The opinion of the court was delivered by: Mitchell, Magistrate Judge
Presently before the Court are the defendants' motions to dismiss several counts of the plaintiff's amended complaint. For reasons discussed below, Denise Straffon's motion to dismiss Counts III and VI of the amended complaint (Document No. 35) is granted, City of Washington and Corporal Daniel Stanek's motion to dismiss Counts III, V and VI of the amended complaint (Document No. 39) is granted as to Counts III and VI, and as to Count V insofar as it pertains to the City of Washington and denied in all other respects, and the motion to dismiss filed by Washington County, its Sheriff's Office, Larry Maggi, T. William Bryker and John Rheel (Document No. 37) is granted as to all claims against the Washington County Sheriff's Office, as to Counts III and VI, as to the Title VII claim in Count I insofar as it pertains to defendants Maggi, Bryker and Rheel, and as to Count V insofar as it pertains to Washington County and denied in all other respects.
The plaintiff, Paulette D. Benard, has filed an amended civil rights complaint against Washington County, its Sheriff's Office, Larry O. Maggi, T. William Bryker, and John C. Rheel, individually and in their capacities as former officials of Washington County or its Sheriff's Office (the "County defendants"), City of Washington, Corporal Daniel Stanek, individually and in his capacity as a police officer with the City of Washington, and Denise Straffon. This action arises from the plaintiff's suspension without pay as a deputy sheriff with the Washington County Sheriff's Office on April 26, 2002, the termination of her employment in November 2002, and the filing of criminal charges against her which were subsequently withdrawn on April 19, 2004.
The plaintiff alleges in the amended complaint that she was employed by the Washington County Sheriff's Office as a deputy sheriff in December 1991; that on April 16, 2002, she was on duty at the Washington County Courthouse, where she was required to search individuals when they entered the courthouse, as well as their personal effects; that on that date, defendant Denise Straffon and her ten year old son sought to enter the courthouse, and in accordance with her duties, the plaintiff searched Straffon's purse; that Straffon began screaming that the plaintiff took money from her purse (about $50), whereupon the plaintiff told her to calm down and count her money; that upon counting the money in her purse, Straffon acknowledged it was all there, but she claimed the plaintiff returned the money following her screams; and that a courthouse employee witnessed the event and confirmed it did not happen as Straffon claimed.
The plaintiff contends that defendant Straffon complained to the Washington County Sheriff's Office, and the County defendants, together with the City of Washington and defendant Stanek, initiated an investigation into the matter; that on April 26, 2002, defendants Maggi, Rheel and Bryker suspended her without pay for refusing to participate in an investigation into a complaint of theft by unlawful taking and failure to obey a direct order; that Maggi and Stanek reviewed the matter with District Attorney John Petit, who refused to recommend that an arrest be made; that nonetheless, the Sheriff of Washington County and its police department filed charges against the plaintiff, including theft by unlawful taking or disposition, criminal attempt and official oppression based on false evidence produced by the County defendants and false statements made by defendant Straffon; that in November 2002, the plaintiff's employment was terminated; that the Office of the Attorney General subsequently reviewed the case and concluded there was insufficient evidence to prosecute; and that on April 19, 2004, the charges against her were formally withdrawn, but she has not been re-employed.
Based on these complained-of acts, the plaintiff has filed a six-count amended complaint. Count One is captioned "Discrimination on the Basis of Gender", but the plaintiff fails to specify whether the claim arises under 42 U.S.C. § 1983, Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), or both statutes, and the claim is brought against unnamed defendants. In Count II, the plaintiff asserts a claim for gender discrimination in violation of the Equal Protection Clause of the Pennsylvania Constitution and/or the Pennsylvania Human Relations Act, as amended, 43 P.S. § 951, et seq. ("PHRA"), which is brought against unnamed defendants. In Count III, the plaintiff purports to state a claim for intentional infliction of emotional distress against unnamed defendants. Count IV is captioned "Retaliatory Suspension and/or Discharge" in violation of unspecified law, and it is brought against unnamed defendants. In Count Five, the plaintiff asserts that all defendants are liable for the state law tort of malicious prosecution. In Count Six, the plaintiff claims that all the defendants violated her civil rights by engaging in malicious prosecution in violation of her Fourth Amendment right against unreasonable seizures. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367.
In response to the amended complaint, the defendants have filed motions to dismiss certain claims against them pursuant to F.R.Civ.P. 12(b)(6). In reviewing a motion to dismiss, all well-pleaded allegations of the complaint must be accepted as true and viewed in a light most favorable to the non-movant. Estelle v. Gamble, 429 U.S. 97 (1976); Shaev v. Saper, 320 F.3d 373, 375 (3d Cir. 2003).
Denise Straffon's Motion to Dismiss:
Defendant Straffon avers that there are three claims in the amended complaint which appear to be directed to her; namely, intentional infliction of emotional distress (Count III), state law malicious prosecution (Count V), and a Fourth Amendment civil rights violation (Count VI). Straffon moves to dismiss as time-barred the plaintiff's claims for intentional infliction of emotional distress (Count III) and civil rights violation (Count VI). Straffon also argues that the civil rights claim in Count VI cannot lie against her, as she is not a state actor.
Under the Federal Rules of Civil Procedure, a statute of limitations defense must be raised in the answer, since Rule 12(b) does not permit such a defense to be raised by motion. Robinson v. Johnson, 313 F.3d 128, 134-35 (3d Cir. 2002), cert. denied, 124 S.Ct. 48 (2003).
However, as the Court in Robinson explained: "the law of this circuit (the so-called 'Third Circuit Rule') permits a limitations defense to be raised by a motion under Rule 12(b)(6), but only if the time alleged in the statement of a claim shows that the cause of action has not been brought within the statute of limitations." Id. at 135. "If the bar is not apparent on the face of the complaint, then it may not afford the basis for a dismissal of the complaint under Rule 12(b)(6)." Id.
Here, the statute of limitations defense is properly raised in Straffon's motion to dismiss (and in the other defendants' motions to dismiss), for it appears from the amended complaint that the plaintiff's claim for intentional infliction of emotional distress is time-barred. The defendants are correct that a two-year limitations period applies to claims for intentional infliction of emotional distress. See, 42 Pa.C.S. § 5524; Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 80 (3d Cir. 1989). Under Pennsylvania law, the statute of limitations begins to run when the right to institute and maintain a claim arises. Dalrymple v. Brown, 701 A.2d 164, 167 (Pa. 1997).
The plaintiff commenced this action on April 19, 2006. Thus, all complained-of acts attributed to the defendants which occurred prior to April 19, 2004 and are said to have caused the plaintiff emotional distress are time-barred. With respect to Denise Straffon, her act of reporting the plaintiff's alleged theft to the Sheriff's Office occurred in 2002. Clearly as to her, Count III is time-barred.
As to the other defendants, to the extent the plaintiff claims that her failure to be re-employed since April 19, 2004 constitutes viable grounds for a claim of intentional infliction of emotional distress (amended complaint at ¶ 47), we disagree. Section 46(1) of the Restatement (Second) of Torts defines intentional infliction of emotional distress as:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Liability under this section has been found only where the conduct has been so outrageous in character, so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.
Kazatsky v. King David Memorial Park, 527 A.2d 988, 994 (Pa. 1987).
To state such a claim, "the conduct must be so extreme that it offends the very moral values of our society." Williams v. Fedor, 69 F.Supp.2d 649, 668 (M.D.Pa. 1999), aff'd., 211 F.3d 1263 (3d Cir. 2000). "[O]nly the most egregious conduct" will sustain such a claim. Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998). "Overreaching, but not abusive, tactics used in the course of everyday living will not support a claim for intentional infliction of emotional distress." Bradshaw v. General Motors Corp., 805 F.2d. 110, 114 (3d Cir. 1986).
Here, the defendants failure to re-employ the plaintiff after the criminal charges against her were withdrawn is not so outrageous in character, nor so extreme in degree as to support a claim for intentional infliction of emotional distress. Accordingly, Count III of the amended complaint is dismissed as to all defendants.
Civil rights claims under 42 U.S.C. § 1983 are also subject to a two-year statute of limitations. That is because "[i]n actions under 42 U.S.C. § 1983, federal courts apply the state's statute of limitations for personal injury." Sameric Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d Cir. 1998), citing Wilson v. Garcia, 471 U.S. 261, 276-78 (1985). Since Pennsylvania's statute of limitations for personal injury is two years, 42 Pa.C.S.A. § 5524, the plaintiff's civil rights claims are subject to a two-year limitations period. See, Sameric Corp., 142 F.3d at 599, citing Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950 (1985).
The Third Circuit Court of Appeals has explained: "[a] section 1983 cause of action accrues when the plaintiff knew or should have known of the injury upon which its action is based." Sameric Corp., 142 F.3d at 599. Stated differently, "[t]he statute of limitations begins to run ... when the first significant event necessary to make the claim suable occurs." Lake v. Arnold, 232 F.3d 360, 366 (3d Cir. 2000). Here, the plaintiff has clarified that her § 1983 claim in Count VI is predicated on the defendants' alleged malicious prosecution. The plaintiff's cause of action for malicious prosecution arose on April 19, 2004 when the criminal charges against her were formally withdrawn and approved by the ...