United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
E. Schwab United States Chief Magistrate Judge
plaintiff, Jerry Breese (“Breese”), brought this
action pro se for alleged deprivation of his
constitutional rights by the defendant, Sergeant Trey Kurtz
(“Kurtz”). Kurtz has moved to dismiss
Breese's complaint on the basis that the complaint was
not filed within the statute of limitations. We recommend
that Kurtz's motion to dismiss be granted because
Breese's complaint is barred by the statute of
Factual and Procedural Background.
1, 2014, Breese was installing a dishwasher and a washing
machine at a residence in Canton, Pennsylvania. Doc.
1 at 2. Before Breese completed the job, law enforcement
entered the home and conducted a drug raid. Id.
While cooperating with law enforcement, Breese was subjected
to a pat down in which Kurtz felt a plastic container in
Breese's pocket and removed it. Id. The
container held a Percocet acetaminophen pill for which Breese
did not have a prescription. Id. Breese was given an
appearance ticket for a preliminary hearing. Id.
appeared at the hearing and asked for the appointment of
counsel. Id. at 3. The magistrate denied the request
and informed Breese that he should waive his preliminary
hearing. Id. Breese was told that if he did not
waive the hearing, he would be incarcerated until an attorney
was assigned to him, so he waived his preliminary hearing.
Id. Breese was eventually assigned an attorney from
the public defender's office and unsuccessfully raised
evidentiary issues at a pretrial hearing. Id. He was
convicted of criminal possession of a controlled substance
and sentenced to a term of imprisonment of 6 to 23 months.
Id. In sum, Breese was incarcerated for 226 days
before he was granted parole on June 21, 2016. Id.
On September 29, 2016, the Superior Court of Pennsylvania
found that the police officers acted outside their discretion
during the search, overturned the conviction, and vacated the
commenced this action by filing a complaint (doc. 1)
on September 18, 2017, against Kurtz, Judge Maureen T. Beirne
(“Judge Beirne”), and Magistrate Judge Jonathon
Wilcox (“Judge Wilcox”). Id. at 1.
Breese brings suit under 42 U.S.C. § 1983, and he is
seeking compensatory and punitive damages. Id. at 1,
3-4. In our Report and Recommendation on December 8, 2017, we
recommended that the Court dismiss the claims against Judge
Beirne and Judge Wilcox because those claims were barred by
judicial immunity. Doc. 15. On February 13, 2018,
Judge Brann adopted our Report and Recommendation and
dismissed the claims against Judges Beirne and Wilcox.
Doc. 26. In the meantime, Kurtz filed a motion to
dismiss for failure to state a claim arguing that
Breese's claim is barred by the applicable statute of
limitations. Doc. 23 at 3. Kurtz also filed a brief
in support of his motion to dismiss. Doc. 24. Breese
filed a brief in opposition to the motion to dismiss, arguing
that Kurtz's search violated his constitutional rights
and thus, established a claim. Doc. 30 at 1-2.
Breese does not however, address defendant Kurtz's
brings suit for a violation of his constitutional rights
under 42 U.S.C. § 1983. A complaint that fails to state
a claim upon which relief can be granted is to be dismissed.
Fed.R.Civ.P. 12(b)(6). “A statute of limitations
defense is an affirmative defense that a defendant must
usually plead in his answer.” Stephens v.
Clash, 796 F.3d 281, 288 (3d Cir. 2015). But a court can
dismiss a complaint on a 12(b)(6) motion based on the statute
of limitations when “the complaint facially shows
noncompliance with the limitations period and the affirmative
defense clearly appears on the face of the pleading.”
Oshiver v. Levin, Sedran & Berman, 38 F.3d 1380,
1384 n.1 (3d Cir. 1994). “[I]f ‘the pleading does
not reveal when the limitations period began to run, '
then ‘the statute of limitations cannot justify Rule 12
dismissal.'” Stephens, 796 F.3d at 288
(quoting Barefoot Architect, Inc. v. Bunge, 632 F.3d
822, 835 (3d Cir. 2011).
law governs when a cause of action accrues. Dique v. New
Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010). A
§ 1983 cause of action “accrues, and the statute
of limitations commences to run, when the wrongful act or
omission results in damages.” Id. at 185-86
(quoting Wallace v. Kato, 549 U.S. 384, 391 (2007))
(internal quotation marks omitted). The cause of action
accrues “when the plaintiff has ‘a complete and
present cause of action, ' that is, when ‘the
plaintiff can file suit and obtain relief.'”
Wallace, 549 U.S. at 388 (citations omitted). Thus,
the statute of limitations begins for an action under §
1983 when the plaintiff knew or should have known of the
constitutional injury. Delaware State College v.
Ricks, 449 U.S. 250, 259 (1980). A search claim accrues
at the time of the search. MacNamara v. Hess, 67
Fed.Appx. 139, 143 (3d Cir. 2003). The statute of limitations
for a § 1983 claim is calculated by using the
state's statute of limitations for personal injury torts.
Wilson v. Garcia, 471 U.S. 261, 280 (1985). Under
Pennsylvania law, an action for damages arising from injury
caused by an intentional tort must be commenced within two
years. 42 Pa.C.S.A. § 5524(2) (2018).
the alleged illegal search was conducted on July 1, 2014, and
Breese commenced this suit on September 18, 2017. Based on
the allegations in the complaint, Breese was aware that he
was injured at the time of the search. Kurtz's search led
to Breese getting the appearance ticket and the charge for
possession of a charged substance. But Breese's suit does
not fall within the two year period. Breese's § 1983
claim is thus barred by the statute of limitations and must
we recommend that Kurtz's motion to dismiss be
GRANTED because Breese's complaint is
barred by the applicable statute of limitations and thus,