The opinion of the court was delivered by: LUONGO
On February 6, 1975, William Getz, pro se plaintiff, filed this action against Gary Bruch, a police officer with the Easton, Pennsylvania, Police Department, charging that the defendant, acting under color of law, violated his civil rights under 42 U.S.C. §§ 1983 and 1985 and the Fourteenth Amendment. He seeks an award of damages.
Defendant has filed a motion to dismiss under Rule 12(b), F.R.C.P., on the grounds that the claim is barred by the statute of limitations. Since this is a pro se claim, it must be viewed liberally, Haines v. Kerner, 404 U.S. 519, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972), and a motion to dismiss may not be granted unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief," Conley v. Gibson, 355 U.S. 41, 45-6, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The motion to dismiss must nevertheless be granted.
There is no federal statute of limitations applicable to the Civil Rights Act, therefore the courts must apply the limitation "which the state where federal court is sitting would apply if the action had been brought in a court of that state," to redress the wrongs arising from the complained of conduct. Polite v. Diehl, 507 F.2d 119, 122 (3d Cir. 1974); Henig v. Odorioso, 385 F.2d 491 (3d Cir. 1967), cert. denied, 390 U.S. 1016, 88 S. Ct. 1269, 20 L. Ed. 2d 166 (1968), reh. denied, 391 U.S. 929, 88 S. Ct. 1814, 20 L. Ed. 2d 671 (1968). In this case the conduct alleged is assault and battery (police brutality), false arrest, and false imprisonment. Under Pennsylvania law, the statute of limitations applicable to all actions for personal injury (including false imprisonment) is two years, 12 P.S. § 34,
Polite v. Diehl, supra, at 123, but where an allegedly false arrest precedes a false imprisonment, the statute of limitations for both is one year, 12 P.S. § 51,
Henig v. Odorioso, supra, at 493, n. 5.
All of the illegal conduct alleged by Getz took place in November 1972. The complaint was not filed until February 1975 and the action therefore would be barred under the one-year limitation period of 12 P.S. § 51 for the false arrest and false imprisonment charges, and under the two year limitation of 12 P.S. § 34 for the assault and battery charges, unless those periods are tolled or are inapplicable for any reason.
1. Policy Underlying Civil Rights Acts as Requiring Tolling
Although the failure of Congress to enact a general federal statute of limitations reflects an intent to have state limitations periods apply, Conard v. Stitzel, 225 F. Supp. 244, 246 (E.D. Pa. 1963), the federal courts may nevertheless fashion their own limitations periods whenever a state statute of limitations threatens a federal program's need for uniformity, United Auto Workers v. Hoosier-Cardinal Corp., 383 U.S. 696, 86 S. Ct. 1107, 16 L. Ed. 2d 192 (1966); Atkins v. Schmutz Mfg. Co., 435 F.2d 527 (4th Cir. 1970), or discriminates against or overly burdens a federal cause of action, Van Horn v. Lukhard, 392 F. Supp. 384, 391 (E.D. Va. 1975).
This case presents no special circumstances which would require by-passing the state statute of limitations. The Civil Rights Acts are not a "closely interwoven statutory scheme" needing the uniformity of a federal statute of limitations. Conard v. Stitzel, supra, at 249. Title 12 P.S. §§ 34 and 51 do not discriminate against the assertion of federal rights, since they apply equally to state and federal causes of action, and the policy underlying the Civil Rights Acts is not overly burdened by allowing the statute of limitations to run while a potential plaintiff is in custody. As this Circuit stated in a similar case, Jones v. Bombeck, 375 F.2d 737, 739 (3d Cir. 1967), "We can discern no reason why the statute [of limitations] should be tolled because the appellant was incarcerated."
2. Tolling of Statute Until Discovery of the Injury
Getz' second argument is that part of his cause of action is based upon the illegality of his arrest, and he was not aware of that illegality until it was judicially declared in June or July 1975 when the assault and battery charges against him were dismissed because of the invalid arrest. He contends, therefore, that the statute of limitations should not begin to run until the date of his discovery that his rights had been violated, i.e. until the date of his discovery of the "legal injury." In support of that argument, Getz cites Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965); Moviecolor Ltd. v. Eastman Kodak Co., 288 F.2d 80 (2d Cir. 1961); Ayers v. Morgan, 397 Pa. 282, 154 A.2d 788 (1959), Smith v. Bell Tele. Co. of Pennsylvania, 397 Pa. 134, 153 A.2d 477 (1959). Those cases are clearly distinguishable. In each instance, by some action on the part of the alleged wrongdoer, the operative facts giving rise to the cause of action had been concealed from the innocent victim. In the instant case, on the other hand, all of the operative facts, i.e. Bruch's actions in arresting and beating Getz, and Getz' innocence, were known to Getz. He was aware of all of the operative facts of his injury; he was only unaware that as a result of those operative facts he had a "legal cause of action." The rule in Pennsylvania in that regard is stated in McEnery v. Metropolitan Life Ins. Co., 50 D&C 395, 399 (1944) "The mere fact that a plaintiff does not know that he has a cause of action and ...