Jose Montalban v. Powell ( 2020 )

ALD-115 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 19-1450
___________
JOSE MONTALBAN,
Appellant
v.
MR. POWELL; MR. VERBYLA WILLIAMS;
MR. JASON GLOSSENGER; MS. PATRICIA BURGERHOLFF;
MR. MODDROFF; MR WALTER DOBUSHAK;
MR. M. KABONICK; MR. JARRETT TUTTLE;
ANTHONY PEDONE; MR. MARK BRENNAN;
COREY VRABEL; C.O. GUILLARD;
C.O. SNEE; C.O. SCHULTZ;
UNITED STATES OF AMERICA;
MACCA, Correctional Officer;
DUSTIN M. COOK, PSY, D.;
CAROLINE M. JOHANSON, PHD. Staff Psych;
SIA JOHN GINTZ
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 17-cv-00212)
District Judge: Honorable James M. Munley
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
February 13, 2020
Before: MCKEE, SHWARTZ, and PHIPPS, Circuit Judges
(Opinion filed: April 1, 2020)
_________
OPINION*
_________
PER CURIAM
Appellant Jose Montalban, proceeding pro se and in forma pauperis, appeals from
the District Court’s order granting summary judgment to the defendants. Because the
appeal presents no substantial question, we will summarily affirm the judgment of the
District Court.
On January 27, 2017, Montalban filed a civil rights lawsuit against nineteen
Federal Bureau of Prison staff members at Canaan United States Penitentiary (“Canaan”),
where he was incarcerated at the time, relying on Bivens v. Six Unknown Named Agents
of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). He amended his complaint once and
supplemented it to include three defendants in place of John Does. The amended
complaint alleged that on December 28, 2012, several correctional officers used
excessive force against Montalban after he assaulted his work supervisor. Montalban
also claimed that Canaan personnel acted with deliberate indifference to his medical
needs in the wake of the altercation. Additionally, Montalban claimed that correctional
officers interfered with his legal materials in July 2014.
The defendants moved to dismiss the amended complaint or, in the alternative, for
summary judgment, arguing, inter alia, that Montalban’s claims were barred by the
statute of limitations. The District Court converted the motion to a motion for summary
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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judgment and provided Montalban with notice and an opportunity to submit exhibits.
After reviewing the record, the District Court concluded that Montalban’s claims were
time-barred and entered summary judgment for the defendants.
We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We exercise
plenary review over a district court’s grant of summary judgment. Blunt v. Lower
Merion Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014). Summary judgment is appropriate
“if the movant shows that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine
dispute of material fact exists if the evidence is sufficient for a reasonable factfinder to
return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). In evaluating a motion for summary judgment, “all justifiable
inferences are to be drawn in . . . favor” of the non-moving party. Id. at 255. However,
“the non-movant may not rest on speculation and conjecture in opposing a motion for
summary judgment.” Ramara, Inc. v. Westfield Ins. Co., 814 F.3d 660, 666 (3d Cir.
2016).
We conclude that the District Court properly entered summary judgment for the
defendants because no reasonable factfinder could determine that Montalban’s lawsuit
was timely filed. Bivens claims are governed by a state’s statute of limitations for
personal injury claims. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010).
Pennsylvania’s limitations period is two years. 42 Pa. Cons. Stat. § 5524. Montalban
became aware of his injuries on December 28, 2012 and filed a complaint more than four
years later, on January 27, 2017. See Bohus v. Beloff, 950 F.2d 919, 924 (3d Cir. 1991)
3
(explaining that the statute of limitations begins to run when a plaintiff knows that he has
been injured).1 Accordingly, his claims are time-barred.
As the District Court correctly determined, the time Montalban spent pursuing
Canaan’s grievance process did not render his complaint timely filed. See Pearson v.
Sec’y Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015) (explaining that the statute of
limitations is tolled while a prisoner exhausts administrative remedies under the Prison
Litigation Reform Act). The undisputed record shows that Montalban did not file a
grievance concerning his excessive use of force or deliberate indifference claims prior to
January 2016, more than a year after the statute of limitations expired. Montalban’s
assertion that the grievance process was made unavailable to him is unsupported by the
record, and does not account for the fact that he did not file a lawsuit until January 2017.
Additionally, while the grievances Montalban filed relevant to his legal property claim
did toll the statute of limitations, it did not do so long enough to make his complaint
timely as to those claims. See ECF No. 67 at 20–21 (calculating the tolled period as to
the legal property claim).
Because this appeal presents no substantial question, we will affirm. Montalban’s
motion for appointment of counsel is denied, see Tabron v. Grace, 6 F.3d 147, 155–56
(3d Cir. 1993), as is his motion to supplement the District Court record, see Fed. R. App.
1
To the extent Montalban argued that he did not discover his injuries until January 2013,
when he first received x-rays indicating a fractured skull, that argument is unavailing
because a “cause of action accrues even though the full extent of the injury is not then
known or predictable.” Wallace v. Kato, 549 U.S. 384, 392 (2007).
4
P. 10(e). To the extent that he presents any requests for relief in the other documents he
has filed, those motions are denied, as well.
5