Thomas Wisniewski v. Fisher , 857 F.3d 152 ( 2017 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-4194
___________
THOMAS WISNIEWSKI,
Appellant
v.
JON D. FISHER; R. SUE HANNAH; JAY B. WHITESEL;
LISA HOLLIBAUGH; CHARLES MITCHELL;
MANDY BISER; BRIAN LIGHTNER; MARY ANNE
MORDER;
FRANK CAMPOPIANO; ROBIN RUTTER; DANIEL
MYERS;
JOSEPH EICHENLAUB; JEFFREY OAKS;
F. SHOOP; DOUG LOY; M. SHEETZ; J. DELINE;
KEVIN SMITH; GREGORY BARNETT;
MARK HARLAN; RENEE LUBERT; TITUS
MOOLATHARA;
BETH MCCREARY; WILLIAM DREIBELBIS; JULIE
COWLER;
JOSH MAHUTE; DORINA VARNER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-13-cv-02642)
District Judge: Honorable Malachy E. Mannion
____________________________________
Argued January 17, 2017
____________________________________
Before: AMBRO, VANASKIE AND SCIRICA, Circuit
Judges
(Filed: May 16, 2017)
Richard L. Heppner, Jr., Esq. [ARGUED]
Reed Smith
225 Fifth Avenue
Suite 1200
Pittsburgh, PA 15222
Michael P. Yingling, Esq.
Reed Smith
10 South Wacker Drive
40th Floor
Chicago, IL 60606
Counsel for Appellant
Debra S. Rand, Esq. [ARGUED]
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Counsel for Appellee
2
_________________
OPINION OF THE COURT
__________________
VANASKIE, Circuit Judge.
Appellant Thomas Wisniewski, appeals from an order
of the United States District Court for the Middle District of
Pennsylvania dismissing his amended complaint for failure to
state a claim. For the reasons set forth below, we will reverse
in part the District Court’s order and will remand for further
proceedings.
I.
In 2013, Wisniewski filed a civil rights action pursuant
to 42 U.S.C. § 1983, naming as defendants officials and
employees of the State Correctional Institution at Smithfield
(“SCI-Smithfield”) in Huntingdon, Pennsylvania, where he is
confined. In a sprawling amended complaint, Wisniewski
asserted claims of First Amendment retaliation and violations
of his Fourth, Eighth, and Fourteenth Amendment rights.
Wisniewski’s amended complaint alleged that he
worked as an Inmate Legal Reference Aide in the prison’s
law library. Perceiving staffing shortages and believing that
other library policy decisions were harming the ability of
inmates to access the courts, he registered complaints with
prison officials and filed inmate requests about the issues. He
asserted that, in turn, he was subject to additional scrutiny
when, in his library position, he provided legal assistance to
qualified inmates who had been assigned to his caseload by
3
prison officials. An inmate specifically assigned to
Wisniewski’s caseload based on his mental health diagnosis
sought assistance in preparing a grievance challenging a yard
policy. In order to assist the inmate, Wisniewski obtained a
draft grievance from another inmate regarding the same topic
to use as a template. Prison officials discovered the draft
grievance in Wisniewski’s possession and confiscated it
based on their suspicions that it was from a notoriously
litigious inmate and was similar or identical to multiple other
grievances that had been filed. A questionnaire originating
from the attorney for the same litigious inmate was also
discovered during a subsequent search of Wisniewski’s cell.
Based on his possession of these documents, Wisniewski was
charged with, and found guilty of, engaging in or encouraging
unauthorized group activity, possession or circulation of a
petition, possession of contraband, and lying to an employee.
Certain defendants supported the misconduct charge by
claiming that the documents were “petitions” prohibited
under prison policy, despite the fact that neither of the
documents had the requisite three or more signatures to be
considered a petition under prison guidelines. Accordingly,
the misconduct charge was ultimately dismissed, but not until
Wisniewski had already spent nearly 90 days in the Restricted
Housing Unit (“RHU”) as a result of the charges.
Wisniewski alleged that, in addition to contriving these
charges and issuing a guilty verdict for conduct that did not
contradict prison guidelines, the defendants engaged in a
series of additional actions in retaliation for helping his
assigned inmate prepare a grievance. These retaliatory acts
included removing him from his law library position,
tampering with his television, denying him yard time,
delaying his release from disciplinary confinement,
4
interfering with his access to legal materials, and limiting his
access to a photocopier to copy legal materials. Wisniewski
filed multiple grievances challenging the allegedly
unconstitutional conduct.
The defendants filed a motion to dismiss. The
Magistrate Judge recommended granting defendants’ motion,
and the District Court, over Wisniewski’s objections, adopted
the Magistrate Judge’s report in its entirety and dismissed the
amended complaint with prejudice. Specifically, the District
Court dismissed all of Wisniewski’s claims arising out of
events that occurred more than two years prior to the filing of
the complaint based on the statute of limitations. The District
Court then dismissed the two remaining First Amendment
retaliation claims, which related to his limited access to the
photocopier and his removal from his Inmate Legal Reference
Aide position, for failure to state a claim. The District Court
determined that helping a fellow inmate to prepare a
grievance was not protected conduct under the First
Amendment, and that limiting access to a photocopier did not
constitute an adverse action sufficient to support a First
Amendment retaliation claim. Wisniewski timely appealed.1
II.
This Court has jurisdiction pursuant to 28 U.S.C. §
1291 and exercises plenary review over the District Court’s
dismissal of Wisniewski’s amended complaint. See Allah v.
1
We appointed counsel to represent Wisniewski on appeal.
Appointed counsel performed admirably and was of immense
assistance to the Court. We express our sincere appreciation
to counsel for the excellent representation of Wisniewski on
appeal.
5
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). To survive
dismissal pursuant to Federal Rule of Civil Procedure
12(b)(6), “a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on
its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This Court will affirm a district court’s dismissal for
failure to state a claim “only if, accepting all factual
allegations as true and construing the complaint in the light
most favorable to the plaintiff, [it] determine[s] that the
plaintiff is not entitled to relief under any reasonable reading
of the complaint.” McGovern v. City of Phila., 554 F.3d 114,
115 (3d Cir. 2009).
A.
To state a claim for retaliation, a prisoner must allege
that: (1) he was engaged in constitutionally protected conduct,
(2) “he suffered some ‘adverse action’ at the hands of prison
officials,” and (3) “his constitutionally protected conduct was
‘a substantial or motivating factor’ in the decision” to take
that action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir.
2001) (citation omitted). The District Court concluded that
Wisniewski failed to allege that he engaged in
constitutionally protected activity because, pursuant to Shaw
v. Murphy, 532 U.S. 223 (2001), inmates do not possess an
independent First Amendment right to provide legal
assistance to fellow inmates. We conclude, however, that
Wisniewski’s allegations regarding his retaliation claim based
on his removal from his Inmate Legal Reference Aide
position, are sufficient to survive a motion to dismiss.
“[A]n inmate’s constitutional rights are ‘necessarily
limited.’” Newman v. Beard, 617 F.3d 775, 781 (3d Cir.
6
2010) (quoting Waterman v. Farmer, 183 F.3d 208, 213 (3d
Cir. 1999)). Nevertheless, “it is settled law that an inmate
‘retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system.’” Id.
(quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)); see
also Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a
prison regulation impinges on inmates’ constitutional rights,
the regulation is valid if it is reasonably related to legitimate
penological interests.”). In Shaw, on which the District Court
relied, the Supreme Court declined to give prisoner-to-
prisoner legal assistance any First Amendment protection
“above and beyond the protection normally accorded
prisoners’ speech.” 532 U.S. at 231. Instead, the Supreme
Court held that prisons may, if consistent with Turner v.
Safley, 482 U.S. 78 (1987), restrict inmates from assisting
other inmates in legal matters. Id. at 228-232.
Wisniewski alleged that as an Inmate Legal Reference
Aide, he was responsible for assisting inmates assigned to his
caseload prepare legal documents, including grievances. In
performing those duties, he obtained a copy of a draft
grievance to use in assisting his assigned inmate prepare a
grievance challenging the prison’s yard policy. Wisniewski
alleged that when prison officials discovered that this material
belonged to a notoriously litigious inmate and was used in the
filing of multiple other grievances challenging the same
policy, they contrived misconduct charges, of which he was
ultimately cleared, and engaged in a series of retaliatory
actions, including arranging for his removal from his law
library position. Wisniewski’s amended complaint plausibly
alleged that his conduct in assisting his assigned inmate
prepare a grievance, which was both pursuant to his job duties
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and in accordance with prison regulations, was not
inconsistent with legitimate penological interests, and
therefore could fall within the limited First Amendment rights
that prisoners retain.2 See, e.g., Newman, 617 F.3d at 781.
Cf. Johnson v. Avery, 393 U.S. 483, 486-90 (1969)
(protecting the right of access to courts by prohibiting state
prison officials from actively interfering with inmates’
attempts to prepare legal documents).
With respect to the second element, the termination of
prison employment constitutes adverse action sufficient to
deter the exercise of First Amendment rights, satisfying the
second element of a retaliation claim at this stage of the
litigation.3 See, e.g., Williams v. Meese, 926 F.2d 994, 998
(10th Cir. 1991)(“[A prisoner] has no right to a job … [but]
prison officials cannot punish [him for] exercising his first
amendment rights by denying him certain job assignments or
2
Nonetheless, prison officials may still demonstrate that their
actions were reasonably related to legitimate penological
interests. See, e.g., Carter v. McGrady, 292 F.3d 152, 159
(3d Cir. 2002) (concluding that there was no genuine issue of
material fact that prison officials’ actions were “‘reasonably
related to legitimate penological interests,’ and that [plaintiff]
would have been disciplined notwithstanding his jailhouse
lawyering.” (quoting Turner, 482 U.S. at 90)). However, we
cannot say, at this stage, that Wisniewski’s allegations were
insufficient to survive a Rule 12(b)(6) dismissal.
3
At oral argument, counsel for Wisniewski withdrew the
retaliation claim based upon limits imposed on his access to a
photocopier.
8
transferring him from one job to another”). His amended
complaint also adequately alleged a causal link between his
provision of legal assistance and his job removal.4
Accordingly, accepting as true the factual allegations
in the complaint and all reasonable inferences that can be
drawn therefrom, we conclude that Wisniewski’s allegations
regarding his job removal state a plausible claim for relief
sufficient to survive Rule 12(b)(6) dismissal.
4
Wisniewski also argues on appeal that his job removal was
additionally in retaliation for complaints he made about
staffing shortages in the library. The District Court did not
directly address this claim before dismissing the complaint,
but we believe that Wisniewksi’s allegations raise his right to
relief above the speculative level. Wisniewski’s complaints
to prison officials and inmate requests implicate conduct
protected by the First Amendment. See Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003). Moreover, his amended
complaint suggests a pattern of retaliation beginning with his
complaints to prison staff about the prison’s implementation
of library policies and culminating with the loss of his
position as an Inmate Legal Reference Aide. Accordingly,
construing Wisniewski’s amended complaint liberally, we
believe that he adequately alleged a causal connection
between those complaints and his job removal. Cf. Lauren
W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir.
2007) (noting ways to establish causal link, including through
“a pattern of antagonism coupled with timing”); Marra v.
Phila. Hous. Auth., 497 F.3d 286, 303-05 (3d Cir. 2007)
(concluding that evidence of a pattern of antagonist behavior
was sufficient to support a causal link).
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B.
We also conclude that the District Court erred in
dismissing, at this stage, Wisniewski’s remaining claims
based on the statute of limitations. The running of the statute
of limitations is an affirmative defense. See Fed. R. Civ. P.
8(c)(1); Bradford-White Corp. v. Ernst & Whinney, 872 F.2d
1153, 1161 (3d Cir. 1989). A complaint is subject to
dismissal for failure to state a claim on statute of limitations
grounds only when the statute of limitations defense is
apparent on the face of the complaint. Schmidt v. Skolas, 770
F.3d 241, 249 (3d Cir. 2014). Wisniewski filed his complaint
on October 25, 2013. The statute of limitations applicable to
§ 1983 claims in Pennsylvania is two years. See Knoll v.
Springfield Twp. Sch. Dist., 763 F.2d 584, 585 (3d Cir.
1985). “A [§] 1983 cause of action accrues when the plaintiff
knew or should have known of the injury upon which [his]
action is based.” Sameric Corp. of Del. v. City of Phila., 142
F.3d 582, 599 (3d Cir. 1998). Although Wisniewski argues
that his claims are timely presented because he suffered a
continuing wrong, we agree that the District Court properly
concluded that the continuing violations doctrine does not
apply to Wisniewski’s claims, as defendants’ actions “had a
degree of permanence which should trigger [his] awareness of
and duty to assert his[] rights.” See Cowell v. Palmer Twp.,
263 F.3d 286, 292 (3d Cir. 2001). Accordingly, absent tolling
of the statute of limitations, Wisniewski’s claims accruing
before October 2011 were time-barred.
This Court has held, however, that because exhaustion
of prison administrative remedies is mandatory under the
Prison Litigation Reform Act (“PLRA”), the statute of
limitations applicable to § 1983 actions should be tolled while
a prisoner pursues the mandated remedies. Pearson v. Sec’y
10
Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015). Although
Wisniewski’s amended complaint revealed that certain
instances of allegedly unconstitutional conduct occurred more
than two years prior to the filing of the complaint, such as the
confiscation of his leg brace for two days while he was
housed in the RHU, the allegations did not rule out the
possibility that the statute of limitations should have been
tolled while Wisniewski exhausted his administrative
remedies. For example, Wisniewski alleged multiple
instances of retaliatory conduct from approximately April
2011 through November 2011, during which time he was also
filing numerous related grievances. We cannot say, therefore,
that it was apparent on the face of the amended complaint that
all claims accruing prior to October 2013 were necessarily
barred by the statute of limitations. We conclude that the
District Court erred in dismissing these claims as barred by
the statute of limitations without considering whether
Wisniewski properly exhausted administrative remedies and
whether and to what extent the limitations period should be
tolled. We express no view as to whether Wisniewski’s
underlying claims will prevail or whether defenses, such as
the statute of limitations, will prove to be dispositive.5
III.
For the foregoing reasons, we will reverse the District
Court’s order to the extent it dismissed the First Amendment
retaliation claim based on Wisniewski’s job removal and to
the extent it dismissed the remaining claims on statute of
5
Our decision also does not preclude the District Court from
considering other bases for dismissal of the claims on
remand.
11
limitations grounds. We remand for further proceedings
consistent with this opinion.
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