Plaintiff)

initiated this action against Defendants Pennsylvania

Office of the Budget Legal Office (“OBLO”), attorneys

Brian Zweiacher, Patsy lezzi, and Christopher P.

Skatell, and the Pennsylvania Department of Correc­

tions (“DOC”), alleging a years-long conspiracy among

them that he asserted resulted in violations of his

constitutional, statutory, and common law rights. Three

motions to dismiss Plaintiffs Second Amended Com­

plaint (SAC) (ECF No. 73) are pending before the

Court:

(1) Defendant Skatell’s motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) and

12(b)(2) (ECF No. 77);

(2) Defendants OBLO, DOC, and Zweiacher’s

motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6) and 12(b)(1) (ECF No. 80); and

(3) Defendant lezzi’s motion to dismiss pursuant

to Fed. R. Civ. P. 12(b)(6) (ECF No. 84).

This Court has subject matter jurisdiction under

28 U.S.C. § 1331. The motions have been fully briefed

and are ripe for disposition. See ECF Nos. 78, 81, 82,

85, 87, 88, 89.

Because the facts alleged in the SAC support

none of the claims asserted therein and, additionally,

all such claims are barred by the statute of limitations,

sovereign immunity, or res judicata, it is respectfully

recommended that the Court grant each of the pending

motions (ECF Nos. 77, 80, 84) and dismiss all claims

of the SAC with prejudice as to all Defendants.

App.l7a

II.

Report

A. Factual Background

Plaintiffs 133-paragraph SAC is a disjointed and

frequently incomprehensible collection of allegations

regarding Plaintiffs initial period of employment as a

DOC corrections officer commencing in 1988, Plaintiffs

successful lawsuit against the DOC following the

termination of his employment in 1994, a subsequent

unspecified period of employment with the DOC

during which Plaintiff was subjected to unspecified

acts of harassment and retaliation by unnamed DOC

personnel, and vaguely described errors and misconduct

allegedly committed by multiple attorneys in connection

with Plaintiffs tax obligations and filings between

2004 and 2007. The SAC charges a vast conspiracy

among unassociated attorneys, OBLO, and the DOC

that apparently spanned several years. Plaintiffs

pleading invokes a plethora of constitutional, statutory,

and common law theories of liability, including claims

pursuant to 42 U.S.C. § 1983 based on violations of his

rights under the First and Fourteenth Amendments

to the U.S. Constitution (ECF No. 73 at

1, 111-113,

125), claims of retaliation, sex discrimination, and

hostile work environment in violation of Title VII, 42

U.S.C. § 2000e-3(a) {id. at

2, 113, 119, 122, 123),

and references to state law claims for negligence,

fraud, and violations of the Pennsylvania Wage Payment

and Collection Act (“WPCL”), 43 Pa. Cons. Stat.§§ 260.1

et seq. (Id. at UU 103, 121; see also Counts I, V).

The SAC relates that the DOC hired Plaintiff as

a corrections officer at its state correctional institution

at Greensburg on January 25, 1988 and that, in 1994,

it terminated his employment after he reported co-

App,18a

workers for sexual harassment and “other crimes.” Id.

at

18-20. Following the termination of his em­

ployment, Plaintiff sued the DOC for retaliation and,

in 2002, a jury awarded him reinstatement with full

back pay. Id. at |1[ 21-22. At some point in 2004,

Plaintiffs attorney in the retaliation lawsuit, Leonard

Sweeney (“Sweeney”), received one of Plaintiffs back

payment checks from the Commonwealth. Id. at 27.

Sweeney continued to receive his checks in 200.5,

which Sweeney “illegally endorsefd]” to “embezzlfe]

[his] [m]oney.” Id. at

27, 32, 45. The DOC knew about

this, which created “hostilities” at his workplace. Id.

at 27. Plaintiff was unaware of these payments and,

as a result, they were not taxed properly. Id. at 21-22.

Plaintiff acknowledges, however, that he received a

letter from the IRS in December 2005 notifying him

that he had to report any “overpayments” as wages on

his W-2. Id. at 47.

Also in 2005, Defendant OBLO assigned Defendant

Zweiacher “to rectify” Plaintiffs “[t]ax problems and

reinstatement.” Id. at 36. Zweiacher knew the DOC

“was responsible for the back payment through payroll”

and “concealed overpayments issued in [Plaintiffs]

name that should have been taxed ... in the years

2004, 2005, and 2006.” Id. at

36, 108. In 2007,

Plaintiff hired a tax attorney, Defendant lezzi, to

correct his taxes. Id. at ^[ 55. Plaintiff appears to

allege that both lezzi and Zweiacher told him that his

taxes had been corrected, which were “false state­

ments” made in furtherance of a “civil conspiracy”

against him. Id. at ^[ 50, 55, 60, 90.

In 2012, Plaintiff wrote a letter to then-Pennsylvania Governor Tom Corbett about some of his

“personal concerns.” Id. at 29. At some point there-

App.l9a

after, Plaintiff learned that “overpayments were made

in his name” and that “his wages would be attached.”

Id. at 57. Plaintiffs work environment became so

hostile that he was forced to retire in 2014, after which

his pension was attached, id. at

58-59, 126.

Plaintiff hired another attorney, Defendant Skatell, to

represent him at his pension hearing, id. at 92.

Thereafter, Skatell negligently handled other matters

for him, including another employment discrimination

suit against the DOC and an appeal to the Supreme

Court of the United States. See id. at

92, 93, 96.

Because Plaintiff oscillates between disjointed

factual allegations and various legal labels and con­

clusions of law, it is difficult to discern which claims

are asserted against which Defendants. Liberally con­

struing the SAC, as the Court must based on Plaintiffs

pro se status, Plaintiff appears to assert that (1) all

Defendants conspired against him in retaliation for

his 1994 employment lawsuit against the DOC, id. at

UH 21, 32, 109, (2) he “was deceived by his attorneys

[Zweiacher, lezzi, and Skatell] and entrapped in [t] ax

[f]raud” and discovered this tax fraud when he received

a transcript of his 2004-2008 taxes from the IRS on

December 8,2020, which conflicted with the information

he had previously been provided by his attorneys, id.

at

33 73, 86, and (3) the DOC continued to retaliate

against Plaintiff for reporting sexual misconduct,

which led to his 2014 “forced retirement and attachment

of [his] wages.” id. at 104. Aside from Plaintiffs

inclusion of OBLO in his general conspiracy claim, it

is unclear what, if any, claims he may be asserting

against it. Zweiacher, lezzi, and Skatell are sued in

their individual capacities, see id. at

91, 63, 36, but

App.20a

Zweiacher is the only individual alleged to have acted

under the color of law. See id. at

36, 108.

Plaintiff asserts that the Defendants’ conduct

violated his First Amendment rights to “access the

Courts” as he inadvertently committed tax fraud, id.

at U 111, and to “freedom of speech” because his wages

were attached after he .wrote a letter to Governor

Corbett, id. at 112, as well as his Fourteenth Amend­

ment right to equal protection of the laws. See id. at

113. Plaintiff also asserts violations of the WPCL,

although it is entirely unclear upon what he bases this

claim. See id. at

103, 121; see also Counts I, V.

Finally, the SAC includes references to several other

causes of action, such as intentional infliction of

emotional distress, see id. at 31, negligence, breach

of contract, ineffective assistance of counsel, civil

conspiracy, and fraud. See id. at Counts I-V.

B. Standard of Review

A motion to dismiss pursuant to Fed. R. Civ. P.

12(b)(6) tests the legal sufficiency of the complaint.

See Kost v. Kozakiewicz, 1 F.3d 176,183 (3d Cir. 1993).

In deciding a Fed. R. Civ. P. 12(b)(6) motion to dismiss,

the court accepts as true all factual allegations in the

complaint and views them in a light most favorable to

the plaintiff. See U.S. Express Lines Ltd. v. Higgins,

281 F.3d 383, 388 (3d Cir. 2002). The “court[ ] generally

consider [s] only the allegations in the complaint,

exhibits attached to the complaint, matters of public

record, and documents that form the basis of a claim”

when considering the motion to dismiss. Lum v. Bank

of Am., 361 F.3d 217, 222 n.3 (3d Cir. 2004) (citing In

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410,

1426 (3d Cir. 1997)).

App.21a

In making its determination under Rule 12(b)(6),

the court is not opining on whether the plaintiff is

likely to prevail on the merits; rather, the plaintiff

must only present factual allegations sufficient “to

raise a right to relief above the speculative level.” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007) (citing

5 C. Wright & A. Miller, Federal Practice and Procedure

§ 1216, pp. 235-36 (3d ed. 2004)); see also Ashcroft v.

Iqbal, 556 U.S. 662 (2009). Furthermore, a complaint

should only be dismissed pursuant to Rule 12(b)(6) if

it fails to allege “enough facts to state a claim to relief

that is plausible on its face.” Twombly, 550 U.S. at 570

(rejecting the traditional Rule 12(b)(6) standard estab­

lished in Conley v. Gibson, 355 U.S. 41, 78 (1957)).

While a complaint does not need detailed factual

allegations to survive a motion to dismiss, a complaint

must provide more than labels and conclusions. See

Twombly, 550 U.S. at 555. A “formulaic recitation of

the elements of a cause of action will not do.” Id.

(citing Papasan v. Attain, 478 U.S. 265, 286 (1986)).

Moreover, a court need not accept inferences drawn by

a plaintiff if they are unsupported by the facts as

explained in the complaint. See California Pub.

Employees’Ret. Sys. v. Chubb Corp., 394 F.3d 126,143

(3d Cir. 2004) (citing Morse v. Lower Merion Sch.

Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must the

court accept legal conclusions disguised as factual

allegations. See Twombly, 550 U.S. at 555; McTernan

v. City of York, Penn., 577 F.3d 521, 531 (3d Cir. 2009)

(“The tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions.”). Put another way, while the Court

must view the factual allegations of the complaint as

true, the Court is “not compelled to accept unwarranted

App.22a

inferences, unsupported conclusions or legal conclusions

disguised as factual allegations.” Baraka v. McGreevey,

481 F.3d 187, 211 (3d Cir. 2007).

Finally, because Plaintiff is proceeding pro se, the

allegations of the SAC must be held to “less stringent

standards than formal pleadings drafted by lawyers.”

Haines v. Kerner, 404 U.S. 519, 520-521 (1972). If the

Court can reasonably read a pro se complaint to state

a claim upon which relief can be granted, it will do so

despite the litigant’s failure to cite proper legal author­

ity, confusion of legal theories, poor syntax and sentence

construction, or unfamiliarity with pleading require­

ments. See Boag v. MacDougall, 454 U.S. 364 (1982);

United States ex rel. Montgomery v. Bierley, 141 F.2d

552, 555 (3d Cir. 1969). Despite this leniency, “pro se

litigants still must allege sufficient facts in their

complaints to support a claim.” Mala v. Crown Bay

Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citing

Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.

1996)).

C. Discussion

While Defendants separately move to dismiss

Plaintiffs claims, the undersigned will address certain

grounds for dismissal common to all Defendants.

Because these grounds provide ample reason for

dismissal of this action with prejudice, the undersigned

will not reach all arguments raised by the Defendants.

App.23a

1. The SAC violates Fed. R. Civ. P. 8

and Fails to Allege Facts Sufficient

to Support Any of the Legal Con­

clusions and Labels Included in the

SAC

Rule 8(a) requires a pleading to contain “a short

and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2).

Rule 8(d)(1) speaks to factual allegations, requiring

that “[e]ach allegation .. . be simple, concise, and

direct.” Fed. R. Civ. P. 8(d)(1). These rules task the

plaintiff to provide “the defendant notice of what

the .. . claim is and the grounds upon which it rests.”

Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d

Cir. 2008) (quoting Twombly, 550 U.S. at 555). Legal

labels, conclusory assertions, and inferences unsup­

ported by factual allegations will not suffice: a complaint

must include enough facts to “raise a right to relief

above the speculative level.” Twombly, 550 U.S. at

555.

Plaintiffs SAC is replete with conclusory assertions

of conspiracy, retaliation, harassment, and discrimin­

ation, among many others. What is lacks, however,

are factual allegations to support any of these claims.

To the extent the SAC alleges facts, they do not

support an inference that any Defendant engaged in

conduct triggering potential liability under any of the

myriad legal theories Plaintiff invokes. This deficiency

is common to all claims against all Defendants and

warrants dismissal of the SAC.

App.24a

2. The Statute of Limitations Bars

Plaintiffs § 1983 Claims

Section 1983 provides a cause of action for “the

deprivation of any rights, privileges, or immunities

secured by the Constitution and laws[.]” 42 U.S.C.

§ 1983. Defendants argue that Plaintiff’s First Amend

ment and Fourteenth Amendment claims pursuant to

§ 1983 are barred by the statute of limitations. The

Third Circuit permits a statute of limitations defense to

be raised in a Rule 12(b)(6) motion “only if the time

alleged in the statement of a claim shows that the

cause of action has not been brought within the

statute of limitations.” Schmidt v. Skolas, 770 F.3d

241, 249 (3d Cir. 2014) (internal quotation marks

omitted) (quoting Robinson v. Johnson, 313 F.3d 128,

134-35 (3d Cir. 2002)). “If the bar is not apparent on

the face of the complaint, then it may not afford the

basis for a dismissal of the complaint under Rule

12(b)(6).” Id. (alteration in original) (internal quotation

marks and citation omitted). Here, Plaintiff’s civil

rights claims are barred on the face of the SAC.

Section 1983 borrows its statute of limitations

from the personal injury tort law of the state where

the cause of action arose. See Nguyen v. Pennsylvania,

906 F.3d 271, 273 (3d Cir. 2018) (citing Wallace u.

Kato, 549 U.S. 384, 387 (2007)). Under Pennsylvania

law, the statute of limitations for personal injury

actions is two years. See 42 Pa. Con. Stat. Ann. § 5524.

Although courts apply the applicable statute of limit­

ations under state law, the determination of when a

civil rights claim accrues is a question of federal law.

Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) (citing

Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d

Cir. 1991)). Under federal law, a civil rights claim

App.25a

accrues “when the plaintiff knew or should have

known of the injury upon which its action is based.”

Id. (quoting Sameric Corp. v. City of Phila., 142 F.3d

582, 599 (3d Cir. 1998)). “The determination of the

time at which a claim accrues is an objective inquiry;

we ask not what the plaintiff actually knew but what

a reasonable person should have known.” Id. (quoting

Barren v. United States, 839 F.2d 987, 990 (3d Cir.

1988)). Generally, a cause of action is considered to

have accrued “at the time of the last event necessary

to complete the tort, usually at the time the plaintiff

suffers an injury.” Id. (citing United States u. Kubrick,

444 U.S. Ill, 120(1979)).

Plaintiff commenced this action on December 2,

2022. See Compl. (ECF o. 1). Therefore, Plaintiffs

§ 1983 claims are barred by the statute of limitations

to the extent they accrued prior to December 2, 2020.

The SAC reveals that the events upon which Plaintiff

bases his claims occurred between his jury award in

2002 and his forced retirement in 2014. See SAC (ECF

No. 73) at

21-22,126. Thus, Plaintiffs § 1983 claims

are time-barred on the face of the SAC.

Plaintiff has presented no legitimate basis for

tolling the statute of limitations. “Although federal

law governs the accrual date of § 1983 action, tolling

is generally governed by the law of the forum state.”

Rajkumar v. Gateway Sch. Dist., 2022 WL 2805126, at

*2 (3d Cir. July 18, 2022) (unpublished). Pennsylvania’s

discovery rule allows the statute of limitations to be

tolled “until the point when the plaintiff reasonably

should know ... he has been injured.” Id. (alteration

in original) (internal quotation marks omitted) (quoting

Miller v. Phila. Geriatric Ctr., 463 F.3d 266, 276 (3d

Cir. 2006)). The discovery rule “is measured by an

App.26a

objective reasonableness standard.” Id. But “[a]

plaintiffs ignorance regarding the full extent of his

injury is irrelevant to the discovery rule’s application,

so long as the plaintiff discovers or should have

discovered that he was injured.” Stephens v. Clash,

796 F.3d 281, 288 (3d Cir. 2015).

Plaintiff argues that his claims did not accrue

until he received a transcript of his 2004-2008 taxes

from the IRS on December 8, 2020. See SAC (ECF No.

73) at

73, 86. However, Plaintiff was on notice

regarding the proper reporting procedures for “over­

payments” once he received a letter in December 2005

from the IRS stating as much. Id. at U 47. To the

extent he alleges that he was prevented from learning

about his injury until December 2020, a docket review

of the various actions he has initiated in the Western

District of Pennsylvania demonstrates otherwise. 1 See

Kissell v. Pa. Dep’t of Corr., et al., Civ. No. 2:97-cv00786-GLL (“Action 786”). In 2010, eight years after

he received his jury award, Plaintiff filed a Motion to

Enforce Judgment in Action 786 requesting, inter

alia, that the defendants Correct the tax consequences

of his 2002 verdict because the “DOC did not properly

calculate and issue tax paperwork following the 2002

verdict.” Action 786, ECF No. 163 at 9. The District

Court denied his motion, stating:

Putting aside the merits of Kissell’s request

for relief; we find as an initial matter that his

1 As these proceedings are matters of public record, the Court

may consider them on a motion pursuant to Rule 12(b)(6). See

Pension Ben. Guar. Corp., 998 F.2d at 1196. Moreover, a court

“ruling on Rule 12(b)(6) motions may take judicial notice of public

records.” Anspach ex rel. Anspach v. City ofPhila., Dep’t. of Pub.

Health, 503 F.3d 256, 273 (3d Cir. 2007).

App.27a

request is untimely. Kissell has offered no

explanation as to why he failed to raise these

issues when he moved to enforce judgment in

2005, or after the court of appeals issued its

opinion in 2006, or at any time between 2006

and 2010. Even accepting as true Kissell’s

contention that the DOC “has . . . stalled the

process,” the DOC’ s actions alone cannot

explain Kissell’s multi-year delay in bringing

these issues to the attention of the court. As

such, we will deny Kissell’s motion on the

basis that it is untimely.

Id., ECF No. 166. The foregoing demonstrates that

Plaintiff was aware or at least on notice of his tax

problems no later than 2010. By that point, Plaintiff

had “discovered” his injury, making his alleged

ignorance of “the full extent of his injury .... irrelevant

to the discovery rule’s application.” Clash, 796 F.3d

281 at 288.

Prior litigation commenced by Plaintiff in this

Court also confirms that no later than 2014, he was

well-aware of the injury he now associates with his

“forced retirement” from the DOC. Viewing his

allegations in the light most favorable to him, his

forced resignation in 2014 is the latest event that

could qualify as “necessary to complete the tort.” See

Kach, 589 F.3d at 634. In 2015, Plaintiff initiated a

prose action against the DOC and his union at No.

3:15-cv-00058-KAP-KRG). The defendants in that

case moved to dismiss the complaint. In his Report

and Recommendation that the action be dismissed,

the Magistrate Judge observed, “Kissell asserts that

‘defendants’ and former counsel ‘attempted to deceive

the plaintiff involving proper protocol by failure to pay

App.28a

the back pay award through proper procedure ... ’.”

Kissell v. Commonwealth of Pa. Dep’t of Corr., No. 3:15CV-58-KRG-KAP, 2015 WL 11070889, at *1 (W.D. Pa.

May 6, 2015). The Magistrate Judge also noted the

District Court’s 2010 holding that Plaintiffs claims in

that earlier action were time-barred:

This court has no jurisdictional basis (cer­

tainly none under Title VII) for presiding over

Kissell‘s controversy over the award in Case

No. 2:97-cv-786-GLL was paid or how the

taxes on that award were structured. If the

court had jurisdiction over those matters,

Judge Lancaster’s unappealed from July 27,

2010 order has already held that Kissell was

untimely in his attempt to have the court

intervene in his controversies with his

employer and former counsel over accounting

for the award.

Id. at *2. As his own prior litigation reveals, no later

than 2015, Plaintiff knew of his forced retirement

from the DOC, and no later than 2010, he knew of

problems with payments and taxes associated with his

prior jury verdict, and he associated these injuries with

conduct of the DOC and his “former counsel.” This

knowledge was more than sufficient to commence the

running of the statute of limitations on all claims

regardless of what he may have later discerned from

the transcript of his 2004-2008 taxes that he received

in December 2020. See Rajkumar, 2022 WL 2805126,

at *2. Most of Plaintiffs § 1983 claims are predicated

on the negative tax consequences he encountered

following his 2002 jury award, i.e., his right to “access

the Courts” and to equal protection of the laws, as well

as the alleged conspiracy whereby the Defendants

App.29a

somehow prevented resolution of these problems. But,

as described above, Plaintiff was cognizant of his tax

problems and any related malfeasance by at least

2010. Moreover, the injury Plaintiff suffered due to

the alleged retaliatory attachment of his wages following

his letter to Governor Corbett in 2012 was equally

direct and clear. Thus, Plaintiffs First Amendment

free speech claims are also barred by the statute of

limitations as his wage attachment occurred before

his retirement in 2014.

Because all of Plaintiffs § 1983 claims are barred

by the two-year statute of limitations and no basis for

equitable tolling exists, it is respectfully recommended

that the Court dismiss Plaintiffs § 1983 claims with

prejudice as to all Defendants.

3. To the Extent Plaintiff Asserts § 1983

Claims Against Defendants lezzi and

Skatell, They Also Fail Due to the

Absence of State Action

In addition to being barred by the statute of

limitations, Plaintiffs § 1983 claims against his former

attorneys, lezzi and Skatell, are unsustainable because

neither acted under color of state law. The Court of

Appeals for the Third Circuit has identified three cir­

cumstances under which a private entity or individual

may be considered to have engaged in “state action”

for § 1983 purposes: (1) where “the private entity has

exercised powers that are traditionally the exclusive

prerogative of the state”; (2) where “the private party

has acted with the help of or in concert with state

officials”; and (3) where “the [s]tate has so far insin­

uated itself into a position of interdependence with

the acting party that it must be recognized as a joint

App.30a

participant in the challenged activity.” Kach v. Hose,

589 F.3d 626, 646 (3d Cir. 2009) (alteration in original)

(internal quotation marks and citation omitted). “The

principal question... is whether there is such a close

nexus between the State and the challenged action

that seemingly private behavior may be fairly treated

as that of the State itself.” Leshko v. Seruis, 423 F.3d

337, 339 (3d Cir. 2005) (internal quotation marks and

citations omitted); see also Brentwood Acad. v.

Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288,

296 (2001). “Attorneys performing their traditional

functions will not be considered state actors solely on

the basis of their position as officers of the court.”

Angelico v. Lehigh Valley Hosp., Inc., 184 F.3d 268,

277 (3d Cir. 1999). If a plaintiffs § 1983 claim “arises

exclusively from [his private attorney’s] conduct during

the course of representation,” then he has failed to

allege any “state action” under § 1983. Perez v. Griffin,

2008 WL 2383072, at *5 (M.D. Pa. June 9, 2008), aff d,

304 Fed. Appx. 72 (3d Cir. 2008) (“Purely private trans­

actions between attorneys and clients are incapable of

supporting a claim for redress under § 1983.”).

Plaintiff has not alleged any facts to support an

inference that his former private tax attorneys, lezzi

and Skatell, acted under the color of law. Plaintiffs

claims against lezzi concern his efforts to resolve his

personal tax problems. And the allegations against

Skatell relate to Plaintiffs dissatisfaction with his

representation during and after Plaintiffs pension

hearing. No nexus exists between lezzi and Skatell’s

private representation and alleged malpractice and

the State. See Leshko, 423 F.3d at 339. Plaintiff had

no constitutional or statutory right to counsel in his

civil case, and even in criminal matters where such a

App.31a

right exists, an attorney “does not act under color of

state law when performing a lawyer’s traditional

functions as counsel...” Polk Cnty., 454 U.S. at 325.

To the extent Plaintiff alleges that his private attorneys

“conspired” with the State to entrap him into “com­

mitting tax fraud,” Plaintiff offers absolutely no facts

to support this “bald assertion.” Morse, 132 F.3d at

906. For a § 1983 conspiracy claim to survive a motion

to dismiss, the plaintiff “must allege specific facts

showing an agreement and concerted action amongst

the defendants.” Harmon v. Delaware Sec’y of State,

154 Fed. Appx. 283, 285 (3d Cir. 2005) (emphasis added)

(citations omitted). Plaintiff has not done so here. All

claims against lezzi and Skatell should be dismissed

with prejudice.

a. Eleventh Amendment Immunity

The Eleventh Amendment protects a non-con­

senting State “from suits brought in federal courts by

her own citizens as well as by citizens of another

state,” Pennhurst State Sch. & Hosp. u. Halderman,

465 U.S. 89, 100 (1984) (internal quotation marks and

citation omitted), which “extends to suits against

departments or agencies of the state having no

existence apart from the state.” Laskaris v. Thornburgh,

661 F.2d 23, 25 (3d Cir. 1981). The DOC and OBLO

are state agencies2 and therefore immune from suit in

federal court “unless Congress has overridden that

2 See 71 Pa. Stat. Ann. § 229(a) (“The Office of the Budget is

hereby established as an administrative agency within the

Governor’s Office.”); 4 Pa. Code § 9 Appendix A; Downey v. Pa.

Dep’t of Corr., 968 F.3d 299, 310 (3d Cir. 2020) (“The Pennsylvania

Department of Corrections is undoubtedly a state instrument­

ality . . . .”).

App.32a

immunity or the State has waived its immunity.”

Sims v. Wexford Health Sources, 635 Fed. Appx. 16,

19 (3d Cir. 2015). either circumstance applies here.

“When enacting 42 U.S.C. § 1983, Congress did not

override Pennsylvania’s immunity from suit,” and

“Pennsylvania has expressly withheld its consent to

be sued.” Id. (citing.Quern v. Jordan, 440 U.S. 332,

340-45 (1979) and 42 Pa. Cons. Stat. Ann. § 8521(b)).

Accordingly, the DOC and OBLO remain immune

from Plaintiffs civil rights claims. See, e.g., Downey v.

Pa. Dep’t of Corr., 968 F.3d 299, 310 (3d Cir. 2020)

(holding that the DOC is immune from claims for

retrospective relief under the Eleventh Amendment);

Lavia v. Pa. Dep’t of Corr., 224 F.3d 190, 195 (3d Cir.

2000) (recognizing that Eleventh Amendment immunity

applies to parts of the executive department of the

Commonwealth); Malcomb v. Beaver Cnty. Penn.

(Prothonotary), 616 F. App’x 44, 45 (3d Cir. 2015) (“The

Department of Connections . . . and the Attorney

General’s Office are immune from [Defendant’s] § 1983

claims under the Eleventh Amendment.”). Further,

the DOC and OBLO are entitled to Eleventh Amend­

ment immunity from suit because neither is “[a]

‘person(s)’within the use of that term in ... § 1983 and

hence [they are] not subject to suit under that section

of the Civil Rights Act.” Curtis.v. Everette, 489 F.2d

516, 521 (3d Cir. 1973). Plaintiffs § 1983 claims against

the DOC and OBLO should be dismissed with prejudice.

4. Plaintiffs Title VII Claims Fail as a

Matter of Law

a. Non-Employer Liability

To state a Title VII claim, Plaintiff “must allege

an employment relationship with the defendants,”

App.33a

Covington v. Int’l Assn of Approved Basketball Offs.,

710 F.3d 114, 119 (3d Cir. 2013), as it is well settled

that “Title VII prohibits unlawful employment practices

by employers.” Emerson v. Thiel Coll., 296 F.3d 184,

190 (3d Cir. 2002) (emphasis added). No Defendant

except the DOC is alleged to have employed Plaintiff,

and Plaintiff acknowledges that his employment with

the DOC ended in 2014. A Title VII claim against any

individual Defendant in this action also fails as a

matter of law because “Title VII does not provide for

individual liability.” Newsome v. Admin. Off of the Cts.

of the State of New Jersey, 51 Fed. Appx. 76, 79 (3d

Cir. 2002); see also Sheridan v. E.I. DuPont de Nemours

& Co., 100 F.3d 1061, 1078 (3d Cir. 1996). The only

viable Defendant to Plaintiffs Title VII claim is the

DOC and, as discussed below, the claim against it is

barred by res judicata.

b. Plaintiffs Title VII Claim Against

the DOC Is Barred by Res Judicata

Plaintiff alleges that after his reinstatement, the

DOC continued to retaliate against him and subject

him to a hostile work environment in violation of Title

VII until he was forced to retire in 2014. While the

DOC does not dispute that it is Plaintiffs former

employer, it argues that his Title VII claims should be

dismissed on the grounds of res judicata. See DOC Br.

(ECF No. 81).

Res judicata, or claim preclusion, is a doctrine

which “protect [s] litigants from the burden of

relitigating an identical issue with the same party or

his privy and . . . promotes] judicial economy by

preventing needless litigation.” In re Mullarkey, 536

F.3d 215, 225 (3d Cir. 2008) (alteration in original)

App.34a

(citation omitted). “A party seeking to invoke res

judicata must establish three elements: (1) a final

judgment on the merits in a prior suit involving (2) the

same parties or their privies and (3) a subsequent suit

based on the same cause of action.” Est. of Roman v.

City of Newark, 914 F.3d 789,804 (3d Cir. 2019)

(quoting Duhaney v. Att’y Gen., 621 F.3d 340, 347 (3d

Cir. 2010)). When evaluating these elements, the

Court of Appeals for the Third Circuit does “not apply

this conceptual test mechanically,” instead it focuses

“on the central purpose of the doctrine, to require a

plaintiff to present all claims arising out [of] the same

occurrence in a single suit.” Sheridan v. NGK Metals

Corp., 609 F.3d 239, 260 (3d Cir. 2010) (alteration in

original) (quoting Churchill v. Star Enterprises, 183

F.3d 184, 194 (3d Cir. 1999)). “In short, the focus is on

facts rather than legal theories.” Davis v. Wells Fargo,

824 F.3d 333, 342 (3d Cir. 2016).

Both parties reference Plaintiffs prior litigation

in their respective filings. See SAC (ECF No. 73) at 2223; DOC Br. (ECF No. 81) at 10-12. The relevant

dockets confirm that Plaintiff prosecuted the following

Title VII claims against the DOC after his rein­

statement:

•

Plaintiffs 2015 pro se complaint against the

DOC and his union included § 1983 and Title

VII claims against both defendants. The

District Court dismissed the complaint with

prejudice on defendants’ motion. See Kissell

v. Commonwealth of Pa. Dep’t of Corr., 2015

WL 11070890 (W.D. Pa. 2015) {Kissell F).

•

Plaintiff appealed Kissell I, which the Third

Circuit affirmed in part, vacated in part, and

remanded for further proceedings. See Kissell

App.35a

v. Dep’t of Corr., 634 Fed. Appx. 876 (3d Cir.

2015).

•

On remand, Plaintiff filed an amended

complaint reasserting his § 1983 claim and

his Title VII claim, which alleged that DOC

personnel retaliated against him for his

continued reporting of sexual harassment.

The defendants again moved to dismiss

these claims. SeeKissell v. Commonwealth of

Pa. Dep’t of Corr., 2016 WL 1271080 (W.D.

Pa. 2016) (“Kissell II’). The District Court

adopted the Magistrate Judge’s recommend­

ation to grant the DOC’s motion. See Kissell

v. Commonwealth of Pa. Dep’t of Corr., No.

3:15-CV-58-KRG-KAP, 2016 WL 1237821,

at* 1 (W.D. Pa. Mar. 21, 2016).

•

Plaintiff appealed Kissell II and the Third

Circuit affirmed the District Court’s dismissal.

See Kissell v. Dep’t of Corr., 670 Fed. Appx.

766 (3d Cir. 2016) (explaining that Kissell

“did not sufficiently allege the second and

third elements of retaliation,” and that he

“also failed to plead facts sufficient to allege

discrimination”).

In 2018, Plaintiff commenced another action

against the DOC alleging Title VII retaliation due to

his reporting sexual misconduct. The DOC moved to

dismiss on the grounds of res judicata arguing that,

inter alia, Kissell II involved the same claim, i.e. that

the DOC, “through its employees and supervisors ...

began harassing the Plaintiff and subjecting him to a

hostile work environment,” and that “[the DOC’s]

retaliatory conduct continued until they in essence

forced the Plaintiff to retire” in 2014. Kissell v. Pa.

App.36a

Dep’t of Corr., No. CY 18- 1409, 2019 WL 4058704, at

*1 (W.D. Pa. Aug. 27, 2019) (internal quotation marks

omitted) (jKissell IIP). The District Court agreed,

granted the DOC’s motion, and dismissed Plaintiffs

complaint with prejudice. See id. Plaintiff once again

appealed, and the Third Circuit affirmed the dismissal,

holding that:

Kissell [III] checks all of the boxes for

application of the claim-preclusion strand of

res judicata under federal law: (1) a judgment

on the merits was entered in Kissell [II]; (2)

Kissell [II] and Kissell [III] involve the same

set of parties (Kissell and the DOC); and (3)

the claims raised in Kissell [III] inarguably

are the same as those raised in Kissell [II].

Kissell v. Pa. Dep’t. of Corr., 808 Fed. Appx. 58, 59 (3d

Cir. 2020) (citations omitted). Plaintiffs Title VII

claims in Kissell III were based on allegations of

“retaliatory conduct” that subjected Plaintiff to a

“hostile work environment” until he was “in essence

forced ... to retire” and were appropriately barred by

res judicata. Kissell, 2019 WL 4058704 at *2. These

were substantially the same allegations that Plaintiff

raised in Kissell II, and they are substantially the

same allegations raised in this action. As was the case

in Kissell III, Plaintiffs Title VII claim in this case

checks all the boxes for application of the claim­

preclusion strand of res judicata and should be

dismissed with prejudice.

App.37a

5. In Addition to Being Unsupported by

Factual Allegations, All Remaining

State Law Claims are Barred by the

Statute of Limitations

To the extent that Plaintiff asserts state law

claims for intentional infliction of emotional distress

(“IIED”), negligence, breach of contract, civil conspiracy,

or fraud, such claims are also barred by Pennsylvania’s

applicable statute of limitations. See 42 Pa. Cons.

Stat. § 5524 (two-year statute of limitations for actions

sounding in tort); see also 42 Pa. Cons. Stat. Ann.

§ 5525 (four-year statute of limitations for actions

sounding in contract). Under Pennsylvania law, “a

cause of action accrues, and thus the applicable

limitations period begins to run, when an injury is

inflicted.” Wilson v. El-Daief, 964 A.2d 354, 361

(2009). Because the final injury Plaintiff allegedly

suffered was his forced retirement from the DOC, his

claims accrued, at the latest, in 2014. Similarly, the

statute of limitations for a claim of unpaid wages or

liquidated damages under the WPCL is three years

from the date such wages were due and payable. See

43 Pa. Stat. Ann. § 260.9a(g). And “[i]t is well-estab­

lished that the ‘wages or compensation’ at issue must

have been ‘earned,’ or vested, at the time the employee’s

separation with the employer occurred.” Mentecky v.

Chagrin Land, L.P., No. CV 22-206, 2023 WL 5530305,

at *6 (W.D. Pa. Aug. 28, 2023) (citations omitted).

Therefore, Plaintiffs state law claims are barred by

the statute of limitations based on the face of the SAC,

and as set forth above, Pennsylvania’s discovery rule

does not provide a basis to toll the claims. See supra

Section II.C.2.

App.38a

6. Further Leave to Amend Should be

Denied

The Third Circuit has held that in civil rights cases,

“a district court must permit a curative amendment

unless such an amendment would be inequitable or

futile.” Phillips v. Cnty. of Allegheny, 515 F.3d 224,

236 (3d Cir. 2008). Amendment is futile where it

cannot withstand a renewed motion to dismiss. See

Shane v. Fauuer, 213 F.3d 113, 116 (3d Cir. 2000).

Any further amendment in this case would be

futile. Plaintiffs claims fail on multiple grounds that

cannot be cured by amendment, including expiration

of the statute of limitations, immunity, and res

judicata. In addition, Plaintiff has already received

two opportunities to amend after being placed on

notice of his pleading deficiencies. See ECF Nos. 41,

44, 47, 70. Finally, the Report and Recommendation

on Defendants’ previous motions to dismiss cautioned

that “his failure to submit a second amended complaint

that is simple, concise, and direct will be considered a

failure to comply with an Order of Court and may lead

to the dismissal... with prejudice.” Fr. R&R (ECF No.

70) at 8. Plaintiffs SAC again fails to satisfy the

requirements of Rule 8(a) or to allege facts to support

the elements of any claim. It is, therefore, respectfully

recommended that the Court dismiss Plaintiffs SAC

with prejudice.

D. Conclusion

For the foregoing reasons, it is respectfully

recommended that the Court grant Defendants’ motions

to dismiss, (ECF Nos. 77, 80, 84), and dismiss the SAC

with prejudice as to all Defendants.

App.39a

Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C) and

Fed. R. Civ. P. 72, the parties have until June 28, 2024

to file objections to this report and recommendation.

Unless otherwise ordered by the District Judge,

responses to objections are due fourteen days after the

service of the objections. Failure to file timely objections

will constitute a waiver of any appellate rights.

Brightwell v. Lehman, 637 F.3d 187, 193 n.7 (3d Gir.

2011).

Respectfully submitted,

Zs/Richard A. Lanzillo_______________

Chief United States Magistrate Judge.

Dated: June 14, 2024

Supreme Court

PRESS