APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Adams and Rosenn, Circuit Judges, and Sheridan, District Judge.
SHERIDAN, District Judge.
Appellant, Dorothy Ammlung, the administratrix of her son's estate, brought this suit in the district court against appellees under 42 U.S.C.A. §§ 1983, 1985 and 1988, seeking damages and injunctive relief from various alleged unconstitutional actions. The case arises out of the incidents and circumstances surrounding the death on January 24, 1970, of Russell Ammlung, appellant's son. The facts, as set forth in the complaint, are as follows. Rusty, the decedent, age eighteen, attended a dance in the gymnasium of St. James High School in Chester, Pennsylvania, on the evening of January 23, 1970. Upon arrival at the dance Rusty checked his coat at the door. Pursuant to dance rules he removed his shoes in order to preserve the gymnasium floor. While attending the dance, at approximately 10:30 P.M., Rusty became ill and attempted to secure his coat from the cloakroom. Unable to locate his coat, he sat on the steps adjacent to the cloakroom. While sitting there, Rusty was confronted by defendant Platt, a Chester police officer on extra-duty. He had been summoned by a dance chaperone who had seen Rusty leave the gymnasium and proceed down the hall. Platt asked Rusty where his shoes were. Because of his illness, Rusty was unable to respond to the question. Whereupon, Platt, observing that Rusty was in an uncomprehending state and unable to communicate, arrested him without a warrant and charged him with "underage drinking," allegedly on the basis that he had the odor of alcohol on his breath. Platt summoned defendants Friel and Brown, two Chester police officers, who took Rusty into custody, removed him from the school without his coat and shoes, placed him in a police car, and drove him to the city jail.
Upon arrival at the Chester jail, Rusty was placed on the floor of a cell where he lay in a semiconscious state. The officers did not seek medical assistance for him, nor did they call his parents or attempt to advise him of his rights. Upon arrival for duty at the Chester jail, defendants Morgan and Dixon, also Chester police officers, observed Rusty in his cell and turned him over on his side, thus becoming aware of his condition. Throughout the night Rusty remained on the floor of the cell in a chilled state and without adequate clothing. Later that night, Officers Dixon and Morgan and Magistrate Lawrence, another defendant, poured water over Rusty in an unsuccessful attempt to revive him for arraignment. It is alleged that at this point Captain Welc of the Chester police department, another defendant, became aware of Rusty's condition.
At approximately 10:00 A.M. the following morning, a rattle was heard in Rusty's throat and the rescue squad was summoned to transport him to the Chester Crozier Medical Center. He was pronounced dead on arrival. An autopsy revealed that the cause of death was the aspiration of his own vomit and that there was no alcohol in his blood.
As a result of her son's death, appellant filed two suits in the Court of Common Pleas of Delaware County. The first suit, a wrongful death and survival action, was filed against the City of Chester, Magistrate Lawrence, Captain Welc, Sergeant Morgan and Officers Dixon, Platt, Friel and Brown. After the court sustained defendants' preliminary objections on state immunity grounds, appellant filed an amended complaint. The court sustained preliminary objections to the amended complaint. On appeal the Pennsylvania Superior Court, holding that persons having custody by law of an incapacitated prisoner are not immune as employees of the state from liability for his death caused by their wanton conduct, reversed and remanded the case for trial. Ammlung v. City of Chester, 1973, 224 Pa. Super. 47, 302 A.2d 491.
A second state wrongful death and survival action was filed by appellant against the Mayor of Chester and the Chief of Police. After sustaining defendants' preliminary objections on state immunity grounds and granting appellant leave to file an amended complaint, the court dismissed appellant's action when she failed to amend. No appeal was taken from this dismissal. In both state suits, defendants' liability was predicated on state law sounding in tort.
On May 2, 1972, appellant filed this federal civil rights action alleging the following violations of Rusty's civil rights: illegal arrest, false imprisonment, illegal search and seizure, assault and battery, criminal negligence, cruel and unusual punishment, and due process violations arising from the failure to advise decedent of his constitutional rights. In addition, appellant asserted her state wrongful death and survival actions as pendent claims.
Defendants filed a motion to dismiss the complaint for failure to state a cause of action, citing immunity under the Civil Rights Act, the statute of limitations, and res judicata. The district court granted defendants' motion to dismiss on the ground that the action was barred by the statute of limitations.*fn1 Appellant appeals from this dismissal. We affirm.
Since there is no federal statute of limitations with respect to civil rights actions arising under 42 U.S.C.A. § 1983, the court below properly held that the Pennsylvania statute of limitations for analogous actions should be applied. O'Sullivan v. Felix, 1914, 233 U.S. 318, 58 L. Ed. 980, 34 S. Ct. 596; Hileman v. Knable, 3 Cir. 1968, 391 F.2d 596; Henig v. Odorioso, 3 Cir. 1967, 385 F.2d 491, cert. denied, 390 U.S. 1016, rehearing denied 1968, 391 U.S. 929; Hughes v. Smith, D.N.J. 1967, 264 F. Supp. 767, aff'd 3 Cir. 1968, 389 F.2d 42. The limitation period to be applied is that which the state would apply if the action had been brought in a court of that state. Funk v. Cable, M.D. Pa. 1966, 25l F. Supp. 598, 599. There being no Pennsylvania statute of limitations of general applicability to actions involving invasions of constitutional rights, the applicable statute of limitations must be determined from the nature of the conduct alleged. Conard v. Stitzel, E.D. Pa. 1963, 225 F. Supp. 244, 247. Accordingly, the district court properly held that the relevant state statutes of limitations are as follows: Wrongful Death, limitation of one year after death, 12 P.S. § 1603; False Arrest, one-year limitation period, 12 P.S. § 51; and Trespass Action, two-year limitation period, 12 P.S. § 31. All of the incidents of which appellant complains occurred on January 23, 1970, and the present civil rights action was not filed until May 2, 1972, which is beyond the limits prescribed by both the one-year and two-year statutes.
Appellant contends, however, that in an action to recover damages for personal injury or death arising out of a conspiracy, Pennsylvania would apply a six-year statute of limitations, and therefore the six-year limitation period is applicable to this civil rights action. Appellees contend that the nature of the tortious conduct underlying the conspiracy determines which statute of limitations is applicable. We hold that appellant's complaint does not plead conspiracy. Indeed, appellant raised her conspiracy argument for the first time on appeal. It is too late in the judicial process for appellant to attempt to recast either the facts or the underlying basis of her complaint. A civil conspiracy is a combination of two or more persons to do an unlawful or criminal act or to do a lawful act by unlawful means or for an unlawful purpose. Landau v. Western Pennsylvania National Bank, 1971, 445 Pa. 217, 224, 282 A.2d 335. Examining appellant's complaint in light of this definition, it becomes readily apparent that there was no intelligible attempt to plead conspiracy. There are no allegations of a combination, agreement, or understanding among all or between any of the defendants. There are no factual allegations that the defendants plotted, planned, or conspired together to carry out the alleged chain of events which led to Rusty's death. The complaint does not sound in conspiracy. Moreover, even if the plaintiff had pleaded conspiracy, this action would still be barred by the statute of limitations. The Pennsylvania statute of limitations pertaining to the substantive offense most closely related to that which the defendants were alleged to have conspired to commit would govern. Auld v. Mobay Chemical Co., W.D. Pa. 1969, 300 F. Supp. 138; Gaito v. Strauss, W.D. Pa. 1966, 249 F. Supp. 923, aff'd 3 Cir. 1966, 368 F.2d 787; see Jones v. Bombeck, 3 Cir. 1967, 375 F.2d 737. Under Pennsylvania law, the statute of limitations with respect to a conspiracy begins to run from each overt act causing damage. Auld v. Mobay Chemical Co., supra. Since all the acts complained of by appellant occurred more than two years before the filing of this civil rights action, the relevant one-year and two-year state limitation provisions which apply to the substantive offenses would still bar this action even if conspiracy had been pleaded. We therefore hold that the district court applied the proper statutes of limitations.
There remains the issue of whether the pendency of the prior state actions tolled the statutes of limitations. State law governs the question whether an applicable state statute of limitations is tolled in an action brought under the federal Civil Rights Act, 42 U.S.C.A. § 1983. Duncan v. Nelson, 7 Cir. 1972, 466 F.2d 939; Jones v. Bombeck, 3 Cir. 1967, 375 F.2d 737; Hughes v. Smith, D.N.J. 1967, 264 F. Supp. 767, aff'd, 3 Cir. 1967, 389 F.2d 42. Burnett v. New York Central Railroad Co., 1965, 380 U.S. 424, 13 L. Ed. 2d 941, 85 S. Ct. 1050, relied on by appellant, is not authority for the proposition that the federal courts have a duty to fashion a federal tolling rule in civil rights actions arising under Section 1983. In Burnett, the Supreme Court held that a timely action under the Federal Employers' Liability Act in a state court, even though venue was improper, tolled the statute of limitations contained in that federal act. Unlike Burnett, the instant case is one in which state limitation ...