Opinion
CIVIL ACTION NO. 03-CV-1435
December 22, 2003
MEMORANDUM AND ORDER
Plaintiff Jerome Alien Loach, Sr. ("Plaintiff) brings this § 1983 action, pro se, against Defendants Barbara Hafer, et al., ("Defendants"). Plaintiff alleges that Defendants violated his Constitutional rights by auctioning his personal property in October 1990 without first notifying him of the sale. Now before the Court is Defendants' Motion To Dismiss (docket no. 6). For the reasons set forth below, the Motion will be granted.
Also before the Court are Plaintiffs Motion for Preliminary Injunction (docket no. 2), Plaintiff's Motion to Dismiss Defendants' Response to Said Complaint (docket no. 9), and Defendants' Motion to Strike Plaintiff's Motion to Dismiss (docket no. 10). For the reasons stated herein, these motions will be denied.
FACTUAL BACKGROUND
Accepting all well-pleaded allegations of the Complaint as true, the relevant facts are as follows. On March 28, 1988, the Philadelphia police arrested Plaintiff and confiscated four items of jewelry worth $4370. Complaint at ¶¶ 6, 29. The Commonwealth attempted to introduce the jewelry in criminal proceedings against Plaintiff in the Court of Common Pleas, but the Judge suppressed the evidence and the charges against Plaintiff were dismissed. Complaint at ¶ 7. Plaintiff's jewelry was not returned to him, and on April 30, 1990, it escheated to the Commonwealth. Complaint at ¶ 8. Plaintiff was unaware of this, however, and on May 3, 1990 he formally petitioned for the return of his jewelry. Complaint at ¶ 9. Almost three years later, on April 19, 1993, the Court of Common Pleas ordered the Commonwealth to return Plaintiff's jewelry. Complaint at ¶¶ 10-11. However, the Philadelphia County authorities informed Plaintiff that the confiscated jewelry could not be returned because they had escheated. Complaint at ¶ 11.
On March 6, 2003, Plaintiff filed a Complaint and a Motion for Preliminary Injunction in this Court. Defendants filed a Motion to Dismiss on May 21, 2003.
Plaintiff moved to strike Defendants' Motion to Dismiss on the grounds that it was untimely. See docket no. 9. On April 21, 2003, this Court issued an Order requiring Defendants to respond to the Complaint within 20 days of their receipt of the Order. Defendants inform the Court that they received the April 21 Order on May 1, 2003. Docket no. 10 at ¶ 1. Accordingly, the Motion to Dismiss filed on May 21, 2003 was timely, and Plaintiffs motion to strike will be denied.
LEGAL STANDAND
When deciding a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6), the Court must "take the well-pleaded factual allegations in the complaint as true," construe those facts in the light most favorable to the non-moving party, and "ascertain whether they state a claim on which relief could be granted." Papasan v. Allain, 478 U.S. 265, 283 (1986). The Court may dismiss the Complaint only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." H.J. Inc. v. Northwestern Bell Tel. Co., 492 U.S. 229, 249-50 (1989) (quoting Hishon v. King Spalding, 467 U.S. 69, 73 (1984)). A complaint by a pro se plaintiff is examined under a less stringent standard than a complaint that has been authored by an attorney and will be dismissed only if it is "beyond doubt" that no set of facts could be proved to support the claim for relief. McDowell v. Delaware State Police, 88 F.3d 188, 189 (3d Cir. 1996) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)).Although the Federal Rules of Civil Procedure generally require that affirmative defenses, such as a limitations defense, be pleaded in an answer, the Third Circuit permits a limitations defense to be raised by motion under Rule 12(b)(6), but only "if `the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations.'" Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002) (quoting Hanna v. U.S. Veterans' Admin. Hospital, 514 F.2d 1092. 1094 (3d Cir. 1975): see also Oshiver v. Levin. Fishbein. Sedran Berman, 38 F.3d 1380, 1384 n.l (3d Cir. 1994). The bar must be apparent on the face of the Complaint. Id. (quoting Bethel v. Jendoco Construction Corp., 570 F.2d 1168, 1174 (3d Cir. 1978).
ANALYSIS
Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) because it is apparent on the face of the Complaint that Plaintiff's claim is time-barred. The statute of limitations for an action brought under § 1983 is the state's statute of limitations for personal injury.Wilson v. Garcia, 471 U.S. 261, 280 (1985); Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). In Pennsylvania, the statute of limitations for personal injury is two years. 42 Pa. Cons. Stat. Ann. § 5524; Sameric Corp. of Delaware, 142 F.3d at 599. The statute of limitations begins to run "when the plaintiff knew or should have known of the injury upon which [the] action is based,"Sameric Corp. of Delaware, 142 F.3d at 599. The key issue is "awareness of actual injury, not . . . awareness that this injury constitutes a legal wrong." Oshiver, 38 F.3d at 1386.
Plaintiff's actual injury occurred when the state failed to return his jewelry following the dismissal of the criminal charges against him. He began petitioning for the return of his jewelry in the Court of Common Pleas in May 1990. Complaint at ¶¶ 9, 40. It is beyond doubt that, at the very latest, he knew or should have known of his actual injury when the Philadelphia County authorities failed to comply with the court's 1993 order. Complaint at ¶¶ 10-11. Plaintiff failed to assert any claim in this Court until 2003. Thus, it is apparent on the face of the Complaint that the two-year statute of limitations had run prior to the date when the Complaint in this action was filed.
Tolling rules are borrowed from state law in § 1983 claims.Board of Regents of the University of the State of New York v. Tomanio, 446 U.S. 478, 484-86 (1980). Under the law of Pennsylvania, the filing of a state court action does not toll the statute of limitations against a federal claim. See Falsetti v. Local Union No. 2026. United Mine Workers of America, 355 F.2d 658, 661-62 (3d Cir. 1966): see also Frieman v. US Air Group. Inc., 1994 WL 719643 (E.D. Pa). See also Cancel v. Mazzuca, 2003 WL 1702011 (S.D.N.Y.) (statute of limitations for § 1983 claim filed in federal court was not tolled while Plaintiff pursued remedy in state court). Accordingly, the two-year statute of limitations was not tolled by Plaintiff's efforts to obtain redress in state court.
CONCLUSION
For the reasons stated above, Defendants' Motion to Dismiss will be granted, and Plaintiff's Motion for Preliminary Injunction will be denied. An appropriate Order follows.
A preliminary injunction should be granted "only if (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the injunction is in the public interest." Maldonado v. Houstoun, 157 F.3d 179 (3d Cir. 1998).
ORDER
AND NOW, this ___ day of December, 2003, upon consideration of Defendants' Motion to Dismiss (docket no. 6), Plaintiffs response thereto (docket no. 7), Plaintiff's Motion for Preliminary Injunction (docket no. 2), Plaintiffs Motion to Dismiss the Defendants' Response to Said Complaint (docket no. 9), and Defendants' response thereto (docket no. 10), it is ORDERED that Defendants' Motion To Dismiss (docket no. 6) is GRANTED for the reasons stated in the accompanying Memorandum, and the claims set forth in the Complaint are DISMISSED WITH PREJUDICE.It is FURTHER ORDERED that Plaintiffs Motion for Preliminary Injunction (docket no. 2) is DENIED.
It is FURTHER ORDERED that Plaintiffs Motion to Dismiss the Defendants' Response to Said Complaint (docket no. 9) is DENIED.
It is FURTHER ORDERED that Defendants' Motion to Strike Plaintiff's Motion to Dismiss Defendants' Response to Said Complaint (docket no. 10) is DENIED.