PARKER v. NUTTER et al
MEMORANDUM OPINION THAT PLFF'S COMPLAINT WILL BE DISMISSED WITH PREJUDICE AS TIME BARRED, PURSUANT TO 28 USC, SECTION 1915(e)(2)(B)(ii). AN APPROPRIATE ORDER FOLLOWS.. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 3/18/15. 3/19/15 ENTERED AND COPIES MAILED TO PRO SE PLFF. AND 1 COPY TO LEGAL BIN.(pr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL NUTTER, et al.
MARCH 18, 2015
Plaintiff Jason Parker brings this action pursuant to 42 U.S.C. § 1983, based on his arrest
and subsequent prosecution in the Philadelphia Municipal Court. He seeks to proceed in forma
pauperis. For the following reasons, the Court will grant plaintiff leave to proceed in forma
pauperis and dismiss his complaint with prejudice as time-barred pursuant to 28 U.S.C.
The Court understands plaintiff to be asserting constitutional claims for false arrest,
excessive force, and malicious prosecution against: (a) Mayor Michael Nutter; (b) Louis Giorla,
Commissioner of the Philadelphia Prison System; (c) M. Farrell, Warden of the CurranFromhold Correctional Facility; (d) the Philadelphia Police Commissioner and Department;
(e) Police Officer Brad Momme; and (f) another Philadelphia police officer. Plaintiff claims that
Officer Momme and his partner arrested him on December 12, 2011, beat him, and “treated
[him] like a dog” while he was having a diabetic episode. (Compl. ¶ II.D.) He also alleges that
the officers “illegally stalked” him and “charged [him] with a gun they never had.” (Id.)
Plaintiff’s malicious prosecution claim is based on a criminal proceeding initiated against
him in Philadelphia Municipal Court for gun-related charges, which was dismissed on December
27, 2011. See Commonwealth v. Parker, Docket No. MC-51-CR-0052198-2011 (Phila.
Municipal Ct.). On the same day he was charged with the gun-related offenses, plaintiff was
charged with other offenses in a related criminal proceeding, which resulted in his conviction.
See Commonwealth v. Parker, Docket No. CP-51-CR-0014583-2011 (Phila. Ct. Common Pleas);
Commonwealth v. Parker, Docket No. MC-51-0052199-2011 (Phila. Municipal Ct.). The Court
understands plaintiff to be alleging that he did not bring his malicious prosecution claim earlier
because he “just figured out” that the officers filed the gun charges in a separate proceeding from
the other charges. (Compl. ¶ V.) Plaintiff asks the Court to terminate the officers, reprimand the
Mayor and Commissioner of the Police Department “for not training and properly monitor[ing]
these 2 officers,” and award him monetary damages. (Id.)
STANDARD OF REVIEW
The Court grants plaintiff leave to proceed in forma pauperis. Accordingly, 28 U.S.C.
§ 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the complaint if it fails to state a
claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the
same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6),
see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to
determine whether the complaint contains “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) (internal
quotations omitted). The plausibility standard requires more than a “sheer possibility that a
defendant has acted unlawfully,” and is not satisfied by “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements.” Id. The Court must accept plaintiff’s
factual allegations as true and may also consider matters of public record. Buck v. Hampton
Twp. Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006). Additionally, the Court may dismiss claims
based on an affirmative defense if the affirmative defense is obvious from the face of the
complaint. See Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); cf. Ball v. Famiglio, 726
F.3d 448, 459 (3d Cir. 2013). As plaintiff is proceeding pro se, the Court will construe his
allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
Pennsylvania’s two-year limitations period applies to plaintiff’s claims. 42 Pa. Cons. Stat.
§ 5524. The statute of limitations begins to run when a plaintiff has a “complete and present
cause of action.” Wallace v. Kato, 549 U.S. 284, 387-88 (2007) (internal quotation marks
omitted). However, the limitations period in a § 1983 action may be tolled in accordance with
state law. Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010). Pennsylvania allows for
tolling based on the “discovery rule” or fraudulent concealment, which toll the limitations period
until the plaintiff knew, or through the exercise of reasonable diligence could have known, of his
injury and its cause. See Knopick v. Connelly, 639 F.3d 600, 607 (3d Cir. 2011).
Specifically, plaintiff’s false arrest claim accrued “at the time [he became] detained
pursuant to legal process.” Wallace, 549 U.S. at 397. Any excessive force claims or claims based
on how plaintiff was treated by officers in the course of his arrest accrued on the date of the
arrest. See Large v. County of Montgomery, 307 F. App’x 606, 607 (3d Cir. 2009) (per curiam).
Plaintiff was arrested on December 12, 2011, and arraigned the next day according to the dockets
from his criminal proceedings. As he did not file this action until December 10, 2014—almost
three years later—any claims for false arrest, excessive force used in connection with his arrest,
and any other claims based on his treatment by police officers during his arrest are time-barred.1
Pursuant to the prison mailbox rule, a prisoner’s complaint is considered filed at the time he
hands it over to prison authorities for forwarding to the Court. See Houston v. Lack, 487 U.S.
266, 276 (1988). The complaint reflects that plaintiff handed his complaint to authorities for
mailing on December 10, 2014.
Plaintiff’s malicious prosecution claim accrued at the time his criminal case terminated in
his favor on December 27, 2011. See Rose v. Bartle, 871 F.2d 331, 349 (3d Cir. 1989). The
complaint suggests that plaintiff is seeking tolling based on the fact that he did not appreciate
until recently that the gun charges were filed in a separate case from the other charges, rather
than in one case. Plaintiff is not entitled to tolling based on that argument. The dockets for the
two criminal proceedings in municipal court reflect that a preliminary hearing was held in both
cases on December 27, 2011, that plaintiff was represented by a public defender at the hearing,
and that the Judge dismissed the case involving the gun charges but allowed the second case to
proceed to trial. Whether or not plaintiff was present at the hearing or actually aware of the fact
that he was charged in two separate proceedings, it is apparent that he had an attorney who had
notice of that fact. “[A] party is deemed bound by the acts of his lawyer-agent and is considered
to have notice of all facts, notice of which can be charged upon the attorney.” Patyrack v. Apgar,
511 F. App’x 193, 196 (3d Cir. 2013) (per curiam) (internal quotation marks omitted).
Accordingly, plaintiff may be charged with having notice of the facts underlying his malicious
prosecution claim. Furthermore, as the publicly available dockets reveal that plaintiff was
charged in two related cases, he should have been able to determine that he had been charged in
two proceedings long before December of 2014, had he exercised reasonable diligence.
A district court should generally provide a pro se plaintiff with leave to amend unless
amendment would be inequitable or futile. See Grayson v. Mayview State Hosp., 293 F.3d 103,
114 (3d Cir. 2002). Here, amendment would be futile because it is apparent that plaintiff’s claims
are barred by the statute of limitations.
For the foregoing reasons, plaintiff’s complaint will be dismissed with prejudice as time
barred, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
An appropriate order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL NUTTER, et al.
AND NOW, this 18th day of March, 2015, upon consideration of plaintiff’s motion to
proceed in forma pauperis and his complaint, it is ORDERED that:
Leave to proceed in forma pauperis is GRANTED.
Plaintiff Jason Parker shall pay the full filing fee of $350 in installments, pursuant
to 28 U.S.C. § 1915(b). Based on the financial information provided by plaintiff, an initial partial
filing fee of $46.32 is assessed. The Warden or other appropriate official at the Montgomery
County Correctional Facility or at any other prison at which plaintiff may be incarcerated is
directed to deduct $46.32 from plaintiff’s inmate trust fund account, when such funds become
available, and forward that amount to the Clerk of the United States District Court for the
Eastern District of Pennsylvania, 601 Market Street, Room 2609, Philadelphia, PA 19106, to be
credited to Civil Action No. 14-7113. After the initial partial filing fee is collected and until the
full filing fee is paid, the Warden or other appropriate official at the Montgomery County
Correctional Facility or at any other prison at which plaintiff may be incarcerated, shall deduct
from plaintiff’s account, each time that plaintiff’s inmate trust fund account exceeds $10, an
amount no greater than 20 percent of the money credited to his account during the preceding
month and forward that amount to the Clerk of Court at the address provided above to be
credited to Civil Action No. 14-7113.
The Clerk of Court is directed to send a copy of this order to the Warden of the
Montgomery County Correctional Facility.
The complaint is DISMISSED with prejudice for failure to state a claim, pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii), because it is apparent from the complaint that the action is timebarred.
The Clerk of Court shall CLOSE this case.
BY THE COURT:
/s/ Mitchell S. Goldberg
MITCHELL S. GOLDBERG, J.
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