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Barren v. Pennsylvania State Police

United States District Court, Western District of Pennsylvania

September 19, 2014

DAVID MORRIS BARREN, Plaintiff,
v.
PENNSYLVANIA STATE POLICE; TROOPER WESLEY BERKEBILE; TROOPER SERGEANT ANTHONY DELUCA; TROOPER MIKE SCHMIDT; TROOPER JOHN A. LITCHKO; TROOPER MICHAEL J. VOLK; TROOPER STUART FROME; OFFICE OF ATTORNEY GENERAL Asset Forfeiture and Money Laundering Section; ATTORNEY GENERAL GERALD J. PAPPERT; DEPUTY A.G. JESSE D. PETTIT; DISTRICT ATTORNEY LISA LAZARRI-STRASISER, Defendants.

MAUREEN P. KELLY MAGISTRATE JUDGE

MEMORANDUM ORDER

NORA BARRY FISCHER, UNITED STATES DISTRICT JUDGE

The above-captioned prisoner civil rights complaint was received by the Clerk of Court on June 27, 2014, and was referred to United States Magistrate Judge Maureen P. Kelly for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72 of the Local Rules for Magistrate Judges.

The Magistrate Judge's Report and Recommendation (the “Report”), ECF No. 7, filed on August 20, 2014, recommended that the Complaint be dismissed pre-service pursuant to the Prison Litigation Reform Act for failure to state a claim upon which relief can be granted. Service of the Report was made on the Plaintiff at his address of record. Plaintiff was given until September 8, 2014 to file any objections. Plaintiff’s Objections were docketed on September 9, 2014 but are deemed timely filed pursuant to the prisoner mail box rule. Plaintiff also filed an affidavit in support of his Objections. ECF No. 9. The Court finds that none of the Objections merits rejection of the Report or extended comment.

The Report first found that most of Plaintiff’s claims concerning the stop and search and seizure of Plaintiff’s property, all of which occurred in February 2003, were barred by the two year statute of limitations. In his Objections, Plaintiff objects to the Report’s reliance on the statute of limitations, invoking, inter alia, the “fraudulent concealment doctrine” and asserting that the “Commonwealth’s ongoing concealment of the forfeiture, and Mr. Barren’s recent ‘discovery’ of such on or about November 7, 2013, estops them from raising statute of limitations bars and delays the accrual date until November 7, 2013.” ECF No. 8 at 3. While such alleged concealment of the forfeiture may address the issue of the statute of limitations with regard to the Plaintiff’s claims about the forfeiture, it simply fails to address why Plaintiff did not file suit within the statute of limitations for his claims of false arrest and illegal seizure of his property which occurred back in February 2003. Indeed, Plaintiff has failed to show that the fraudulent concealment doctrine saves his claims regarding the allegedly illegal arrest of Plaintiff and search and seizure of Plaintiff’s property back in February 2003.

As the United States Court of Appeals for the Third Circuit recently explained:

Generally, “state tolling principles also govern § 1983 claims” unless they conflict with “federal law or policy.” Kach, 589 F.3d at 639. “Pennsylvania's fraudulent concealment doctrine tolls the statute of limitations where ‘through fraud or concealment the defendant causes the plaintiff to relax vigilance or deviate from the right of inquiry.’ “ Mest v. Cabot Corp., 449 F.3d 502, 516 (3d Cir. 2006) (quoting Ciccarelli v. Carey Canadian Mines, Ltd., 757 F.2d 548, 556 (3d Cir. 1985)). Even if a plaintiff can establish that the defendant engaged in fraudulent concealment, the statute of limitations “begins to run when the injured party knows or reasonably should know of his injury and its cause.” Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 861 (Pa. 2005).

Montanez v. Secretary, Pennsylvania Dept. of Corrections, ___ F.3d ____, ____, 2014 WL 3953644, at *5 (3d Cir. Aug. 14, 2014). Moreover, “the continuing violation doctrine does not apply when the plaintiff ‘is aware of the injury at the time it occurred.’” Id. (quoting Morganroth & Morganroth v. Norris, McLaughlin & Marcus, P.C., 331 F.3d 406, 417 n. 6 (3d Cir. 2003).

Instantly, Plaintiff was aware in February 2003 of the injury to himself concerning the allegedly false arrest, and the search and seizure of his property. The relevant injuries complained of in the Complaint were the allegedly illegal arrest of Plaintiff, the allegedly illegal search of the car, and the illegal seizure of the property located on Plaintiff and in the car. ECF No. 3, ¶ 64 (“the Plaintiff-Mr. Barren suffered an invasion of his privacy, unlawful arrest, false imprisonment, substantial property loss . . . .”). We conclude that Plaintiff clearly knew or should have known in February 2003 that his constitutional rights were violated by the Defendants who conducted the arrest, search and seizure and so, any fraudulent concealment that may have occurred thereafter does not save Plaintiff’s Complaint concerning his claims of false arrest, illegal search and illegal arrest and any other alleged wrongs occurring in February 2003. In like manner, because Plaintiff knew or should have known of his injury in February 2003, the continuing violation doctrine does not save these claims from the statute of limitations.

As to the allegedly illegal forfeiture of Plaintiff’s property, the Report noted, in a footnote that Plaintiff admitted that he knew that his property was forfeited in 2009. ECF No. 7 at 8.

The Report stated in Footnote 3 that

If in fact, Plaintiff learned of the forfeiture proceedings against him in 2009, then his claims concerning the forfeiture proceedings would likewise be time barred, as he discovered the forfeiture proceedings in 2009 but did not file the current Complaint until at the earliest June 12, 2014, more than three years later. Even if Plaintiff’s claims concerning the forfeiture proceedings are not time-barred, they are dismissible based upon the Rooker-Feldman doctrine as explained below.

ECF No. 7 at 8, n.3 (emphasis added). In his Objections, Plaintiff complains that the Report confused two separate forfeiture proceedings, the one at issue in the pending Complaint, which he allegedly only learned about On November 7, 2013 and a second forfeiture which is not at issue herein, and which he learned about in 2009. ECF No. 8 at 4.

As should be made clear from the above quote of Footnote 3, the Report only conditionally noted that “if” Plaintiff learned of the forfeiture at issue in the pending Complaint in 2009, then the claims concerning the forfeiture at issue in the pending Complaint would be time barred. However, the Report went on to note that even if not time-barred, the claims concerning the forfeiture herein are barred by the Rooker-Feldman doctrine. Given the conditional wording of Footnote 3, we do not find that the Report made any error. However, even if Plaintiff could establish an ...


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