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Breese v. Kurtz

United States District Court, M.D. Pennsylvania

May 4, 2018

JERRY BREESE, Plaintiff
v.
SERGEAT TREY KURTZ, Defendant

          REPORT AND RECOMMENDATION

          Susan E. Schwab United States Chief Magistrate Judge

         I. Introduction.

         The 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 limitations.

         II. Factual and Procedural Background.

         On July 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.

         Breese 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 sentence. Id.

         Breese 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 statute-of-limitations argument.

         III. Discussion.

         Breese 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).

         Federal 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).

         Here, 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 be dismissed.

         IV. Recommendation.

         Accordingly, we recommend that Kurtz's motion to dismiss be GRANTED because Breese's complaint is barred by the applicable statute of limitations and thus, ...


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