2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-26-2014

James Cibula v. Fox

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3565

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Recommended Citation

"James Cibula v. Fox" (2014). 2014 Decisions. Paper 629.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3565

___________

JAMES CIBULA,

Appellant

v.

CHARLES FOX; LLOYD WHITE; MICHAEL GREEN; JEFFREY R. IMBODEN;

CATHERINE C. MCVEY, BENJAMIN MARTINEZ; MATTHEW MANGINO;

JUDITCH E. VIGLIONE; JOHN TUTTLE; KIMBERLY A. BARKLEY; CYNTHIA

DAUB, Individually and in their official capacity as members and Employees of the 

Commonwealth of Pennsylvania Board of Probation and Parole; MR. STEINBERG, 

Psychologist, SCI MERCER; DEPUTY SUPERINTENDENT RUFFO; DEPUTY 

SUPERINTENDENT MAHLMEISTER; MARY JANE ECKERT, CC; THOMAS 

BURKHART; JEFFREY LEE HAYDEN; CYNTHIA REED; STEPHEN LAUFER; 

UNIT MANAGER COLE; JAMES P. OPPMAN; JOB SUPERVISOR KUSIAK; 

REAGAN ROBERTS; ROBERT SMILEY; JAMES OPPMAN, Individually and in their 

Official Capacity as Employees of the Pennsylvania Department of Corrections

_______________________

On Appeal from the District Court

for the Middle District of Pennsylvania

(D.C. Criminal No. 1-12-cv-02065)

District Judge: Honorable John E. Jones, III

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

April 7, 2014

Before: FISHER, SCIRICA, and COWEN, Circuit Judges

(Opinion Filed: June 26, 2014)
2

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Plaintiff James Cibula brought an action under 42 U.S.C. § 1983 against several 

employees of the Pennsylvania Department of Corrections and the Commonwealth of 

Pennsylvania Board of Probation and Parole. He alleges defendants violated his 

procedural due process rights by classifying him as a sex offender without a prior 

hearing, violated the Eighth Amendment prohibition against cruel and unusual 

punishment by subjecting him to abuse and harassment based on this improperly imposed 

sex offender status, and collectively conspired to violate these constitutional rights. He 

appeals the District Court’s order granting defendants’ Rule 12(b)(6) motions to dismiss 

on the grounds that his claims were not filed within the two-year statute of limitations for 

§ 1983 claims arising in Pennsylvania. We will affirm.1

I.

Cibula’s claims arise from his incarceration in a Pennsylvania state prison after 

pleading nolo contendere to two counts of making terroristic threats in the Northampton 

County Court of Common Pleas on February 5, 2007. After successfully appealing his 

initial sentence of five to ten years, he was resentenced to consecutive terms of six 

months to five years on December 21, 2007. One week later, he was transferred to State 

 

1

The District Court had jurisdiction under 28 U.S.C. § 1331. We have jurisdiction under 

28 U.S.C. § 1291.
3

Correctional Institution Mercer (“Mercer”) from Northampton County Jail, where he had 

been imprisoned since February 6, 2006.

Upon arriving at Mercer, officers of the Pennsylvania Department of Corrections 

recommended that Cibula be treated as a sex offender, which under 42 Pa. Cons. Stat. 

Ann. § 9718.1 required him to participate in a sex offender treatment program. Cibula 

contends corrections officers made this determination without affording him any 

opportunity to contest his designation as a sex offender.2 While he was serving his 

sentence, Cibula alleges corrections officers disclosed his sex offender status to guards 

and inmates, which resulted in other inmates abusing and harassing him.

He also contends his sex offender status impacted his parole applications. He 

petitioned for parole in July 2008, but the Commonwealth of Pennsylvania Board of 

Probation and Parole denied his request because he had not completed the sex offender 

treatment program. After this parole denial, Cibula attempted to participate in the 

program. But corrections employee Stephen Laufer discharged him from the program 

because “[r]eview of [his] record indicates all charges of sexual offending [were] 

withdrawn by the state.” Cibula v. Fox, No. 1:12-cv-2065, 2013 WL 3871637, at *1 

(M.D. Pa. July 25, 2013). Despite this discharge, the Parole Board again denied Cibula 

parole in August 2009 for failure to complete the program.

In addition to denying Cibula parole in August 2009, the Parole Board issued an 

Administrative Action on February 3, 2010, stating:

 

2

Though not entirely clear from the record, the confusion over Cibula’s sex offender 

status appears to stem from the Commonwealth’s withdrawal of sex-related charges 

against him when he pled nolo contendere to the terroristic threat charges.
4

Based on the information provided to the Parole Board, you have not 

attended and participated in a Department of Corrections program of 

counseling or therapy designed for incarcerated sex offenders as required 

by 42 Pa. C.S.A. Section 9718.1(a). Pursuant to 42 Pa. C.S.A. Section 

9718.1(b), your offense requires that you participate in sex offender 

treatment in order to be eligible for parole. Therefore, you will not be 

interviewed by the Parole Board for parole/reparole until notification is 

provided by the Department of Corrections that you have attended and 

participated in a Department of Corrections sex offender treatment 

program.

Cibula, 2013 WL 3871637, at *2 (footnote omitted). Cibula alleges the Parole Board, via 

this Administrative Action, classified him as a sex offender without a prior hearing. 

Based on the Administrative Action, he did not apply for parole in 2010 and 2011.

Without a petition from Cibula, the Parole Board granted him parole on May 11, 

2011. He was released from prison on August 18, 2011. Approximately fifteen months 

later, on October 15, 2012, Cibula brought a § 1983 suit against several board members 

and employees of the Parole Board (collectively, the “Parole Defendants”), alleging 

violations of his procedural and substantive due process rights and his Eighth 

Amendment right to protection against cruel and unusual punishment. The District Court 

dismissed the complaint without prejudice for failure to sufficiently allege that the Parole 

Defendants were responsible for the due process and Eighth Amendment violations.

On March 28, 2013, Cibula filed an amended complaint, joining several 

corrections employees as defendants (collectively, the “Corrections Defendants”), 

withdrawing his substantive due process claim, and including additional factual 

allegations supporting his procedural due process and Eighth Amendment claims. He 

now contends the Parole and Corrections Defendants violated his procedural due process 

rights by classifying him as a sex offender without a prior hearing, violated the Eighth 
5

Amendment prohibition against cruel and unusual punishment by subjecting him to abuse 

and harassment based on his purported sex offender status, and collectively conspired to 

violate these constitutional rights.

The District Court dismissed the amended complaint because Cibula’s claims were 

not filed within the two-year statute of limitations for § 1983 claims arising in 

Pennsylvania.3 The District Court held the statutory period for his claims against the 

Corrections Defendants accrued upon his arrival at Mercer on December 28, 2007, when 

he was classified as a sex offender without any form of process. And the claims against 

the Parole Defendants accrued when the Parole Board issued the Administrative Action 

on February 3, 2010. Both of these incidents occurred over two years before Cibula filed 

his initial complaint against the Parole Defendants on October 15, 2012, and his amended 

complaint against both the Parole and Corrections Defendants on March 28, 2013.

The District Court also rejected Cibula’s contention that even if his claims accrued 

over two years before he filed suit, he can nonetheless bring them under the continuing 

violations doctrine. Under this doctrine, “when a defendant’s conduct is part of a 

 

3

The District Court addressed a number of other issues, but Cibula only appeals the 

dismissal on statute of limitations grounds. Cibula contends “[a]ll other grounds asserted 

by the defendants [in support of their motion to dismiss] were either denied, or not 

addressed by the court.” Appellant Br. 11. This is not entirely accurate. The District 

Court declined to address some issues, found in Cibula’s favor on others, and decided 

two issues against Cibula. First, the court held the Parole Defendants enjoyed absolute 

immunity for adjudicative decisions, like parole denials. Second, the court dismissed 

damage claims against the Corrections Defendants for actions taken in their official 

capacities on Eleventh Amendment grounds. Cibula has waived the right to contest these 

issues on appeal because he did not raise them in his appellate brief. See United States v. 

Pelullo, 399 F.3d 197, 222 (3d Cir. 2005) (“It is well settled that an appellant’s failure to 

identify or argue an issue in his opening brief constitutes waiver of that issue on 

appeal.”).
6

continuing practice, an action is timely so long as the last act evidencing the continuing 

practice falls within the limitations period.” Cowell v. Palmer Twp., 263 F.3d 286, 292 

(3d Cir. 2001) (internal quotation marks and citation omitted). The District Court held 

this doctrine did not apply because neither the Parole nor Corrections Defendants took 

any actions during the limitations period that could be considered part of a continuing 

violation. While the Corrections Defendants allegedly informed inmates of Cibula’s 

status during the limitations period, the District Court concluded the abuse and 

harassment he suffered as a result of these disclosures to be “merely the consequences of 

the original act of deeming [him] a sex offender in 2007.” Cibula, 2013 WL 3871637, at 

*8. The District Court also found that the original act of labeling Cibula a sex offender 

upon his arrival at Mercer was “sufficiently permanent” to trigger his duty to assert his 

due process rights. Id. Cibula timely appealed.

II.

Cibula challenges the District Court’s dismissal of his § 1983 claims as barred by 

Pennsylvania’s two-year statute of limitations. He argues that even if his claims did not 

accrue within two years of filing suit, they are nonetheless actionable under the 

continuing violations doctrine. We first address whether his claims were timely filed and 

then whether the continuing violations doctrine applies.

A.

We exercise plenary review over the District Court's dismissal of a claim under 

Rule 12(b)(6) for failure to comply with the statute of limitations. In re Merck & Co., 

Inc. Sec., Derivative & “ERISA” Litig., 543 F.3d 150, 160 (3d Cir. 2008). The statute of 
7

limitations is an affirmative defense, which may be raised in a Rule 12(b)(6) motion 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.” Robinson v. Johnson, 313 F.3d 128, 135 (3d 

Cir. 2002) (quoting Hanna v. U.S. Veterans’ Admin. Hosp., 514 F.2d 1092, 1094 (3d Cir. 

1975)) (internal quotation marks omitted). “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. (internal quotation marks and citation omitted).

For § 1983 claims, federal courts apply the statute of limitations governing 

personal injury actions in the state where the cause of action arose. Garvin v. City of 

Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003). In Pennsylvania, the statute of 

limitations for personal injury claims is two years. Id. (citing 42 Pa. Cons. Stat. Ann.

§ 5524(7) (West Supp. 2003)). “Under federal law, a cause of action accrues, and the 

statute of limitations begins to run, ‘when the plaintiff knew or should have known of the 

injury upon which its action is based.’” Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009) 

(quoting Sameric Corp. v. City of Philadelphia, 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. 

(citing Barren v. United States, 839 F.2d 987, 990 (3d Cir. 1988)).

It is apparent from the face of the amended complaint that Cibula’s procedural due 

process claims against both the Corrections and Parole Defendants are time barred, as 

they accrued over two years before he filed suit on October 15, 2012. His claim against 

the Corrections Defendants accrued on December 28, 2007 (nearly five years before he 
8

filed his complaint), when he arrived at Mercer and was summarily labeled a sex offender 

without receiving any opportunity to contest the classification. Given that Cibula 

received no process at all, a reasonable person would have known at this point that the 

Corrections Defendants violated his procedural due process rights.4

The accrual date of Cibula’s procedural due process claim against the Parole 

Defendants also falls outside of the two-year statutory period. A reasonable person 

would have been aware that a due process violation occurred when the Parole Board 

issued the Administrative Action on February 3, 2010, over two-and-a-half years before 

Cibula filed suit.5 Without holding a prior hearing, the Parole Board stated:

[Y]our offense requires that you participate in sex offender treatment in 

order to be eligible for parole. Therefore, you will not be interviewed . . . 

for parole/reparole until notification is provided by the Department of 

Corrections that you have attended and participated in a . . . sex offender 

treatment program.

Cibula, 2013 WL 3871637, at *2. Based on this agency action, a reasonable person 

would have concluded that the Parole Defendants labeled Cibula a sex offender without 

providing any pre-classification process. Accordingly, his due process claim against the 

Parole Defendants is time barred.

Cibula’s Eighth Amendment claim against the Corrections Defendants also 

 

4

Inmates have a liberty interest in not being labeled sex offenders. Renchenski v. 

Williams, 622 F.3d 315, 326 (3d Cir. 2010). Thus, the government must provide process 

before making such classifications. See id. (“We agree that only after a prisoner has been 

afforded due process may sex offender conditions be imposed on an inmate who has not 

been convicted of a sexual offense.”).

5

The accrual date could arguably have been even earlier. When the Parole Defendants 

denied Cibula parole in July 2008 and August 2009 because he had not completed the sex 

offender treatment program, a reasonable person may well have concluded the Parole 

Board was classifying him as a sex offender without any pre-classification process.
9

accrued more than two years before he filed suit. He contends the Eighth Amendment 

violation resulted when the Corrections Defendants disclosed his sex offender status to 

guards and inmates, which led to abuse and harassment by other inmates. But both 

Cibula’s amended complaint and his appellate brief fail to provide specific facts 

regarding such disclosures and the resulting abuse and harassment, including the specific 

times when they occurred.6 Moreover, on appeal Cibula does not appear to advance any 

argument that the Corrections Defendants violated his Eighth Amendment rights within 

the two-year statute of limitations, relying instead on the continuing violations doctrine, 

an equitable exception to the statutory period. Accordingly, Cibula’s Eighth Amendment 

claim against the Corrections Defendants is also time barred. 

B.

Cibula argues that even if his claims accrued over two years before he filed suit, 

these claims are actionable under the continuing violations doctrine. Under this doctrine, 

a plaintiff can sue for actions that occurred outside the applicable limitations period if “a 

defendant’s conduct is part of a continuing practice [and] . . . the last act evidencing the 

continuing practice falls within the limitations period.” Cowell, 263 F.3d at 292 (internal 

quotation marks and citation omitted). But Cibula has failed to establish the doctrine 

applies here.

To determine whether a practice was continual, we consider (1) whether the 

violations are part of the same subject matter and (2) whether the violations occurred 

 

6 Cibula’s allegation that he suffered abuse and harassment until his August 18, 2011, 

release from prison is insufficient to demonstrate that these acts occurred within the 

statute of limitations because he fails to plead any facts concerning these acts.
10

frequently. See Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165–67 (3d Cir. 

2013).7 A plaintiff must also point to an affirmative act that took place within the 

limitations period for the continuing violations doctrine to apply. See Cowell, 263 F.3d at 

293 (“The focus of the continuing violations doctrine is on affirmative acts of the 

defendants.”).8 

For example, in Cowell, plaintiffs brought a substantive due process claim 

challenging the validity of liens fixed on their property. Id. They filed their claim after 

the statute of limitations had expired, but contended the existence of the allegedly illegal 

liens was an affirmative act that constituted a continuing violation of their due process 

rights. Id. We disagreed, holding the “mere existence of the liens does not amount to a 

continuing violation” and “the Township’s refusal to remove the lien [is not] an 

affirmative act of a continuing violation.” Id. We distinguished between “continual 

unlawful acts,” which can serve as the basis of a continuing violation, and “continual ill 

effects from an original violation,” which cannot. Id. (quoting Ocean Acres Ltd. v. Dare 

 

7 Cowell included a third factor—whether the violations had a degree of permanence that 

would have triggered the plaintiff’s awareness of the duty to assert his or her rights. 

Cowell, 263 F.3d at 292. But we limited Cowell’s test for determining whether a 

continuing violation exists by eliminating the degree of permanence factor in light of 

National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002). See Mandel, 706 

F.3d at 165–67.

8 Although Mandel did away with Cowell’s degree of permanence factor, it did not 

eliminate Cowell’s requirement of an affirmative act within the limitations period for 

application of the continuing violations doctrine. Accordingly, although Cibula is correct 

that the District Court erred by relying in part on the degree of permanence factor in 

refusing to apply the continuing violations doctrine, we may nevertheless affirm because 

the court also relied on Cibula’s failure to adequately allege defendants committed an 

affirmative act within the limitations period. See Cowell, 263 F.3d at 393; see also Christ 

the King Manor v. Sec’y U.S. Dep’t of Health & Human Servs., 730 F.3d 291, 321 (3d 

Cir. 2013) (noting we may affirm on any basis supported by the record). 
11

Cnty. Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983)).

As in Cowell, neither the Parole nor Corrections Defendants took any affirmative 

actions during the two-year period before Cibula filed suit that could be construed as part 

of a continuing violation of his procedural due process or Eighth Amendment rights. The 

Parole Defendants granted him parole during that time, but that is not an unlawful action 

furthering Cibula’s constitutional claims. Cibula argues the Corrections Defendants’ 

disclosure of his status as a sex offender during this time qualifies as an unlawful act 

because it led to abuse and harassment by other inmates. But Cibula failed to plead when 

the disclosure to other inmates and the abuse and harassment occurred, so we cannot 

determine whether any of these acts happened within the statute of limitations. See id. at 

292 (“In order to benefit from the [continuing violations] doctrine, a plaintiff must 

establish that the defendant's conduct is ‘more than the occurrence of isolated or sporadic 

acts.’” (quoting West v. Phila. Elec. Co., 45 F.3d 744, 755 (3d Cir. 1995)). 

Even assuming disclosure occurred within the limitations period, we agree with 

the District Court that the abuse and harassment Cibula allegedly suffered as a result of 

these disclosures is best viewed as “merely the consequences of the original act of 

deeming [him] a sex offender in 2007.” See Cibula, 2013 WL 3871637, at *8; see also 

Cowell, 263 F.3d at 293 (noting that “continual ill effects from an original violation”—

unlike “continual unlawful acts”—cannot serve as the basis of a continuing violation). 

Accordingly, the continuing violations doctrine does not apply to Cibula’s claims. 

III.

For the foregoing reasons, we will affirm the District Court’s order dismissing 
12

Cibula’s complaint.