Tearpock-Martini v. Shickshinny Borough et al
Filing
28
MEMORANDUM and ORDER granting 18 Dfts' Motion to Dismiss because pltf's suit is barred by the statute of limitations. Clerk of Court is directed to CLOSE this case.Signed by Honorable James M. Munley on 8/19/13 (sm)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANCENE TEARPOCK-MARTINI,
Plaintiff
:
No. 3:12cv2223
:
:
(Judge Munley)
v.
:
:
SHICKSHINNY BOROUGH,
:
JULE MOORE,
:
MICHEAL STEEBER,
:
ROSALIE WHITEBREAD and
:
JAMES WIDO,
:
Defendants
:
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MEMORANDUM
Before the court for disposition is the defendants’ motion to dismiss
plaintiff’s amended complaint. This case involves allegations of civil rights
violations in the placement of a sign by the defendants near the plaintiff’s
property. The motion has been fully briefed and is ripe for disposition.
Background
Plaintiff Francene Tearpock-Martini owns real property in Shickshinny,
Pennsylvania located at the intersection of Main Street and Furnace Street.
(Doc. 17, Am. Compl. ¶ 6). She has owned the property since May 25,
2005. (Id.) Plaintiff’s property is bordered by two rights of way, one
belonging to the Commonwealth of Pennsylvania and one belonging to
Defendant Shickshinny Borough (hereinafter “Shickshinny”). (Id. ¶ 7).
From her home, plaintiff can view the rights of way. (Id. ¶ 8).
In 2008, a pastor of a Shickshinny church told plaintiff that he had
ordered a sign for his church with the intention of placing it on her property.
Plaintiff told him that she did not consent to the placement of the sign. (Id.
¶ 9). At a July 2008 meeting of the defendant Shickshinny Borough
Council, plaintiff informed the entire borough council that she did not
approve of placing the church sign on her property. (Id. ¶ 11).
The borough council, of which plaintiff was a member, voted to
approve the installation of the sign. (Id. ¶ 12). The individual defendants
Jule Moore, Michael Steeber, Rosalie Whitebread and James Wido are all
borough council members who voted to approve the sign. (Id. ¶ 13).
Shickshinny Borough street workers and Defendant Wido installed the
sign on the rights of way that border plaintiff’s property on August 18, 2008.
(Id. ¶ 14). The sign reads: “Bible Baptist Church Welcomes You!” (Doc.
17-3, Ex. 3 to Am. Compl., Photograph of Sign). It has a directional arrow
with“1 block” written on it. (Id.) The sign is blue with white letters. (Id.) It
also features a gold cross and what appears to be a white Bible. (Id.)
To protest the placement of the sign, plaintiff placed her own sign in
front of it. Plaintiff’s sign read: “This Church Sign Violates My Rights As A
Taxpayer & Property Owner. Residential Neighborhoods Are Not Zoned
For Advertisement Signs!” (Doc. 17, Am. Compl. ¶ 15). The Shickshinny
Borough’s Code Enforcement Officer told plaintiff to remove her sign. (Id. ¶
16). The church sign eventually fell down (Id. ¶ 17). The town re-installed
the sign on the rights of way and did so with heavy equipment and poured
concrete. (Id. ¶ 19). The defendants have ratified their installation and
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maintenance of the sign repeatedly. (Id. ¶ 21).
Based upon these facts, plaintiff filed the instant three-count amended
civil rights complaint pursuant to 42 U.S.C. § 1983. Count I asserts an
Equal Protection Clause claim; Count II asserts that the defendants violated
the Establishment of Religion Clause of the First Amendment to the United
States Constitution by its actions; Count III avers that the defendants
suppressed plaintiff’s speech in violation of the First Amendment to the
Constitution by threatening to prosecute her for erecting her own sign on
her own property protesting the defendant’s actions.
Defendants have moved to dismiss the amended complaint.
Defendants raise the following issues: 1) plaintiff’s filed her complaint
beyond the statute of limitations; 2) Shickshinny Borough is immune from
liability; 3) Counts I, II and III fail to state a viable First or Fourteenth
Amendment claim; 4) qualified immunity shields the individual defendants
from liability; 5) the demand for injunctive relief, that is removal of the sign
and repair of any damage, is unwarranted; and 6) plaintiff’s demands for
monetary damages, including punitive damages, attorney’s fees, costs and
other relief must be dismissed. This motion is now ripe for decision.
Jurisdiction
As this case is brought pursuant to 42 U.S.C. § 1983 for
constitutional violations we have jurisdiction under 28 U.S.C. § 1331 (“The
district courts shall have original jurisdiction of all civil actions arising under
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the Constitution, laws, or treaties of the United States.”).
Legal Standard
Defendants’ filed their motion to dismiss the amended complaint
pursuant to Federal Rule of Civil Procedure 12(b)(6). When deciding a
Rule 12(b)(6) motion, all well-pleaded allegations of the complaint must be
viewed as true and in the light most favorable to the non-movant to
determine whether, “under any reasonable reading of the pleadings, the
plaintiff may be entitled to relief.” Colburn v. Upper Darby Twp., 838 F.2d
663, 665-66 (3d Cir. 1988) (internal quotation marks and citation omitted).
The plaintiff must describe “‘enough facts to raise a reasonable expectation
that discovery will reveal evidence of’ [each] necessary element” of the
claims alleged in the complaint. Phillips v. Cnty. of Allegheny, 515 F.3d
224, 234 (3d Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
556 (2007)). The court does not have to accept legal conclusions or
unwarranted factual inferences. See Curay-Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 133 (3d Cir. 2006). The “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 Twombly, 550 U.S. at 570). Such “facial plausibility” exists
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556).
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Discussion
As noted above, the defendants raise various issues in their motion to
dismiss including the statute of limitations. We will only discuss the statute
of limitations as we find it to be dispositive of plaintiff’s case.
Defendants argue that plaintiff’s claims are barred by the statute of
limitations. They assert that a two-year statute of limitations governs
plaintiff’s civil rights claims. The actions of which plaintiff complains took
place in 2008. The complaint was not filed until approximately four years
later in 2012. Thus, the statute of limitations has expired and plaintiff is
barred from bringing the instant action.
Plaintiff, on the other hand, argues that although defendants acted in
2008, she suffers from the cumulative and continuous effect of defendant’s
actions. Thus, the “continuing violations” or “continuous tort doctrine”
should apply to extend the statue of limitations. After a careful review, we
agree with the defendants that the statute of limitations bars plaintiff’s
lawsuit.
Plaintiff brings this case pursuant 42 U.S.C. § 1983. Under that
statute, state law applies when determining the appropriate statute of
limitations “if it is not inconsistent with federal law or policy to do so.”
Wilson v. Garcia, 471 U.S. 261, 265 (1985). For cases brought in
Pennsylvania, “all § 1983 claims should be characterized for statute of
limitations purposes as actions to recover damages for injuries to the
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person.” Springfield Twp. Sch. Dist. v. Knoll, 471 U.S. 288, 289 (1985).
Applying that principle, Pennsylvania law requires that the plaintiff
commence his action within two years of his injury. See 42 PA. CONS. STAT.
Ann. § 5524(7) (establishing a two-year statute of limitations for “any . . .
action or proceeding to recover damages for injury to person or property
which is founded on negligent, intentional, or otherwise tortious conduct”).
Plaintiff’s amended complaint indicates that the defendants’ actions took
place in 2008. (Doc. 17, Am. Comp. ¶¶ 9-14). Thus the two-year statute
of limitations would have expired by the time plaintiff brought suit in 2012.
Plaintiff does not dispute that the statute of limitations would have normally
expired by the time she filed suit. Rather, she claims that we should apply
the continuing violations doctrine and toll the running of the statute of
limitations. We disagree.
“The continuing violations doctrine is an equitable exception to the
timely filing requirement.” Cowell v. Palmer Twp., 263 F.3d 286, 292 (3d
Cir. 2001) (internal quotation marks and citation omitted). The doctrine
provides that “when a defendant’s conduct is part of a continuing practice,
an action is timely so long as the last act evidencing the continuing practice
falls within the limitations period, in such an instance, the court will grant
relief for the earlier related acts that would otherwise be barred.” Id.
(internal quotation marks and citation omitted). The doctrine applies most
frequently in the employment discrimination context. It has, however, been
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extended to other types of actions, including civil rights claims. Id.
The application of the continuing violation doctrine in the instant case
is inappropriate. The doctrine focuses on acts performed by the defendant
and whether any of the acts occurred during the statute of limitations. For
example in the instant case, the acts taken by the defendants include
approving the church’s sign and disapproving the plaintiff’s own sign.
These acts have had effects. For example, the plaintiff can evidently see
the sign from her property and may consider it an eyesore of sorts. These
effect continue to this day. The fact that the effects remain, however, does
not extend the statute of limitations. We must focus on when the acts
occurred. As the Ninth Circuit Court of Appeals has explained: “A
continuing violation is occasioned by continual unlawful acts, not by
continual ill effects from an original violation.” Ward v. Caulk, 650 F.2d
1144, 1147 (9th Cir. 1981).
This case can be compared to a case cited by the plaintiff, Cowell v.
Palmer Twp., 263 F.3d 286 (3d Cir. 2001). In Cowell, the plaintiffs were
building developers. Id. at 288. They planned to improve real property in a
business park to sell as buildable lots. Id. To get permission to make the
improvements in the business park, plaintiffs had agreed to make some
municipal improvements including certain paving work. Id. The paving
work was done, however, the developers did not pay the paving contractor.
Id. The township paid the paving contractor and then imposed a lien
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against the lots. Id. Several years later, the township imposed a second
municipal lien on the business park properties. Id. at 288-89. Six years
after the imposition of the second lien, the plaintiffs brought suit against the
municipality, alleging, inter alia, “that the imposition of the two municipal
liens violated the Takings Clause of the Fifth Amendment and the Due
Process Clause of the Fourteenth Amendment[.]” Id. at 289.
The defendants moved to dismiss the case on the ground that the
two-year statute of limitation for the constitutional issues had passed.
Plaintiffs argued that the continuing violations doctrine applied in that the
liens continued to violate their rights until they were lifted or expunged,
which occurred within the statute of limitations. Id. at 293. The Third
Circuit Court of Appeals disagreed with the real estate developers. The
court pointed out that “[t]he focus of the continuing violation doctrine is on
affirmative acts of the defendants. . . . The mere existence of the liens
does not amount to a continuing violation. Neither was the Township’s
refusal to remove the lien an affirmative act of a continuing violation.” Id.
The court focused on the acts that the municipality did, that is the
imposition of the liens, not on the continuing affect these liens had on the
property. The court noted that “‘[a] continuing violation is occasioned by
continual unlawful acts, not continued ill effects.’” Id. (quoting Ocean Acres
Ltd. v. Dare County Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983)).
Like the liens in Cowell, the mere existence of the sign of which
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plaintiff complains does not amount to a continuing violation. The township
acted approximately four years before the complaint was filed, and the fact
that plaintiff still experiences the ill effects of those acts does not extend the
statute of limitations.
Plaintiff also cites CBG Occupational Therapy v. Bala Nursing &
Ret.Ctr., No. 1758 Apr. Term 2003, 2005 WL 280838 (Phila. Cty. C.P. Ct.
Jan. 27, 2005). This case talks in terms of “continuous torts” and notes that
“[a] continuing tort sufficient to toll the statute of limitations is occasioned by
continual unlawful acts, not by continued ill effects from an original
violation.” Id. at *3 (emphasis in the original, internal citation and quotation
marks omitted). Plaintiff in CBG brought suit for, inter alia, tortuous
interference, fraud and misrepresentation regarding an agreement with the
defendant whereby plaintiff was to recruit and hire employees who would
become defendant’s employees but work under plaintiff’s management. Id.
at *1. Plaintiff alleged that defendant never paid the agreed to recruiting
fees and conspired to steal the employees away for defendant’s own use.
Id. at *3.
Plaintiff argued that it had alleged a continuous tort because some of
the individuals continued to work for defendant. Id. The court disagreed
with plaintiff and found that the continuous employment of the workers is an
“ill effect” of a violation, not a continuing violation. Id. The statute of
limitations had begun to run when the plaintiff knew or had reason to know
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that defendant had breached the agreement. Id.
Again in finding that the continuing violations doctrine inapplicable,
the court examined the facts to determine when the last act occurred, as
opposed to when the effects of that act were last made manifest.
Cowell and CBG both found the continuing violations doctrine
inapplicable. In the cases plaintiff cites where the doctrine is found to be
applicable, the courts nonetheless examine when the acts plaintiff
complains of occurred. For example, plaintiff cites to Jackson v. East
Hempfield Twp. Pol. Dept., 37 D. & C. 4th 360 (Lancaster Cty. C.P. Ct.
1997). The plaintiff in Jackson brought a civil rights action alleging the
police had not properly and adequately responded to domestic violence
calls involving her and her husband. Id. at 362. The defendant challenged
the complaint based upon the statute of limitations. Id. at 363. The court
applied the continuing violations doctrine and concluded that the plaintiff
had alleged at least one discriminatory incident or act within the filing period
and that this incident was more than an isolated occurrence. Id. at 365.
Because one of the acts occurred within the statute of limitations, the
continuing violation doctrine tolled the statute of limitations with regard to
earlier incidents of alleged discrimination. Id. at 366.
The final case cited by plaintiff is Brillhart v. Sharp, No. 4:CV-07-1121,
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2008 WL 2857713 (M.D. Pa. July 21, 2008).1 In this case, the plaintiff sued
for assault and intentional infliction of emotional distress among other
causes of action. The court applied the continuing violations theory and
found that several of plaintiff’s claims were based on a continuing pattern of
conduct with at least one of the acts falling within the limitations period. Id.
at * 6-7.
Thus, the cases that find an actual act during the statute of limitations
apply the continuing violations doctrine. Where merely the ill effects of the
defendant’s past acts endure, then application of the continuing violations
doctrine is inappropriate. Here, plaintiff alleges acts by the defendant that
occurred more than two years before the filing of the complaint, that is the
placement of the sign and the forced removal of plaintiff’s sign. The
defendant has committed no acts within the two years of the filing of
plaintiff’s complaint. Accordingly, the continuing violation doctrine cannot
be used to extend the statute of limitations and plaintiff’s suit is time barred.
Defendant’s motion to dismiss will be granted.
1
Plaintiff also cites to Griggs v. Kravitz, 12 Pa. D. & C. 3d 240
(Monroe Cty. C.P. Ct. 1979). The plaintiff in Griggs brought suit for legal
malpractice/negligent misrepresentation. Id. at 241. The defendant filed
preliminary objections based on the statute of limitations. Id. In a brief
opinion, the court interpreted the complaint as alleging a continuing
trespass on the part of the defendant, and therefore, the statute of
limitations defense was not established on the face of the complaint. Id. at
242. The court’s opinion does not provide sufficient facts, however, for us
to make a reasoned comparison of the instant case to the facts of Griggs.
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Conclusion
Plaintiff’s complaint was filed beyond the statute of limitations, and it
we will grant the defendant’s motion to dismiss. An appropriate order
follows.
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IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
FRANCENE TEARPOCK-MARTINI,
Plaintiff
:
No. 3:12cv2223
:
:
(Judge Munley)
v.
:
:
SHICKSHINNY BOROUGH,
:
JULE MOORE,
:
MICHEAL STEEBER,
:
ROSALIE WHITEBREAD and
:
JAMES WIDO,
:
Defendants
:
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ORDER
AND NOW, to wit, this 19th day of August 2013, the defendants’
motion to dismiss (Doc. 18) is hereby GRANTED because plaintiff’s suit is
barred by the statute of limitations. The Clerk of Court is directed to close
this case.
BY THE COURT:
s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court
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