United States District Court, E.D. Pennsylvania
DERRICK J. ELLERBE
THE MAYOR OF PHILADELPHIA, THE PRESIDENT OF CITY COUNCIL, THE MANAGING DIRECTOR, THE POLICE COMMISSIONER, THE SHERIFF PHILA. COUNTY, THE INSPECTOR GENERAL PHILA, THE DISTRICT ATTORNEY PHILA and PHILA. PRISON SYSTEM COMMISSIONER, All Defendants In Their Official and Individual Capacities DERRICK J. ELLERBE
THE UNITED STATES AND ITS AGENCIES and CITY OF PHILA.
TIMOTHY J. SAVAGE J.
se plaintiff Derrick J. Ellerbe, a frequent litigator in
this court,  filed these two actions against numerous
Philadelphia officials and the United States alleging civil
rights violations. He also filed Motions for Leave to Proceed
In Forma Pauperis. For the following reasons, we
shall grant him leave to proceed in forma pauperis
and dismiss his complaints as frivolous and malicious
pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) because his
claims are time barred and repetitive.
Civil Action 19-2716, Ellerbe sues numerous Philadelphia
officials asserting that he was illegally followed and
harassed since 2007, and then kidnapped and held captive
between April 2, 2013 and October 4, 2013, when he was
falsely imprisoned and held as “slave” in a state
of “involuntary servitude.” He bases his
claims on numerous federal criminal statutes, including
statutes criminalizing civil rights conspiracies, obstruction
of justice, peonage and slavery, and racketeering. He also
cites the First, Fourth, Fifth, Thirteenth and Fourteenth
Amendments. He makes the same rambling allegations in
Civil Action 19-2718 against the United States, its agencies,
and the City of Philadelphia.
Complaint must be dismissed if, among other things, it is
frivolous. 28 U.S.C. § 1915(e)(2)(B)(i). 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). Because Ellerbe is proceeding
pro se, we construe his allegations liberally.
Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir.
presumably brings his constitutional claims pursuant to 42
U.S.C. § 1983. Section 1983 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.
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 (3d 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. Pennsylvania, 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.
application of the statute of limitations is apparent on the
face of the complaints, they will be dismissed as legally
baseless. All activities underlying Ellerbe's claims
occurred at least six years ago. His allegations make clear
that he knew of the existence of his injury and what caused
it - the allegedly illegal surveillance and servitude - at
the time his injury occurred.
extent that Ellerbe cites federal criminal statutes as a
basis for his claims, those claims are frivolous or
malicious. Criminal statutes generally do not give rise to a
basis for civil liability. See Brown v. City of
Philadelphia Office of Human Res., 735 Fed.Appx. 55, 56
(3d Cir. 2018) (per curiam) (“Brown alleges that the
defendants violated various criminal statutes, but most do
not provide a private cause of action.”); Brown v.
U.S. Dist. Ct. for the E. Dist. of Pa., Civ. A. No.
18-747 (E.D. Pa.) (Apr. 9, 2018 Order at 6 (dismissing claims
under 18 U.S.C. § 1589 as “meritless and
frivolous”)), aff'd, 740 Fed.Appx. 239, 240 (3d
Cir. 2018) (per curiam); Brown v. Progressive Specialty
Ins. Co., Civ. A. No. 17-5409, 2017 WL 6210283, at *1
(E.D. Pa. Dec. 7, 2017) (“[F]ederal criminal statutes
generally do not provide a basis for civil
liability.”), aff'd, No. 18-1005, 2019 WL 1422895
(3d Cir. Mar. 29, 2019).
specifically cites 18 U.S.C. §§ 241, 242 and 245.
These sections establish criminal liability for certain
deprivations of civil rights and for conspiracy to deprive
civil rights. Molina v. City of Lancaster, 159
F.Supp.2d 813, 818 (E.D. Pa. 2001); Figueroa v.
Clark, 810 F.Supp. 613, 615 (E.D. Pa. 1992); see
United States v. Philadelphia, 644 F.2d 187 (3d Cir.
1980) (declining to create civil remedy under 18 U.S.C.
§§ 241 and 242). However, a plaintiff cannot bring
criminal charges against defendants through a private
lawsuit, and these sections do not give rise to a civil cause
of action. U.S. ex rel. Savage v. Arnold, 403
F.Supp. 172 (E.D. Pa. 1975). Ellerbe cites 18 U.S.C. §
371, which also does not provide for a private right of
action. See Walthour v. Herron, Civ. A. No. 10-1495,
2010 WL 1877704 at *3 (E.D. Pa. May 6, 2010) (no private
right of action exists under 18 U.S.C. §§ 241, 242,
245, 247, 371 or 1951); Jones v. Lockett, Civ. A.
No. 08-16, 2009 WL 2232812 at *8 (W.D. Pa. July 23, 2009)
(“It is clear that the criminal statutes invoked by
Plaintiff, i.e., 18 U.S.C. §§ 241, 371 and 1341 do
not provide for a private cause of action.”) Ellerbe
also cites several criminal statutes concerning obstruction
of justice. None of them provide a private cause of action.