Robert Fennell v. Francis Pirozzola

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 19-3304
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ROBERT FENNELL,
Appellant
v.
FRANCIS PIROZZOLA; RUSSELL BOLLINGER; PENNIE BURKEY;
DONNY HAGENS; ROBERT REED; STEPHEN JOHNSON;
GARY BLAKELY; DAVID CLOSE; BYRON BRUMBAUGH;
KENNETH HOLLIBAUGH; DAVID KESSLING; LONNIE OLIVER
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-00097)
District Judge: Honorable Kim R. Gibson
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Submitted Pursuant to Third Circuit LAR 34.1(a)
August 19, 2020
Before: SHWARTZ, RESTREPO and GREENBERG, Circuit Judges
(Opinion filed: August 19, 2020)
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OPINION*
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* 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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PER CURIAM
Appellant Robert Fennell, proceeding pro se, filed a civil rights action against
several officers of the Pennsylvania Department of Corrections grounded on allegations
of abuse and excessive force. As alleged in the complaint, Fennell arrived at SCI
Cresson in 2007 and was found guilty of threatening an employee shortly thereafter. For
that, he claimed he was “beat[en], punch[ed], and smack[ed]” by unnamed officers while
in his cell. When he tried to report the incident about a month later, he was again beaten
and forced to live in deplorable conditions. Fennell alleged that the defendants
confiscated his legal documents to prevent him from filing a complaint or grievance. A
number of similar incidents were detailed in the complaint, and the officers’ misconduct
reportedly continued through January 2009, when Fennell was transferred to SCI
Houtzdale. However, Fennell claimed the abuse continued as the officers at SCI
Houtzdale would also use excessive force and file false charges against him if he tried to
report their actions. In September 2011, Fennell was transferred to SCI Smithfield.
Fennell stated that, until 2017, unknown personnel at Smithfield prevented him from
filing a complaint “at the direction of or at least with the tacit approval of” the
defendants. Fennell filed a 42 U.S.C. § 1983 action against officers at SCI Cresson and
SCI Houtzdale in September 2019.
The District Court, after considering the Magistrate Judge’s Report and
Recommendation and Fennell’s objections, dismissed the complaint with prejudice at

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screening pursuant to 28 U.S.C. § 1915(e). It concluded that Fennell’s claims were
untimely because the last allegation of conduct by the defendants occurred in 2011. The
District Court also concluded that Fennell’s statement that he was continually prevented
from filing a complaint through 2017 was conclusory and demonstrably false as Fennell
had filed numerous other complaints in federal court between 2011 and 2017 which
challenged the actions of correctional officers. Fennell was not given leave to amend and
he appealed.
We have jurisdiction under 28 U.S.C. § 1291. We review the order dismissing the
amended complaint under the same de novo standard of review as with our review of a
motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000). “To survive a motion to dismiss, 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 Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). We may affirm on any basis
supported by the record. Murray v. Bledsoe, 650 F.3d 246, 247 (3d Cir. 2011).
The District Court correctly dismissed the majority of Fennell’s allegations under
the statute of limitations. The limitations period on a § 1983 claim in Pennsylvania is
two years. See Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Fennell admitted in his
brief that “the last act of excessive force… was on September 6, 2011,” well outside the
limitations period.

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However, Fennell also claimed that, until 2017, unknown personnel at Smithfield
SCI prevented him from filing a complaint “at the direction of or at least with the tacit
approval of” the defendants, none of whom were officers at Smithfield. Fennell argues
that he is thus entitled to the benefit of either equitable tolling or the “continuous
violation” doctrine, which states that “an action is timely so long as the last act
evidencing the continuing practice falls within the limitations period.” Brenner v. Local
514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d 1283, 1295 (3d Cir. 1991).
However, because Fennell was able to file numerous complaints against prison officials
during his time at Smithfield, see, e.g., Fennell v. Wetzel, No. 4:15-cv-01959 (M.D. Pa.
Oct. 7, 2015); Fennell v. Cambria Cty. Prison, No. 3:12-cv-00021 (W.D. Pa. Feb. 2,
2012), there is no factual basis for either argument.
Accordingly, we will affirm the judgment of the District Court.

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