United States District Court, E.D. Pennsylvania
se Plaintiff Marilyn Kent, a frequent litigator in this
Court, has again filed suit against the Philadelphia
Department of Human Services. She also filed a Motion for
Leave to Proceed In Forma Pauperis, For the
following reasons, Kent will be granted leave to proceed
in forma pauperis, her Complaint will be dismissed
as frivolous and malicious pursuant to 28 U.S.C. §
l9l5(e)(2)(B)(i) because her claims are time barred and
repetitive, and she will be directed to show cause why she
should not be enjoined from filing additional cases
concerning the time barred and repetitive allegations
contained in this lawsuit.
has in several prior lawsuits, Kent again brings suit
alleging that in 1986 her home was invaded and she and/or her
eleven year old daughter was raped by a "D.H.S. Reg.
Child Abuser." $he makes additional allegations that in
1986 she was raped be the same perpetrator, became pregnant,
and her daughter was stalked and assaulted with a tire iron
by the perpetrator. She alleges that the perpetrator, who was
granted child visitation rights by D.H.S., kidnapped the
child, who went missing for 30 years. She demands monetary
STANDARD OF REVIEW
Court will grant Kent leave to proceed in forma
pauperis because it appears that she is incapable of
paying the fees to commence this civil action. Accordingly,
28 U.S.C. § 1915(e)(2)(B) requires the Court to dismiss
the Complaint if, among other things, it is frivolous. A
complaint is frivolous if it "lacks an arguable basis
either in law or in fact," Neitzke v. Williams,
490 U.S. 319, 325 (1989), and is legally baseless if it is
"based on an indisputably meritless legal theory."
Deutsch v. United States, 67 F.3d 1080, 1085 (3d
Cir. 1995). '"[A] district court may dismiss a
complaint as malicious if it is plainly abusive of the
judicial process or merely repeats pending or previously
litigated claims.'" Randolph v. Wetzel,
Civ. A. No. 19-2231, 2019 WL 2577635, at *5 (E.D. Pa. June
21, 2019) (quoting Brodzki v. CBS Sports, Civ. A.
No. 11-841, 2012 WL 125281, at *1 (D. Del. Jan. 13, 2012). As
Kent is proceeding pro se, the Court construes her
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
1983 of Title 42 of the United States Code provides in part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
42 U.S.C. § 1983. The statute of limitations for claims
brought under § 1983 "is governed by the personal
injury tort law of the state where the cause of action
arose." Kach v. Hose 589 F.3d 626, 634 ($d Cir.
2009) (citing Wallace v. Kato, 549 U.S. 384, 387
(2007)). Whether the statute of limitations has run turns on
two issues: (1) the length of the period to commence legal
action, and (2) the date on which the claim began to accrue.
Id. In Pennsylvania, the length of the statute of
limitations for a § 1983 claim is two years.
Id.; 42 Pa. Cons. Stat. § 5524.
however, employs the "discovery rule" that delays
the running of the statute of limitations where "despite
the exercise of reasonable diligence," a plaintiff
cannot know that she is injured and by what cause. Fine
v. Checcio, 870 A.2d 850, 858 (Pa. 2005). "A
complaint is subject to dismissal for failure to state a
claim on statute of limitations grounds only when the statute
of limitations defense is apparent on the face of the
complaint." Wisniewski v. Fisher, 857 F.3d 152,
157 (3d Cir. 2017).
application of the statute of limitations is apparent on the
face of Kent's Complaint,, it must be dismissed as
legally baseless. All activities underlying Kent's claims
occurred 34 to 35 years ago. Her allegations make clear that
she knew of the existence of her injury and what caused it -
D.H.S. allegedly failing to protect her and the child - at
the time her injury occurred.
the claim was not time barred, the Complaint would still be
subject to dismissal because it is malicious as Kent seeks to
raise the identical issue already raised and dismissed in
prior lawsuits against the same defendant. See Kent v.
Philadelphia D.H.S., Civ. A. No. 19-1598; Kent v.
Philadelphia D.H.S, Civ. A. No. 11-2558. Civil Action
11-2558 was dismissed by Judge Stengel on January 19, 2012
after the amended complaint had been served on the
Defendant., Judge Stengel's order was later affirmed on
appeal, see Kent v. Philadelphia D.H.S., No. 12-1311
(3d Cir. Nov. 30, 2012), and Kent's post-appeal filings
in this Court were denied because th$ judgment was final.
Civil Action 19-1598 was dismissed as time barred, as
duplicative of Kent's prior case, and because she sought
to bring a claim on behalf of her child. See Osei-Afriyie
v. Med. Coll. of Pennsylvania, 937 F.2d 876 (3d Cir.
1991) (holding that non-lawyer proceeding pro se may
not represent his children). Thus, to the extent that
Kent's Complaint here may be read to raise claims
belonging to her child, it again fails for this additional