The opinion of the court was delivered by: William W. Caldwell United States District Judge
The plaintiff, Mark R. Holloway, filed this lawsuit under 28 U.S.C. § 1983 against the defendants, Borough of Red Lion; Stewart Graybill, the Borough manager; and Daniel Shaw, the Borough's building code officer. Plaintiff makes a First Amendment retaliation claim and an equal protection claim stemming from a zoning-enforcement action charging him with having a commercial sign in a residential zone.
Defendants have filed a motion to dismiss under Fed. R. Civ. P. 12(b)(6). On a motion to dismiss, "[w]e 'accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.'" Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010)(quoted case omitted). While a complaint need only contain "a short and plain statement of the claim," Fed. R. Civ. P. 8(a)(2), a complaint has to plead "enough facts to state a claim to relief that is plausible on its face." Id. at 570, 127 S.Ct. 1955 at 1974. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 1974, 167 L.Ed.2d 929 (2007). "[L]abels and conclusions" are not enough. Id. at 555, 127 S.Ct. at 1964-65.
The court is not limited to evaluating the complaint alone; it can also consider documents attached to the complaint, matters of public record, and indisputably authentic documents. Delaware Nation v. Pennsylvania, 446 F.3d 410, 413 n.2 (3d Cir. 2006). Specifically, a court filing is a public record that may be considered. See Churchill v. Star Enterprises, 183 F.3d 184, 190 n.5 (3d Cir. 1999). See also McPherson v. United States, 392 F. App'x 938, 940 n.1 (3d Cir. 2010)(nonprecedential)(relying on prior court documents to determine the date of the plaintiff's criminal conviction for the purpose of deciding whether the district court properly dismissed the civil-rights complaint sua sponte on the basis of the statute of limitations). When the allegations of the complaint differ from the documents attached to the complaint, the documents control, and the allegations of the complaint need not be accepted. ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 n.8 (3d Cir. 1994); Goldenberg v. Indel, Inc., 741 F. Supp. 2d 618, (D.N.J. 2010).
Defendants argue the complaint must be dismissed because: (1) it fails to set forth sufficient facts to support Plaintiff's claims; (2) the retaliation claim based on Graybill's conduct during the telephone conversation fails on the merits in any event; (3) the complaint is time-barred; and (4) the individual defendants are entitled to qualified immunity. We agree with Defendants that the complaint is time-barred and will dismiss on that basis.
The complaint was filed on November 12, 2010. In pertinent part, Plaintiff alleges as follows. On or about November 12, 2008, defendant Shaw charged Plaintiff with violating the Borough's "outdoor sign ordinance" for having a "business sign," but without telling him how or in what way the sign violated the ordinance. (Compl. ¶¶ 8, 11, and 12 ). "[A]t the same time . . . within less than one quarter of a mile, in the same 'R-T (residential town) Zone' there existed at least 34 signs similar to the sign that Mr. Holloway was prosecuted for." (Id. ¶ 12). These other signs "are similar as to their size and, or contents, from the sign he was prosecuted for . . ." (Id. ¶ 13). However, none of the persons or businesses owning or exhibiting these signs "were ever prosecuted like he was." (Id.).*fn1
Before Plaintiff was cited for the sign violation, he "had engaged in expressions of disagreement with the Borough and more specifically with Stewart Graybill, on issues such as assessment for paving costs, and various and sundry other citizen activist types of behavior that were unwelcome to Borough officials including Mr. Graybill and Mr. Shaw." (Id. ¶ 14).
Before the charges were brought, in August 2008, Shaw had sent Plaintiff an enforcement letter concerning the sign. (Id. ¶ 15). Plaintiff had questions about the letter and phoned Graybill after being unable to contact Shaw several times. (Id.). Plaintiff was hoping to resolve the matter and/or learn how to appeal from the enforcement letter. (Id.). Graybill angrily hung up on him, saying as he did so, "this looks like it's going to litigation and I can't talk to you further." (Id.). Plaintiff did nothing to justify Graybill's "misconduct." (Id. ¶ 16).
Plaintiff alleges that the Borough is liable for the conduct of Graybill and Shaw because they "develop and enforce Borough building code enforcement policy" and their actions were "an unlawful usage" of the policy. (Id. ¶ 17). Plaintiff also alleges that the Borough "maintains a custom, practice, and usage of discrimination against those it views as political outsiders, or dissidents, by engaging in the unequal enforcement of its laws against them." (Id. ¶ 1).
Plaintiff makes two claims based on his prosecution for the sign violation: (1) a First Amendment retaliation claim because the prosecution was in retaliation for having engaged in the First Amendment activity of "express[ing]" his "disagreement with the Borough and more specifically with Stewart [and] Graybill on issues such as assessment for paving costs, and various and sundry other citizen activist types of behavior"; and (2) an equal-protection selective-enforcement claim because others who exhibited signs "similar as to their size and, or contents," were not prosecuted. (Id. ¶¶ 13 and 14). Plaintiff makes one claim based on Graybill's conduct during the phone call: a First Amendment retaliation claim based on the conduct. Plaintiff seeks compensatory damages against all three defendants, and in addition, punitive damages against the individual defendants.
As noted above, Defendants move to dismiss the complaint on the basis of the statute of limitations. The statute of limitations for section 1983 claims arising in Pennsylvania is two years. Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009). Defendants make two arguments on the limitations defense. First, they argue the complaint is untimely because it was filed on November 12, 2010, more than two years after August 20, 2010, the date on a letter Plaintiff wrote to Shaw complaining that Shaw's August 2008 enforcement letter violated his constitutional rights. (Doc. 7-1, Plaintiff's letter,CM/ECF p. 24).*fn2 In the alternative, Defendants argue the limitations period began at the latest on September 12, 2008, the date the Borough filed its civil complaint (signed by Shaw) with the ...