                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-11-2008

Hunt v. PA Dept Corr
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2757




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"Hunt v. PA Dept Corr" (2008). 2008 Decisions. Paper 686.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/686


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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ___________

                                 No. 07-2757
                                 ___________

                               HAROLD HUNT,

                                       Appellant

                                          v.

             PA. DEPT. OF CORRECTIONS; JAMES PRICE;
           ALLADIN SYED; DR. LATIMORE; PAUL A. NOEL;
          DR. SKWIVANSKI; DR. STEVENS; FRED POLANDO;
         PHS/EMSA; STEPHANIE WOOD; PHILIP L. JOHNSON;
       JOAN DELIE; JEFFREY BEARD; EDWARD SWIERCZEWSKI;
             DR. BRANDY; DR. WHITE; DIANE MANSON

                   ____________________________________

                 On Appeal from the United States District Court
                     for the Western District of Pennsylvania
                       (D.C. Civil Action No. 03-cv-00277)
                 District Judge: Honorable Donetta W. Ambrose

                   ____________________________________

                 Submitted Pursuant to Third Circuit LAR 34.1(a)
                                February 1, 2008
             Before: McKEE, SMITH and CHAGARES, Circuit Judges

                         Opinion filed: August 11, 2008
                                 ___________

                                  OPINION
                                 ___________

PER CURIAM
       Harold Hunt, proceeding pro se, appeals the District Court’s entry of summary

judgment in favor of Appellees. For the reasons that follow, we will affirm.

       Hunt initiated this action on January 10, 2003,1 one year and 363 days after he was

released from SCI-Pittsburgh. He claimed that Appellees conspired to deny or interfere

with his medical treatment throughout the time during which he was incarcerated. On

June 3, 2005, the District Court granted Appellees’ motion to dismiss, holding that the

claims stated in the complaint were time-barred. This Court vacated the District Court’s

order and remanded the matter for further proceedings, concluding that it was not clear,

from the face of Hunt’s amended complaint, that his action was barred by the statute of

limitations. See Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n.1

(3d Cir. 1994).

       On remand, Hunt filed a second amended complaint in which he alleged, among

other things, that Appellees denied him necessary medical treatment, mistreated him

during sick call, interfered with his prescribed treatment, failed to conduct adequate

examinations or tests, and retaliated against him for filing grievances against medical

staff. He specified some dates for the alleged conduct, primarily throughout 1999 and

2000, but mentioned only one event occurring on or after January 10, 2001, within the

two year statute of limitations period. According to Hunt, on January 12, the day he was

  1
   Hunt filed a complaint and motion to proceed in forma pauperis in the United States
District Court for the Middle District of Pennsylvania on this date. The action was
subsequently transferred to the United States District Court for the Western District of
Pennsylvania.

                                             2
released, he was forced to carry two boxes two blocks to a bus stop, despite being under

doctor’s orders not to lift, squat, run or jump. He claimed he was “hurting all over, loud

ringing in the ears, eyes burning, blurry vision, swelling in legs, hands, and suffering from

breathing problems where it took [him] about 45 minutes to walk 2 blocks. [He] even

had trouble communicating with the bus driver.” In his objections to the Magistrate

Judge’s Report & Recommendation, Hunt argued that the Magistrate Judge misconstrued

his claim, which should not be understood as a series of individual wrongs, but rather as a

continuing violation spanning from 1997 until his release in 2001. He argued that the

“continuing violation theory” should apply where, as here, “the last act evidencing the

‘continuing practice’ falls in the limitation period.” The District Court disagreed,

adopting the Magistrate Judge’s conclusions that Hunt did not assert a denial of medical

care upon his release from prison, nor did the alleged conduct constitute a “continuing

violation” under applicable Third Circuit precedent. Hunt timely appealed.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We review

the District Court’s entry of summary judgment de novo, applying the same standard the

District Court applied. Stratton v. E.I. DuPont De Nemours & Co., 363 F.3d 250, 253 (3d

Cir. 2004). Summary judgment is proper only if it appears “that there is no genuine issue

as to any material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c); Carrasca v. Pomeroy, 313 F.3d 828, 832-33 (3d Cir. 2002).

In order to defeat a motion for summary judgment, the non-moving party must produce or



                                             3
point to evidence in the record that creates a genuine issue of material fact. See Josey v.

John R. Hollinsgworth Corp., 996 F.2d 632, 637 (3d Cir. 1993). The non-moving party

cannot rest on mere pleadings or allegations; rather it must point to actual evidence in the

record on which a jury could decide an issue of fact its way. See Berckeley Inv. Group,

Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006).

       For essentially the reasons given by the District Court, we agree that the

underlying lawsuit was not timely filed. Hunt makes only one reference to an event

occurring on or after January 10, 2001 – the failure of prison personnel to assist him in

transporting his belongings to the bus upon his release from prison – and as the District

Court held, that incident alone is insufficient to state a claim for deliberate indifference to

a serious medical need. See Estelle v. Gamble, 429 U.S. 97 (1976). Furthermore, we

agree that Hunt has not established a “continuing violation.” First, as Appellees argue,

neither this Court nor the Supreme Court has ever applied the continuing violation

doctrine outside of the employment discrimination context. See Nat’l R.R. Passenger

Corp. v. Morgan, 536 U.S. 101, 113 (2002); O’Connor v. City of Newark, 440 F.3d 125,

127-28 (3d Cir. 2006). All of the cases relied on by Hunt in support of the application of

this theory to his § 1983 claims arise from employment discrimination actions.

Furthermore, we hold that, even if we were to assume that the continuing violation

doctrine did apply here, Hunt would not be entitled to relief. As the Supreme Court has

held, “discrete discriminatory acts are not actionable if time barred, even when they are



                                               4
related to acts alleged in timely filed charges. Each discriminatory act starts a new clock

for filing charges alleging that act.” Nat’l R.R., 536 U.S. at 113; see also Kichline v.

Consol. Rail Corp., 800 F.2d 356, 360 (3d Cir. 1986) (“[The] continuing conduct of

defendant will not stop the ticking of the limitations clock begun when plaintiff obtained

[the] requisite information. On discovering an injury and its cause, a claimant must

choose to sue or forego that remedy.”). Accordingly, while Hunt has alleged a myriad of

claims which, if timely, might have been individually actionable, they do not constitute a

“continuing violation.” We therefore agree with the District Court’s conclusion that

Hunt’s § 1983 action was time-barred. In light of this conclusion, we do not reach Hunt’s

remaining arguments on appeal, as success on those grounds would not revive the

underlying cause of action.

       Based on the foregoing, we will affirm the judgment of the District Court.




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