Civil Action No. 18-cv-0589 (W.D. Pa. Mar. 28, 2019)

Civil Action No. 18-cv-0589



United States District Judge Marilyn J. Horan REPORT AND RECOMMENDATION

I. Recommendation

Before the Court is the Borough of Monroeville's Motion to Dismiss Amended Complaint, with brief in support (ECF Nos. 31 and 32), Plaintiff's response in opposition (ECF No. 40), and the Borough of Monroeville's reply (ECF No. 42).

After careful consideration of the parties' submissions, in light of the standards governing motions to dismiss set forth by the United States Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662, 668 (2009), and as articulated in United States Court of Appeals Third Circuit precedent, see, e.g., Connelly v. Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016), and for the following reasons, it is respectfully recommended that the motion be granted.

II. Report

A. Factual and Procedural Background

For purposes of resolving the pending motion, the following facts are as alleged in the amended complaint, viewed in the light most favorable to Plaintiff, and liberally construed. Phillips v. County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008); Haines v. Kerner, 404 U.S. 519, 520-521 (1972). Pro se pleadings, however "inartfully pleaded" must be held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520-21 (1972). Because Plaintiff is a pro se litigant, this Court may consider facts and make inferences where it is appropriate.

Plaintiff's claims arise out of his arrest and an alleged deprivation of medical care which occurred on May 8, 2016, when Pitcairn Borough Police Officer John Doe #1 arrested Plaintiff around 1:00 a.m. The Pitcairn Police Officer and responding Monroeville Borough Police Officers found Plaintiff unconscious. The officers slapped and kicked him to wake him up. At the time of his arrest, Plaintiff had a gash on his head, was bleeding, and was dazed and confused. He asked to be taken to the hospital. The arresting officer, Officer John Doe #1, and a couple of the responding officers laughed and denied his request for medical attention.

The Monroeville Officers John Does #2-5 carried Plaintiff to John Doe #1's police cruiser. On the way to the cruiser, Plaintiff asked the Monroeville Officers to take him to the hospital. They told him it was up to the arresting officer, John Doe #1, to decide whether Plaintiff would go to the hospital. John Doe #1 and an unnamed officer he was training took Plaintiff to the Allegheny County Jail, where he again asked to see a doctor, but his request was denied. Plaintiff initiated this action on April 6, 2018, by the filing of a Motion for Leave to Proceed in forma pauperis, with an attached a civil rights complaint. The complaint remained lodged until May 17, 2018, when Plaintiff's motion was granted and the complaint filed. (ECF Nos. 3 and 4).

At the time Plaintiff initiated this lawsuit, he was an inmate at Allegheny County Jail and, therefore, enjoys the benefit of the prisoner mailbox rule. Both the application for in forma pauperis and the original complaint were signed by Plaintiff on April 6, 2018, and received by the Clerk's office on May 4, 2018. Although the complaint was not officially docketed by the Court until May 17, 2018, pursuant to the prisoner mailbox rule, Plaintiff's IFP application and the Complaint are considered filed as of April 6, 2018, the date Plaintiff signed both documents.

In the original complaint, brought under 42 U.S.C. § 1983 ("section 1983"), Plaintiff named only the Pitcairn Police Department and an unnamed "Officer" alleging that he was arrested without probable cause and transferred to the Allegheny County Jail despite obvious need for medical attention. The original complaint contained no allegations to suggest that the Monroeville Police were involved in Plaintiff's arrest or were present at the scene of his arrest.

In response to the motion to dismiss filed by Defendant Pitcairn Police Department, Plaintiff filed an Amended Complaint which was signed by Plaintiff on August 18, 2018, and received and filed by the Court on August 24, 2018. (ECF No. 21). In the Amended Complaint, Plaintiff named numerous new defendants including Monroeville Police Officer John Does #2-5, the Borough of Monroeville, the Monroeville Police Department, and the Monroeville Chief of Police, John Doe #7.

Again, applying the prisoner mailbox rule, the Amended Complaint is deemed filed on August 18, 2018, the date Plaintiff signed the document.

In the Amended Complaint, Plaintiff for the first time alleged that Monroeville Police Officers John Does #2 - 5 responded to the call which resulted in his arrest on May 8, 2016. And for the first time alleged that Monroeville Police Officers John Does #2-5 failed to properly respond to his request for medical attention and, instead, deferred to the arresting Pitcairn Borough Officers.

Defendant Borough of Monroeville has filed the instant motion contending that all claims against the Borough, and the Monroeville Police Department, Monroeville Police Officers John Does #2, #3, #4, and #5, and Monroeville Borough Chief of Police John Doe #7 (collectively referred to as "the Monroeville Borough Defendants") are barred by the applicable two year statute of limitations.

Under the Federal Rules of Civil Procedure, a statute of limitations defense must be raised in the answer, since Rule 12(b) does not permit such a defense to be raised by motion. Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002). However, as the appellate court in Robinson explained: "the law of this circuit (the so-called 'Third Circuit Rule') permits a limitations defense to be raised by a motion under Rule 12(b)(6), but only if the tine alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Id. at 135. In this case, the amended complaint was filed in August of 2018, alleging claims against the Monroeville Borough Defendants arising out of actions taken in May of 2016. Thus, on its face, the amended complaint raises the possibility that it was not timely filed.

B. Discussion

Claims brought under § 1983 are subject to the state statutes of limitations for personal injury actions, which in Pennsylvania, is two years. Owens v Okure, 488 U.S. 235, 249-50 (1989); Garvin v. City of Phila., 354 F.3d 215, 220 (3d Cir. 2003); 42 Pa. Cons. Stat. § 5524(7) (2018). "[T]he limitations period begins to run from the time when the plaintiff knows or has reason to know of the injury which is the basis of the section 1983 action." Genty v. Resolution Trust Corp., 937 F.2d 899, 919 (3d Cir. 1991); Romero v. The Allstate Corp., 404 F.3d 212, 221 (3d Cir. 2005). A plaintiff must commence an action prior to expiration of the limitations period. 42 Pa. Cons. Stat. § 5524 (2018).

In this case, the underlying events giving rise to Plaintiff's claims occurred with his arrest on May 8, 2016. However, Plaintiff did not file his Amended Complaint in which he added the Monroeville Borough Defendants until August 18, 2018, more than twenty-eight months after the incident, and three months after the statute of limitations had run. Accordingly, the statute of limitations bars Plaintiff's claims against the Monroeville Borough Defendants unless the Amended Complaint "relates back" to the initial Complaint under Rule 15(c) of the Federal Rules of Civil Procedure.

1. Relation Back Under Federal Rule of Civil Procedure 15(c) .

Rule 15(c) requires that three conditions be met for an amended complaint that seeks to add new defendants to relate back to the original complaint for statute of limitations purposes: (1) "the amendment asserts a claim or defense that rose out of the conduct, transaction, or occurrence set out - or attempted to be set out - in the original pleading," (2) "within the period provided by Rule 4(m) for serving the summons and complaint, the party to be brought in by amendment received such notice of the action that it will not be prejudiced in defending on the merits;" and (3) said party "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). The core of the relation back inquiry is "what the prospective defendant knew or should have known" after the initial pleading was filed." Krupski v. Costa Crocier S.p.A., 560 U.S. 538, 548 (2010) (emphasis in original).

There appears to be no dispute that the claims set forth in the Amended Complaint satisfy the first condition that Plaintiff is required to meet. That is, the claims to be asserted against the Monroeville Borough Defendants arose out of the same conduct, transaction, or occurrence set out in the original complaint. Therefore, the first requirement is satisfied. The second requirement has been interpreted by our appellate court as containing two prongs: notice and the absence of prejudice, each of which must be satisfied. Smith v. City of Philadelphia, 363 F. Supp.2d 795 (E.D. Pa. 2005) (citing Garvin, 354 F.3d at 222).

b. Notice and Prejudice

The notice prong of the second requirement demands that the parties to be added received, within 90 days of the filing of the original complaint, notice of the action. The notice required by Rule 15(c) can be actual or constructive. The United States Court of Appeals for the Third Circuit has recognized that there are two possible methods by which district courts could impute notice under Rule 15(c)(3). The first is the "shared attorney" method, which is based on the theory that when the originally named party and the parties sought to be added are represented by the same attorney, "the attorney is likely to have communicated to the latter party that he may very well be joined in the action." Garvin v. City of Philadelphia, 354 F.3d 215, 224 (3d Cir. 2003) (quoting Singletary v. Pennsylvania Dept. of Corrections, 266 F.3d 186, 196 (3d Cir. 2001)). The second method is the "identity of interest" method, and is related to the shared attorney method. "Identity of interest generally means that the parties are so closely related in their business operations or other activities that the institution of an action against one serves to provide notice of the litigation to the other." Singletary, 166 F.3d at 197.

In this case, neither method of imputing notice is applicable. The Monroeville Borough Defendants and the other defendants do not share an attorney and the Monroeville Borough Defendants and the other defendants are not "so closely related in their business operations or other activities that filing suit against one serves to provide notice to the other of the pending litigation." Garvin, 354 F.3d at 227. Thus, Plaintiff has failed to meet the notice prong of the second requirement of Rule 15(c).

Because the Court finds that Plaintiff has not met the notice requirement of Rule 15(c), there is no need for the Court to address prejudice. --------

c. Exceptions to the Statute of Limitations

Plaintiff cites various doctrines, such as his status as a pro se litigant, the discovery rule, the continuing wrong doctrine, and equitable tolling, that can toll the statute of limitations. Plaintiff bears the burden of demonstrating that these exceptions to the statute of limitations apply. Mest v. Cabot Corp., 49 F.3d 502, 511 (3d Cir. 2006). The Court finds that Plaintiff has failed to meet his burden.

Neither Plaintiff's status as a pro se litigant nor his reliance upon the advice of his "legal help" provide an exception for the application of the statute of limitations. The discovery rule does not apply as Plaintiff alleges he was aware he needed medical treatment at the time of his arrest and that his injuries were obvious such that the Monroeville Borough Defendants should have been aware of his need for medical treatment. The continuing wrong doctrine does not apply as the alleged actions of the Monroeville Borough Defendants were not part of a continuing practice, but rather the events alleged were distinct and occurred during an isolated incident. And finally, equitable tolling is not applicable as Plaintiff neither alleges that the Monroeville Borough Defendants misled him about his claim nor does he plead the existence of "extraordinary circumstances" that prevented him from pursing his claims.

III. Conclusion

For all the above reasons, it is respectfully recommended that the pending motion to dismiss be granted and the Monroeville Borough Defendants be dismissed with prejudice.

Any party is permitted to file Objections to this Report and Recommendation to the assigned United States District Judge. In accordance with 28 U.S.C. § 636(b), Fed.R.Civ.P. 6(d) and 72(b)(2), and LCvR 72.D.2, Plaintiff, because he is a non-electronically registered party, must file objections to this Report and Recommendation by April 16, 2019, and Defendants, because they are electronically registered parties, must file objections, if any, by April 11, 2019. The parties are cautioned that failure to file Objections within this timeframe "will waive the right to appeal." Brightwell v. Lehman, 637 F.3d 187, 193 n. 7 (3d Cir. 2011). Dated: March 28, 2019

s/Cynthia Reed Eddy

Cynthia Reed Eddy

Chief United States Magistrate Judge cc: ANTHONY CARTER


Allegheny County Jail

950 2nd Avenue

Pittsburgh, PA 15219

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All counsel of record

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