ALLEN v. ERIE METROPOLITAN TRANSIT AUTHORITY et al
Filing
44
MEMORANDUM OPINION and ORDER: AND NOW, to wit, this 30th Day of December, 2011, for the reasons set forth in the accompanying Memorandum Opinion, IT IS ORDERED that the Motion to Dismiss Amended Complaint filed on behalf of Defendants Thomas Borrell i and the City of Erie 35 , the Motion to Dismiss filed on behalf of Defendants Erie Metropolitan Transit Authority, Aura Torres, and Michael Will 37 , and the Motion to Dismiss Amended Complaint filed on behalf of Defendants the County of Erie and Bradley H. Foulk, deceased 39 , shall be, and hereby are, GRANTED, and the above-captioned civil action shall be, and hereby is, DISMISSED with prejudice. Signed by Judge Sean J. McLaughlin on 12/30/2011. (kas)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AUGUSTUS ALLEN, III,
Plaintiff,
v.
ERIE METROPOLITAN TRANSIT
AUTHORITY, et al.,
Defendants.
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Case No. 1:10-cv-126-SJM
MEMORANDUM OPINION
McLAUGHLIN, SEAN J., District J.,
Plaintiff Augustus Allen, III, a former employee of the Erie Metropolitan Transit
Authority (“EMTA”), filed this civil rights action after he was arrested and tried for
allegedly making terroristic threats. The named Defendants arethe EMTA and two of its
employees, Aura Torres and Michael Will (collectively, the “EMTA Defendants”), the
City of Erie and Erie Police Officer Thomas Borrelli (collectively, the “City Defendants”),
and the County of Erie, Bradley H. Foulk (the now deceased former District Attorney of
Erie County), and the Estate of Bradley H. Foulk (collectively, the “County
Defendants”).1
1
Although some of these named Defendants are not included in the caption of the amended complaint,
they are nevertheless identified as Defendants in the body of that document. (See Amended Compl. [33]
at ¶¶ 2-6.) Since service has apparently been accepted on behalf of all of these parties, we will treat
them for present purposes as named Defendants. The complaint originally included the Commonwealth
of Pennsylvania as a named Defendant, but Allen‟s claims against the Commonwealth were previously
dismissed on the basis of Eleventh Amendment immunity.
1
This Court has subject matter jurisdiction over Allen‟s federal claims by virtue of
28 U.S.C. §1331 and 1343(c). Supplemental jurisdiction over Allen‟s related state law
claims exists pursuant to 28 U.S.C. §1367(a).
Presently pending before this Court are motions by all of the named Defendants
to dismiss the amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure. Because all of the claims are time-barred, the motions will be granted
and the claims will be dismissed with prejudice.
I.
STANDARD OF REVIEW
When considering amotion under Rule 12(b)(6) to dismiss the complaint for
failure to state a claim, we accept as true all allegations in the complaint and reasonable
inferences that can be drawn from them after construing them in the light most favorable
to the non-movant. Pocono Mountain Charter School v. Pocono Mountain School Dist.,
No. 10-4478, 2011 WL 3737443 at *2 (3d Cir. Aug. 25, 2011) (slip copy) (citing Rocks v.
City of Philadelphia, 868 F.2d 644, 645 (3d Cir.1989)). On the other hand, “a court need
not credit a plaintiff's „bald assertions' or „legal conclusions' when deciding a motion to
dismiss.” Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir.1997) (citing In
re: Burlington Coat Factory Securities Litigation, 114 F.3d 1410, 1429-30 (3d
Cir.1997)).“To survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to „state a claim to relief that is plausible on its face.‟” Ashcroft
v. Iqbal, ––– U.S. ––––, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007)).
2
II.
BACKGROUND2
Allen is a resident of Erie County and former employee of EMTA. On April 26,
2007, while present in the lunchroom of the EMTA premises, Allen was overheard by
Defendant Aura Torres stating to another fellow worker, “I‟ll come back to this place with
my AK-47 and shoot this fucking place up.” (Amended Complaint ¶13.) At the time he
made this statement, Allen was referring to the fact that EMTA had installed cameras
within the workplace including in the private areas of the lunchroom near employee
restrooms. (Id. at ¶18.)
On April 26, 2007, Allen was arrested at his church by a team of Erie police
officers, including Defendant Borrelli, who entered the church and took Allen into
custody in handcuffs within view of other church attendees and members of the public.
(Amended Compl. at ¶ 12.) Allen was arrested and charged based solely upon the
allegations of Torres and her interpretation of Allen‟s statement as a bona fide threat.
(Id. at ¶ 14.) Prior to arresting Allen, Borrelli did not interview Gary Laughner, the
individual to whom Allen had been speaking at the time of the alleged threat, nor did
Borrelli conduct any type of investigation to ascertain whether, in fact, Allen owned or
possessed a firearm. (Id. at ¶¶ 15-16.)
According to the amended complaint, EMTA had “expressly targeted” Allen for
termination and it utilized Allen‟s purported workplace threat as a pretext for terminating
his employment. (Amended Compl. at ¶ 22.)In addition, it is averred that “EMTA
proceeded to purposely suppress and destroy the material evidence contained in the
2
The following averments are taken from the amended complaint. In conformity with the foregoing
standard of review, we accept as true all of Allen‟s well-pleaded factual allegations and draw all
reasonable inferences arising therefrom in his favor.
3
videotaping system by sending the tapes to an outside contractor for destruction without
notice to the Plaintiff when EMTA knew or should have known this evidence was of
material import to the pending criminal case against the Plaintiff.” (Id. at ¶ 19.)
Allen contends that both the police and the District Attorney‟s office were aware
of, and did nothing to prevent, the destruction of the evidence and thereby implicitly
consented to its destruction. (Amended Compl. at ¶ 20.) Allen further claims that he
was not informed of the destruction of the evidence until the time of his trial. (Id. at
¶21.)
In May of 2008, Allen‟s criminal case proceeded to a jury trial in the Erie County
Court of Common Pleas. (Amended Compl. at ¶ 28.) At the conclusion of the
Commonwealth‟s case-in-chief, the trial judge granted Allen‟s motion for a judgment of
acquittal. (Id.)
Allen later commenced this action on May 21, 2010. In response to the original
complaint, the Defendants moved for dismissal on several grounds, including their claim
that Allen‟s claims were barred by the applicable statute of limitations.
This Court held argument on March 21, 2011, at which time Allen contended that
the period of limitations had been tolled by his own incapacitation. Based on this
development, this Court denied the Defendants‟ motions to dismiss without prejudice to
be reasserted later and allowed Allen an opportunity to replead his complaint. The
Court directed that the amended complaint should include, among other things,
averments detailing the nature, extent, and onset date of Allen‟s alleged mental
incapacity, as well as any treatment(s) received.
Allen filed his amended complaint [33] on April 6, 2011. In it, he alleges that he:
4
was medically incapacitated commencing November 2009 due to a stroke.
Upon the onset of Plaintiff‟s disability, he was placed under [a] physician‟s
care and was prescribed antidepressants which caused him to be suicidal.
Plaintiff‟s disabling condition lasted at least a month. The statute of
limitations as applied [to] this lawsuit was tolled or suspended for the
duration of this period of disability, if not longer.
(Amended Compl. at ¶ 32.) The amended complaint sets forth six causes of action,
including a claim for the alleged violation of Allen‟s federal constitutional rights (Count 1)
as well as claims under Pennsylvania law for alleged false arrest (Count 2), malicious
prosecution (Count 3), false imprisonment (Count 4), and intentional infliction of
emotional distress (Count 5). Count 6 involves a claimfor punitive damages (Count 6).
All of the Defendants have moved to dismiss the amended complaint in part or in
whole. The issues have been briefed and are now ripe for consideration.
III.
DISCUSSION
A. Allen‟s Federal Claims
Plaintiffs‟ federal claims are asserted pursuant to 42 U.S.C. § 1983, which affords
a private right as against:
[e]very person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws…
This statute does not create substantive rights but instead “provides only remedies for
deprivations of rights established elsewhere in the Constitution or federal laws.” Kneipp
v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
To prevail under 42 U.S.C. § 1983, a plaintiff must prove that s/he suffered the
deprivation of a constitutional or federal rights by a person acting under color of state
5
law. Mark v. Borough of Hatboro, 51 F.3d 1137, 1141 (3d Cir.1995). Here, Allen is
alleging violations of his rights under the Fourth and Fourteenth Amendments to the
U.S. Constitution – specifically, his right to be free from “unlawful arrest, detention and
imprisonment,” which we construe as asserting federal claims premised upon false
arrest, false imprisonment, and malicious prosecution. (Amended Compl. at ¶ 42.)
Although it is not directly stated within Count 1, Allen also appears to be asserting a
§1983 claim based upon the alleged destruction of material and exculpatory evidence.
(Id. at ¶ 34.)3
Defendants have asserted numerous bases for the dismissal of Allen‟s federal
claims. However, because we find the Defendants‟ arguments relative to the statute of
limitations4 to be dispositive, we need not reach their other arguments for dismissal.
The statute of limitations for a § 1983 claim is governed by the personal injury
tort law of the state where the cause of action arose. Kach v. Hose, 589 F.3d 626, 634
3
The amended complaint may further be read as alleging a violation of Allen‟s due process rights by
virtue of a loss of liberty and damage to his reputation (Amended Compl. at ¶ 44), as well as a §1983
claim premised upon unlawful search and seizure. (Id. at ¶ 34.) Allen seems to have abandoned these
claims but, in any event, we conclude that they cannot survive the present Rule 12(b)(6) challenge
because, like Allen‟s other federal claims, they would be time-barred.
4
Our Circuit Court of Appeals has noted that “[w]hile the language of Fed R. Civ. P. 8(c) indicates that a
statute of limitations defense cannot be used in the context of a Rule 12(b)(6) motion to dismiss, an
exception is made where the complaint facially shows noncompliance with the limitations period and the
affirmative defense clearly appears on the face of the pleading.” Kester v. Zimmer Holdings, Inc., No.
2:10-cv-00523, 2010 WL 2696467 at *15 (W.D. Pa. June 16, 2010) (slip op.) (quoting Oshiver v. Levin,
Fishbein, Sedran& Berman, 38 F.3d 1380, 1385, n. 1 (3d. Cir.1994) (internal citations omitted)). See also
Riley v. Medtronic, Inc., Civil Action No. 2:10-01071, 2011 WL 3444190 at *5 (W.D. Pa. Aug. 8, 2011).
“[W]here a [c]omplaint is untimely on its face, … the plaintiff must include tolling allegations in order to
survive a statute of limitations.” Akrie v. City of Pittsburgh, Civil Action No. 8-1636, 2009 WL 1765846 at
*4 (W.D. Pa. June 22, 2009) (slip op.) (citing Oshiver, supra, at 1391 n. 10).
Here, the untimeliness of Allen‟s various claims is apparent from the allegations in the amended
complaint and/or by reference to dates contained in the judicial record from his criminal proceeding, which
we can consider on a Rule 12(b)(6) motion. See Sands v. McCormick, 502 F.3d 263, 268 (3d Cir. 2007)
(in ruling on a motion to dismiss, a district court may rely on matters of public record, include judicial
proceedings) (citations omitted). We therefore consider the applicable statutes of limitations as they
pertain to both Allen‟s federal claims and his state claims.
6
(3d Cir. 2009) (citing Wallace v. Kato, 549 U.S. 384, 387 (2007)). For § 1983 claims
arising in Pennsylvania, the applicable limitations period is two years. Id. (citing 42 Pa.
Cons. Stat. §5524(2) and Kost v. Kozakiewicz, 1 F.3d 176, 189-90 (3d Cir.1993)).
The date on which a cause of action under § 1983 accrues is determined by
federal law. Kach, 589 F.3d at 634 (citing Genty v. Resolution Trust Corp., 937 F.2d
899, 919 (3d Cir.1991)). Under federal law a §1983 claim accrues, and the statute of
limitations begins to run, “when the plaintiff knew or should have known of the injury
upon which its action is based.” Id. (quoting Sameric Corp. v. City of Philadelphia, 142
F.3d 582, 599 (3d Cir.1998) (citation omitted); Montgomery v. De Simone, 159 F.3d
120, 126 (3d Cir.1998)). Determining the date of accrualinvolves an objective inquiry:
“[courts] ask not what the plaintiff actually knew but what a reasonable person should
have known.” Id. (citing Barren v. United States, 839 F.2d 987, 990 (3d Cir.1988)).
Generally, a cause of action is considered to have accrued “at the time of the last event
necessary to complete the tort, usually at the time the plaintiff suffers an injury.” Id.
(citing United States v. Kubrick, 444 U.S. 111, 120 (1979)). As our appellate court has
explained,
[t]he 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.
Kach, supra, at 634-35 (quoting Wallace, 549 U.S. at 391 (internal quotation marks and
citations omitted)). Applying this principle to the case at bar, we conclude that all of
Allen‟s §1983 claims were filed beyond the applicable limitations period.
7
For Fourth Amendment claims premised upon theories of false arrest or false
imprisonment, the two-year limitations period begins to run “at the time the claimant
becomes detained pursuant to legal process.” Green v. United States, 418 Fed.
Appx.63, 67 (3d Cir. Mar. 18, 2011)(quoting Wallace v. Kato, 549 U.S. 384, 397
(2007)). Thus, the statute of limitations as to those claims commenced when
Allenappeared before the Magistrate Judge in his preliminary hearing and was bound
over for trial or arraigned on his criminal charges. Baker v. Wittevrongel, 363 Fed.
Appx. 146, 150 (3d Cir. Jan. 29, 2010); Green, 418 Fed. Appx. at 67 (citing Wallace,
supra, at 391). According to the official court docket in Commonwealth v. Allen, Case
No. 1687 of 2007 (Erie County C.C.P), the preliminary hearing occurred on July 6,
2007, meaning the statute of limitations relative to Allen‟s federal false arrest/ false
imprisonment claimsexpired, at the latest,on or about July 6, 2009. Since the instant
action was filed well past that date, it is untimely as to those claims.
Allen also seems to be asserting a Fourth Amendment claim based upon a
theory of malicious prosecution. As to this type of §1983 claim, the two-year limitations
period does not accrue until the underlying criminal charges are terminated in the
plaintiff‟s favor. Crawford v. Miller, 269 Fed. Appx. 178, 180 (3d Cir. Mar. 20, 2008)
(citing Rose v. Bartle, 871 F.2d 331, 348 (3d Cir. 1989)). Thus, Allen‟s malicious
prosecution claim accrued on May 15, 2008 when he was awarded a judgment of
acquittal, meaning the applicable statute of limitations expired no later than May 15,
2010. The instant action was not filed until May 21, 2010, however, making Allen‟s
§1983 malicious prosecution claim untimely.
8
To the extent Allen is asserting a due process claim premised upon the alleged
destruction of potentially exculpatory evidence, we note court documents from Allen‟s
criminal case showing that his attorney was advised -- via correspondence from the
District Attorney‟s Office dated November 26, 2007 and received on or around
December 2, 2007 -- that EMTA was no longer in possession of any electronic
surveillance that may have existed covering the alleged terroristic threat incident. This
correspondence in turn prompted Allen‟s counsel to subpoena information directly from
EMTA in January of 2008 and, later, to file a motion with the Court of Common Pleason
February 22, 2008 to compel EMTA‟s production of information concerning such
evidence.5 (See Ex. C to Def.‟s Mot. to Dismiss Compl. [35-3] at pp. 1-8.) Thus, as
early as December 2, 2007 and certainly no later than February 22, 2008, Allen knew or
should have known of the facts giving rise to his claim that potentially exculpatory
evidence had been destroyed by EMTA. This would mean that the statute of limitations
relative to this claim expired as early as December 2, 2009, and no later than February
22, 2010, some three months prior to the filing of the complaint.6
5
The attorney in Allen‟s criminal case, Jeff Connelly, Esq., is the same attorney who initially represented
Allen in the instant litigation and filed the complaint on May 21, 2010.
6
The same result obtains to the extent Allen is asserting a § 1983 claim premised upon alleged violations
of his due process rights. Since Allen received all of the process to which he was entitled in connection
with his criminal case, the basis for such a claim is unclear. In any event though, it would appear that any
due process claim premised upon loss of liberty accrued no later than April 26, 2007 when, according to
the official court docket in Allen‟s criminal case, he posted bail and was released from custody. With
respect to Allen‟s due process claim (if any) premised upon reputational harm, we note, based on the
court docket, that Allen was arrested on April 26, 2007, bound over for trial on July 6 2007, and charged
by information on August 13,2007. Accordingly, it would appear that such a claim, if it were being
asserted, accrued no later than August 13, 2009. Both types of due process claims thus accrued more
than two and one-half years prior to the filing of this lawsuit.
9
Allen has asserted a number of different theories as to why his § 1983 claims
should be considered timely, notwithstanding the expiration of the limitations period.
None of these arguments is persuasive.
(i)
First, Allen has averred that the period of limitations was tolled during his period
of incapacitation following a stroke which he suffered in November of 2009. Because
this alleged period of disability occurred after the 2-year limitations period had already
expired relative to Allen‟s §1983 claims premised upon alleged false arrest and/or
imprisonment, his alleged disability clearly cannot save those claims.
Even with respect to his other §1983 claims, however, Allen‟s averments as to
his medical incapacity are presently insufficient. In his amended complaint, Allen avers
that he suffered a stroke in or around November of 2009,7 was placed under a
physician‟s care, and was prescribed medication which made him depressed and
suicidal, resulting in a disabling condition which lasted at least one month. (Amended
Compl. at ¶ 32.) Allen contends that the Court should view these factual assertions of
alleged medical disability as “an extraordinary event which prevented [him] from
asserting his rights” for purposes of equitable tolling. (Br. in Supp. of Pl.‟s Mot. to
Amend his Complaint [42] at p. 2.) He submits that we should defer ruling on the
Defendants‟ pending motions and permit him to procure medical documentation
substantiating his claim of medical incapacity.
7
We note that Allen‟s brief in opposition to the pending motions suggests that the stroke occurred in
November of 2007. For present purposes, we accept the averment in the amended complaint as
controlling.
10
Our Circuit Court of Appeals has held that equitable tolling is appropriate where
(1) a defendant actively misleads a plaintiff with respect to her cause of action; (2) the
plaintiff has been prevented from asserting her claim as a result of other extraordinary
circumstances; or (3) the plaintiff asserts her claims in a timely manner but has done so
in the wrong forum. See Lake v. Arnold, 232 F.3d 360, 370 n. 9 (3d Cir.2000). The
remedy of equitable tolling is considered extraordinary and should be extended only
“sparingly.” Kach, supra, at 645 (citing Santos v. United States, 559 F.3d 189, 197 (3d
Cir. 2009)).
Here, Allen‟s averments as to his alleged medical incapacity, as presently stated,
are insufficient to warrant application of federal equitable tolling principles. By his own
account, Allen claims to have suffered a stroke sometime in November 2009, after
which he was hospitalized only for one week, months before the statute of limitations
expired on his malicious prosecution and destruction-of-evidence claims and months
before the complaint was filed. Thus, Allen‟s relatively brief hospitalization in 2009 did
not provide grounds to toll the period of limitations.
Allen further claims to have experienced a period of disabling depression
following his hospitalization which lasted at least a month, but this factual assertion,
even if credited, also fails to establish a basis for equitable tolling. Our Court of Appeals
has held that “mental incompetence is not per se a reason to toll the statute of
limitations in federal actions.” Lake v. Arnold, 232 F.3d 360, 371 (3d Cir. 2000)
(citingBarren v. United States, 839 F.2d 987 (3d Cir. 1988) (rejecting mental
incompetence as a reason to toll the statute of limitations in a Federal Tort Claims Act)).
In Lake, our court of appeals recognized a very limited situation in which a plaintiff‟s
11
mental disability could serve as a basis for equitable tolling; however, the facts of that
case are so readily distinguishable from our own as to make the court‟s ruling in Lake
totally inapplicable here.
Lake involved a situation where a mentally retarded woman and her husband
sued under §1983 for civil rights violations stemming from the woman‟s allegedly
nonconsensual sterilization, at the direction of her father and step-mother, when the
woman was sixteen years-old. After the trial court dismissed the federal claims on
statute-of-limitations grounds, the Third Circuit Court of Appeals remanded for further
factual development, finding that federal equitable tolling principles might apply in that
case. As the Court of Appeals has since explained, however, this limited holding was
premised upon three unique factors: (1) the plaintiff‟s mental disability “motivated, to
some degree, the injury that (s)he sought to remedy,” see Kach, 589 F.3d at 644
(quoting Lake, 232 F.3d at 371); (2) the plaintiff‟s suit was “predicated in no small part
by her membership in a protected class,” id.at 644-45 (citing Lake, supra, at 369-70);
and (3) a possibility existed that the plaintiff‟s guardians may have conspired to deprive
her of her constitutional and civil rights. Id. at 645 (citing Lake, supra, at 371-72). So
unique were these circumstances that the Third Circuit has referred to Lake as “sui
generis in its application of federal tolling.” Kach, 589 F.3d at 644.
None of the factors which supported equitable tolling in Lake exist here. Unlike
in Lake, where the plaintiff‟s mental retardation actually played a role in motivating the
violation of her rights (i.e., nonconsensual sterilization), Allen‟s alleged depression is
totally unrelated to his alleged claims of malicious prosecution and due process
violations. Further, any disability which Allen suffered as a result of being suicidal did
12
not serve as a predicate to this lawsuit; his claims are not being brought by him in his
capacity as a disabled person but as an individual who was allegedly wrongfully
arrested and prosecuted for a crime he did not commit. Finally, there is no allegation
that Allen‟s disability ever resulted in the appointment of a guardian, much less that his
guardian(s) conspired to deprive him of his rights.
Other federal cases support the conclusion that equitable tolling on the basis of
mental disability is reserved for extraordinary cases, such as situations where the
disabled individual has been adjudicated incompetent, has been institutionalized, or is ill
to the point that attorney-client relations are impaired. See, e.g., Lyons v. Potter, 521
F.3d 981, 983 (8th Cir.2008) (“Courts that have allowed equitable tolling based on
mental illness have done so only in exceptional circumstances, such as where the
complainant is institutionalized or adjudged mentally incompetent.”) (citations omitted);
Barrett v. Principi, 363 F.3d 1316, 1321 (Fed. Cir. 2004) (to obtain equitable tolling in
veterans‟ appeals cases, a veteran must show that the failure to file was the direct result
of a mental illness that rendered him incapable of “rational thought or deliberate
decision making,” … or “incapable of handling (his) own affairs or unable to function (in)
society”; a medical diagnosis alone or vague assertions of mental problems will not
suffice and, if veteran is represented by counsel during the relevant period, he must
make an additional showing that the mental illness impaired the attorney-client
relationship) (internal citations omitted); Miller v. Runyon, 77 F.3d 189, 191 (7th Cir.
1996) (noting the “traditional rule that mental illness tolls a statute of limitations only if
the illness in fact prevents the sufferer from managing his affairs and thus from
understanding his legal rights and acting upon them.”) (citing cases); Biester v. Midwest
13
Health Servs., 77 F.3d 1264, 1267-68 (10th Cir.1996) (no exceptional circumstances
existed to justify equitable tollingwhere there was no allegation that the plaintiff was ever
adjudged incompetent or institutionalized); Lopez v. Citibank, N.A., 808 F.2d 905, 907
(1st Cir.1987) (Breyer, J.) (“[W]e believe a federal court should assume that the mental
illness was not of a sort that makes it equitable to toll the statute --at least absent a
strong reason for believing the contrary.”) (citation omitted); Sullivan v. Doe, Civil Action
No. 07-2092, 2008 WL 4083176 at *7 (E.D. Pa. Aug. 28, 2008) (in evaluating whether
mental incompetence can serve as a basis for equitable tolling in the context of habeas
corpus cases, courts consider: (1) whether the petitioner was adjudicated incompetent
and, if so, when this occurred in relation to the limitations period, (2) whether the
petitioner was institutionalized for his mental impairment, (3) whether the petitioner
handled or assisted in other legal matters during the limitations period, and (4) whether
the petitioner has supported his allegations of impairment with extrinsic evidence; noting
it is “clear that „(b)ald and unsupported claims of incompetency are insufficient to
present a viable basis for equitable tolling.‟”) (citation omitted). C.f. Eubanks v. Clarke,
434 F. Supp. 1022 (E.D. Pa. 1977) (equitable tolling applied for mentally incompetent
plaintiff who had been involuntarily committed for the entire limitations period).
Here, Allen has not alleged facts which would warrant application of equitable
tolling principles based on his alleged medical or mental disability. This is particularly
true given the fact that Allen was represented by counsel at the time he commenced
this action – the same attorney, in fact, who represented him in his underlying criminal
proceedings. Although Allen has asked for more time in which to obtain the medical
records necessary to establish more precise averments regarding his mental disability,
14
he has already been given one opportunity to amend his complaint and he has had
more than sufficient time in which to obtain the necessary supporting documentation.
No reason has been stated as to why he could not have obtained the relevant mental
health care records prior to this point in time.
(ii)
Allen next argues that his claims should not be considered time-barred because
he served a timely “Notice of Intent to Sue” upon the named Defendants following his
acquittal in the criminal case. Since timely notice was given to the Defendants, Allen
reasons, they cannot claim to have been prejudiced by his delay in commencing this
action.
In support of this proposition, he cites Varlack v. SWC Caribbean, Inc., 550 F.2d
171, 175 (3d Cir. 1977); however, Allen‟s reliance on that case is misplaced. Varlack in
no way stands for the proposition that the timely service of a “Notice of Intent to Sue” –
which is a prerequisite for recovery under the Pennsylvania Political Subdivision Tort
Liability Act – is a legally sufficient alternative to the timely filing of a civil action for
statute-of-limitations purposes. Rather, Varlack addressed the issue of whether a
plaintiff‟s amendment to his complaint – i.e, by replacing a “John Doe” defendant with
the party‟s real name -- would relate back to the date on which the complaint was
originally filed, thereby rendering the amendment timely notwithstanding the fact that the
statute of limitations had expired prior to the date of the amendment. The court in
Varlack found that substituting the defendant‟s real name constitutes “changing a party”
within the meaning of Federal Rule of Civil Procedure 15(c) and, therefore, the
15
amendment would relate back to the filing date of the original complaint only if the
conditions of Rule 15(c) were met. 550 F.2d at 174. Those conditions require, among
other things, that “the party to be brought in by amendment: (i) received such notice of
the action that it will not be prejudiced in defending on the merits; and (ii) knew or
should have known that the action would have been brought against it, but for a mistake
concerning the proper party's identity.” Fed. R. Civ. P. 15(c)(1)(C). The district court
ruled that those conditions had been met and, on appeal, the Third Circuit found no
clear error in this ruling, as there had been evidence establishing that the defendant in
question had seen a “paper” (apparently a copy of the complaint) prior to the expiration
of the limitations period which had provided the requisite notice about the filing of the
lawsuit and the fact that he was intended to be a named defendant. Id. at pp. 174-75.
Clearly, a prerequisite to the application of Rule 15(c)(1)(C), as in Varlack, is the
timely filing of a complaint during the relevant limitations period – an event which did not
occur here. Allen has cited no authority (and we are aware of none) which establishes
that sending a party a Notice of Intent to Sue can somehow toll the applicable limitations
period under § 1983 or allow a belatedly filed § 1983 action to relate back to the time at
which the “notice” was served. Accordingly, this line of argument lacks merit.
(iii)
Allen also contends that equitable tolling should apply because the named
Defendants are alleged to have engaged in the destruction of evidence. More
specifically, Allen asserts that EMTA destroyed “material exculpatory evidence
contained in the videotaping system” (Amended Complaint ¶ 19) and that both the Erie
Police Department and the Office of the District Attorney were aware of EMTA‟s actions
16
but neither one took action to prevent it or advised him of it until time of trial. (Amended
Complaint at ¶¶ 20-21). Allen insists that, based on this alleged misconduct, the
Defendants should be viewed as having sought to mislead him, and the statute of
limitations should be equitably tolled. Again, the argument lacks merit.
Equitable tolling is appropriate “only when the „principles of equity would make
the rigid application of a limitation period unfair.‟” Jones v. Morton, 195 F.3d 153, 159
(3d Cir. 1999) (quoting Miller v. New Jersey State Dep’t of Corr., 145 F.3d 616, 618 (3d
Cir. 1998)). Such unfairness generally occurs “when the petition has „in some
extraordinary way … been prevented from asserting his or her rights.‟” Id. (quoting
Miller, supra, at 618) (ellipsis in the original). This includes situations where, for
example, the defendant has actively misled the plaintiff. See id. (quoting United States
v. Midgley, 142 F.3d 174, 179 (3d Cir. 1998)). Even then, the plaintiff must show that
he “exercised reasonable diligence in investigating and bringing [the] claims… Mere
excusable neglect is no sufficient.” Id. (quoting Miller, supra, at 618-19) (alteration and
ellipsis in the original) (internal quotations omitted).
Allen‟s allegations concerning the destruction of evidence fail to meet these
standards. First, there is no averment of him being “actively misled” by any Defendant
other than EMTA. The trial court in Allen‟s criminal case has already ruled that the
District Attorney‟s office did not have custody or control over the evidence in question
(see Ex. E to Def.‟s Mot. to Dismiss Amended Compl. [35-5]) and, moreover, there was
no affirmative legal duty on the part of the District Attorney‟s office or the Erie police to
advise Allen concerning the loss of such evidence.
17
More fundamentally, the alleged loss of evidence did not prevent Allen from
asserting his §1983 claims in a timely fashion. As we have observed, official court
records from Allen‟s criminal case show that his counsel was informed of the loss of the
videotaped footage as early as December 2007 (see Ex. C to Def.‟s Motion to Dismiss
Amended Compl. [35-3] at p. 7), yet Allen‟s federal cause of action based on malicious
prosecution did not even begin to accrue until months later, on May 15, 2008. The
alleged destruction of supposedly exculpatory evidence is, therefore, totally unrelated to
Allen‟s untimely assertion of his malicious prosecution claim.
To the extent Allen is now asserting a § 1983 claim premised on the theory that
his due process rights were violated as a result of the lost evidence, such a claim would
not accrue under Pennsylvania‟s “discovery rule” until Allen knew or should have known
of the factual basis for his claim. Because Allen‟s counsel was informed no later than
December 2007 that the footage had been lost, the due process claim could not have
accrued any later than that date, which is still of no benefit to Allen because he did not
commence this action until almost two and one-half years later. Again, the loss of the
videotape evidence played no role in hindering Allen‟s ability to timely vindicate his
rights since the lost evidence serves as the very basis for this claim.
As for Allen‟s federal claims premised upon false arrest and false imprisonment,
the availability of the lost video footage was not a prerequisite to asserting those claims,
and the absence of such evidence therefore did not make Allen any less aware of the
legal and factual bases for his false arrest/ false imprisonment claims. At most, the lost
footage merely made his false arrest and false imprisonment claims harder to prove. In
any event, Allen was aware as of December 2007 of the lost evidence, and the statute
18
of limitations relative to the false arrest/ false imprisonment claims expired no later than
July 6, 2009, which means that Allen had some eighteen months within which to file suit
relative to those claims, yet he failed to do so. Consequently, Allen cannot show that he
exercised the “reasonable diligence” in investigating and bringing his claims that is
required for equitable tolling. Jones, supra, at 159.
(iv)
Finally, Allen argues that we should defer ruling on the pending motions to
dismiss and allow him to proceed to discovery, as this would put himin a “better
position” to determine
whether the allegations contained in Paragraphs 22, 23, 24 and 25 [of the
amended complaint] establish[ ] a pretext on the part of EMTA and its
employees, Defendant Aura Torres, and Michael Will, a supervisor, to
have Plaintiff wrongfully terminated with EMTA in possible violation of Title
VII and 42 U.S.C. §1981(b) and §1983.
(Br. in Supp. of Pl.‟s Mot. to Amend [42] at p. 2.) In other words, Allen seems to be
arguing that we should overlook the belated filing of this lawsuit in order to provide him
an opportunity to discover whether he was possibly fired in violation of the federal
employment laws. We are unaware of any authority which would support extending the
applicable statute of limitations period on this basis, and we decline to do so here.
In sum, Allen‟s federal civil rights claims were clearly filed beyond the applicable
2-year statute of limitations periods, as is evident from his own averments, coupled with
our reference to the official court record from his criminal proceedings. Further, Allen
has not met his burden of pleading circumstances which would justify our application of
equitable tolling principles. See Kach, 589 F.3d at 645 (recognizing that the plaintiff has
the “burden of showing that this is one of those extraordinary cases warranting the
19
application of any federal equitable tolling provision”). Accordingly, Allen‟s averments,
as set forth in the Amended Complaint, are insufficient to survive the pending Rule
12(b)(6) motions.
B. Allen‟s State Law Claims
The Defendants have also moved to dismiss Allen‟s state law claims, arguing
that these claims are also barred by the applicable Pennsylvania statute-of-limitation as
well as the Pennsylvania Political Subdivision Tort Claims Act, 42 Pa. C.S.A §§ 8541 et
seq.. At issue are Allen‟s causes of action for false arrest (Count 2), malicious
prosecution (Count 3), false imprisonment (Count 4), intentional infliction of emotional
distress (Count 5) and punitive damages (Count 6).
Allen‟s state law claims for false arrest, false imprisonment, and malicious
prosecution are subject to a two-year statute of limitations period. See 42 Pa. C.S.A.
§5524; Acquilino v. Phil. Catholic Archdiocese, 884 A.2d 1269, 1275 (Pa. Super. 2005);
Ash v. Continental Ins. Co., 861 A.2d 979; M.R. Mikkilineni v. Amwest Surety Ins. Co.,
919 A.2d 306 (2007). The parties appear to dispute whether Allen‟s claim for intentional
infliction of emotional distress is subject to the 2-year statute of limitations applicable
generally to personal injury torts, see 42 Pa. C.S. §5524, Acquilino, supra, at 1275, or
the 6-month statute of limitations relative to claims arising out of willful misconduct by a
government official. See 42 Pa. C.S.A. §5522(b)(1); Stoppie v. Johns, 720 A.2d 808
(Pa. Commw. 1998). However, even assuming for the sake of argument that the 2-year
period applies, this claim is also time-barred.
20
Under Pennsylvania law, a statute of limitations period generally begins to run
when a cause of action accrues; i.e., “when an injury is inflicted and the corresponding
right to institute a suit for damages arises.” Gleason v. Borough of Moosic, 15 A.3d
479, 484 (Pa. 2011) (citing Wilson v. El–Daief, 964 A.2d 354, 361 (Pa. 2009)). “It is the
duty of the party asserting a cause of action to use all reasonable diligence to properly
inform him-or herself of the facts and circumstances upon which the right of recovery is
based and to institute suit within the prescribed period.” Id. (citing Hayward v. Medical
Center of Beaver County, 608 A.2d 1040, 1042 (Pa.1992)). “Generally, once the
prescribed statutory period has expired, the complaining party is barred from bringing
suit.” Id. (citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 608 A.2d
1040, 1043 (Pa.1992)).
“However, Pennsylvania recognizes the discovery rule, which may toll the statute
of limitations if a plaintiff is „unable, despite the exercise of reasonable diligence, to
discover the injury or its cause.‟” Kester v. Zimmer Holdings, 2010 WL 2696467, *15
(W.D. Pa.2010) (citing Mest v. Cabot Corp., 449 F.3d 502, 510 (3d. Cir.2006) (quoting
Pocono Intl' Raceway, Inc. v. Pocono Produce, 468 A.2d 468, 471(Pa.1983))). Under
the discovery rule, the statutory period “does not begin to run until „the plaintiff knows, or
reasonably should know, (1) that he has been injured and (2) that his injury has been
caused by another party's conduct.‟” Id. (citing Mest v. Cabot Corp., 449 F.3d 502, 510
(3d. Cir.2006) (quoting Debiec v. Cabot Corp., 352 F.3d 117, 129 (3d Cir.2003))). The
plaintiff “bears the burden of demonstrating that he exercised reasonable diligence in
determining the existence and cause of his injury.” Mest v. Cabot Corp., 449 F.3d 502,
511 (3d. Cir.2006) (citing Cochran v. GAF Corp., 666 A.2d 245, 249 (Pa.1995)).
21
Reasonable diligence does not refer to what the plaintiff actually knew about his injury,
but rather, “„what might he have known, by the use of the means of information within
his reach, with the vigilance the law requires of him?‟” Fine v. Checcio, 870 A.2d 850,
858 (Pa.2005) (citation omitted).
In this case, the discovery rule does not serve to toll the running of the statute of
limitations because Allen was aware of all the facts giving rise to his various claims for
false arrest, false imprisonment, malicious prosecution and intentional infliction of
emotional distress. “[T]he very essence of the discovery rule in Pennsylvania is that it
applies only to those situations where the nature of the injury itself is such that no
amount of vigilance will enable the plaintiff to detect an injury.” Wilson v. El–Daief, 600
Pa. 161, 964 A.2d 354, 357 (Pa.2009) (quoting Dalrymple v. Brown, 549 Pa. 217, 701
A.2d 164, 170 (Pa.1997)). Such is not the case here, where the factual bases for
Plaintiff‟s various tort claims were obvious to him, as evidenced by the fact that he
admittedly sent the Defendants a “Notice of Intent to Sue” immediately following his
acquittal. (Amended Compl. at ¶ 33.)
Moreover, the principles of equitable tolling, such as we have previously
discussed in connection with Allen‟s §1983 claims, are federal principles not applicable
to claims under Pennsylvania law. See Mosley v. Settles, 779 A.2d 1208 (Pa. Super.
Ct. 2001) (declining to recognize a “non-negligent circumstances” standard for
extending the limitations period for personal injury claims). It has been said that
Pennsylvania law recognizes equitable tolling where either (1) the discovery rule applies
or (2) the defendant is estopped from relying on the limitations period due to fraud or its
equivalent. Young v. Local 1201, Firemen & Oilers Union, Civil Action No. 07-3576,
22
2009 WL 3152119 at *8 (E.D. Pa. Sept. 25, 2009) (citing Wilson v. El Daief, 964 A.2d
354, 359 (Pa. 2009); Molineux v. Reed, 532 A.2d 792, 794 (Pa. 1987)). See also
Aivazoglou v. Drever Furnaces, 613 A.2d 595, 598 (Pa. Super. 1992) (“[A]bsent fraud or
its equivalent, judicial extensions of time are expressly prohibited by Section 5504 of the
Judicial Code.”) (citing Commonwealth v. Liptak, 573 A.2d 559 (Pa. Super. 1990)). For
the reasons we have previously discussed, neither basis applies here. Accordingly,
Allen‟s state law claims are time-barred and will be dismissed. As a result, his claim for
punitive damages must be dismissed as well.
IV.
CONCLUSION
Our Circuit Court of Appeals has instructed that, “if a complaint is vulnerable to
12(b)(6) dismissal, a district court must permit a curative amendment, unless an
amendment would be inequitable or futile.” Phillips v. County of Allegheny, 515 F.3d
224, 236 (3d Cir.2008)). Here, the only possible basis for further amendment pertains
to Allen‟s assertion that his claims should be equitably tolled due to his prior mental
disability. I find that further amendment along this line would be futile as to Allen‟s
§1983 claims premised upon false arrest and false imprisonment, since the alleged
period of disability arose after the applicable statute of limitations had already expired
and cannot toll those claims.8 Further amendment is also futile with respect to Allen‟s
state law claims, since Pennsylvania does not appear to recognize the doctrine of
equitable tolling in the context of an alleged mental disability.
8
The same would be true with respect to any claim premised upon an alleged due process violation due
to loss of liberty or reputation. The limitations period for such claims would likely have expired prior to
November 2009 when the alleged period of disability commenced.
23
With regard to Allen‟s §1983 due process claim premised upon the alleged
destruction of exculpatory evidence, further amendment would be futile because, in any
event, Allen cannot establish a due process violation given his judgment of acquittal.
See Morgan v. Gertz, 166 F.3d 1307, 1310 n. 1 (10th Cir. 1999) (“Regardless of any
misconduct by government agents before or during trial, a defendant who is acquitted
cannot be said to have been deprived of the right to a fair trial.”); Flores v. Satz, 137
F.3d 1275, 1278 (11th Cir. 1998) (plaintiff who was never convicted cannot claim “the
protections of Brady”); Leone v. Twp. of Deptford, 616 F. Supp. 2d 527, 535 (D.N.J.
2009) (“It is axiomatic that a finding in [a defendant‟s] favor demonstrates that he
received the process that he was due.”). See also Conditional Rules in Criminal
Procedure: Alice in Wonderland Meets the Constitution, 26 Ga. St. U. L. Rev. 417, 509
(2010) (noting that, in situations where the defendant is acquitted, “there is literally no
Brady violation about which to complain.”).
Finally, with regard to Allen‟s §1983 claim premised upon malicious prosecution,
further amendment would likely be futile considering Defendants‟ representation that
Allen signed a verification form on or around May 7, 2010 in connection with his original
complaint, suggesting that, within the latter part of the limitations period, he was aware
of his perceived legal rights and competent to the point of conducting his legal affairs
and working with his attorney. Even if further amendment would not be futile, however,
I find that it would be inequitable. Allen‟s original civil attorney in this matter is the same
attorney who represented him in his underlying criminal proceedings, and both parties
were aware or should have been aware of Allen‟s malicious prosecution claim as of May
15, 2008. Allen had ample time to assert that claim before his alleged period of
24
disability but did not do so. Moreover, this Court gave him an opportunity already to
amend his complaint so as to allege circumstances that might justify equitable tolling,
but his averments were insufficient in light of controlling legal principles. Although Allen
has asked for more time to secure mental health records in support of his disability
claim, no reason has been given as to why those records could not have been
previously obtained. Allen has not demonstrated diligence in prosecuting his various
civil claims, and further prolonging of this litigation would therefore be inequitable under
all the circumstances.
Based upon the foregoing reasons, the claims set forth in the Amended
Complaint will be dismissed with prejudice. An appropriate order follows.
25
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
AUGUSTUS ALLEN, III,
Plaintiff,
v.
ERIE METROPOLITAN TRANSIT
AUTHORITY, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
Case No. 1:10-cv-126-SJM
ORDER
AND NOW, to wit, this 30th Day of December, 2011, for the reasons set forth in
the accompanying Memorandum Opinion,
IT IS ORDERED that the Motion to Dismiss Amended Complaint filed on behalf
of Defendants Thomas Borrelli and the City of Erie [35], the Motion to Dismiss filed on
behalf of Defendants Erie Metropolitan Transit Authority, Aura Torres, and Michael Will
[37], and the Motion to Dismiss Amended Complaint filed on behalf of Defendants the
County of Erie and Bradley H. Foulk, deceased [39], shall be, and hereby are,
GRANTED, and the above-captioned civil action shall be, and hereby is, DISMISSED
with prejudice.
s/
Sean J. McLaughlin
Sean J. McLaughlin
United States District Judge
cm:
All counsel of record.
26
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