2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-19-2011

James Paluch Jr. v. Secretary PA Dept Corr

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1645

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 10-1645

___________

JAMES A. PALUCH, JR.,

Appellant

v.

*SECRETARY PENNSYLVANIA DEPARTMENT CORRECTIONS; 

JOHN S. SHAFFER; WILLIAM D. SPRENKLE; DONALD VAUGHN; 

FRANKLIN J. TENNIS; TIMOTHY S. RINGLER; 

ROBERT CALIK; KATHLEEN ZWIERZYNA; DENNIS P. DURANT; 

MICHAEL A. FARNAN; SHARON BURKS; KRISTEN P. REISINGER; 

MICHAEL P. WOLANIN; RANDY POLLOCK; JAMES L. GRACE; 

MELVIN S. LOCKETT; JOHN D. FISHER; ASHLEY SMITH; 

DANIEL BAIRD; RUSTY BILGER; ROBERT CRAMER; YVONNE BRIGGS; 

SCI HUNTINGDON; PENNSYLVANIA DEPARTMENT OF CORRECTIONS, sued in 

their individual and official capacities

*(Pursuant to Rule 43(c), Fed. R. App. P.)

____________________________________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. Civil Action No. 09-cv-01522)

District Judge: Honorable Sylvia H. Rambo

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

August 1, 2011

Before: FUENTES, GREENAWAY, JR., and GREENBERG, Circuit Judges

(Opinion filed: August 19, 2011)
___________

OPINION

___________

PER CURIAM

Paluch, a state prisoner proceeding pro se, appeals from the District Court orders

dismissing his complaint under 28 U.S.C. § 1915(e)(2)(B) and denying his motion to 

reconsider. For the reasons that follow, we will affirm.

I

In September 2004, Paluch, then a prisoner at SCI-Huntingdon in Pennsylvania, 

was assaulted by his cellmate, Roger Smith, allegedly at the instigation of corrections 

officer John Dawson. Following the assault, Paluch filed a grievance and requested 

security camera footage related to the assault. The grievance was denied and Paluch 

unsuccessfully appealed that denial up to the Department of Corrections (“DOC”) 

Secretary’s Office of Inmate Grievances and Appeals. After failing to obtain relief 

through the administrative grievance process, Paluch filed in the Middle District a lawsuit 

against Smith, Dawson, and several other corrections officers. See Paluch v. Dawson, 

M.D. Pa. Civ. No. 06-cv-01751. During the course of those proceedings, Paluch learned 

that the surveillance footage he had requested had been copied over. In August 2009, 

before the Dawson trial commenced, Paluch filed a second action under 42 U.S.C. 

§ 1983, alleging that various DOC and SCI-Huntingdon employees violated his rights 

under the Americans with Disabilities Act, the Fifth, Sixth, Eighth, and Fourteenth 
Amendments to the Constitution, and various state tort laws. The second complaint is the 

subject of the instant appeal.

Paluch’s second complaint, which included five counts, alleged that: (1) the DOC 

violated his rights by failing to establish policies and procedures to protect him, as an 

epileptic inmate, from assault; (2) corrections officers at SCI-Huntingdon failed to protect 

Paluch from further abuse because they did not file written reports about the assault by 

Smith to their superiors; (3) corrections officers at SCI-Huntingdon violated his rights by

failing to make video recordings of the assault scene with a handheld camera for use as 

evidence in any future litigation; (4) DOC and SCI-Huntingdon officials violated his 

rights by failing to establish policies and procedures for preservation of video 

surveillance recordings for foreseeable litigation; and (5) corrections officer John Fisher 

violated Paluch’s rights by failing to preserve the video surveillance footage. In Count 5, 

Paluch also alleged that Fisher violated his rights by failing to conduct an investigation 

following Paluch’s filing of a formal grievance.

In an order entered November 24, 2009, the District Court dismissed Paluch’s 

complaint under 28 U.S.C. § 1915(e)(2)(B), reasoning that Counts 1-3 were time-barred, 

and that Counts 4 and 5 were meritless because Paluch did not allege that he suffered any 

harm from the destruction of the video tape. The District Court did not address Paluch’s 

claim that Fisher failed to conduct an investigation.

Twenty-seven days later, on December 21, 2009, Paluch filed a motion under 

Middle District Local Rule 7.10, styled as a “motion to reconsider,” raising several 
challenges to the propriety of the District Court’s order dismissing his complaint. 

Notably, although the Clerk’s Office deemed the motion filed on December 23, Paluch 

noted on the envelope that his motion was submitted “Per P[rison] M[ailbox] R[ule]” on 

December 21. The envelope was postmarked December 22, 2009. Relying on Local 

Rule 7.10, the District Court denied the motion as untimely. Paluch filed a notice of 

appeal, which was timely as to the order denying his motion to reconsider.

II

We have jurisdiction pursuant to 28 U.S.C. § 1291. At the outset, we must address 

the scope of our jurisdiction, which is potentially limited by the District Court’s dismissal 

of Paluch’s motion to reconsider as untimely. We note first that, although Paluch’s pro 

se motion to reconsider cited only Middle District Local Rule 7.10, because the motion 

was, in substance, an attack on the legal determination made by the District Court in 

dismissing Paluch’s complaint, it also amounted to a motion to alter or amend the 

judgment, which is governed by Federal Rule of Civil Procedure 59(e). See United 

States v. Fiorelli, 337 F.3d 282, 288 (3d Cir. 2003); see also Smith v. Evans, 853 F.2d 

155, 158 (3d Cir. 1988) (“[T]he function of the motion, not the caption, dictates which 

Rule applies . . . .”). Federal Rule of Appellate Procedure 4(a)(4)(A)(iv) provides that a 

timely motion for reconsideration under Rule 59(e) tolls the time to file a notice of

appeal. Thus, if Paluch’s motion to reconsider was, in fact, timely, we may review both 

the denial of that motion and the order dismissing Paluch’s complaint under 28 U.S.C. 

§ 1915(e)(2)(B). We conclude that Paluch’s motion to reconsider was timely filed.
Until December 1, 2009, both Rule 59(e) and Local Rule 7.10 afforded a litigant 

10 days following an order or judgment to file a motion to reconsider. Effective 

December 1 -- after the District Court dismissed Paluch’s complaint, but before he sought 

reconsideration -- the Rules were amended. Rule 59(e) was changed to impose a 28-day 

time limit, whereas Local Rule 7.10 afforded only 14 days to file a motion to reconsider. 

These changes give rise to two questions: Did the District Court appropriately apply the 

amended rules to Paluch’s case? And did the District Court err in relying on the shorter 

limitations period to dismiss Paluch’s complaint? We answer both questions in the 

affirmative.

As explained above, Rule 59 governed Paluch’s motion to reconsider. Generally, 

when amended procedural rules take effect during the pendency of a case, the amended 

rules will be given retroactive application to the maximum extent possible, unless doing 

so would work injustice. See Freudensprung v. Offshore Technical Servs., Inc., 379 F.3d 

327, 335 n.2 (5th Cir. 2004). In promulgating the 2009 amendments to the Federal Rules, 

the Supreme Court ordered that “the [amendments] . . . shall govern in all proceedings 

[commenced after December 1, 2009,] and, insofar as just and practicable, all 

proceedings then pending.” Order of the United States Supreme Court Amending the 

Federal Rules of Civil Procedure (March 26, 2009) (emphasis added). In applying 

amended Local Rule 7.10, we understand the District Court to have concluded that it was 

just and practicable to afford Paluch the additional time granted by the amended rule. In 

turn, we conclude that it would have been equally just and practicable to give Paluch the 
28 days prescribed by amended Rule 59(e). 

Next, we turn to the District Court’s application of Local Rule 7.10’s 14-day 

limitations period. “District Courts are authorized to prescribe rules for the conduct of 

court business so long as those rules are consistent with the Acts of Congress and the 

Federal Rules of Civil Procedure.” Anchorage Assocs. v. V.I. Bd. of Tax Review, 922 

F.2d 168, 173 (3d Cir. 1990); see also 28 U.S.C. § 2071(a); Fed. R. Civ. P. 83(a)(1). 

Thus, a local rule that conflicts with an applicable federal rule is generally invalid. See In 

re Paoli R.R. Yard PCB Litig., 221 F.3d 449, 459 (3d Cir. 2000). Because Paluch’s 

motion to reconsider should have been subject to the 28-day limit in amended Rule 59(e), 

amended Local Rule 7.10 did not apply to the extent that it cut short Paluch’s opportunity 

to seek reconsideration under Rule 59(e).

1

Finally, we consider whether, applying amended Rule 59(e), Paluch’s motion was 

timely. The District Court dismissed his complaint on November 24, 2009. His motion 

thus had to be filed on or before December 22, 2009, to be timely. Because Paluch is a 

prisoner, he receives the benefit of the “prison mailbox rule,” and his motion was deemed 

filed at the time he delivered it to prison authorities for forwarding to the District Court. 

See Houston v. Lack, 487 U.S. 266, 276 (1988). His motion was postmarked December 

22, meaning that it was delivered to prison authorities on that date, at the latest, and was 

 

1

 We note that the 2010 amendment to Local Rule 7.10 avoids this problem by 

exempting from the 14-day time limit “a motion to alter or amend a judgment under 

Fed. R. Civ. P. 59.”
therefore timely. Thus, his motion to reconsider tolled the time to appeal, and we have 

jurisdiction to review both the dismissal of his complaint and the denial of his motion to 

reconsider.

III

We turn next to the merits of Paluch’s appeal. We exercise plenary review over 

the District Court’s order dismissing his complaint. See Tourscher v. McCullough, 184 

F.3d 236, 240 (3d Cir. 1999). We may affirm on any ground supported by the record. 

See Hughes v. Long, 242 F.3d 121, 122 n.1 (3d Cir. 2001). 

The District Court held that Counts 1 through 3 of Paluch’s complaint were timebarred.2

 In § 1983 cases, federal courts apply the state personal injury statute of 

limitations, which is two years in Pennsylvania. See Smith v. Holtz, 87 F.3d 108, 111 & 

n.2 (3d Cir. 1996); 42 Pa. Cons. Stat. Ann. § 5524 (West 2004). “A [§] 1983 cause of 

action accrues when the plaintiff knew or should have known of the injury upon which its 

action is based.” Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d Cir. 

1998). Because exhaustion of prison administrative remedies is mandatory under the 

Prison Litigation Reform Act, the statute of limitations applicable to § 1983 actions may 

 

2

 Although the statute of limitations applicable to § 1983 actions is an affirmative 

defense, which may be waived by the defendant, it is appropriate to dismiss sua 

sponte under § 1915(e)(2) a complaint whose untimeliness is apparent from the face 

of the record. See, e.g., Jones v. Bock, 549 U.S. 199, 215 (2007) (stating that if the 

allegations in a complaint, “for example, show that relief is barred by the applicable 

statute of limitations, the complaint is subject to dismissal for failure to state a 

claim”). 
be tolled while a prisoner exhausts. See Brown v. Valoff, 422 F.3d 926, 942-43 (9th Cir. 

2005); Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). In concluding that Counts 1 

through 3 were time-barred, the District Court reasoned that all of those claims stemmed 

from the alleged assault on September 9, 2004, which occurred nearly 5 years before he 

filed his complaint, and that Paluch did not demonstrate a basis for tolling the statute of 

limitations. We agree that Counts 1 through 3 accrued in September 2004. Although 

Paluch’s complaint did not include any information that indicated tolling was warranted, 

the record in the Dawson case, over which Judge Rambo also presided, demonstrates that 

Paluch attempted to seek relief through the administrative process from September 10, 

2004, through January 24, 2005, when his final appeal to the Secretary’s Office of Inmate 

Grievances and Appeals was denied. See Paluch v. Dawson, M.D. Pa. Civ. No. 06-cv01751, Doc. No. 228, 42-49. Thus, the statute of limitations applicable to Counts 1 

through 3 did not begin to run until January 2005. However, because Paluch did not file 

his complaint within two years of that date, those claims were barred by the statute of 

limitations. 

In Count 4 of his complaint, Paluch alleged that SCI-Huntingdon and DOC 

officials failed to establish policies and procedures that allow for the preservation of 

evidence for prisoners’ use in foreseeable litigation. The Department of Corrections’ 

Policy DC-ADM 804 provides a mechanism for inmates to file grievances regarding 

problems they face while in prison, including abuse. Under DC-ADM 001, which details 

the policies and procedures prison staff employ for assessing inmates’ allegations of 
abuse, staff are required to preserve and submit as part of their investigative report, inter 

alia, “any videos or photographs related to the alleged incident.” Pa. DOC DC-ADM 001 

§ 1(C)(1)(c). Thus, it is clear that the DOC has policies in place designed to ensure that 

relevant video evidence is preserved. 

Paluch alleged in Count 5 that, by failing to preserve the video surveillance 

footage, Defendant Fisher unconstitutionally deprived Paluch of his ability to substantiate 

his claims in the Dawson case. The thrust of Paluch’s claim is not entirely clear, though 

his argument can be read as asserting a cause of action for Fisher’s alleged spoliation. To 

that end, Paluch has pointed to no authority that allows for a freestanding spoliation 

action under federal law and, to the extent that he sought to invoke the District Court’s 

supplemental jurisdiction, Pennsylvania has not recognized an independent action for 

spoliation. See Pyeritz v. Commonwealth, 956 A.2d 1075, 1082 (Pa. Commw. Ct. 2008), 

allowance of appeal granted, 969 A.2d 1183 (Pa. 2009).3 

Paluch also alleged in Count 5 that, by failing to properly investigate Paluch’s 

abuse claim, Fisher acted with deliberate indifference and failed to protect him. 

Although the District Court did not address this claim, dismissal under § 1915(e) was 

appropriate because there is no apparent obligation for prison officials to investigate 

prison grievances. See Inmates of Attica Corr. Facility v. Rockefeller, 477 F.2d 375, 382 

 

3

 We note that, although the question whether Pennsylvania recognizes a tort claim 

for spoliation is presently before the Pennsylvania Supreme Court in Pyeritz, no such 

cause of action was recognized at any time during Paluch’s proceedings in the District 

Court or during the course of this appeal.
(2d Cir. 1973).

On appeal, Paluch argues that the District Court erred in denying his motion for 

reconsideration. We review the denial of a motion to reconsider for abuse of discretion. 

See Caver v. City of Trenton, 420 F.3d 243, 258 (3d Cir. 2005). To prevail on a motion 

for reconsideration, a litigant must demonstrate: “(1) an intervening change in the 

controlling law; (2) the availability of new evidence . . .; or (3) the need to correct a clear 

error of law or fact or to prevent manifest injustice.” Max’s Seafood Café ex rel. LouAnn, Inc. v. Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). In his motion to reconsider, 

Paluch raised several arguments challenging the District Court’s analysis of his claims. 

For the reasons discussed above, dismissal was appropriate and his arguments are 

unpersuasive. Moreover, there is no merit to Paluch’s argument in his motion for 

reconsideration, which he reiterates on appeal, that Judge Rambo rendered unfavorable 

decisions because she was biased against him. Adverse rulings, without more, are 

insufficient to warrant recusal. See Liteky v. United States, 510 U.S. 540, 555 (1994). 

Paluch has provided no reason, other than his own dissatisfaction with Judge Rambo’s 

rulings, to conclude that he was treated unfairly.4 

Accordingly, we will affirm. Paluch’s motion for leave to conduct an evidentiary 

hearing is denied.

 

4

 For the same reason, we are not concerned by the fact that Paluch has since filed a 

lawsuit against Judge Rambo or that she has recused in the Dawson case.