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October 4, 1994

DEAN C. CHRISTOS, et al., Defendants

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 October 4, 1994


 Plaintiff Marlin Haddock alleges in this section 1983 action *fn1" that three of the defendants maliciously and unjustifiably arrested and prosecuted him on narcotics charges in violation of his Fourth, Sixth, Eighth and Fourteenth Amendment rights. He further alleges that, while incarcerated, he was severely beaten by the two remaining defendants, state corrections officers, in violation of plaintiff's right to be free from cruel and unusual punishment under the Eighth Amendment as applied to the states through the Fourteen Amendment.

 State criminal charges were filed against plaintiff in Northumberland County, Pennsylvania on February 29, 1989. *fn2" Plaintiff was charged with possession with intent to deliver a controlled substance (meprobamate), delivery of a controlled substance (meprobamate), criminal conspiracy (Northumberland County Crim. No. C-52-89); and unlawful sale of a look-alike drug (ampicillin) and unlawful delivery of a look-alike drug (ampicillin) (Northumberland County Crim. No. C-53-89).

 Following his arrest, plaintiff was incarcerated in the Northumberland County Prison in Sunbury, Pennsylvania for approximately five days. Plaintiff posted bail and was released from custody on March 5, 1989.

 Following a jury trial which concluded on September 25, 1990, plaintiff was convicted of all charges. Post-verdict motions were denied by the Court of Common Pleas of Northumberland County on July 9, 1991. Plaintiff was sentenced on August 29, 1991 to an aggregate term of incarceration in a state correctional institution of 18 to 72 months. Plaintiff began serving his sentence at the State Correctional Institution at Camp Hill, Pennsylvania (SCI-Camp Hill).

 Plaintiff appealed his conviction to the Pennsylvania Superior Court. On July 8, 1992, the Superior Court reversed plaintiff's conviction and directed that he be granted a new trial. *fn3" A petition for allocatur filed with the Pennsylvania Supreme Court was denied. *fn4" Plaintiff was released on bail on July 16, 1992 pending re-trial. On July 19, 1993, the Commonwealth nol prossed all charges against him. All pending charges were dismissed with prejudice.

 Plaintiff subsequently filed this action 1993 challenging the constitutionality of his arrest and prosecution on state narcotics charges and alleging, further that he received a severe beating by corrections officers while incarcerated. Named as defendants are Dean C. Christos, an agent for the Pennsylvania Bureau of Narcotics Investigation; the Pennsylvania Department of Corrections; Richard Higgins, an agent of Coal Township, Pennsylvania; Coal Township; Sergeant Sutton and Officer Harmon, both of the Pennsylvania Department of Corrections. *fn5"

 Plaintiff's complaint contains two counts: Count I alleges a cause of action against defendants Christos, Higgins and Coal Township for the violation of plaintiff's civil rights in bringing about his arrest and unlawful conviction. Count II alleges a cause of action against the Pennsylvania Department of Corrections and defendants Sutton and Harmon for the violation of plaintiff's Eighth and Fourteenth Amendment rights against cruel and unusual punishment arising from the alleged beating plaintiff suffered while incarcerated at SCI-Camp Hill. *fn6"

 Plaintiff alleges that defendants brought about his arrest and prosecution by the use of false statements, the fabrication of evidence, knowing that probable cause for his arrest was lacking. He alleges that defendants knowingly acted with deliberate indifference to his rights. Plaintiff alleges that defendants used a confidential informant, Daryl Philbin, to fabricate evidence against him and to make false statements implicating him in criminal acts.

 Plaintiff also alleges that during his incarceration at SCI-Camp Hill, he was severely beaten by corrections officers Harmon and Sutton.

 Plaintiff seeks compensatory and punitive damages for defendants' conduct. He alleges that due to defendants' conduct he lost his restaurant business.

 Defendants Coal Township and Richard Higgins filed an answer to plaintiff's complaint on October 20, 1993. Defendants Christos, Sutton and Harmon answered the complaint on October 26, 1993.

 Defendants Christos, Higgins, and Coal Township move for partial judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). *fn7" Defendants seek judgment in their favor on Count I of plaintiff's complaint on the ground that plaintiff's claim for false arrest is time-barred and that plaintiff has failed to plead, and cannot plead, the elements necessary to establish a Fourth Amendment claim under section 1983. *fn8"

 For the reasons which follow, we will enter an order: 1) granting defendants' motion as to plaintiff's claim for false arrest; 2) denying defendants' motion as to plaintiff's Fourth Amendment claim asserted under section 1983; and 3) granting defendants' motion as to plaintiff's Eighth Amendment and equal protection claims asserted in Count I.


 Motion for judgment on the pleadings

 A motion for judgment on the pleadings pursuant to Rule 12(c), is governed by the same standard as a Rule 12(b)(6) motion. Westcott v. City of Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). In deciding defendant's motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, Inc., 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.


 Defendants Christos, Higgins and Coal Township move for judgment on the pleadings on plaintiff's false arrest claim asserted in Count I on the ground that plaintiff's claim is barred by Pennsylvania's two year statute of limitations. As defendants correctly point out, under the law of this circuit, a claim for false arrest accrues on the date of the arrest under the rationale that the plaintiff knew or had reason to know of the violation of his civil rights as of that date. Rose v. Bartle, 871 F.2d 331, 350-51 (3d Cir. 1989) and Deary v. Three Un-named Police Officers, 746 F.2d 185, 197 n. 16 (3d Cir. 1984).

 Although the state statute of limitations for tort actions determines the length of the limitations period, federal law governs the accrual date. Lafont-Rivera v. Soler-Zapata, 984 F.2d 1, 3 (1st Cir. 1993). Here, Pennsylvania's two year statute of limitations governs. Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985) and 42 Pa. Cons. Stat. Ann. ยง 5524.

 Plaintiff alleges that he was arrested on February 29, 1989. Defendants state, in their supporting brief, that this was impossible as a practical matter, since 1989 was not a leap year and ask that the court take judicial notice of the fact that plaintiff was arrested on February 27, 1989, not February 29, 1989, as averred.

 Whether we consider the date of the arrest to be the date alleged by plaintiff or the date recited by defendants is of no consequence. Whichever date is correct it is clear that plaintiff's cause of action accrued more than two years before this action was filed. His claim for false arrest is, therefore, time-barred and will be dismissed on that basis.


 Defendants' arguments

 Plaintiff asserts in Count I a Fourth Amendment claim under section 1983. Defendants seek to dismiss plaintiff's claim on the ground that he fails to plead, and cannot plead under the facts, the essential elements of that claim. In this circuit, proof that the underlying proceedings were brought without probable cause is an essential element of a plaintiff's claim. *fn9" See: Payson v. Ryan, 1992 U.S. Dist. LEXIS 6790, slip op. at 11) (E.D.Pa. May 14, 1992) (Van Antwerpen, J.)

 Defendants contend that plaintiff's conviction following a trial by jury "establishes as a matter of law that the moving defendants had probable cause to arrest and charge plaintiff with various criminal acts." (Record document no. 19 at p. 7.) They assert that the conviction "alone establishes the existence of probable cause" ...

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