IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

CHRISTOPHER IRWIN, )

Plaintiff )

)

v. ) Civil Action No. 04-246 Erie

) District Judge McLaughlin

CHARTIERS TWP. POLICE DEPT., ) Magistrate Judge Baxter

et al., )

Defendants. )

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

I. RECOMMENDATION

It is respectfully recommended that the motion to dismiss filed by Defendants Chartiers,

Raymond, and Horvath [Document # 35 ] be granted and said Defendants be dismissed from this

action.

It is further recommended that, pursuant to the authority granted to courts in the Prison

Litigation Reform Act:

1. Plaintiff’s claims against Defendants Nurse Cheryl, Nurse Esther, and

Nurse Jill be dismissed to the extent they relate to incidents that allegedly

occurred prior to August 27, 2002, as said claims are barred by the

applicable statutes of limitations;

2. Plaintiff’s claims against Defendants Temas, Hamett, Allegheny County

Sheriff, Dr. John, and Dr. Dirskin be dismissed in their entirety, as

Plaintiff has failed to serve said Defendants within 120 days, in

accordance with the requirements of Rule 4(m) of the Federal Rules of

Civil Procedure. 

3. Plaintiff’s claims against Defendant Pelzer be dismissed for Plaintiff’s

failure to state a claim upon which relief may be granted.

II. REPORT

A. Relevant Procedural History

On August 27, 2004, Plaintiff Christopher Irwin, an inmate incarcerated at the State

Correctional Institution at Albion (“SCI-Albion”), filed this pro se civil rights action pursuant to

42 U.S.C. § 1983. Originally named as Defendants were: Nurse 1, Cheryl Jane Doe (“Nurse

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According to the docket entries in this case, it appears that Defendants Temas, Hamett, Dr. Dirskin, Dr. John, and

Allegheny County Sheriff were never served with copies of the Amended Complaint in accordance with this Court’s

Order dated April 18, 2005 [Document # 19], nor has an attorney entered an appearance on behalf of any of these

Defendants.

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It is apparent from the docket entries in this case that Plaintiff re-filed the identical motion to amend complaint on

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Cheryl”); Nurse 2, Esther Jane Doe (“Nurse Esther”); Nurse 3, Jill Jane Doe (“Nurse Jill”); Joe

Pelzer (“Pelzer”), Warden at Washington County Correctional Facility (“WCCF”); and

Patrolman Ronald Raymond of the Chartiers Twp. Police Department (“Raymond”). In his

Complaint, Plaintiff alleged that Defendants violated his rights under the eighth amendment to

the United States Constitution by depriving him of medical treatment for injuries he suffered to

his neck and back as a result of a motor vehicle accident that occurred just prior to his arrest.

(See Complaint at Section III).

Plaintiff subsequently filed a motion to amend complaint on or about April 5, 2005,

which was granted by this Court’s Order dated April 19, 2005. As a result of this Court’s Order,

Plaintiff’s motion to amend was re-docketed as his Amended Complaint [Document # 20], and

the following Defendants were added: Temas John Doe, Deputy Warden at WCCF (“Temas”);

Hamett John Doe, Deputy Warden at WCCF (“Hamett”); Doctor Dirskin John Doe, WCCF (“Dr.

Dirskin”); James Horvath, Chief of Police at the Chartiers Twp. Police Department (“Horvath”);

Chartiers Twp. Police Department (“Chartiers”); Sheriff John Doe, Sheriff of Allegheny County

(“Allegheny County Sheriff”); and Doctor John Doe at the University of Pittsburgh Medical

Center (“Dr. John”).1 The Amended Complaint also more specifically identified Defendant

Nurse Cheryl as Head Nurse Cheryl McGavitt, Medical Administrator at WCCF. 

In his Amended Complaint, Plaintiff alleges that Defendants were deliberately indifferent

to his medical needs in violation of his Eighth Amendment rights, and violated his due process

rights under the Fourteenth Amendment. In addition, Plaintiff raises state law claims of false

arrest and false imprisonment. (Document # 20 at ¶ 46). As relief for his claims, Plaintiff seeks

declaratory relief, as well as compensatory and punitive damages.2

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July 7, 2005 [Document # 26], and again on August 30, 2005 [Document # 31]. Although this Court appropriately

dismissed Plaintiff’s motion docketed at Document # 31as moot, the motion filed as Document # 26 was erroneously

granted by Order of this Court dated July 25, 2005. As a result, there are two identical Amended Complaints

docketed in this case. [Document ## 20 and 26]. Nonetheless, this error proves to be harmless, as the pending

motion to dismiss effectively addresses both Amended Complaints.

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Defendants Chartiers, Raymond and Horvath have filed a motion to dismiss [Document 

# 35] seeking dismissal of Plaintiff’s Amended Complaint for failure to state a claim upon which

relief may be granted. In particular, Defendants contend that the applicable two-year statutes of

limitations bars all of Plaintiff’s constitutional and state law claims, because they arose more

than two years prior to the date Plaintiff initiated this action. Defendants Nurse Cheryl, Nurse

Esther, Nurse Jill, and Pelzer subsequently filed an Answer to Plaintiff’s Amended Complaint

[Document # 37] raising a number of affirmative defenses, including the defense that Plaintiff’s 

claims are barred by the statute of limitations. Despite being granted an extension of time to file

a response to the pending motion to dismiss, Plaintiff has failed to do so. This matter is now ripe

for consideration.

B. Relevant Factual History

Plaintiff alleges that on July 7, 2002, he was placed under arrest by Defendant Raymond

following a motor vehicle accident, and was then life flighted to the University of Pittsburgh

Medical Center (“UPMC”) for medical treatment. (Amended Complaint at ¶¶ 17, 18). As a

result of the accident, Plaintiff suffered injuries to his neck and back. (Amended Complaint at 

¶ 21). At UPMC, Plaintiff was treated by Defendant Dr. John, who placed him in a neck brace

and prescribed pain medication on July 7, 2002. (Amended Complaint at ¶¶ 21, 22). 

On July 9, 2002, Plaintiff was unable to perform physical therapy at UPMC due to the

seriousness of his injuries and was told by “Doctor Jane Doe” that he would need to remain in

the hospital and attempt physical therapy again in one week (Amended Complaint at ¶¶ 25-27).

Nevertheless, on July 9, 2002, Defendant Allegheny County Sheriff told Plaintiff he was

removing him from UPMC pursuant to a bench warrant that was issued at the request of

Defendants Chartiers and Raymond. (Amended Complaint at ¶ 28). Plaintiff claims that he

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informed Defendant Allegheny County Sheriff that the bench warrant was lifted, but the sheriff

said “he did not care.” (Amended Complaint at ¶ 29). Plaintiff claims further that Defendants

Chartiers and Raymond “wanted plaintiff in custody so plaintiff could not get away from

[them].” (Id.). As a result, Plaintiff alleges that Defendant Allegheny County Sheriff “coerced”

Defendant Dr. John to sign release papers that enabled him to remove Plaintiff from UPMC.

(Amended Complaint at ¶ 30).

On or about July 10, 2002, Plaintiff was transported from UPMC to WCCF, where he

was seen by Defendants Nurse Cheryl and Defendant Dr. Dirskin. (Amended Complaint at ¶¶ 32,

34). According to Plaintiff, both Defendants Nurse Cheryl and Dr. Dirskin told him “there was

nothing that they could do they refused plaintiff medical treatment and stated that they do not

have physical therapy at [WCCF], and they would not administer the medications prescribed by

[Defendant Dr. John].” (Amended Complaint at ¶ 34). Plaintiff claims further that he submitted

a sick call on or about July 11, 2002, but was refused treatment and physical therapy for his

injuries by Defendants Nurse Cheryl, Dr. Dirskin, and Nurse Esther. (Amended Complaint at 

¶¶ 35, 36). Plaintiff also claims that Defendant Nurse Jill refused him medical attention “a

number of times” during the month of July 2002. (Amended Complaint at ¶ 37). Finally,

Plaintiff claims that Defendants Nurse Cheryl, Nurse Esther, Nurse Jill, and Dr. Dirskin refused

to provide medical treatment for his injuries from July 10, 2002 to October 17, 2002.

C. Standard of Review

A motion to dismiss filed pursuant to Federal Rule of Civil Procedure 12(b)(6) must be

viewed in the light most favorable to the plaintiff and all the well-pleaded allegations of the

complaint must be accepted as true. Neitzke v. Williams, 490 U.S. 319 (1989); Langford v. City

of Atlantic City, 235 F.3d 845, 847 (3d Cir. 2000). The motion cannot be granted unless the

court is satisfied “that no relief could be granted under any set of facts that could be proved

consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984). The issue

is not whether the plaintiff will prevail at the end but only whether he should be entitled to offer

evidence to support his claim. Neitzke; Scheuer v. Rhodes, 419 U.S. 232 (1974). Rule 8(a) of

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the Federal Rules of Civil Procedure states that a pleading must set forth a claim for relief which

contains a short and plain statement of the claim showing that the pleader is entitled to relief. 

Therefore, in order to survive a motion to dismiss for failure to state a claim, the complaint must

set forth sufficient information to suggest that there is some recognized legal theory upon which

relief can be granted.

Pro se pleadings, “however inartfully pleaded,” must be held to “less stringent standards

than formal pleadings drafted by lawyers” and can only be dismissed for failure to state a claim if

it appears “<beyond a doubt that the plaintiff can prove no set of facts in support of his claim

which would entitle him to relief.’” Haines v. Kerner, 404 U.S. 519, 520-521(1972) quoting

Conley v. Gibson, 355 U.S. 41, 45-46 (1957). If the court can reasonably read pleadings to state

a valid claim on which the litigant could prevail, it should do so despite failure to cite proper

legal authority, confusion of legal theories, poor syntax and sentence construction, or litigant’s

unfamiliarity with pleading requirements. Boag v. MacDougall, 454 U.S. 364 (1982); United

States ex rel. Montgomery v. Bierley, 141 F.2d 552, 555 (3d Cir. 1969)(petition prepared by a

prisoner may be inartfully drawn and should be read “with a measure of tolerance”); Smith v.

U.S. District Court, 956 F.2d 295 (D.C.Cir. 1992); Freeman v. Department of Corrections, 949

F.2d 360 (10th Cir. 1991). Under our liberal pleading rules, a district court should construe all

allegations in a complaint in favor of the complainant. Gibbs v. Roman, 116 F.3d 83 (3d

Cir.1997). See, e.g., Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996)(discussing Fed.R.Civ.P.

12(b)(6) standard); Markowitz v. Northeast Land Company, 906 F.2d 100, 103 (3d Cir.

1990)(same).

D. DISCUSSION

1. Statute of Limitations

The federal civil rights laws do not contain a specific statute of limitations for § 1983

actions. However, it is well established that the federal courts must look to the relevant state

statute of limitations for personal injury claims. Samerica Corp. Del., Inc. v. City of

Philadelphia, 142 F.3d 582 (3d Cir. 1998)(internal citations omitted). Thus, based on 

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Pennsylvania’s applicable statute of limitations, a § 1983 claim must be filed no later than two

years from the date of the alleged violation. See Urrutia v. Harrisburg County Police Dept., 91

F.3d 451 (3d Cir.(Pa.) 1996). Similarly, pursuant to Pennsylvania’s applicable statute of

limitations, claims based upon false arrest and false imprisonment must be filed no later than two

years from the date of the alleged incident. See 42 Pa.C.S. § 5524. In this case, Plaintiff’s

complaint was received by the Clerk of Courts on August 27, 2004. (See Document # 3,

Complaint). Thus, any of the claims raised by Plaintiff arising from events that occurred prior to

August 27, 2002, is barred by applicable statutes of limitations and should be dismissed.

As noted by Defendants Chartiers, Raymond, and Horvath in their motion to dismiss, all

of Plaintiff’s allegations against them refer to events that occurred during the month of July

2002, and, thus, fall outside the two year statutes of limitations. As a result, all of Plaintiff’s

claims against these Defendants should be dismissed.

2. The Prison Litigation Reform Act

The Prison Litigation Reform Act provides that: 

(b) Grounds for dismissal– On review, the court shall identify cognizable claims

or dismiss the complaint, or any portion of the complaint, if the complaint– (1) is

frivolous, malicious, or fails to state a claim upon which relief may be granted; or 

(2) seeks monetary relief from a defendant who is immune from such relief.

28 U.S.C.A. § 1915A. Under Section 1915A, not only is a court permitted to sua sponte dismiss

a complaint which fails to state a claim, but it is required to do so. Nieves v. Dragovich, 1997

WL 698490, at *8 (E.D. Pa. 1997)(“Under provisions of the Prison Litigation Reform Act

codified at 28 U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c), the district courts are

required, either on the motion of a party or sua sponte, to dismiss any claims made by an inmate

that are frivolous or fail to state a claim upon which relief could be granted.”).

The PLRA also amended the statutory provisions with respect to actions brought by

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Title 28 U.S.C. §1915(e)(2) provides: “Notwithstanding any filing fee, or any portion thereof, that may have been

paid, the court shall dismiss the case at any time if the court determines that--(B) the action or appeal--(i) is

frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against

a defendant who is immune from such relief.”

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As noted previously, although Defendants Nurse Cheryl, Nurse Esther, and Nurse Jill have not filed a motion to

dismiss in this case, they did file an Answer asserting the affirmative defense that Plaintiff’s claims are barred by the

statute of limitations. (Document # 18 at p. 2, Third Affirmative Defense). 

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prisoners who are proceeding in forma pauperis. See 28 U.S.C. §1915(e)(2)3. Under this

provision as well, not only is a court permitted to sua sponte dismiss a complaint which fails to

state a claim, but it is required to do so by mandatory language. See, e.g., Keener v.

Pennsylvania Bd. of Probation and Parole, 128 F.3d 143, 145 n.2 (3d Cir. 1997) (describing 28

U.S.C. § 1915(e)(2)(B) as “the PLRA provision mandating sua sponte dismissal of in forma

pauperis actions that are frivolous or fail to state a claim.”). In performing a court’s mandated

function of sua sponte reviewing a complaint under 28 U.S.C. § 1915(e) and under § 1915A to

determine if it fails to state a claim upon which relief can be granted, a federal district court

applies the same standard applied to motions to dismiss under Federal Rule of Civil Procedure

12(b)(6). See, e.g., Tucker v. Angelone, 954 F. Supp. 134, 135 (E.D. Va. 1977) (“Under 28

U.S.C. §§ 1915A, 1915(e) and 42 U.S.C. § 1997e(c) the courts are directed to dismiss any claims

made by inmates that ‘fail to state a claim upon which relief could be granted’”.).

a. Defendants Nurse Cheryl, Nurse Esther, Nurse Jill

Plaintiff’s claims against Defendants Nurse Cheryl, Nurse Esther, Nurse Jill encompass

the time period from July 10, 2002 to October 17, 2002. To the extent Plaintiff’s claims against

these Defendants relate to events that occurred prior to August 27, 2002, such claims are barred

by the applicable statutes of limitations and should be dismissed.4

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b. Defendants Temas, Hamett, Allegheny County Sheriff, Dr. 

John and Dr. Dirskin

As noted previously, Defendants Temas, Hamett, Allegheny County Sheriff, Dr. John and

Dr. Dirskin were never served with a copy of Plaintiff’s Amended Complaint, in contravention of

this Court’s order dated April 18, 2005, which required that “Plaintiff shall serve a copy of the

amended complaint upon all original and new Defendants on or before May 18, 2005, and shall

file a certificate of service with this Court verifying such service.” [Document # 19]. On June 7,

2005, Plaintiff filed a motion for a ten day extension of time in which to serve Defendants with a

copy of the Amended Complaint, which motion was granted by this Court on June 27, 2005.

[Document # 23]. Nonetheless, the docket entries in this case indicate that these Defendants

have never been served and none of them has had an attorney enter an appearance on his behalf. 

As a result, Defendants Temas, Hamett, Allegheny County Sheriff, Dr. John, and Dr. Dirskin

should be dismissed from this case pursuant to Rule 4(m) of the Federal Rules of Civil

Procedure, as they have not been served within 120 days of the commencement of this case.

c. Defendant Pelzer

Plaintiff has failed to make any specific allegations against Defendant Pelzer. Plaintiff

merely identifies Defendant Pelzer in the Amended Complaint, under the heading “Defendants,”

as follows:

Defendant Warden Joe Pelzer is the warden of Washington County

Correctional Facility he is legally responsible for the operation of

Washington County Correctional Facility and for the welfare of all the

inmates of that prison.

(Amended Complaint at p. 2, ¶ 4). Defendant Pelzer is not mentioned anywhere else in 

the Amended Complaint, other than a vague reference to the fact that “[t]he Wardens never

responded to [his] grievance. Plaintiff does not even know if grievance made it to the Warden.”

(Amended Complaint at ¶ 43).

Thus, Plaintiff has not made any allegations that would implicate the personal

involvement of Defendant Pelzer in any of the violative conduct alleged in the Amended

Complaint. At most, the claims against this Defendant are apparently based upon supervisory

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liability or respondeat superior; however, such claims are not cognizable under 42 U.S.C.

§1983. See Thomas v. Zinkel, 155 F.Supp.2d 408, 413 (E.D.Pa. 2001)(health care administrator

cannot be found deliberately indifferent based on a theory of respondeat superior); Lindsay v.

Dunleavy, 177 F.Supp.2d 398, 403 (E.D.Pa. 2001), citing Rode v. Dellaciprete, 845 F.2d 1195,

1207 (3d Cir. 1988)(defendant in civil rights action must have personal involvement in alleged

wrongs; liability cannot be predicated on the operation of respondeat superior). As a result,

Plaintiff’s claims against Defendant Pelzer should be dismissed.

III CONCLUSION

For the foregoing reasons, it is respectfully recommended that the motion to dismiss

filed by Defendants Chartiers, Raymond, and Horvath [Document # 35 ] be granted and said

Defendants be dismissed from this action.

It is further recommended that, pursuant to the authority granted to courts in the Prison

Litigation Reform Act:

1. Plaintiff’s claims against Defendants Nurse Cheryl, Nurse Esther, and

Nurse Jill be dismissed to the extent they relate to incidents that allegedly

occurred prior to August 27, 2002, as said claims are barred by the

applicable statutes of limitations;

2. Plaintiff’s claims against Defendants Temas, Hamett, Allegheny County

Sheriff, Dr. John, and Dr. Dirskin be dismissed in their entirety, as

Plaintiff has failed to serve said Defendants within 120 days, in

accordance with the requirements of Rule 4(m) of the Federal Rules of

Civil Procedure. 

3. Plaintiff’s claims against Defendant Pelzer be dismissed for Plaintiff’s

failure to state a claim upon which relief may be granted.

It is further recommended that Plaintiff’s claims against Defendants Nurse Cheryl, Nurse

Esther, and Nurse Jill be allowed to proceed to the extent they relate to events that occurred after

August 27, 2002.

In accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule

72.1.4(B) of the Local Rules for Magistrates, the parties are allowed ten (10) days from the date

of service to file written objections to this Report and Recommendation. Any party opposing

the objections shall have seven (7) days from the date of service of objections to respond

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thereto. Failure to file timely objections may constitute a waiver of any appellate rights.

S/Susan Paradise Baxter 

SUSAN PARADISE BAXTER

Chief U.S. Magistrate Judge

Dated: March 13, 2006

cc: The Honorable Sean J. McLaughlin 

United States District Judge

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