Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Corll v. Bernot

October 22, 2010


The opinion of the court was delivered by: O'neill, J.


Presently before me is defendant Phil Bernot's motion to dismiss plaintiff's amended complaint. For the following reasons, I will deny the motion.


Defendants Ray Corll and Phil Bernot were police officers in the Lancaster City Police Department. On September 29, 2007, they arrested plaintiff for alleged nuisance violations. Plaintiff alleges that in the course of that arrest defendant Corll used excessive force on him. Plaintiff further alleges that Bernot observed Corll's use of excessive force but failed to intervene.

Plaintiff filed his original complaint pro se. There, he named Corll and the Lancaster City Police Department as defendants. In his handwritten statement of the events giving rise to his claim, however, he noted that Bernot was Corll's partner and was present when Corll allegedly used excessive force against plaintiff.

On February 16, 2010, defendants Corll and the Lancaster City Police Department filed a motion to dismiss. On April 26, 2010, I granted plaintiff's motion for appointment of counsel v. and appointed Cheryl A. Krause, Justin N. Pentz and Stephen D. Brown to represent plaintiff in this matter. Shortly thereafter, the parties stipulated that defendants would withdraw their motion to dismiss and plaintiff would be allowed to amend his complaint. Plaintiff filed his amended complaint on May 28, 2010. Therein, he removed the Lancaster City Police Department as a defendant but added Bernot. On July 25, 2010, Corll filed an answer. On August 3, 2010, Bernot filed the motion to dismiss presently under consideration.


Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss all or part of an action for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Typically, "a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations," though plaintiff's obligation to state the grounds of entitlement to relief "requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all of the allegations in the complaint are true (even if doubtful in fact)." Id. (citations omitted). The complaint must state "'enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Wilkerson v. New Media Tech. Charter School Inc., 522 F.3d 315, 321 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The Court of Appeals has recently made clear that after Ashcroft v. Iqbal, --- U.S. ---, 129 S.Ct. 1937, 1955, 173 L.Ed. 2d 868 (2009), "conclusory or 'bare-bones' allegations will no longer survive a motion to dismiss: 'threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.' To prevent dismissal, all civil complaints must now set out 'sufficient factual matter' to show that the claim is facially plausible." Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (quoting Iqbal, 129 S.Ct. at 1949). The Court also set forth a two part-analysis for reviewing motions to dismiss in light of Twombly and Iqbal: "First, the factual and legal elements of a claim should be separated. The District Court must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions. Second, a District Court must then determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a 'plausible claim for relief.'" Id. at 210-11 (quoting Iqbal, 129 S.Ct. at 1950). The Court explained, "a complaint must do more than allege the plaintiff's entitlement to relief. A complaint has to 'show' such an entitlement with its facts." Id. (citing Phillips v. County of Allegheny, 515 F.3d 224, 234-35 (3d Cir. 2008)). "Where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged--but it has not 'show[n]'--'that the pleader is entitled to relief.'" Iqbal, 129 S.Ct. at 1949.


Bernot argues that the complaint against him is barred by the statute of limitations and therefore should be dismissed. Civil rights actions brought under 42 U.S.C. § 1983 are subject to Pennsylvania's two year statute of limitations. See Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003); see also 42 Pa. Cons. Stat. Ann. § 5524 (Pennsylvania's statute of limitations). Plaintiff's injury occurred on September 29, 2007. Therefore, in order to avoid being barred by the statute of limitations, plaintiff must have brought his claims prior to September 29, 2009. His original complaint, filed September 23, 2009, clearly satisfies the statute of limitations. His amended complaint, however, was not filed until May 28, 2010.

Plaintiff argues that his amended complaint is not subject to the statutory time bar because it relates back to his original complaint. Bernot disagrees. Rule 15(c) of the Federal Rules of Civil Procedure, which governs relation back, provides:

An amendment to a pleading relates back to the date of the original pleading when:

(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B)*fn1 is satisfied and if, within the period provided by Rule 4(m) for serving the summons and ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.