1 This Defendant is incorrectly referred to throughout the complaint as Calvin Favor. As stated in the

Defendant's motion to dismiss, the correct spelling of this Defendant's name is Calvin Favers. 

IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

GWENDOLYN M. STUBBS, : CIVIL ACTION NO. 3:CV-03-2362

et al., :

:

Plaintiffs : (JUDGE JONES)

:

v. :

:

DOMINICK DeROSE, et al., :

:

Defendants :

ORDER

March 29, 2006

Plaintiff Gwendolyn Stubbs (“Plaintiff” or “Stubbs”), an inmate, who at all times

relevant to the complaint was incarcerated at the Dauphin County Prison, filed the instant

civil rights action pursuant to 42 U.S.C. § 1983. Stubbs seeks damages and injunctive

relief for violations of her First, Fourth, Eighth and Fourteenth Amendment rights, as well

as constitutional violations of her minor son, Cleo Stubbs, who was born in the Dauphin

County Prison. (Rec. Doc. 1). Named as defendants are Warden Dominick DeRose

(“DeRose”), Deputy Warden Elizabeth Nichols (“Nichols”), Corrections Officer Walizer

(“Walizer”), Chaplain Calvin Favers1 (“Favers”) and five John Doe defendants. 

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2

By previous Order of Court, Defendants DeRose and Nichols were dismissed from

the action. (Rec. Doc. 11). All claims against Defendant Walizer, with the exception of

Plaintiff’s Eighth Amendment claim, were dismissed, and Defendant Walizer was directed

to file an answer to the complaint. (Rec. Doc. 11). Finally, Plaintiff was granted thirty

days within to properly name the John Doe defendants and twenty days within which to

show cause why the complaint should not be dismissed as to defendant Favers for failure

to prosecute. (Rec. Doc. 11). 

Presently before the Court is Defendant Favers' motion to dismiss, in which Favers

seeks dismissal of all claims, except Plaintiff’s Eighth Amendment claim. (Rec. Doc. 18).

The motion is fully briefed and is ripe for disposition. For the reasons set forth below,

the motion will be granted. 

Additionally, because Plaintiff has failed to name the John Doe defendants, such

defendants will be dismissed from the action. Absent compelling reasons, a district court

may dismiss such defendants if a plaintiff, after being granted a reasonable period of

discovery, fails to identify them. Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D.

Pa. 1990) ("Fictitious parties must eventually be dismissed, if discovery yields no

identities."). 

STANDARD OF REVIEW:

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2 In accordance with the standard of review for a motion to dismiss, the Court will present the facts as

alleged in plaintiff’s complaint. The statements contained herein reflect neither the findings of the trier of fact

nor the opinion of the Court as to reasonableness of the plaintiff’s allegations.

3

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of claims that

fail to assert a basis upon which relief can be granted. See FED. R. CIV. P. 12(b)(6).

When deciding a motion to dismiss for failure to state a claim, the court is required to

accept as true all of the factual allegations in the complaint and all reasonable inferences

that can be drawn therefrom. Langford v. City of Atlantic City, 235 F.3d 845, 847 (3d

Cir. 2000) (citing Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)). “The complaint will

be deemed to have alleged sufficient facts if it adequately put[s] the defendant on notice

of the essential elements of the plaintiff’s cause of action.” Id. The court will not dismiss

a complaint for failure to state a claim unless it appears beyond a doubt that “no relief

could be granted under any set of facts that could be proved consistent with the

allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002). Consistent with

these principles, the court must grant leave to amend before dismissing a claim that is

merely deficient. See Shane v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000).

STATEMENT OF FACTS:

2

The Plaintiff alleges that from 1998 through August, 2003, Defendant Favers

“initiated contact with the plaintiff Gwendolyn Stubbs and solicited her, for purposes of

his sexual gratification, both while plaintiff was in prison and while she was out of prison

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3Plaintiff points out that this date is a typographical error. (See Doc. 10). The correct date is December

15, 2002. Id. 

4

on parole and, or, probation.” (Rec. Doc. 1, ¶ 12). Plaintiff alleges that this was a

violation of her Eighth and Fourth Amendment rights.

In December, 2002 Plaintiff was recommitted to the Dauphin County Prison as a

parole violator. At that time Plaintiff was nearing the end of her pregnancy. On December

13, 2002, Stubbs began having contractions and was taken to the Harrisburg Hospital.

(Rec. Doc. 1, ¶ 14). A doctor at the Harrisburg Hospital determined that Plaintiff was

approximately 7 centimeters dilated and should remain in the hospital. (Rec. Doc. 1, ¶

15). Dauphin County Prison officials “countermanded the doctor’s wishes that

Gwendolyn stay in the hospital and took her back to DCP,” where she continued to have

intermittent labor pains. (Rec. Doc. 1, ¶¶ 15, 16). 

On December 14, 2002, at approximately 9:00 pm, Stubbs’ labor pains became

severe. She told defendant Walizer of her pain but “Walizer told plaintiff that she was not

in labor.” (Rec. Doc. 1, ¶¶ 16, 17). At 2:30 A.M. on December 15, 2003,3“due to

Gwendolyn’s screams, defendant Walizer called a nurse to plaintiff’s cell.” (Rec. Doc.

1, ¶ 18). Nurse Doe told plaintiff that she was “hallucinating, would not call a doctor,

gave her two Tylenol tablets and said ‘lay your ass down.’” (Rec. Doc. 1, ¶ 19). At 4:30

a.m., Cleo Stubbs was born in plaintiff’s cell. The baby was delivered by inmate Lisa

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Hall, as there were “no nurses, no doctors, no equipment and no professional assistant

provided.” (Rec. Doc. 1, ¶ 21). After the baby was born, Plaintiff heard someone say

that the baby was dead and to get a garbage bag so that Lisa Hall could put the dead baby

in it. (Rec. Doc. 1, ¶ 21). However, before this occurred, the baby began to cry. (Rec.

Doc. 1, ¶ 21). Nurse Ken Doe arrived approximately 45 minutes later. The paramedics

arrived at approximately 6:30 a.m. The Plaintiff remained in the Harrisburg Hospital for

a week before she was released. She “never heard anything more about the parole

violation which caused her to be incarcerated two weeks before baby Cleo was born.”

(Rec. Doc. 1, ¶ 25). 

In August 2003, Stubbs was again incarcerated in the Dauphin County Prison. She

alleges that “shortly thereafter her counselor Tiffany was advised that something improper

of a sexual nature was going on between her and defendant Favor (sic) in a room at the

prison.” (Rec. Doc. 1, ¶ 26). Stubbs told Tiffany “of the sexual contacts between her

and the Chaplain and all that had happened including the fact that her mother (Gwen’s

mother) had told her Favor (sic) was the father of an earlier born child (not Cleo). (Rec.

Doc. 1, ¶ 27). Plaintiff claims that “very shortly thereafter the Defendant Nichols became

personally involved in the matter.” (Rec. Doc. 1, ¶ 28). Nichols “purported to take an

interest, telling Gwen that she wanted to have the matter investigated, so that she could do

something about Favor (sic).” (Rec. Doc. 1, ¶ 28). Stubbs alleges, however, that

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6

Nichols’ “representations were a ruse” and that “her intention was to suppress and

control information about Favor (sic) so that Nichols and DeRose could take action to

protect themselves and DCP.” (Rec. Doc. 1, ¶ 29). Thus, defendant Nichols and

DeRose “victimized plaintiff and violated her federally guaranteed rights of access to the

Courts.” (Rec. Doc. 1, ¶ 29).

Stubbs further alleges that a short while after Nichols became involved Investigator

Doe came to see Gwen at her prison cell to try to “get Gwen to sign a release protecting

the defendant and any officers or personnel at DCP from any legal action she might take.”

(Rec. Doc. 1, ¶ 30). Stubbs refused and told investigator Doe to “talk to her lawyer.”

(Rec. Doc. 1, ¶ 30).

DISCUSSION:

A. Statute of Limitations

Civil rights actions under 42 U.S.C. § 1983 are, in essence, tort claims. Owens v.

Okure, 488 U.S. 235, 249-50 (1989). As such, they are subject to the same statute of

limitations period applicable to state personal injury actions. Id.; Garvin v. City of

Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). In Pennsylvania, this period is two years.

42 PA. CONS. STAT. § 5524(7); see also Garvin, 354 F.3d at 220. The statute of

limitations period commences on the date when legal injury accrues; when the plaintiff

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knew or had reason to know of the injury on which the claim is based. See Rose v.

Bartle, 871 F.2d 331, 347-51 (3d Cir. 1989). 

Plaintiff’s complaint was filed on December 23, 2003. She alleges that from “1998

through August, 2003, defendant Favor (sic) initiated contact with [her] and solicited her,

for purposes of his sexual gratification...”. Thus, Defendant Favers seeks dismissal of

those claims which occurred prior December 23, 2001. The Court agrees. Any claims

of sexual harassment and, or, assault predating December 23, 2001 are clearly untimely

under the two-year statute of limitations.

B. Merits Analysis

Section 1983 of Title 42 of the United States Code offers private citizens a cause

of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The

statute provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia,

subjects, or causes to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation of any rights,

privileges, or immunities secured by the Constitution and laws, shall be liable

to the party injured in an action at law, suit in equity, or other proper

proceeding for redress . . . .

Id. Section 1983 is not a source of substantive rights, but merely a method to vindicate

violations of federal law committed by state actors. Gonzaga Univ. v. Doe, 536 U.S. 273,

284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). 

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To state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that the

defendant, while acting under color of state law, deprived him of a right, privilege, or

immunity secured by the Constitution or by the laws of the United States. See 42 U.S.C.

§ 1983; see also Cohen v. City of Philadelphia, 736 F.2d 81, 83 (3d Cir. 1984). 

1. First Amendment

To the extent that Defendant Favers argues that any First Amendment claim against

him should be dismissed, Plaintiff states in her brief in opposition that she “does not bring

a claim against defendant Favers for any violations of rights under the First Amendment

or for civil conspiracy” and “[t]herefore, plaintiff will not attempt to argue at this time

support for either a claim for civil conspiracy or for a violation of her First Amendment

rights. (Doc. 20). Thus, Defendant Favers’ motion to dismiss any First Amendment

claims or conspiracy claims will be granted. 

2. Fourth Amendment

The Fourth Amendment guarantees:

The right of the people to be secure in their persons, houses, papers and

effects, against unreasonable searches and seizures, shall not be violated,

and no Warrants shall issue, but upon probable cause, supported by Oath

or affirmation, and particularly describing the place to be searched, and the

persons or things to be seized. 

U.S. CONST. amend. IV.

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Defendant Favers seeks dismissal of the Plaintiff’s Fourth Amendment claim on the

basis that the Fourth Amendment protection ends once an individual is in custody. See

Graham v. Connor, 490 U.S. 386 (1989) and Brower v. County of Inyo, 489 U.S. 593

(1989). Thus, since Stubbs was in custody during the time of the alleged assaults, the

Fourth Amendment does not protect her. To the extent that Plaintiff attempts to rely on

the case of Fontana v. Haskin, 262 F.3d 871, 87-79 for the proposition that “sexual

advances by police officers may constitute an ‘unreasonable intrusion on one’s bodily

integrity’ in violation of the Fourth Amendment”, Plaintiff’s reliance is misplaced.

Fontana involved a unreasonable dominion by a government official over a “suspect” in

custody. Id. This is not the situation in the instant action. Plaintiff’s complaint clearly

states that Favers “solicited [plaintiff], for purposes of his sexual gratification, both while

plaintiff was in prison, and while she was out of prison on parole and, or, Probation.”

(Rec. Doc. 1, ¶ 5). Thus, Stubbs clearly cannot rely on the Fourth Amendment to pursue

a seizure claim during any pre-trial detention, because she was not merely a “suspect” in

custody, but rather an incarcerated parole violator. Accordingly, Defendant Favers’

motion to dismiss this claim will be granted. 

CONCLUSION:

For the above-state reasons, Defendant Favers' motion to dismiss any claims

relating to events allegedly occurring prior to December 23, 2001, and Plaintiff’s First, and

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Fourth Amendment claims is granted. Plaintiff’s Eighth Amendment claim against

defendant Favers remains. Further, the John Doe Defendants will be dismissed from the

action for Plaintiff’s failure to timely identify these Defendants. 

NOW, THEREFORE, IT IS HEREBY ORDERED THAT:

1. Defendant Favers’ motion to dismiss (Doc. 18) all claims relating to events

allegedly occurring prior to December 23, 2001, and to dismiss Plaintiff’s

First and Fourth Amendment claims, is GRANTED. 

2. Defendant Favers is directed to file an answer to the remaining Eighth

Amendment claim, or other responsive pleading, within twenty (20) days of

the date of this order.

3. The John Doe Defendants are DISMISSED from this action for Plaintiff’s

failure to timely identify those Defendants.

s/ John E. Jones III 

John E. Jones III

United States District Judge

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