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March 21, 1995


The opinion of the court was delivered by: DANIEL H. HUYETT, 3RD



 The City of Allentown ("Defendant" or "City") has moved to dismiss this action pursuant to Fed. R. Civ. P. 12(b). For the reasons discussed below, the Court will grant Defendant's motion and dismiss Plaintiff's complaint in its entirety.


 Sandra Young ("Plaintiff"), proceeding pro se, began this action by filing a complaint on May 17, 1993, naming the Police Department of the City of Allentown, PA. as Defendant. *fn1" Ms. Young's one page complaint, together with a one page document entitled "Amendment," alleged the Allentown Police illegally searched her car, thereby damaging it, and, from April 15 to May 31, 1991, harassed her "everytime [sic] [she] was in [her] car," causing her to "junk" the vehicle. The Court granted Ms. Young leave to proceed in forma pauperis on June 18, 1993, but dismissed her initial complaint without prejudice on July 20. Dismissal was required because the Allentown Police Department does not exist as an entity separate from the City of Allentown and, therefore, was not a proper defendant. The City filed a motion to quash service or dismiss on July 26, 1993 which was withdrawn as moot.

 In the Order dismissing the complaint, the Court allowed Young twenty days in which to file a new complaint and instructed "should Plaintiff choose to file a new complaint, she should name the city of Allentown as Defendant and state with more specificity when and where the events took place, what happened, and the identity of the officers involved."

 Young filed a document with the district court entitled "Appeal" on July 28, 1993, which recounted her difficulties in finding counsel willing to represent her but which had no relevance to the action at that time. On August 8, 1993, Young filed papers attempting to state civil rights claims on behalf of her husband, who was incarcerated. The Court treated this document as a new complaint and dismissed it without prejudice on November 1, 1993, stating "a plaintiff may only assert his or her own constitutional rights" and "therefore Sandra Young may not sue on behalf of her husband for alleged civil rights violations." During August, Ms. Young filed additional papers relating to her husband's incarceration and mailed numerous discovery requests on behalf of both her and her husband to various municipal and Pennsylvania state offices.

 On October 18, 1993, the City of Allentown received a collection of documents from Sandra Young, including a new complaint marked "RE-FILE CASE # 93-CV-2609," and a new document entitled "Amendment," appended to the complaint. (For clarity, the Court will refer to these two documents together as the "Amended Complaint.") Attached to these documents was a cover letter stating:


This is in compliance to the Judge's order of my lawsuit-Case # 93-CV-2609 against the Allentown Police Dept. I have re-filed my lawsuit and I am naming the City of Allentown as Defendants and with more specificity when and where events took place, and what happen.

 Also included was a response to the City's motion to dismiss, which was virtually a verbatim copy of Young's earlier document entitled "Appeal." Ms. Young never has properly served these documents and did not file them with the Clerk until October 25, 1993. The Court dismissed Young's Amended Complaint by Order dated November 2, 1993, on grounds of lack of diversity, the alleged basis of subject matter jurisdiction over Young's cause of action. On November 4, 1993, the City renewed its motion to quash service or dismiss, which was once again withdrawn as moot.

 On November 29, 1993, Young filed a document with the district court entitled "Appeal," objecting to the Court's Order dismissing her complaint. This document was treated as a new complaint, assigned Civil Action No. 93-4941, and dismissed for lack of subject matter jurisdiction by Order dated December 14, 1993.

 Ms. Young appealed, and the Court of Appeals remanded for consideration of whether Young's complaint stated a claim which this Court has power to decide under federal question jurisdiction. Sandra Young v. Allentown Police Department, 30 F.3d 1489, slip op. at 4 (3rd Cir. 1994). Because, as the dissent in this opinion noted, Plaintiff Young could be made to pay the Defendant's attorney's fees if her suit is deemed to be brought pursuant to 42 U.S.C. 1983 and found to be frivolous, the Third Circuit stated "if Plaintiff agrees . . . that we have miscast her complaint in a manner that is inconsistent with her view, she is free to seek withdrawal of her complaint in the district court." Id. at 4-5. Defendant City of Allentown filed the instant motion to dismiss on September 26, 1994. Plaintiff has taken no action to withdraw or voluntarily dismiss her suit.


 Young's allegations specifically relate to one incident, on April 12, 1991, alleged to be an illegal search of her vehicle and, the Court infers, an illegal seizure of unspecified contents of the vehicle, and five other incidents occurring on April 15, 22, and 30, and May 4 and 31, 1991. *fn2" Ms. Young's allegations all concern confrontations with individuals alleged to be employees of the Allentown Police department. *fn3" Accordingly, if Young has stated a claim within the Court's federal question jurisdiction, it would arise under the Civil Rights Act of 1871, 42 U.S.C. 1983.

 In deciding whether to grant a motion to dismiss, the Court must accept all factual allegations contained in the complaint as true, and view any reasonable inferences that can be drawn from those allegations in the light most favorable to the plaintiff. Wisniewski v. Johns-Manville Corp., 759 F.2d 271, 273 (3rd Cir. 1985). "[A] court cannot expect a complaint to provide proof of [plaintiff's] claims, nor a proffer of all available evidence." Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3rd Cir. 1985). A complaint may properly be dismissed only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief." Wisniewski, 759 F.2d at 273.

 In civil rights cases, the Third Circuit has instructed that a plaintiff may not reasonably be expected "to be familiar at the complaint stage with the full range of the defendants' practices under challenge," but "plaintiffs may be expected to know the injuries they allegedly have suffered." Id. The Court notes as well that it may not "apply a 'heightened pleading standard' - more stringent than the usual pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure - in civil rights cases alleging municipal liability under . . . 42 U.S.C. 1983." Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 122 L. Ed. 2d 517, 113 S. Ct. 1160, 1161 (1993); Loftus v. Southeastern Pennsylvania Transportation Authority, 843 F. Supp. 981, 982 (E.D.Pa. 1994). A section 1983 complaint will survive a motion to dismiss if it "alleges the specific conduct violating the plaintiff's rights, the time and place of the conduct, and the identity of the responsible officials." Colburn v. Upper Darby Township, 838 F.2d 663, 666 (3rd Cir. 1988).

 The City argues that because Ms. Young's original complaint was not filed until May 17, 1993, claims arising from all but the last incident, on May 31, 1991, are time barred. *fn4" The Court agrees. A statute of limitations defense may be considered within the context of a motion to dismiss "where the complaint facially shows noncompliance with the limitations period and the affirmative defense clearly appears on the face of the pleading." Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384 (3rd Cir. 1994). "The appropriate limitations period for section 1983 claim [sic] is Pennsylvania's two-year statute of limitations applicable to personal injury actions, 42 Pa. Cons. Stat. Ann. § 5524." Bougher v. University of Pittsburgh, 882 F.2d 74, 78 (3rd Cir. 1989). Where the conduct plaintiff complains of occurred outside of the limitations period, section 1983 claims based on that conduct are barred by the statute of limitations. Id. at 79. Therefore, only the incident which took place on May 31, 1991 may properly form the basis of a section 1983 action against the City.

 The City next argues that Ms. Young's complaint must be dismissed because she has failed to allege the existence of a "policy, custom, or course of conduct" which is causally connected to her alleged injury and "sufficient to state any cause of action under s. 1983." Def.'s Br. at 8.

 It is well settled that municipal liability under s. 1983 "may not be proven under the respondeat superior doctrine, but must be founded upon evidence that the government unit itself supported a violation of constitutional rights." Bielevicz v. Dubinon, 915 F.2d 845, 850 (3rd Cir. 1990)(citing Monell v. New York City Department of Social Services, 436 U.S. 658, 691-95, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978)). In addition, "proof of the mere existence of an unlawful policy or custom is not enough to maintain a s. 1983 action. A plaintiff bears the additional burden of proving that the municipal practice was the proximate cause of the injuries suffered." Id. While the policy itself need not be unconstitutional, it must reflect, at least, a "deliberate indifference to the rights of persons with whom the police come into contact." City of Canton v. Harris, 489 U.S. 378, 109 S. Ct. 1197, 1204, 103 L. Ed. 2d 412 (1989).

 The Court agrees that Young has failed to allege the existence of a municipal policy or custom. The Third Circuit has stated:


Policy is made when a 'decisionmaker possessing final authority to establish municipal policy with respect to the action' issues an official proclamation, policy or edict. Custom on the other hand, can be proven by showing that a given course of conduct although not specifically endorsed or authorized by law, is so well-settled and permanent as virtually to constitute law. In either instance, a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom.

 Bielevicz, 915 F.2d 845 (citations omitted). Young has not alleged that the incident that occurred on May 31, 1991 took place as the result of any policy or custom established by, or known to, responsible decisionmakers whose actions or knowledge may be attributed to the City of Allentown. Her allegations concerning the incident on May 31, 1991 relate only to conduct by the Allentown Police.

 It could be argued that the mere occurrence of the incident should demonstrate that a municipal policy exists. However, this argument places Young in the same position as the plaintiff in Oklahoma City v. Tuttle, 471 U.S. 808, 85 L. Ed. 2d 791, 105 S. Ct. 2427, who sought to establish the existence of a municipal policy based solely on the actions of a police officer during a single incident. In this situation, the Supreme Court stated that "a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 85 L. Ed. 2d 791, 105 S. Ct. 2427 (1985)(Rehnquist, C.J., plurality opinion); see also Groman v. Township of Manalapan, ___ F.3d ____ No. 94-5200, slip op. at 15 (3rd Cir. February 16, 1995); Colburn v. Upper Darby Township, 838 F.2d 663, 672 (3rd Cir. 1988), cert. denied, 489 U.S. 1065, 103 L. Ed. 2d 808, 109 S. Ct. 1338 (1989). As Justice Brennan explained in a concurring opinion in Tuttle :


Without some evidence of a municipal policy or custom independent of the police officer's misconduct, there is no way of knowing whether the city is at fault. To infer the existence of a city policy from the isolated misconduct of a single, low-level officer, and then to hold the city liable on the basis of that policy, would amount to permitting precisely the theory of strict respondeat superior liability rejected in Monell."

 Tuttle, 471 U.S. at 831 (Brennan, concurring).

 In addition, the Court notes that to state a cause of action under section 1983, the injury plaintiff alleges must be of constitutional dimensions. "If a person has suffered no constitutional injury at the hands of the individual police officer, the fact that the departmental regulations might have authorized the use of constitutionally excessive force is quite beside the point." Los Angeles v. Heller, 475 U.S. 796, 799, 89 L. Ed. 2d 806, 106 S. Ct. 1571 (1986); accord Andrews v. City of Philadelphia 895 F.2d 1469, 1481 (3rd Cir. 1990); Williams v. Borough of West Chester, 891 F.2d 458, 467 (3rd Cir. 1989). *fn5" The precise standard used to assess whether the police have violated the constitution varies, depending on the right alleged to be violated. Claims involving the use of excessive force in a Fourth Amendment seizure context, such as an arrest or Terry stop, are examined under an objective reasonableness standard. Graham v. Connor, 490 U.S. 386, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989). The Third Circuit has recently held that claims involving government action alleged to violate Fourteenth Amendment substantive due process are tested under a "shocks the conscience" standard, both "in situations where the government officials' affirmative act is the direct cause of the constitutional harm and those where harm is caused by governmental omission." Fagan v. City of Vineland, 22 F.3d 1296, 1304 (3rd Cir. 1994).

 Ms. Young's allegations concerning the events of May 31, 1991 amount to no more than that she was subjected to a routine traffic stop, which police have not only the authority but also a duty to execute. See e.g., 75 Pa.C.S.A. § 3102 (obedience to authorized persons directing traffic); 75 Pa.C.S.A. § 6308(investigation by police officers). Specifically, Young alleges:


5/31/91 - Coming out of Acme on 16th & Allen Street I was pulled over and asked what I was doing here, and that I had no right to be here.

 Pl.'s Amendment (attached to Pl.'s Compl. filed October 25, 1993). Significantly, Young does not allege that the stop was unjustified or that she was detained for an unreasonable period of time. Nothing in her allegation, either expressly or by inference, supports a belief that the conduct of the police was unreasonable or of a nature to "shock the conscience." Neither Ms. Young's person nor her vehicle were searched, she was not arrested or issued a citation, and by her own admission, the police did not even request that she produce identification or a valid driver's license. Without a factual allegation to demonstrate an attempt by the police to enforce a restraint on Plaintiff's liberty interest, the mere admonition that Young "had no right to be here," in the context of an informational motor vehicle traffic control stop, will not support a claim that the encounter with police on May 31, 1991 subjected Plaintiff to a constitutional deprivation.

 It could be argued that the discrete events alleged in Young's complaint constitute a "continuing violation," which would prevent the statute of limitations from beginning to run until the last event on May 31, 1991. *fn6" Suspension of the statute of limitations would reinstate claims arising before May 31, 1991, and allow an argument that all six events, taken together, establish a course of conduct sufficient to demonstrate a municipal custom and provide a basis for the City's liability under section 1983. *fn7"

 Assuming Plaintiff could avoid the running of the statute of limitations, Young's claims, considered together, are not sufficient to allow her Amended Complaint to survive the City's motion to dismiss. When examined in toto, the claims do not demonstrate the existence of a municipal custom as is required to create a plausible allegation that the City of Allentown is liable under s. 1983.

 To constitute a custom which can give rise to municipal liability, the alleged course of conduct must be "so well-settled and permanent as virtually to constitute law." Bielevicz, 915 F.2d at 850. The reason for this requirement is to demonstrate that "acquiescence in a well-settled custom" justifies ascribing responsibility for the custom to "municipal decisionmakers" and, consequently, to the municipality. Id. Young's allegations, which other than the allegedly illegal search amount to four traffic stops over a month and a half, do not establish a sufficiently identifiable and long-lasting course of conduct to constitute a municipal custom. Nothing in Young's allegations supports an inference that any responsible decisionmaker in the City of Allentown was on notice or even had reason to suspect that Young was being stopped. The Court's conclusion that Young's allegations do not establish a municipal custom is reinforced by the fact that Young's Amended Complaint, filed over five months after the Court directed her to supplement her initial complaint, and two and one-half years after the incidents complained of, contains no additional allegations demonstrating that Ms. Young took any action to provide notice to the City of the incidents complained of, or that the alleged course of conduct extended beyond the four traffic stops during the April - May 1991 period.


 Municipal liability under Section 1983 requires Plaintiff to demonstrate the existence of a municipal policy or custom which is the cause of her alleged injuries. Because of Pennsylvania's two year statute of limitations, Plaintiff's only viable claim arises from the encounter with police alleged to have occured on May 31, 1991. This event, standing alone, is inadequate to demonstrate the existence of the required municipal custom. In addition, Plaintiff could prove no set of facts to show that this encounter was a violation of her constitutional rights. Because the May 31st encounter does not amount to a constitutional violation, Plaintiff may not advance a continuing violation theory and assert claims based on incidents occuring outside of the limitations period. Assuming Plaintiff could avoid the statute of limitations, Plaintiff's allegations, considered in toto, are insufficient to establish the existence of a municipal custom causally related to Plaintiff's alleged injuries. Accordingly, the Court will dismiss Plaintiff's Amended Complaint with prejudice, in its entirety. This Memorandum and Order amends and supersedes the Memorandum and Order issued March 9, 1995.

 An appropriate Order follows.




 Upon consideration of Defendant's motion to dismiss Plaintiff's Amended Complaint, and for the reasons stated in the accompanying Amended Memorandum, Plaintiff Sandra Young's Amended Complaint is DISMISSED in its entirety, with prejudice.



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