The opinion of the court was delivered by: WEBER
This is a civil rights action brought by a state prisoner against his privately retained attorneys, two assistant district attorneys and the University of Pittsburgh.
The plaintiff was arrested in October of 1973 by three University of Pittsburgh campus police officers and taken to a local police station. There he was charged with kidnapping, involuntary deviate sexual intercourse, aggravated assault and criminal attempt. At the time of his arrest, which occurred shortly after the commission of the crime, the clothes worn by the plaintiff did not match those described by the victim as belonging to her assailant. Thus the plaintiff's clothing constituted exculpatory evidence; evidence which challenged the victim's identification of the plaintiff.
While the plaintiff was in police custody the clothing he was wearing at the time of arrest was seized and locked in an evidence locker. On the morning of the plaintiff's trial these clothes were removed from the locker by one of the campus police officers. The clothes were never returned to the court, nor were they presented into evidence at the plaintiff's trial. On May 9, 1974 the plaintiff was tried and convicted in the Court of Common Pleas of Allegheny County.
On April 12, 1978 the plaintiff filed a pro se complaint in this court.
In his complaint the plaintiff alleged that his attorneys, the assistant district attorneys and the University of Pittsburgh campus police conspired to violate his civil rights by removing his clothing from the evidence locker and suppressing this exculpatory material.
The case was initially assigned to the United States Magistrate, who recommended that the complaint against the assistant district attorneys be dismissed because they were immune from suit. The magistrate also recommended dismissal of the complaint against the private attorneys and the University police, on the grounds that the state action requirement of 42 U.S.C. § 1983 was not met. This court dismissed the complaint as to all defendants and the plaintiff appealed.
On appeal it was held that this dismissal was improper with respect to the assistant district attorneys and the University of Pittsburgh campus police. Accordingly those dismissals were reversed and the case was remanded to this court for further proceedings. See Henderson v. Fisher, 631 F.2d 1115 (3d Cir. 1980).
Presently there are pending in this court several motions to dismiss the plaintiff's complaint.
In these motions the defendants argue, inter alia, that the plaintiff's complaint is untimely and is barred by the statute of limitations. We feel that the defendants' contentions on this issue are well taken. Accordingly we grant these motions to dismiss.
In his complaint the plaintiff claims civil rights violations arising out of his arrest, trial, conviction and imprisonment. The substantive acts complained of are, therefore, clearly analogous to state actions for malicious prosecution, false arrest and false imprisonment. Under Pennsylvania law these actions are governed by a two year statute of limitations. See 42 Pa.C.S.A. § 5524(1) ("The following actions and proceedings must be commenced within two years; (1) An action for assault, battery, false imprisonment, false arrest, malicious prosecution or malicious abuse of process.")
In this case the plaintiff was convicted in the Court of Common Pleas in May of 1974. He did not file this action until April of 1978, almost four years later. Therefore, applying the appropriate Pennsylvania statute of limitations, we conclude that this action was not timely filed and falls under the bar of the statute.
In its response to these motions the plaintiff seeks to escape the bar of the statute of limitations by arguing that a six year statute should be applied in this case. In support of this position the plaintiff argues that his complaint essentially alleges a civil conspiracy to violate his rights. In such a case, the plaintiff contends that the six year Pennsylvania statute would apply. See 42 Pa.C.S.A. § 5527. See also, Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978); Meyers v. Pennypack Woods Home Owners Ass'n., 559 F.2d 894 (3d Cir. 1977); Wilson v. Sharon Steel Corp., 549 F.2d 276, (3d Cir. 1977); Wetzel v. Liberty Mutual Insurance Co., 451 F. Supp. 967 (W.D.Pa.1977).
We are unpersuaded by the plaintiff's argument. At the outset we note that those cases relied upon by the plaintiff involved conduct which was markedly different in kind from that presented in the instant case.
Therefore, these cases in no way control the disposition of the motions pending before us.
Rather we believe that Ammlung v. City of Chester, 494 F.2d 811 (3d Cir. 1974) is entirely dispositive of the contentions raised by the plaintiff in its response to these motions to dismiss. In Ammlung the plaintiff was suing on behalf of her son, who had died while being illegally held by the Chester police. In her complaint the plaintiff alleged the following violations of her son's civil rights: illegal arrest, false imprisonment, illegal search and seizure, assault and battery, criminal negligence, cruel and unusual punishment, and violations of due process. The district court granted the defendants' motions to dismiss on the ground that the action was barred by Pennsylvania's one and two year statutes of limitations and the plaintiff appealed.
On appeal, however, the court affirmed this dismissal, holding that the district court had applied the proper statutes of limitations. The court also specifically addressed and rejected the contention ...