Opinion
No. 02-CV-5369
January 15, 2003
MEMORANDUM AND ORDER
Presently before the Court is a Partial Motion to Dismiss filed by the Defendants, the City of Philadelphia and the Superintendent of Prisons Thomas J. Costello (collectively, the "Defendants"), and the response of Linda J. Burnette ("Plaintiff") thereto. Pursuant to Federal Rule of Procedure 12(b)(6), Defendants petition this Court to dismiss allegations of 42 U.S.C. § 1983 ("Section 1983") equal protection violations as well as claims of Fourteenth and Fifth Amendment due process violations contained in Claims III and IV of Plaintiff's Complaint. Plaintiff agrees with Defendants that her due process claims under the Fourteenth and Fifth Amendments are not viable and has summarily withdrawn these claims. Thus, as a preliminary matter, we acknowledge Plaintiff's withdrawal of these claims and grant Defendants' motion to dismiss as to these violations. Accordingly, our opinion focuses only on whether Plaintiff's remaining Section 1983 equal protection claim is time-barred. For the following reasons, we reject Plaintiff's claim that the continuing violation doctrine applies and GRANT Defendants' Partial Motion to Dismiss.
We note that Defendants do not challenge Plaintiff's allegations of sex discrimination pursuant to 42 U.S.C. § 2000e-2 (a)(1) and § 2000e-2(a)(2) contained in Counts I and II, and Plaintiff's state law discrimination claim under 43 Pa. C.S.A. § 955. Therefore, these claims are unaffected by the instant Partial Motion to Dismiss and remain intact before this Court.
I. BACKGROUND
In January 1984, Plaintiff was hired by the Philadelphia Prison Systems ("PPS"). After receiving a promotion to the rank of Lieutenant of Correctional Officers in January 1999, Plaintiff was assigned to supervise a search of the Pod B-2 living quarters at the Curran Fromhold Correctional Facility in Philadelphia, Pennsylvania. During the search, which occurred on or about March 11, 1999, several correctional officers under Plaintiff's supervision savagely beat an inmate housed in Pod B-2. As a result, Plaintiff was charged with failing to adequately supervise the correctional officers who injured the inmate and subsequently received a 30-day suspension. After appealing to the Civil Service Commission in June 1999, Plaintiff's suspension was vacated.
On January 18, 2000, officers from the Philadelphia Police Department conducted a search of Plaintiff's home seeking to locate a family member whom police suspected was there. During the course of the search, police found remnants of a marijuana cigarette in Plaintiff's home and subsequently reported their findings to Defendants. The next day, PPS ordered Plaintiff to submit to an urinalysis evaluation, which yielded a positive reading for narcotics. On February 9, 2000, Plaintiff was suspended for 20 days as a result of the urinalysis evaluation. On February 28, 2000, Plaintiff was demoted from her supervisory position to the rank of Correctional Officer and suspended for an additional 10 days. Plaintiff appealed the suspension and demotion to the Civil Service Commission, which determined that PPS' actions were justified.
On July 13, 2000, Plaintiff filed charges of sex discrimination with the District Office of the Equal Employment Opportunity Commission ("EEOC"). On May 3, 2002, the EEOC issued a Notice of Right to Sue letter. Plaintiff filed a claim in this Court on July 25, 2002, alleging that the suspensions in 1999 and 2000 and her demotion in 2000 are representative of Defendants' pattern and practice of treating male correctional officers who test positive for narcotics more favorable than similarly situated female correctional officers in violation of, inter alia, the Equal Protection Clause of the Fourteenth Amendment under Section 1983.
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12 provides that a party may move to dismiss for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6) When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept the non-movant's well-plead averments of fact as true and view all inferences in the light most favorable to the non-moving party. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985); Society Hill Civic Assoc. v. Harris, 632 F.2d 1045, 1054 (3d Cir. 1980); Abbdulaziz v. City of Philadelphia, Civ. A. No. 00-5672, 2001 U.S. Dist. LEXIS 16972, at *4 (E.D. Pa. Oct. 18, 2001). A motion to dismiss is appropriate only when the movant establishes that he is entitled to judgment as a matter of law and there exists "no set of facts in support of his claims which would entitle him to relief." Ford v. Schering-Plough Corp., 145 F.3d 601, 604 (3d Cir. 1998); Schrob v. Catterson, 948 F.2d 1402, 1405 (3d Cir. 1991). In reviewing a motion to dismiss, the court must only consider the facts alleged in the pleadings and attachments thereto. Jordan v. Fox, Rothschild, O'Brien Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994); Douris v. Schweiker, Civ. A. No. 02-1749, 2002 U.S. Dist. LEXIS 21029, at *6 (E.D. Pa. Oct. 23, 2002)
III. DISCUSSION
The remaining issue for this Court to resolve focuses on whether Plaintiff's Section 1983 equal protection claim is time-barred or whether, as Plaintiff suggests, the alleged injuries qualify as continuing violations. In Section 1983 actions, federal courts apply the state statute of limitations for personal injury claims, which, in Pennsylvania, is two years. See Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998); Williams v. Pennsylvania State Police, 108 F. Supp.2d 460, 469 (E.D. Pa. 2000) Accordingly, since Plaintiff filed her Complaint on July 22, 2002, the wrongful conduct alleged must have occurred within two years prior to the filing. However, as Defendants accurately point out, Plaintiff complains of conduct arising in February and March of 2000, incidents which fall outside of the two-year statute of limitations. In response, Plaintiff alleges that Defendants engaged in a continual practice of favoring male correctional officers over female officers and, thus, Plaintiff's action is not time-barred under the continuing violation doctrine.
Section 1983 provides:
Every 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, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.42 U.S.C. § 1983.
Although the continuing violation doctrine typically arises in employment discrimination claims, the Third Circuit has applied the doctrine to Section 1983 claims as well. See Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir. 2001); Centifanti v. Nix, 865 F.2d 1422, 1432-33 (3d Cir. 1989) "Under the continuing violation doctrine, if Defendant engages in a continuing course of prohibited conduct and [Plaintiff's] action is timely as to any act comprising that course of conduct, he will be allowed to litigate statutory violations with in the limitations period and all preceding violations that are part of that course of conduct." DiBartolo v. City of Philadelphia, Civ. A. No. 99-CV-1734, 2000 U.S. Dist. LEXIS 1776, at *1344 (E.D. Pa. Feb. 14, 2000); see also Cowell, 263 F.3d at 292 ("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") Thus, under the continuing violation theory, the statute of limitations runs from the date of the last alleged violation rather than the first.See Cowell, 293 F.3d at 292; Miller v. Beneficial Management Corp., 977 F.2d 834, 842 (3d Cir. 1992); Lipschultz v. Logan Assistance Corp., Nos. 01-1564 01-1565, 2002 U.S. App. LEXIS 23411, at *6 (3d Cir. 2002)
Since Plaintiff has not identified an alleged violation occurring within the two-year statute of limitations, we must grant Defendants' motion, as the continuing violation doctrine does not preserve Plaintiff's time-barred Section 1983 equal protection claim. The last occurrence of discrimination Plaintiff cites in support of her Section 1983 claim is her demotion and suspension on February 9, 2000. The continuing violation doctrine applies only when at least one of Defendants' affirmative acts fall within the two-year statute of limitations. See West v. Philadelphia Electric Co., 45 F.3d 744, 754 (3d Cir. 1995) (holding that at least one act must fall within two year statute of limitations under continuing violation theory); Embry v. Fleckenstein, Civ. A. No. 95-5897, 1996 U.S. Dist. LEXIS 17157, at *22 (E.D. Pa. Nov. 14, 1996) (concluding plaintiff must point to some act that occurred within filing period) Since Plaintiff did not file her Complaint with this Court until July 22, 2002, she exceeds the two-year statute of limitations even under the continuing violation theory. Accordingly, we must GRANT Defendants' Partial Motion to Dismiss.