IN THE UNITED STATES DISTRICT COURT 

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL IRIZARRY, :

: 4:09-cv-706

Plaintiff, :

: Hon. John E. Jones III

v. :

: Hon. J. Andrew Smyser

ROBERT SHANNON; :

DAVID KNEAL; and :

MARY TONER, :

Defendants. :

MEMORANDUM

May 4, 2010

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation

(“R&R”) of Magistrate Judge J. Andrew Smyser (Doc. 55), filed on April 16,

2010, which recommends that the Defendants’ Motion for Summary Judgment

(Doc. 38) be granted and that this case be closed. Neither the Plaintiff nor the

Defendants have filed objections to the R&R..1

 For the reasons set forth below, the

Court shall adopt the R&R in its entirety. 

1

 Objections were due by May 3, 2010.

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I. STANDARDS OF REVIEW

A. Review of a Report and Recommendation

When, as here, no objections are made to a magistrate judge’s report and

recommendation, the district court is not statutorily required to review the report

before accepting it. Thomas v. Arn, 474 U.S. 140, 149 (1985). According to the

Third Circuit, however, “the better practice is to afford some level of review to

dispositive legal issues raised by the report.” Henderson v. Carlson, 812 F.2d 874,

878 (3d Cir. 1987). “[T]he court need only satisfy itself that there is no clear error

on the face of the record in order to accept the recommendation.” Fed. R. Civ. P.

72(b), advisory committee notes; see also Henderson, 812 F.2d at 878-79 (stating

“the failure of a party to object to a magistrate's legal conclusions may result in the

loss of the right to de novo review in the district court”); Tice v. Wilson, 425 F.

Supp. 2d 676, 680 (W.D. Pa. 2006); Cruz v. Chater, 990 F. Supp. 375-78 (M.D. Pa.

1998); Oldrati v. Apfel, 33 F. Supp. 2d 397, 399 (E.D. Pa. 1998). The Court’s

examination of this case confirms the Magistrate Judge’s determinations.

B. Summary Judgment

Summary judgment is appropriate if the record establishes “that there

is no genuine issue as to any material fact and that the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(c). Initially, the moving party

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bears the burden of demonstrating the absence of a genuine issue of material fact. 

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant meets this burden

by pointing to an absence of evidence supporting an essential element as to which

the non-moving party will bear the burden of proof at trial. Id. at 325. Once the

moving party meets its burden, the burden then shifts to the non-moving party to

show that there is a genuine issue for trial. Fed. R. Civ. P. 56(e)(2). An issue is

“genuine” only if there is a sufficient evidentiary basis for a reasonable jury to find

for the non-moving party, and a factual dispute is “material” only if it might affect

the outcome of the action under the governing law. Anderson v. Liberty Lobby, Inc,

477 U.S. 242, 248-49 (1986).

In opposing summary judgment, the non-moving party “may not rely merely

on allegations of denials in its own pleadings; rather, its response must ... set out

specific facts showing a genuine issue for trial.” Fed. R. Civ. P. 56(e)(2). The nonmoving party “cannot rely on unsupported allegations, but must go beyond

pleadings and provide some evidence that would show that there exists a genuine

issue for trial.” Jones v. United Parcel Serv., 214 F.3d 402, 407 (3d Cir. 2000). 

Arguments made in briefs “are not evidence and cannot by themselves create a

factual dispute sufficient to defeat a summary judgment motion.” Jersey Cent.

Power & Light Co. v. Twp. of Lacey, 772 F.2d 1103, 1109-10 (3d Cir. 1985). 

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However, the facts and all reasonable inferences drawn therefrom must be viewed

in the light most favorable to the non- moving party. P.N. v. Clementon Bd. of

Educ., 442 F.3d 848, 852 (3d Cir. 2006).

Summary judgment should not be granted when there is a disagreement about

the facts or the proper inferences that a factfinder could draw from them. Peterson

v. Lehigh Valley Dist. Council, 676 F.2d 81, 84 (3d Cir. 1982). Still, “the mere

existence of some alleged factual dispute between the parties will not defeat an

otherwise properly supported motion for summary judgment; there must be a

genuine issue of material fact to preclude summary judgment.” Anderson, 477 U.S.

at 247-48. 

II. PROCEDURAL BACKGROUND

Plaintiff, a state prisoner proceeding pro se, commenced this 42 U.S.C. §

1983 action by filing a complaint on April 16, 2009. (Doc. 1). Plaintiff’s

application to proceed in forma pauperis was granted (Docs. 2 and 6) and service of

the Complaint was ordered. On June 29, 2009, the Defendants filed a Motion to

Dismiss.(Doc. 12). The Motion was fully briefed by the parties and on October 20,

2009, Magistrate Judge Smyser issued a R&R that recommended the motion to

dismiss be granted and this case closed. Thereafter, Plaintiff filed objections to the

Magistrate Judge’s report. On November 24, 2009, we issued an Order that adopted

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in part and rejected in part the R&R. (Doc. 30). In particular, we granted the

Defendant’s motion to dismiss with respect to the official capacity claims for

monetary damages against individual Defendants, and denied the motion to dismiss

in all other respects. (Doc. 30). 

Following our disposition of the October 20, 2009 R&R, this matter was

remanded to Magistrate Judge Smyser for further pre-trial management. On

January 11, 2010, the Defendants filed a Motion for Summary Judgment. After

briefing, Magistrate Judge Smyser issued the instant R&R (Doc. 55), which is the

subject of our review within this Memorandum.

III. FACTUAL BACKGROUND

Plaintiff’s claims relate to the monitoring of his incoming and outgoing mail

while he was incarcerated at the State Correctional Institution at Frackville (“SCIFrackville”). Named as Defendants are three officials, employees and/or agents of

SCI-Frackville: Superintendent Robert Shannon, Security Captain David Kneal, and

Mailroom Supervisor Mary Toner.

Plaintiff alleges that in January of 2006, he received a certified mail receipt

indicating that the defendant Kneal had sent a package to Sonja Stebbins, a

detective with the Lancaster Police Department, regarding Plaintiff. (Compl. Ex.

A). On September 11, 2006, Plaintiff received a notice from Defendant Toner

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(Compl. Ex. C) informing him that his incoming and outgoing mail had been

monitored from September 20, 2005 to September 7, 2006. The notice indicated

that the monitoring had been suggested by Defendant Kneal and approved by

Defendant Shannon. Plaintiff alleges that the monitoring violated Department of

Correction Policy DC-ADM 803. (Compl. Ex. D). On November 2, 2006, Plaintiff

received a second notice from Defendant Toner (Compl. Ex. E) informing him that

his mail had been monitored from October 17, 2006 to November 1, 2006.

On April 10, 2007, Plaintiff received a letter from a friend (Compl. Ex. B)

who was angry because duplicates of their private correspondence were made

available to an unintended third party who used the information to humiliate,

degrade and embarrass her. 

On April 24, 2007, the Plaintiff submitted a grievance, Grievance No.

185632, (Compl. Ex. F), regarding his mail being copied and sent to a third party. 

The grievance was returned to the Plaintiff without action on the basis that it was

not timely filed. On April 27, 2007, the Plaintiff applied for a reconsideration and it

was granted, and the grievance was remanded to the grievance coordinator for

further processing. On July 1, 2007, the Plaintiff sent a letter to Grievance

Coordinator Mr. Damitor (Compl. Ex. G) inquiring as to the status of his grievance. 

On July 20, 2007, the Plaintiff received notice that his grievance was denied.

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On July 24, 2007, the Plaintiff filed an appeal to the institution’s Deputy

Superintendent Verano. (Compl. Ex.H). Upon receiving no response, in November

2007, Plaintiff sent a letter to Mr. Verano inquiring as to the status of his appeal. 

On the copy of the letter submitted by Plaintiff, there is a note from Mr. Verano,

dated December, 2007, notifying the Plaintiff that his office was not the proper

office of appeals at the facility level and directing the Plaintiff to the

Superintendent. 

On December 9, 2007, the Plaintiff filed an appeal to the Superintendent. 

(Compl. Ex. H). In his appeal, the Plaintiff alleged that Mr. Verano had a

professional responsibility to forward his appeal to the proper office. The

Superintendent denied the Plaintiff’s appeal as untimely, noting that Mr. Verano did

not have a responsibility to forward the Plaintiff’s mail. The Plaintiff filed an

appeal to the Chief Secretary’s Office of Grievances and Appeals (Compl. Ex. I),

which was denied as untimely.

IV. DISCUSSION

Within the R&R, Magistrate Judge Smyser concludes that summary

judgment should be granted in favor of the Defendants because the Plaintiff failed

to file his Complaint before the statute of limitations elapsed and that Plaintiff

cannot avail himself of equitable tolling. 

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As Magistrate Judge Smyser accurately notes, the applicable statute of

limitations in this 42 U.S.C. § 1983 action is two years. Kach v. Hose, 589 F.3d

626, 634 (3d Cir. 2009) (Pennsylvania’s two-year statute of limitations for personal

injury cases is applied to § 1983 cases). Magistrate Judge Smyser further

concludes, and our review of the pleadings and the record confirms, that Plaintiff

certainly knew or had reason to know of the alleged injuries constituting his claim

in September of 2006 when he received a notice that his mail was being monitored. 

Thus, Plaintiff’s claim accrued in September 2006, yet he did not file this action

until April 2009. 

Equitable tolling is permissible “where (1) the defendant has actively misled

the plaintiff respecting the plaintiff’s cause of action; (2) where the plaintiff in some

extraordinary way has been prevented from asserting his or her rights; or (3) where

the plaintiff has timely asserted his or her rights mistakenly in the wrong forum.” 

Oshiver v. Levin, Fishbein, Sedran & Berman, 38 f.3d 1380, 1387 (3d Cir. 1994). 

Further, “[t]he remedy of equitable tolling is extraordinary, and we extend it only

sparingly.” Santos v. United States, 559 F.3D 189, 197 (3d Cir. 2009). Plaintiff has

not demonstrated any of the touchstones for equitable tolling, thus he cannot excuse

his failure to file this action in advance of the expiration of the statute of limitations.

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As we have already mentioned, neither Plaintiff nor the Defendants have

filed objections to this R&R. Because we agree with the sound reasoning that led

the Magistrate Judge to the conclusions in the R&R, we will adopt the R&R in its

entirety. With a mind towards conserving judicial resources, we will not rehash the

reasoning of the Magistrate Judge; rather, we will attach a copy of the R&R to this

document, as it accurately reflects our consideration and resolution of the case sub

judice. An appropriate Order shall issue.

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