author: TROUTMAN, Senior District Judge.

text:
    James BARTHOLOMEW v. Frank FISCHL and the City of Allentown.
    Civ. A. No. 81-3687.
    United States District Court, E.D. Pennsylvania.
    Nov. 20, 1984.

      Richard J. Orloski, Allentown, Pa., for plaintiff.
    Joan Sheak, Asst. U.S. Atty., Philadelphia, Pa., for defendants.
   MEMORANDUM AND ORDER

TROUTMAN, Senior District Judge.

The instant action, brought pursuant to 42 U.S.C. § 1983, alleges that defendants Frank Fischl, former mayor of Allentown, Pennsylvania, and the City itself, by means of a retaliatory, and defamatory campaign, caused plaintiff James Bartholomew to suffer loss of employment and employability in his field because of Bartholomew’s exercise of First Amendment rights. The case was called to trial on June 19, 1984. Initially, argument was held on defendants’ outstanding motion to dismiss the complaint or, in the alternative, for summary judgment. Following argument, we granted defendants’ oral motion to amend their answer to include the affirmative defense of the tolling of the statute of limitations. We then took defendants’ motion, which raises the time bar as well as other issues, under advisement. Subsequently, plaintiff moved the Court to reconsider its decision allowing the amendment to the answer. Now before the Court are defendants’ motion to dismiss and/or for summary judgment and plaintiff’s motion to reconsider our order of June 19, 1984.

The basic facts of the case are relatively straightforward, but require some historical data to make them intelligible. In 1964, the cities of Allentown and Bethlehem agreed to establish a Bi-City Health Board consisting of appointees from both cities, with each city to contribute a proportionate share of the Board’s budget. Sometime later, a Bi-City Health Bureau, consisting of the merger of the Health Bureaus of Allentown and Bethlehem was established to carry out the Bi-City Health Board’s announced function of protecting the health of the cities’ residents. As initially constituted, the Board was to have two members appointed by Bethlehem and three by Allentown, with Bethlehem contributing 41% and Allentown 59% of the budget. (Exhibit B to plaintiff’s brief in opposition to the motion for dismissal/summary judgment). By 1978, when Frank Fischl became mayor of Allentown, the Bi-City Health Board was comprised of five members appointed by Bethlehem and five members appointed by Allentown. (Deposition of James Schultz, Vol. I p. 7). Plaintiff James Bartholomew was appointed Acting Director of the Bi-City Health Bureau in 1974 by Board Chairman Harold Roth and held that position continuously until 1978 when the events culminating in the instant suit began. In his capacity as Acting Director, Bartholomew reported to the Community Development Directors of both cities, as well as to the Board, on day-to-day operations of the Bureau. (Deposition of James Schultz, Vol. I p. 8).

In late 1978, a situation arose among the cities, the Board and the Bureau regarding Bartholomew’s status as Acting Director. Bartholomew and Roth were seeking to have Bartholomew appointed as permanent Director of the Bureau, an unacceptable development to then mayor Frank Fischl. (Deposition of James Schultz, Vol. I p. 16). For approximately nine months, Fischl tried by various means to block the appointment but was ultimately unsuccessful. On September 14, 1979, the Bi-City Health Board appointed James Bartholomew permanent Director of the Bi-City Health Bureau. Thereafter, Fischl and James Schultz, Allentown Community Development Director, took steps to dismantle the Bi-City Health Board and establish an Allentown Board and Bureau of Health. By December 81,1979, both the Allentown and Bethlehem city councils had voted to abolish the Bi-City scheme and establish their own separate health agencies. (Deposition of James Schultz, Vol. I, at 47, 48).

The suit arises out of the alleged reason for the mayor’s adamant opposition to Bartholomew’s appointment as Director of the Bi-City Health Bureau and the methods used to attempt to block the appointment and subsequently to accomplish the demise of the Bi-City Health Board. Plaintiff contends that Mayor Fischl and, through him, the City of Allentown, sought to block his appointment and subsequently to dismantle the Bi-City Health Board in retaliation for Bartholomew’s advocacy of the position that Allentown’s water supply should be fluoridated. He further contends that defendants obtained the abolition of the Bi-City Board and hence his position by means of a public campaign to discredit him, “... including defamatory accusations against the plaintiff”, (Complaint, § 14), and that, “As a result of this slanderous, libelous, defamatory campaign, Plaintiff’s career in public health has been destroyed”. (Amended Complaint, § 22).

Defendant Fischl contends that his actions were motivated by Bartholomew’s job performance, that he neither knew of nor cared about Bartholomew’s position on fluoridation, and that defendants did not initiate or participate in a retaliatory and defamatory campaign. Defendants’ knowledge of and concern with plaintiff’s position on the fluoridation issue, their motives in seeking plaintiff’s ouster and whether or not any public pronouncements by or on behalf of defendants were defamatory are disputed questions of material fact not appropriate for disposition on a motion for summary judgment. Accordingly, insofar as those issues are raised by the defendants in the summary judgment portion of their motion, it is denied. Consequently, we are left with three issues to consider: whether plaintiff’s complaint should be dismissed for failure to state a claim on which relief may be granted, (1) either because the averments of the complaint fail to meet the pleading specificity requirements for a § 1983 claim, or (2) because the action is time-barred and (3) whether, even if the latter is true, the Court should permit defendants to raise that issue now.

Sufficiency of the Complaint with respect to the City of Allentown

At the outset, the Court notes that insofar as defendants’ motion to dismiss for lack of specificity concerns Frank Fischl, former mayor of Allentown, it must be denied. Our Memorandum and Order of December 21, 1981, concluded that plaintiff had stated a claim under § 1983 as to defendant Fischl. The Court found only two deficiencies at that time, failure to allege a class-based animus to support his § 1985 claim and failure to specify the theory underlying the complaint against the City of Allentown. Plaintiff was granted leave to amend the complaint to correct those problems. The amended complaint, filed on January 11, 1982, abandoned the § 1985 claim but added a separate count against the City in an attempt to comply with the Court’s order. Defendant City of Allentown has now objected to the amended complaint as still not reaching the level of specificity required for a § 1983 action in the Third Circuit. Accordingly, we consider at this time whether plaintiff’s amended complaint states a claim, i.e., whether he has specifically alleged an official policy or unofficial custom of the City violative of the Constitution and/or the laws of the United States. Monell v. New York City Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Skrocki v. Caltabiano, 505 F.Supp. 916 (E.D.Pa.1981); Skrocki v. Caltabiano, 511 F.Supp. 651 (E.D.Pa.1981); Craven v. Philadelphia, No. 83-5478, slip op. (E.D.Pa. July 17, 1984).

A comparison of the allegations in the complaint and amended complaint reveals that the only statement referring to the City of Allentown in the original complaint is the allegation that the mayor “was adopting and implementing official governmental policy of the City of Allentown”. (Complaint ¶ 4). By contrast, the amended complaint adds six paragraphs of additional allegations against the City, inter alia, naming the officials through whom “official policy” was implemented, (Amended Complaint 1128), stating that the result of their efforts was the termination of plaintiff’s position and the destruction of his career, (Amended Complaint 1129), and that the results were obtained through false public pronouncements made pursuant to “official policy”. (Amended Complaint H 30, 31).

Once again, however, the complaint fails to meet the specificity requirements of this Circuit. In Skrocki v. Caltabiano, supra, the Court dealt with substantially the same issue presented here. Pursuant to a motion to dismiss, we agreed that the complaint against the municipality was deficient, Skrocki I, and allowed plaintiff the opportunity to amend the complaint to “... [ijdentify any illegal, official borough policy the implementation of which gives rise to a cause of action under § 1983”. Skrocki I at 920. In response, plaintiff alleged in an amended complaint that, “... [defendants ... violated his Constitutional rights by implementing a decision officially adopted and promulgated by the duly authorized officers of the defendant borough which deprived the plaintiff of his rights...”. Skrocki II, supra, at 652. We then held that, “Plaintiff still has not identified (emphasis added) the policy which the borough officially adopted and which violated his Constitutional rights. Plaintiffs conclusory statements ... simply do not sufficiently apprise defendant of plaintiffs claim”. Id.

Similarly, in the case at bar, we cannot accept plaintiffs amended complaint as sufficient to state a claim under § 1983. Although the amended complaint has identified the actors, the means used and the results obtained, neither the Court nor the defendant can determine from it the “official policy” to which plaintiff refers. In response to the attack on the sufficiency of the claim made by the City in the instant motion, plaintiff has attempted to delineate two different policies. In his brief in opposition to the motion plaintiff states that, “Mayor Fischl and the City of Allentown had as their official policy that Allentown’s water must not be fluoridated”. (Plaintiff’s brief at 7), and, further, that “... the campaign against him was official government policy of the City of Allentown”. (Plaintiff’s brief at 8).

Even if these alleged “policies” had been included in the complaint, neither could withstand a motion to dismiss. The Court can discern no Constitutional right to the fluoridation of a municipal water supply. It is the function of municipal officials to formulate and implement policies on such matters. Bartholomew, as an employee of the independent Bi-City Health Board whose function it was to advise City officials on health matters, could certainly disagree with the water fluoridation policy and attempt to change it. However, the City’s refusal to take the Board’s advice is not a Constitutional violation.

Moreover, the “retaliatory campaign” directed against the plaintiff, even if it were found to be an illegal act, is not enough to establish an unconstitutional policy in that, “a policy cannot ordinarily be inferred from a single instance of illegality”. Losch v. City of Parksburg, et al., 736 F.2d 903, 910 (3d Cir.1984). Although in this case the allegedly defamatory and retaliatory campaign was waged against the plaintiff over a period of time and was allegedly comprised of more than one incident, it was apparently directed only against him and so can fairly be considered a “single instance”. However reprehensible it may be for City officials to have engaged in a personal vendetta, if they did, their status does not convert their tortious actions against one individual into an unconstitutional policy of the City for § 1983 purposes. If it were otherwise, municipalities could be held liable for every illegal act of their employees, resulting in the sort of vicarious liability specifically eschewed in Monell.

In light of the foregoing discussion, Count II of the amended complaint will be dismissed for failure to state a claim upon which relief may be granted.

Statute of Limitations

Having found the amended complaint insufficient to state a claim against the City of Allentown, there remains the issue of whether the claim against Fischl is barred by the statute of limitations as he contends in the amended answer and motion to dismiss. Before undertaking the substantive analysis necessary to decide the statute of limitations question, however, we first consider plaintiff’s vigorous objections to our ruling that allowed defendants to raise this affirmative defense nearly four years after the action was commenced and almost two years after the amended complaint was answered. As mandated by Rule 15(a) of the Federal Rules of Civil Procedure, this Court has consistently adhered to a liberal policy of allowing amendments to pleadings. See, e.g., Roesberg v. Johns-Manville, 89 F.R.D. 63 (E.D.Pa.1981) and cases cited therein. See also Long v. Lipkins, 96 F.R.D. 234 (E.D.Pa.1983).

In support of his assertion that it is unjust to allow defendants to raise the statute of limitations defense now, plaintiff first contends that if he had been aware of it in the first instance he would have filed a protective action in state court for the intentional infliction of emotional distress. To accept this argument the Court would have to ignore a significant provision of Pennsylvania’s procedural rules designed to foster judicial economy. Recognizing that a federal court is empowered to hear pendent state claims when they arise “out of a common nucleus of operative fact”, Weaver v. Marine Bank, 683 F.2d 744, 746 (3d Cir.1982), but that a federal court should normally decline to hear them when the federal claims are dismissed. Id. Pennsylvania protects a litigant by allowing his state claims to be transferred to the proper state court. 42 Pa.Cons.Stat.Ann. § 5103(b). That law is specifically designed to obviate the need for protective actions.

This Court has exercised the transfer option on a number of occasions. See, e.g., White v. Salisbury Township, 588 F.Supp. 608 (E.D.Pa.1984); Kleinberger v. Allen Products, 581 F.Supp. 941 (E.D.Pa.1984). A pendent state claim, timely in itself, may be transferred to state court even if the federal claims are determined to be time-barred. We do not, therefore, find plaintiff’s failure to file a protective action a persuasive argument for precluding an affirmative defense.

Plaintiff’s second contention, that defendants should be deemed to have waived the affirmative defense because it was raised on the eve of trial, is more substantial. Nevertheless, we conclude that the liberal amendment policy outweighs what is essentially a technical objection under the circumstances of this case. Present counsel raised the statute of limitations issue soon after entering the case in December, 1983, and plaintiff has had ample opportunity to respond to it substantively as well as procedurally and has done so. On this record, we do not find the delay intentional or so undue as to deny the defendants a consideration of the defense on the merits.

(8] The Court now directs its attention to the substantive analysis of the statute of limitations defense. Since § 1983 does not have a specific time limit the federal courts follow the three-step procedure for selecting an appropriate statute of limitations most recently described in Burnet v. Grattan, _ U.S. _, _, 104 S.Ct. 2924, 2929, 82 L.Ed.2d 36, 43 (1984). Finding no suitable rule among the laws of the United States, we look to the common law of Pennsylvania as modified by its Constitution and statutes, keeping in mind that the rule selected must vindicate the federal interest in the enforcement of the Civil Rights Acts.

With these considerations in mind, we turn to the Third Circuit for more specific guidance. The appropriate method for selecting a statute of limitations here turns on an analysis of the claim in terms of “... the relief sought and the type of injury alleged”. Fitzgerald v. Larson, et al., 741 F.2d 32, 36 (3d Cir.1984). Several possibilities for characterizing the claim in order to select the proper statute of limitations have been suggested by the parties.

Initially, defendants contend that the six-month statute of limitations for actions against government officials should be applied. 42 Pa.Cons.Stat.Ann. § 5522(b)(1). Alternatively, they argue that the claim sounds in tort for defamation and should be controlled by the one-year statute of limitations found in Pa.Cons.Stat.Ann. § 5523(1). Plaintiff contends that the six-month period is not available for § 1983 I actions in this Circuit and that the essential nature of the claim is interference with economic rights governed by the six-year period provided for actions that do not have a specific time limit. 42 Pa.Cons.Stat.Ann. § 5527(6) (Purdon Supp.1984). The next closest tort to which it could be analogized, he argues, is the intentional infliction of emotional distress, with a two-year period. Pa.Cons.Stat.Ann. § 5524(7) (Purdon Supp. 1984).

We consider first whether Pennsylvania’s six-month statute of limitations for bringing a suit against government officials should apply to this case and conclude that the application of this provision to § 1983 actions has been foreclosed. In Knoll v. Springfield Township, 699 F.2d 137 (3d Cir.1983), cert. granted, _ U.S. _, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984), the Court of Appeals for the Third Circuit held that the six-month period does not serve the remedial purposes of the Civil Rights Acts, and that decision was emphatically reaffirmed recently in Fitzgerald v. Larson, et al., supra.

In Fitzgerald, the court noted the similarity of its reasoning to that of the Supreme Court in Burnett v. Grattan, supra. There, in a case analogous to Knoll and Fitzgerald, the court rejected as a § 1983 statute of limitations Maryland’s six-month time period for filing an administrative complaint for employment discrimination.

Although the holding in Burnett focused in part upon the practical differences between pursuing a claim in a state administrative agency and preparing to litigate a full-blown civil rights case in federal court, the opinion also considered the twin goals of the Civil Rights Acts: to compensate victims of civil rights violations and to prevent abuse of state power. The court emphasized that those goals must be served when selecting a statute of limitations for § 1983 actions.

Thus, the Third Circuit concluded once again that, “... the six month limitation period governing actions against government officials cannot be applied to § 1983 actions because it is too short to serve the remedial purposes of the federal civil rights statutes”. Fitzgerald at 34. Following the unequivocal law of the Circuit, we find that the six-month statute of limitations is inappropriate for this civil rights action so we must now determine the most analogous state claim and apply its statute of limitations. Accordingly, we consider both defendants’ contention that it can be most nearly characterized as an action for defamation, and plaintiff’s arguments that the gravamen of the complaint is interference with economic rights, or in the alternative, the intentional infliction of emotional distress.

It is undisputed that the events culminating in plaintiff’s loss of position climaxed in December, 1979, when the Bi-City Health Board was dissolved. (Deposition of James Schultz, Yol. I at 47; Affidavit of James Bartholomew at 8). The instant suit was filed on September 10,1981. If the claim is analyzed as plaintiff contends, the suit was timely, having been brought within two years of the injury. However, if defendant’s argument prevails, the action is barred.

Both our present analysis of the complaint and the history of the case compel the conclusion that plaintiff has essentially brought a defamation action. Plaintiff alleges that, "... [Defendants engaged in a retaliatory, protracted public dialogue, including defamatory accusations against the Plaintiff, in order to obtain his firing by the Bi-City Health Bureau and in order to destroy Plaintiff’s professional career in public health”. (Amended Complaint ¶ 14); “As a result of the retaliatory campaign ... Plaintiff lost his position with the Bi-City Health Bureau”. (Amended Complaint II16); “The termination of Plaintiff’s employment was caused solely and exclusively because of the retaliatory campaign ... ”. (Amended Complaint 1118); and “As a result of this slanderous, libelous, defamatory campaign, Plaintiff’s career in public health has been destroyed”. (Amended Complaint 1122).

That the actions complained of resulted in economic consequences for the plaintiff does not alter the nature of the complaint but serves merely to allow what would normally be a state defamation action to be maintained as a federal civil rights claim. We previously declined to dismiss the complaint for failure to state a claim because, “[wjhile ‘mere defamation’ is insufficient to invoke the aegis of the Fourteenth Amendment, the contested activity is actionable in federal court where there is ‘an accompanying loss of government employment’ Bartholomew v. Fischl, supra, at 163, quoting Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976). Thus, we have already characterized the claim, if sub silentio.

Moreover, the only means by which defendants could affect plaintiff’s employment were indirect, through a campaign such as plaintiff alleges. Since the Bi-City Health Board was an independent agency, neither defendant Fischl or any other Allentown official had the power to fire plaintiff. All parties agree that the Board had hired Bartholomew and it alone could fire him. (Amended Complaint ¶ 7, Deposition of James Schultz, Vol. I at 88). Although defendant Fischl attempted to interfere with Bartholomew’s appointment as permanent director of the Bi-City Health Bureau by lobbying the Allentown board members whom he had appointed, he was unsuccessful. (Deposition of James Schultz, Vol. I, pp. 22-23, Vol. II, pp. 47-57; Affidavit of James Bartholomew 11127). Thereafter, Fischl began a campaign to abolish the Bi-City Board itself, which was successful. Again, however, he did not have the power to obtain that result directly. He could do so only by persuading a majority of city council members in Allentown and the City administration of Bethlehem that each city should establish its own health agency. If Bartholomew had been an Allentown employee and Fischl had abolished his position or simply fired him, the claim may have been analogous to interference with economic rights, but that is not the situation here. As plaintiff himself has alleged, the economic injuries he suffered were necessarily incident to the public statements of Mayor Fischl and other City officials that the Bi-City Health Bureau was inefficient and costly due in large part to plaintiff’s failings as Executive Director. (See Deposition of James Schultz, Vol. I, 43-47, and Plaintiff’s Exhibit C to his memorandum in opposition to the motion to dismiss).

In addition, the allegations of the amended complaint are not primarily concerned with any personal injury plaintiff may have suffered as a result of defendant’s actions. Although one of the damage demands is for pain and suffering, (Amended Complaint 1125(c)), there are no specific averments that the campaign against the plaintiff caused any physical or mental distress comparable to the assertions in ¶ 16 and 1134 of the Amended Complaint that plaintiff lost his position and that his career was destroyed. Consequently, the personal injury claim is incidental; it cannot support the proposition that the claim as a whole is more analogous to the intentional infliction of emotional distress than to defamation.

The only remaining question is whether the one-year- period allowed for defamation actions in Pennsylvania is long enough to allow the federal interest in the ■ enforcement of the Civil Rights Acts to be vindicated. In light of the fact that the only Civil Rights Act provision to contain a statute of limitations, 42 U.S.C. § 1986, has a one-year limit and that the Third Circuit has itself applied a one-year statute of limitations to claims analogized to false arrest, Fitzgerald, supra, at 35, it is apparent that a one-year period is sufficient. Accordingly, because plaintiff’s complaint was filed more than one year after his cause of action accrued, it is barred by the applicable statute of limitations and should be dismissed. Since the basis of defendant’s motion is failure to state a claim upon which relief may be granted and the Court has considered matters outside the pleadings to reach its conclusion, the motion is converted to and considered as one for summary judgment under Fed.R.Civ.P. 12(b). Gee v. CBS, 471 F.Supp. 600 (E.D.Pa.1979). An appropriate order follows.

ORDER

AND NOW, this 20th day of .November, 1984, upon consideration of plaintiff’s motion for reconsideration of the Court’s order of June 19, 1984, and defendants’ response thereto, IT IS ORDERED that the motion is DENIED.

IT IS FURTHER ORDERED that, upon consideration of the defendants’ motion to dismiss the amended complaint for failure to state a claim upon which relief may be granted and the plaintiff’s response thereto, the motion is GRANTED. The complaint is DISMISSED as to the City of Allentown, and judgment is entered in favor of the defendant, Frank Fischl, and against the plaintiff.

      . On August 29, 1984, defendants filed a motion to compel the continuation of plaintiff’s deposition. We do not consider that motion here.

      . Bartholomew v. Fischl, 534 F.Supp. 161 (E.D. Pa.1981).

      . "Accordingly, within 15 days from the date of the order accompanying this memorandum, plaintiff shall specify the class based discrimination underlying the § 1985 claim and, with the requisite factual specificity, the basis of the § 1983 claim against defendant, City of Allentown”. Id. at 165.

      . The issue was first raised in the instant motion, filed in December, 1983. At oral argument defendants’ counsel conceded that the technically proper procedure would be to amend the answer to assert the time bar as an affirmative defense and so moved.

      . As will be explained in detail later, defendants contend that the instant action is barred by Pennsylvania’s six-month statute of limitations for actions against government officials or the one-year statute provided for libel and slander. The statute of limitations for the intentional infliction of emotional distress is two years.


source: Caselaw Access Project

author: HENRY WOODS, District Judge.

license: Public Domain

text:
    James Gary WHITTINGTON, Plaintiff, v. Larry NORRIS, Warden, Tucker Unit, and A.L. Lockhart, Director, Arkansas Department of Correction, Defendants.
    No. PB-C-84-161.
    United States District Court, E.D. Arkansas, Pine Bluff Division.
    Nov. 21, 1984.

      James Gary Whittington, pro se.
    A. Carter Hardage, Asst. Atty. Gen., State of Ark., Little Rock, Ark., for defendants.
   ORDER

HENRY WOODS, District Judge.

This case comes before the court on defendants’ motion for summary judgment. Defendants allege that as a matter of law they have not deprived plaintiff of any constitutionally protected right, and that they are therefore entitled to summary judgment pursuant to Fed.R.Civ.P. 56.

Plaintiff’s complaint sets forth three counts of violations under 42 U.S.C. § 1983. Plaintiff first claims that his First and Fourteenth Amendment rights have been infringed by the fact that he is not allowed contact visitation while incarcerated in the Tucker Maximum Security Unit of the Arkansas Department of Correction. Next, plaintiff claims that his right to due process of law was violated by his transfer from the Cummins Unit to the Tucker Maximum Security Unit without a hearing. Finally, plaintiff complains of an assortment of conditions of his current incarceration, including a small cell, limited time out for work or recreation, and alleged inadequate review of the reasons for such confinement.

On July 3, 1984, the Supreme Court decided Block v. Rutherford, _ U.S. _, 104 S.Ct. 3227, 82 L.Ed.2d 438, which is dispositive of the issue of whether denial of contact visitation to an inmate in Maximum Security is a constitutional violation. The issue in Block was whether denial of contact visitation to pre-trial detainees was reasonably related to security considerations at the Los Angeles County Central Jail. The Court held that “the Constitution does* not require that detainees be allowed contact visits when responsible, experienced administrators have determined, in their sound discretion, that such visits will jeopardize the security of the facility.” _ U.S. at _, 104 S.Ct. at 3234. Block dealt with the rights of pre-trial detainees, who cannot be punished prior to an adjudication of guilt. The Court found that denial of contact visitation was justified by security considerations, and was not a form of punishment. In the case at bar, Whittington is serving a 22-year sentence and is incarcerated in the Tucker Maximum Security Unit of the Arkansas Department of Correction, which is designed and utilized to house the highest security risk inmates in the Arkansas prison population. The prison administrators have adopted a policy of denying contact visitation to Maximum Security prisoners, for security reasons, and in view of the decision in Block this policy does not violate the Constitution. The Court in Block reaffirmed its holdings in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) and Pell v. Procunier, 417 U.S. 817, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974), that prison administrators must be accorded wide-ranging deference in adopting and executing policies designed to preserve order, security and discipline in the prisons. In the absence of any showing that defendants have exaggerated their response to such considerations, their expert judgment regarding contact visitation must be accepted. Pell, supra, 417 U.S. at 827, 94 S.Ct. at 2806. Summary judgment in favor of defendants on plaintiff’s claim that the denial of contact visitation is a constitutional violation is therefore appropriate.

In the second count of plaintiff’s complaint, he alleges that he was denied due process of law because he was transferred from the Cummins Unit of the Arkansas Department of Correction to the Tucker Maximum Security Unit without a hearing. There is no due process violation in such a transfer without a hearing. It is clear that Whittington did not have a justifiable expectation that he would be incarcerated in any particular prison within the State. Olim v. Wakinekona, 461 U.S. 238, 103 S.Ct. 1741, 75 L.Ed.2d 813 (1983). In addition, Ark.Stat.Ann. § 46-106 (Repl. 1977) provides that the Commissioner of the Arkansas Department of Correction may transfer an inmate from one correctional facility to another “consistent with the commitment and in accordance with treatment, training and security needs.” Although plaintiff alleges, and the State does not deny, that the prison handbook provides for due process in connection with such a transfer, reasons for which a transfer may be authorized are such as only prison administrators have discretion to decide, i.e., judgment calls regarding treatment, training and security. No constitutionally protected interest is created by the prison handbook under these circumstances, and the rationale of Olim applies. Finney v. Mabry, 528 F.Supp. 567 (E.D.Ark. 1981), on which the plaintiff relies, is not controlling. Finney mandates a due process hearing before an inmate is placed in administrative segregation within an institution. Whittington’s complaint deals with a unit-to-unit transfer. No hearing is required before such a transfer. Therefore, summary judgment in favor of defendants on this count is also appropriate.

Finally, plaintiff’s complaints about the conditions of his incarceration do not state a claim of constitutional dimensions. The complaints are couched in vague terms incapable of measurement against such constitutional standards as that announced in Newman v. Alabama, 559 F.2d 283 (5th Cir.1977), rehearing and rehearing en banc denied, cert. denied, 438 U.S. 915, 98 S.Ct. 3144, 57 L.Ed.2d 1160. Plaintiff has made no showing of even a colorable claim of cruel and unusual punishment, but rather complains that life in prison is unpleasant. No constitutional violation is implicated in such a complaint. Imprisonment necessitates withdrawal of or limitations upon many individual privileges and rights. A prisoner does not retain constitutional rights that are inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. Wide ranging deference must be accorded the decision of prison administrators. They, and not the courts, must be permitted to make difficult judgment concerning prison operations, Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977). See also Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948).

Based on the above reasons, summary judgment for the defendants is granted on all counts of plaintiff’s complaint, and the complaint is dismissed.


author: TEITELBAUM, Chief Judge.

text:
    FEDERATION OF WESTINGHOUSE INDEPENDENT SALARIED UNIONS and The Association of Westinghouse Salaried Employees, Plaintiffs, v. WESTINGHOUSE ELECTRIC CORPORATION, Defendant.
    Civ. A. No. 84-1426.
    United States District Court, W.D. Pennsylvania.
    Dec. 5, 1984.

      Patrick J. Thomassey, Monroeville, Pa., for plaintiffs.
    Walter DeForest, Philip Miscimmarra, Reed, Smith, Shaw & McClay, Stuart Salt-man, Pittsburgh, Pa., for defendant.
   MEMORANDUM OPINION

TEITELBAUM, Chief Judge.

The Federation of Westinghouse Independent Salaried Unions (Federation) and its local affiliate, the Association of Westinghouse Salaried Employees (AWSE), (collectively unions) brought this action against Westinghouse Electric Corp. (Westinghouse) under section 301 of the Labor Management Relations Act, 29 U.S.C. § 185, alleging a violation of the collective bargaining agreement. The unions contend Westinghouse violated the collective bargaining agreement by failing to provide salary increases to employees whose positions were reclassified. Westinghouse moves for summary judgment contending this action is barred by the statute of limitations. For the reasons set forth below the motion will be denied.

Following an August 1, 1982 job reclassification, AWSE filed grievances at the local level on behalf of six employees whose jobs had been reclassified contesting Westinghouse’s failure to provide salary increases (first set of grievances). On March 23, 1983 the first set of grievances was filed as Federation grievances at the national level. On May 20, 1983 Westinghouse denied the first set of grievances and on May 24, 1983 the Federation notified Westinghouse that Westinghouse’s answer to the first set of grievances was unsatisfactory. On June 13, 1983 the Federation requested arbitration of the first set of grievances and on June 14, 1983 Westinghouse refused to agree to arbitration.

According to the unions, on April 20, 1983 the Federation met with Westinghouse to discuss the first set of grievances and Westinghouse suggested that the grievances be referred back to local management to attempt to slowly phase in salary increases due the reclassified employees.

On May 23, 1983 AWSE filed a second set of grievances at the local level on behalf of the six employees named in the first set of grievances plus an additional four employees whose jobs had also been reclassified (second set of grievances).

On September 8, 1983 grievances on behalf of seven of these employees, including three employees named in the first set of grievances and the four employees added in the second set, were filed at the national level. On November 11, 1983 Westinghouse reiterated its prior position and denied the second set of grievances and on November 16, 1983 the Federation notified Westinghouse that Westinghouse’s answer to the second set of grievances was unsatisfactory. On December 7, 1983 the Federation requested arbitration of the second set of grievances and on December 13, 1983 Westinghouse refused to agree to arbitration.

The present action was filed June 12, 1984.

The unions contend the action was timely filed within six months of December 13, 1984. The unions contend the statute of limitations starts to run when the grievance and arbitration procedure provided in the collective bargaining agreement is fully exhausted.

The unions contend that as to the four employees named only in the second set of grievances, the second set is the point of reference. Using the sécond set of grievances as the reference point, the unions contend the statute of limitations did not start to run until December 13, 1983 when Westinghouse refused to arbitrate the second set of grievances.

The unions further contend Westinghouse is estopped from raising the statute of limitations because of its representation at the April 20, 1983 meeting. The unions further contend this representation raises a factual issue as to when the unions knew or should have known of Westinghouse’s breach of the collective bargaining agreement.

Westinghouse contends the action was not timely filed within six months of the last possible point of reference, November 16, 1983. Westinghouse contends the statute of limitations starts to run when the grievance procedure provided in the collective bargaining agreement is fully exhausted and that a demand for voluntary arbitration does not affect this.

Westinghouse contends the first set of grievances is the point of reference. Westinghouse contends the second set of grievances is merely a repeat of the first set or, at most, a request for reconsideration which does not affect the statute of limitations. Westinghouse contends the four employees named only in the second set of grievances were affected by the reclassification in the same manner as the employees named in the first set and were therefore bound by the disposition of the first set. Westinghouse contends these four employees should not be able to avoid the bar of the statute of limitations because of the unions’ failure to name all affected employees in the first set of grievances. Using the first set of grievances as the reference point, Westinghouse contends the statute of limitations started to run May 24, 1983 when the grievance procedure was fully exhausted.

However, even if the second set of grievances is used as the reference point, Westinghouse contends the statute of limitations started to run November 16, 1983 when the grievance procedure was fully exhausted.

Westinghouse further contends the unions’ estoppel argument is unsupported as a matter of fact or law. Westinghouse denies the existence of factual issues which would preclude the grant of summary judgment.

Estoppel

The unions contend Westinghouse is es-topped from raising the statute of limitations because of its representation at the April 20, 1983 meeting. On April 20, 1983 Federation president Richard Mori met with Westinghouse union relations consultant R.G. McQueen to discuss the first set of grievances, which had been filed at the national level on March 23, 1983. According to Mori:

[McQueen] suggested that the [salary] rate reviews be referred back to local management in an attempt to “slowly phase in the increases due those people.”
After my discussion with Mr. McQueen, I assumed that the matters were to be worked out at the local level and that the rate reviews would be refiled letting the timeliness conditions of the contract expire as to the initial set of rate review grievances.

After this meeting a second set of grievances was filed at the local level on behalf of the employees named in the first set of grievances plus additional employees.

It is likely that McQueen’s statement was intended to and did cause the unions to forebear suit on the first set of grievances. However, McQueen’s statement could not have reasonably caused the unions to forebear suit on the second set of grievances. Mori assumed the timeliness conditions would “expire as to the initial set of rate review grievances” (emphasis added). Further, the timing of this suit suggests that it was not reliance on McQueen’s statement that delayed suit on the second set of grievances, but rather it was the unions’ belief as to when the statute of limitations started to run that determined its filing: the unions contend the statute of limitations started to run when the grievance and arbitration procedure was fully exhausted and suit was filed on the last day of a limitations period starting with Westinghouse’s refusal to arbitrate the second set of grievances.

For these reasons the second set of grievances will be considered as the reference point for the statute of limitations.

Accrual of cause of action

The unions and Westinghouse agree that the applicable statute of limitations in this case is the six month period designated in section 10(b) of the National Labor Relations Act, 29 U.S.C. § 160(b). See Federation of Westinghouse Independent Salaried Unions v. Westinghouse Electric Corp., 736 F.2d 896 (3d Cir.1984).

“A cause of action ordinarily accrues when ‘plaintiff could first have successfully maintained a suit based on that cause of action.’ ” Santos v. District Council of New York City, 619 F.2d 963, 968-69 (2d Cir.1980) quoting Bell v. Aerodex, Inc., 473 F.2d 869, 873 (5th Cir.1973). As a general rule federal law requires the exhaustion of the grievance procedure in the collective bargaining agreement before a section 301 suit may he maintained. See Republic Steel Corp. v. Maddox, 379 U.S. 650, 652, 85 S.Ct. 614, 616, 13 L.Ed.2d 580 (1965); Vaca v. Sipes, 386 U.S. 171, 184, 87 S.Ct. 903, 913, 17 L.Ed.2d 842 (1967).

Here the collective bargaining agreement sets forth a multi-level grievance procedure, and identifies the point at which it is fully exhausted, and then goes on to provide for mandatory arbitration of some disputes and voluntary arbitration of others.

Section XV(2)(D)(2) states, in part:

When an Affiliate, refers a grievance to the national appeal level through the Federation ..., the grievance procedure shall be considered as having been fully exhausted only after the Federation advises the Company in writing that the Company’s reply at the national appeal level is unsatisfactory.

Section XV(E) states:

Should the parties fail to settle any grievance after exhausting the grievance procedure then the provisions of Section XV-A-Arbitration shall apply.

Section XV-A(l) states:

Grievances, other than those concerning probationary employees, which remain unsettled after the grievance procedure has been exhausted pursuant to Section XV and which protest only a disciplinary penalty, release, or discharge of an employee allegedly imposed without just cause, shall be arbitrable upon a valid request of either the Federation or the Company.

Section XV-A(2) states:

Grievances involving other disputes, including alleged violations of this Agreement or a local supplement thereto, shall not be arbitrable except by mutual written agreement between the Federation and the Company setting forth the specific dispute to be arbitrated.

It is not disputed that the grievances in this case were not subject to mandatory arbitration under Section XV-A(l). It is assumed that absent a request for voluntary arbitration under Section XVA(2) the statute of limitations started to run when the multi-level grievance procedure was fully exhausted under Section XV(2)(D)(2). The issue is whether the request for voluntary arbitration removed the bar of the statute of limitations.

The national policy favoring arbitration of labor disputes, see United Steelworkers of America v. N.L.R.B., 530 F.2d 266, 276-78 (3d Cir.1976), compels the conclusion that a request for voluntary arbitration tolls the statute of limitations until the other side refuses to arbitrate. A contrary result would discourage voluntary arbitration and penalize its exercise. If a request for voluntary arbitration did not toll the statute of limitations, a grievant would have to choose whether to 1) forego voluntary arbitration in favor of immediate judicial intervention; or 2) pursue voluntary arbitration but if it is refused face a limitations period shorter than mandated; or 3) proceed on two fronts, with both voluntary arbitration and a lawsuit.

Further, because voluntary arbitration must be requested within thirty days after exhaustion of the multi-level grievance procedure, and a response made within fifteen days thereafter, the conclusion that the request for voluntary arbitration tolls the statute of limitations until the request is refused does not offend the policy of prompt resolution of labor disputes.

Nicely v. United States Steel Corp., 574 F.Supp. 184 (W.D.Pa.1983) is distinguishable. In Nicely it was held that discussion with the NLRB regarding unfair labor practice charges did not toll the statute of limitations for a section 301 action. The court stated that where two separate parallel avenues of relief are provided pursuit of one course of action did not toll the running of the statute of limitations as to the other. In Nicely the discussion of unfair labor practice charges with the NLRB was a course of action completely outside the framework of the collective bargaining agreement. Here, in contrast, the collective bargaining agreement provides the basis for the unions’ request for voluntary arbitration. See Larry v. Penn Truck Aids, Inc., 94 F.R.D. 708, 716 n. 12 (E.D.Pa.1982).

Westinghouse's motion for summary judgment will be denied. An appropriate order shall be entered.