Zguro v. Johnson et al
MEMORANDUM re dfts' MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 17 (Order to follow as separate docket entry) Signed by Honorable Sylvia H. Rambo on 4/27/21. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
LARRY T. ZGURO,
THEODORE W. JOHNSON AND
Plaintiff Larry T. Zguro, a pre-trial detainee presently confined at Dauphin
County Prison in Harrisburg, Pennsylvania, filed an amended complaint pursuant
to 42 U.S.C. § 1983 against Defendants Commissioner Theodore W. Johnson and
Superintendent Thomas McGinley regarding his alleged incarceration beyond his
release date for a prior prison sentence. (Doc. 1.) Defendants have filed a motion
to dismiss arguing that Plaintiff’s constitutional claims are untimely. (Doc. 17
(mot.), 18 (brief).) For the following reasons, the Court will grant the motion.
STATEMENT OF FACTS
Plaintiff alleges that he was incarcerated at SCI Coal Township, Coal
Township, Pennsylvania, at all times relevant to the amended complaint. (Doc. 4
at 4.) In the amended complaint, Plaintiff alleges that he was sentenced on May
23, 2014 to one year, one month, and fifteen days to three years prison sentence,
and was given five months and five days of jail time credit by Judge Richard A.
Lewis. (Id.) He was then incarcerated in a state prison, presumably SCI Coal
Township, and started to serve his sentence. (Id.) He was brought before the
Parole Board three times, on March 31, 2016, November 9, 2016, and April 21,
2017. (Id.) Each time he was denied parole. (Id.)
On August 3, 2017, Plaintiff was given a parole board decision advising him
that his parole violation max date was February 28, 2017, and that his case would
be closed effective February 28, 2017. (Id.) He was not, however, released from
prison until August 3, 2017. (Id.) He alleges that he was held for five months and
five days over his max date, which constitutes unlawful imprisonment. (Id.)
Plaintiff alleges that his Eighth Amendment right to be free from cruel and
unusual punishment has been violated, and he seeks unspecified monetary relief.
(Id. at 6-7.)
STANDARD OF REVIEW
Rule 8 of the Federal Rules of Civil Procedure provides that a pleading must
set forth a claim for relief which contains a short and plain statement of the claim
showing that the pleader is entitled to relief; the complaint must provide the
defendant with fair notice of the claim. See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). When considering a Rule 12(b)(6) motion to dismiss, the court
must accept as true all factual allegations. See Erickson v. Pardus, 551 U.S. 89, 94
(per curiam). The issue in a motion to dismiss is whether the plaintiff should be
entitled to offer evidence to support the claim, not whether the plaintiff will
ultimately prevail. See Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.
2008) (the Rule 8 pleading standard “‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’ the necessary
element.”); Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996).
The onus is on the plaintiff to provide a well-drafted complaint that alleges
factual support for its claims. “While a complaint attacked by a Rule 12(b)(6)
motion to dismiss does not need detailed factual allegations, a plaintiff's obligation
to provide the ‘grounds’ of his ‘entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (alteration in original and internal citations
omitted). The court need not accept unsupported inferences, Cal. Pub. Employees
Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004), nor legal
conclusions cast as factual allegations, Twombly, 550 U.S. at 556. Legal
conclusions without factual support are not entitled to the assumption of truth. See
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of elements of a
cause of action, supported by mere conclusory statements, do not” satisfy the
requirements of Rule 8).
Once the court winnows the conclusory allegations from those allegations
supported by fact, which it accepts as true, the court must engage in a common
sense review of the claim to determine whether it is plausible. This is a contextspecific task, for which the court should be guided by its judicial experience. The
court must dismiss the complaint if it fails to allege enough facts “to state a claim
for relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). A “claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw a reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. The complaint that
shows that the pleader is entitled to relief—or put another way, facially plausible—
will survive a Rule 12(b)(6) motion. See Fed. R. Civ. P. 8(a)(2); Mayer v.
Belichick, 605 F.3d 223, 229 (3d Cir. 2010).
Defendants argue that Plaintiff’s Eighth Amendment claim brought pursuant
to 42 U.S.C. § 1983 claim is time barred.
No specific statute of limitations applies to actions filed pursuant to § 1983.
See Pearson v. Sec’y Dep’t of Corrs., 775 F.3d 598, 602 (3d Cir. 2015). Rather,
the Supreme Court of the United States has held that the statute of limitations for
personal injury actions in the state where the cause of action arose is to be
employed. Wallace v. Kato, 549 U.S. 384, 387 (2007). See also Estate of Lagano
v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 859–60 (3d Cir. 2014). As
Pennsylvania has a two year statute of limitations for personal injury actions, the
statute of limitations applicable to claims brought under § 1983 in Pennsylvania is
two years, subject to any state law tolling provisions which are not inconsistent
with federal law. See 42 Pa. Cons. Stat. § 5524(7) (2014); Kach v. Hose, 589 F.3d
626, 634 (3d Cir. 2009).
The date when a § 1983 cause of action accrues is determined by federal
law. Under federal law, a civil rights action accrues and the statute of limitations
begins to run “‘when the plaintiff knew or should have known of the injury upon
which [his] action is based.’” Kach, 589 F.3d at 634 (quoted cases omitted). A
“cause of action accrues even though the full extent of the injury is not then known
or predictable. . . . Were it otherwise, the statute would begin to run only after a
plaintiff became satisfied that he had been harmed enough, placing the supposed
statute of repose in the sole hands of the party seeking relief.” Wallace, 549 U.S. at
392 (internal quotation marks and citations omitted).
Plaintiff knew of his injury when he was advised by the parole board on
August 3, 2017, that he should have been released on February 28, 2017, thus his
cause of action accrued on or about August 3, 2017, and the statute of limitations
for filing a § 1983 action related to his continued imprisonment expired on or
about August 3, 2019. He did not file the instant petition until July 30, 2020,
almost a year later. His claim is thus patently untimely.1
Section 1983’s statute of limitations is subject to tolling. First, the statute is
tolled while an inmate plaintiff exhausts his administrative remedies. See Pearson,
775 F.3d at 603 (“[T]he PLRA is a statutory prohibition that tolls Pennsylvania’s
statute of limitations while a prisoner exhausts administrative remedies.”). Second,
the statute of limitations may be equitably tolled when the plaintiff has been
prevented from filing in a timely manner due to sufficiently inequitable
circumstances. See Cunningham v. M&T Bank Corp., 814 F.3d 156, 160 (3d Cir.
2016) (citing Santos ex rel. Beato v. United States, 559 F.3d 189, 197 (3d Cir.
2007)). Finally, “[t]he ‘discovery rule’ tolls the limitations period where the
injured party is unable to know that he is injured and to know what caused the
injury, despite the exercise of reasonable diligence.” Brown v. Buck, 614 F. App’x
590, 593 (3d Cir. 2015).
Plaintiff makes no argument that tolling would apply to make his claim
timely, and the Court can discern no circumstance or fact from his amended
complaint that would toll the statute of limtiations. Even if his claim were timely,
the Court notes that it would still dismiss the complaint as Plaintiff’s sole requested
Plaintiff filed various documents in reply to the motion, including a reference to
Pennsylvania’s four year statute of limitations for contracts. (See Doc. 24.) That,
however, does not apply to an action brought pursuant to § 1983.
remedy is monetary damages, which would be barred pursuant to Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994) (barring claims for monetary damage
claims unless the allegedly unconstitutional imprisonment has been, inter alia,
reversed on appeal or called into question by the issuance of a writ of habeas
Generally, “plaintiffs who file complaints subject to dismissal under Rule
12(b)(6) should receive leave to amend unless amendment would be inequitable or
futile.” Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). The
Court finds that amendment would be futile as Plaintiff’s claim is time barred.
For the foregoing reasons, this Court will grant Defendants’ motion to
dismiss, and dismiss the complaint.
An appropriate Order follows.
S/Sylvia H. Rambo
United States District Judge
Dated: April 27, 2021
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