Bartelli v. Galabinski , 231 F. App'x 129 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-16-2007
Bartelli v. Galabinski
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1545
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Bartelli v. Galabinski" (2007). 2007 Decisions. Paper 1294.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1294
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
DLD-151 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
________________
No. 06-1545
________________
KEITH BARTELLI, Appellant
v.
JOHN GALABINSKI; JAMES MCGRADY, Deputy Superintendent; DEPUTY
THOMAS STACHELEK; BOWDEN; LONG; COUNSELOR CLARK; SGT.
JASTREMSKI; WILLIAM LEWIS; DONALD JONES; FRITZ BLIECH
________________
On Appeal From the United States District Court
For the Middle District of Pennsylvania
(D.C. Civ. No. 04-cv-00900)
District Judge: Honorable Edwin M. Kosik
________________
Submitted For Possible Dismissal Due to Untimeliness or
Possible Dismissal Under 28 U.S.C. § 1915(e)(2)(B)
March 15, 2007
Before: BARRY, AMBRO and FISHER, Circuit Judges
(Filed: April 16, 2007)
________________
OPINION
________________
PER CURIAM
Keith Bartelli appeals from the District Court’s dismissal of Defendants
Bliech, Jones, Lewis, Jastremski, Clark, Long, Bowden, Stachelek and McGrady from the
complaint pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), as well as the grant of summary
judgment in favor of Defendant Galabinski. Because we conclude that Bartelli’s appeal
presents no substantial question, we will summarily affirm.
I.
Bartelli is a prisoner and filed his complaint against the Defendants in April
2004. In the complaint, Bartelli raised several claims, including claims that the
Defendants retaliated against him for filing prisoner grievances. In October 2004, the
District Court dismissed Bliech, Jones, Lewis, Jastremski, Clark, Long, Bowden,
Stachelek and McGrady pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Bartelli’s motion to
amend the complaint was also denied. Subsequently, on September 27, 2005, the District
Court adopted the report and recommendation of the Magistrate Judge and granted
summary judgment in favor of the remaining Defendant, Galabinski. In November 2005,
Bartelli filed an “application for bill of judicial review,” which the District Court
construed as a motion for reconsideration. On December 15, 2005, the District Court
denied Bartelli’s “motion for reconsideration.” Bartelli executed a notice of appeal on
January 13, 2006.
II.
We must first determine whether Bartelli filed a timely notice of appeal. As
previously stated, the District Court granted summary judgment in favor of Galabinski on
September 27, 2005. While Bartelli filed a “motion for reconsideration,” it did not toll
the time to file a notice of appeal because it was untimely. See United States v. Fiorelli,
337 F.3d 282, 288 (3d Cir. 2003). Therefore, Bartelli would normally have thirty days
2
from September 27, 2005, to file a notice of appeal. Bartelli did not file his notice of
appeal until January 2006. However, for the following reasons, we find that Bartelli’s
notice of appeal is timely.
“Federal Rule of Appellate Procedure (“FRAP”) 4 - in conjunction with
Federal Rule of Civil Procedure 58 - sets out the mechanism for determining when the
time to appeal begins.” In re Cendant Corp. Sec. Litig., 454 F.3d 235, 240 (3d Cir. 2006).
“‘[I]f Federal Rule of Civil Procedure 58(a)(1) requires a separate document’ to put the
parties on notice that the time to appeal has started, the appeal period begins on the earlier
of (1) when that separate document is entered or (2) when 150 days have run from the
entry of the Order in the docket.” Id. Because Bartelli’s notice of appeal was filed more
than thirty days after the District Court’s September 27, 2005 memorandum-order, but
before 150 days lapsed, whether Bartelli timely filed a notice of appeal depends on
whether the District Court’s September 27, 2005 memorandum-order qualifies as a
separate document.
In In re Cendant Corporation Securities Litigation, 454 F.3d at 241, this
Court explained when an order will be treated as a separate document: “first, the order
must be self-contained and separate from the opinion; second, the order must note the
relief granted; and third, the order must omit (or at least substantially omit) the District
Court’s reasons for disposing of the parties’ claims.” The September 27, 2005
memorandum-order does not satisfy the third criterion. The separate document rule does
not allow for an extended presentation of the facts and procedural history. See id. at 243.
3
Here, due to the District Court’s presentation of the facts and procedural history in the
September 27, 2005 memorandum-order, it does not constitute a separate document.
Therefore, Bartelli’s January 2006 notice of appeal was timely because it was filed within
150 days of the September 27, 2005 memorandum-order.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Our standard
of review is plenary. See Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir.
1999)(stating standard of review over § 1915(e)(2) dismissal); McGreevy v. Stroup, 413
F.3d 359, 363 (3d Cir. 2005)(stating standard of review over an order granting summary
judgment). When reviewing a complaint dismissed under 28 U.S.C. § 1915(e)(2)(B)(ii),
the court applies the same standard provided for in Federal Rule of Civil Procedure
12(b)(6). See Tourscher, 184 F.3d at 240. In deciding a motion to dismiss pursuant to
Rule 12(b)(6), we accept as true all allegations of the complaint and all reasonable
inferences that can be drawn therefrom. See Taliaferro v. Darby Twp. Zoning Bd., 458
F.3d 181, 188 (3d Cir. 2006). Summary judgment is proper when, viewing the evidence
in the light most favorable to the non-movant, there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. See Saldana v. Kmart
Corp., 260 F.3d 228, 232 (3d Cir. 2001). We review the denial of a motion to amend the
complaint for abuse of discretion. See Garvin v. City of Phila., 354 F.3d 215, 219 (3d
Cir. 2003)(citation omitted).
III.
For essentially the reasons given by the Magistrate Judge in the May 27,
4
2004 report and recommendation, we agree with the dismissal of Defendants Bliech,
Jones, Lewis, Jastremski, Clark, Long, Bowden, Stachelek and McGrady pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii). First, we note that “a state grievance procedure does not
confer any substantive constitutional right upon prison inmates.” Hoover v. Watson, 886
F. Supp. 410, 418 (D. Del. 1995)(internal quotation marks and citation omitted), aff’d, 74
F.3d 1226 (3d Cir. 1995). Second, “[a] defendant in a civil rights action must have
personal involvement in the alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior.” See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988)(citations omitted). Here, Bartelli failed to state a claim against these
Defendants for one or both of these reasons.1 Furthermore, the District Court did not
abuse its discretion in denying Bartelli’s motion to amend the complaint.
Next, the District Court properly granted summary judgment in favor of
Galabinski. All of Bartelli’s claims (with the exception of his retaliation claim set forth in
paragraph eight of the complaint) were time barred. While 42 U.S.C. § 1983 does not
contain a statute of limitations period, “federal courts must look to the statute of
limitations governing analogous state causes of actions.” Urrutia v. Harrisburg County
Police Dep’t, 91 F.3d 451, 457 n.9 (3d Cir. 1996). The statute of limitations on Bartelli’s
claims is two years. See 42 Pa. Cons. Stat. Ann. § 5524. Furthermore, “[a] section 1983
cause of action accrues when the plaintiff knew or should have known of the injury upon
1
To the extent that Bartelli alleged that these Defendants verbally harassed him, such
an allegation also does not state a § 1983 claim. See Oltarzewski v. Ruggiero, 830 F.2d
136, 139 (9th Cir. 1987).
5
which its action is based.” Sameric Corp. of Del. v. City of Phila., 142 F.3d 582, 599 (3d
Cir. 1998)(citation omitted). Bartelli knew or should have known of his injuries arising
from these claims more than two years prior to filing this complaint in April 2004.
Therefore, these claims are time barred.2
Finally, in paragraph eight of the complaint Bartelli alleged that on April 5,
2002, he received a false prisoner misconduct charge “in direct retaliation for [a] criminal
complaint filed February 22, 2002.” (Compl. Part IV, ¶ 8). For essentially the reasons
stated by the Magistrate Judge in the August 31, 2005 report and recommendation and
adopted by the District Court, we agree that summary judgment in favor of Galabinski
was appropriate on this claim. Specifically, we note the lack of a material issue of fact
regarding the causal connection between Bartelli’s protected activity and the prisoner
misconduct charge. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)(setting forth
elements of retaliation claim); see also, Schoch v. First Fidelity Bancorporation, 912 F.2d
654, 657 (3d Cir. 1990)(stating that conclusory allegations taken from the pleadings are
insufficient to withstand a motion for summary judgment once a moving party has
presented evidentiary materials).
IV.
We conclude that Bartelli filed a timely notice of appeal. Additionally, the
2
Bartelli previously filed a complaint against dozens of Defendants (including all of
the Defendants in this case except Long) that was dismissed without prejudice. See
Bartelli v. Beard, Civ. No. 03-cv-00234. The filing of that complaint did not toll the
statute of limitations. See Brennan v. Kulick, 407 F.3d 603, 606 (3d Cir. 2005).
6
District Court properly dismissed Defendants Bliech, Jones, Lewis, Jastremski, Clark,
Long, Bowden, Stachelek and McGrady from the complaint and properly granted
summary judgment in favor of Galabinski. Therefore, we will affirm the District Court
judgment. Bartelli’s motions for the appointment of counsel are denied.
7