Rummel Lewisburg Police et al

Filing 61

MEMORANDUM (Order to follow as separate docket entry).Signed by Honorable Matthew W. Brann on 7/2/2015. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DANIEL F. RUMMEL,
Plaintiff
v.
LEWISBURG POLICE,
SGT. HEFRICK,1
CORP. M. HERMAN,
PTL. JONES, and
DOES 1-6
Defendants

:
:
:
:
:
:
:
:
:
:
:
:
:

Case No. 4:14-CV-00268
(Judge Brann)

(Chief Magistrate Judge Carlson)

MEMORANDUM
July 2, 2015
BACKGROUND:
On February 14, 2014, pro se Plaintiff Daniel Rummel filed a complaint
(ECF No. 1) against the afore-named Defendants alleging, inter alia, the use of
excessive force in the course of his October 26, 2011 arrest. Magistrate Judge
Thomas M. Blewitt conducted the initial screening of this complaint, which led to
a March 11, 2014 report and recommendation that many of the claims and
defendants be dismissed (ECF No. 8). This Court adopted this recommendation
1

Defendant listed as “SGT. HEFRICK” is actually SGT. HETRICK (ECF No. 40).
1

(ECF No. 20) on June 27, 2014 and Plaintiff was permitted to file an amended
complaint. He did so on July 23, 2014 (ECF No. 25). The amended complaint
reprised Plaintiff’s excessive force claim, but omitted reference to when the
incident occurred (Id.).
Defendants filed a motion for more definite statement and a motion to
dismiss the amended complaint (ECF Nos. 40 and 42, respectively) on November
10, 2014. These motions pointed out the factual ambiguity of the amended
complaint and raised the bar of the statute of limitations (Id.). On January 26,
2015, Plaintiff responded to these motions but again omitted reference as to when
the incident occurred (ECF No. 53), leading to a January 27, 2015 report and
recommendation from Chief Magistrate Judge Martin C. Carlson (ECF No. 54), to
whom the case had been reassigned after Judge Blewitt’s retirement.
In his report and recommendation, Chief Magistrate Judge Carlson
recommended that Defendants’ motion for more definite statement be granted, that
Defendant’s motion to dismiss be granted, and that Plaintiff be given 20 days to
file a second amended complaint (Id.).
Three days later, on January 30, 2015, without having received Chief
Magistrate Judge Carlson’s report and recommendation, Plaintiff filed a motion for
leave to file a second amended complaint, along with a copy of said complaint

2

(ECF Nos. 55 and 56). This prompted Chief Magistrate Judge Carlson to file a
second report and recommendation (ECF No. 57) on February 2, 2015,
recommending that Plaintiff’s motion for leave to file a second amended complaint
(ECF No. 55) be denied without prejudice so that Plaintiff could be “directed to
endeavor to draft an amended complaint which addresses the legal obstacle of the
statute of limitations” (ECF No. 57) as outlined in the prior report and
recommendation that Chief Magistrate Judge Carlson had filed.
Plaintiff responded to Chief Magistrate Judge Carlson’s final report and
recommendation (ECF No. 57) by filing a “motion in objection(s) to the
Magistrate’s findings and recommendations” (sic) (ECF No. 58), and a “motion to
amend record, and proceed with relief under 42 U.S.C. §1983” (ECF No. 60). As a
result, this Court has reviewed de novo both of Chief Magistrate Judge Carlson’s
reports and recommendations on Plaintiff’s complaint.

DISCUSSION
The United States Court of Appeals for the Third Circuit has made it clear
that since 42 U.S.C. §1983 does not include a statute of limitations, civil rights
claims are subject to the applicable statute of limitations of the pertinent state. See
Smith v. Delaware County Court, 260 F. App’x. 454, 455 (3rd Cir. 2008) and

3

Cowell v. Palmer Township, 263 F.3d 286, 292 (3rd Cir. 2001). In the instant case,
Plaintiff is alleging personal injury due to the use of excessive force (ECF Nos. 1,
25, 56 and 60). Thus, Pennsylvania’s two-year statutory period, as delineated in 42
Pa.C.S.A. §5524, applies. Lake v. Arnold, 232 F.3d 360, 368 (3rd Cir. 2000).
According to the initial complaint, filed February 14, 2014, Plaintiff leveled
claims against Defendants relating to matters that had occurred 28 months prior to
the filing of said complaint. As such, these events occurred well beyond the twoyear statute of limitations that is applicable to such tort claims.
In both of his reports and recommendations (ECF Nos. 54 and 57), Chief
Magistrate Judge Carlson admonished Plaintiff to clearly reference the date of the
alleged use of excessive force. While Plaintiff’s second amended complaint (ECF
No. 55) failed to reference said date, this Court construes the oversight to be a
result of Plaintiff’s failure to receive the first report and recommendation (ECF No.
54) prior to the filing of the second amended complaint.
Once he received and read Chief Magistrate Judge Carlson’s report and
recommendations (ECF Nos. 54 and 57), Plaintiff filed a “motion in objection(s) to
the Magistrate’s findings and recommendations” (sic) (ECF No. 58), and a “motion
to amend record, and proceed with relief under 42 U.S.C. §1983” (ECF No. 60). In

4

the latter motion, Plaintiff once again verifies (albeit vaguely) that the alleged use
of excessive force occurred on October 26, 2011 (ECF No. 60 at *4 ¶3).
Courts hold that the statute of limitations on an excessive use of force claim
arising from the plaintiff’s arrest begins to run when the incident occurs. See
Walters v. Muhlenburg Township Police Department, F. App’x 213, 216 (3rd Cir.
2013); , F. App’x 213, 216 (3rd Cir. 2013); Large v. County of Montgomery, 307 F.
App’x 606, 607 (3rd Cir. 2009) (“…it is apparent that Large was aware of his
alleged mistreatment as it occurred on the date of his arrest…”). Given that both
Plaintiff’s original complaint and latest motion clearly reference October 26, 2011,
the date of his arrest, as the date that the alleged use of excessive force occurred,
and that Plaintiff’s trial noted October 26, 2011 as the actual date he was arrested
(Commonwealth v. Rummel, CP-60-0000023-2012.), it is obvious that Plaintiff
“was aware of his alleged mistreatment as it occurred on the date of his arrest”
(Id.).

CONCLUSION
In light of these facts, this Court finds that Plaintiff filed his original
complaint 28 months after the alleged use of excessive force during the course of
his arrest on October 26, 2011. Accordingly, his claim is barred by the statute of

5

limitations. This Court will adopt Chief Magistrate Judge Carlson’s January 27,
2015 recommendation (ECF No. 54) that Defendants’ motions to dismiss the first
amended complaint be GRANTED. Likewise, this Court will adopt Chief
Magistrate Judge Carlson’s February 2, 2015 recommendation (ECF No. 57) that
Plaintiff’s motion for leave to file a second amended complaint (ECF No. 55) be
DENIED. However, despite the Chief Magistrate Judge’s recommendation that this
Court grant further leave to amend, given that the date of Plaintiff’s arrest is well
documented as October 26, 2011, some 28 months prior to the filing of his first
complaint in this district, this Court will not grant further leave to amend, as
amendment will be futile, and will dismiss Plaintiff’s amended complaints (ECF
Nos. 25 and 56) with prejudice.

/s Matthew W. Brann
Matthew W. Brann
United States District Judge

6