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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Bartelli v. Galabinski" (2007). 2007 Decisions. Paper 1294.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1294


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DLD-151                                                      NOT PRECEDENTIAL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,

, 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., 

, 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.” 

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 

, 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 

                                               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, 

, 240 (3d Cir.

1999)(stating standard of review over § 1915(e)(2) dismissal); McGreevy v. Stroup, 

, 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 

. 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., 

, 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., 

, 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., 

, 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, 

, 418 (D. Del. 1995)(internal quotation marks and citation omitted), aff’d, 

(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, 

, 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, 

, 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, 

, 139 (9th Cir. 1987).

                                              5
which its action is based.” Sameric Corp. of Del. v. City of Phila., 

, 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, 

, 333 (3d Cir. 2001)(setting forth

elements of retaliation claim); see also, Schoch v. First Fidelity Bancorporation, 

, 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, 

, 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.




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