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Shilling v. Brush

January 27, 2006


The opinion of the court was delivered by: John E. Jones III United States District Judge



Pending before the Court is a Motion to Dismiss the Amended Complaint against the Borough of Montrose pursuant to Federal Rule of Civil Procedure 12(b)(6) ("Motion") (doc. 23) filed by Defendant Borough of Montrose on December 1, 2005. For the reasons that follow, the Motion shall be denied.


As we explained in our prior Order, the plaintiff, Carol Shilling ("Plaintiff" or "Shilling") initiated this action by filing a complaint pursuant to 42 U.S.C. §§ 1983, 1985, and 1986 against Defendants Eric P. Brush, John Walker, Chief of Police Bruce Korty, and the Montrose Police Department (collectively "Defendants") in the United States District Court for the Middle District of Pennsylvania on April 29, 2005. On August 26, 2005, we granted the Montrose Police Department's Motion to Dismiss and provided Plaintiff with twenty days to file an amended complaint in compliance with our Order. On September 16, 2005, Plaintiff filed an amended complaint, adding the Borough of Montrose as a named Defendant. (Rec. Doc.17).

Plaintiff's amended complaint is brought pursuant to the same statutory provisions as was her original complaint, specifically 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff's amended complaint adds a 42 U.S.C. § 1983 claim against the Borough of Montrose for the failure to train and supervise and "deliberate indifference." (Am. Compl. ¶¶ 32-39). Plaintiff alleges that Defendants Brush and Walker acted under color of state law both in their official and personal capacities while employed by the municipality of Montrose. According to the amended complaint, the Borough of Montrose failed to train and supervise the individual Defendants in the fundamental law of arrest and use of force when effectuating an arrest. Id. at ¶¶ 32-33. "Such failures were the result of intentional and negligent misconduct towards which the municipality demonstrated deliberate indifference." Id. at ¶ 34. Plaintiff alleges that the Borough of Montrose knew or should have known of the propensity of the individual Defendants to use their positions of authority to the detriment of innocent victims, such as Plaintiff. The incident at issue was "flagrant" and the then police chief failed to investigate or discipline the participating officers. Plaintiff asserts that the training and supervision of such officers was insufficient, inadequate, and the municipality has a custom or policy of indifference to the necessity of adequate training. Id. at ¶¶ 36-38. Finally, as a direct and proximate cause of such acts, omissions, policies, and customs of the municipality, Plaintiff alleges that Defendants improperly arrested and used excessive force against her.

Defendant Borough of Montrose filed the instant Motion on December 1, 2005, which has been briefed by the parties. The Motion is therefore ripe for disposition.


In considering a motion to dismiss, a court must accept the veracity of a plaintiff's allegations. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see also White v. Napoleon, 897 F.2d 103, 106 (3d Cir. 1990). In Nami v. Fauver, 82 F.3d 63, 65 (3d Cir. 1996), our Court of Appeals for the Third Circuit added that in considering a motion to dismiss based on a failure to state a claim argument, a court should "not inquire whether the plaintiffs will ultimately prevail, only whether they are entitled to offer evidence to support their claims." Furthermore, "a complaint should not be dismissed for failure to state a claim 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, 45-46 (1957); see also District Council 47 v. Bradley, 795 F.2d4 310 (3d Cir. 1986).


In the Motion, the Borough of Montrose argues that the amended complaint against it must be dismissed as it was not filed until more than four and one half months after the expiration of the applicable statute of limitations. The Borough of Montrose asserts that it cannot be sued after the expiration of the statute of limitations where there is a substantially different transaction/occurrence and the lack of valid notice, all of which is prejudicial to the municipality.

In response, Plaintiff argues that the amendment did not violate the statute of limitations because it relates backs to the original, timely filed complaint pursuant to Federal Rule 15(c)(3). Plaintiff contends that changing the identity of the parties, even though the statute of limitations has run, is permitted under Federal Rule 15(c)(3). "The Plaintiff has met the criteria of: (a) demonstrating that there is shared representation by Attorney Joseph Murphy; (b) there is no questions [sic] that there was Notice via an identity of interest with the originally named Defendant Montrose Police Department and (c) but for a mistake concerning the identity of the proper party, the Borough of Montrose would have been named the Defendant." (Pl.'s Br. Opp. Def.'s Mot. Dismiss Am. Comp. at 6-7).

We initially note that Plaintiff filed her civil rights action pursuant to 42 U.S.C. § 1983 on April 29, 2005, as the result of an incident that occurred on May 2, 2003. Section 1983 claims are governed by the relevant state's statute of limitations for personal damages. Sameric Corp. v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998). It is well-established that in Pennsylvania, actions to recover for personal damages must be commenced within two years and a cause of action accrues when the plaintiff knows or has reason to know of the damages that are the basis of the action. 42 Pa.C.S. § 5524(2); see also Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993). Accordingly, as both parties appear to agree, to meet the requisite time limitations for an action to recover personal damages in Pennsylvania, Plaintiff's complaint must have been filed on or before May 2, 2005. Although Plaintiff's complaint was filed prior to such date, Plaintiff's amended complaint was not filed until August 26, 2005, several months after the ...

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