United States District Court, E.D. Pennsylvania
J. PAPPERT, J.
Ishmael Ali Burk, a prisoner incarcerated at SCI Smithfield,
brings this civil action pursuant to 42 U.S.C. § 1983
against three officers of the Middle Township Police
Department-Thomas Leonhauser, “Andrews, ” and
David W. Denton. Burk seeks to proceed in forma
pauperis. For the following reasons, the Court will
grant Burk leave to proceed in forma pauperis and
dismiss the Complaint pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii) with leave to amend.
alleges that on June 27, 2017, the Defendants stopped him for
speeding. Burk alleges that he “ran from the cops in
[his] car, ” jumped out of the car, and ran into the
woods. (Compl. at 5.) Burk indicates that the officers
apprehended him, handcuffed him, and zip-tied him to a tree.
He alleges that the officers tased him, beat him after
handcuffing him, and used racial slurs while doing so. Burk
sustained a back injury, a concussion, bruised ribs, and
injuries to his wrist. He also alleges that Officer Denton
planted drugs on him, and that Denton “lied and said
that [he] had heroin on [him] but no drugs were ever
found.” (Id. at 11.) Burk seeks monetary
damages to compensate him for his injuries and for
“false information and planting false evidence.”
(Id. at 7.)
dockets reflect that on June 26, 2017, Burk was charged with
several counts of aggravated and simple assault, resisting
arrest, assorted driving offenses, and related offenses
stemming from this incident. See Commonwealth v.
Burk, Docket No. MJ-07108-CR-000200-2017. The docket
does not reflect any drug-related charges. Burk pled guilty
to certain of the charges and other charges were nolle
prossed. See Commonwealth v. Burk, Docket No.
Court grants Burk leave to proceed in forma pauperis
because it appears that he is not capable of paying the fees
to commence this civil action. Accordingly, 28 U.S.C. §
1915(e)(2)(B)(ii) applies, which requires the Court to
dismiss the Complaint if it fails to state a claim. Whether a
complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). The Court may also
consider matters of public record. Buck v. Hampton Twp.
Sch. Dist., 452 F.3d 256, 260 (3d Cir. 2006).
Additionally, the Court may dismiss claims based on an
affirmative defense if the affirmative defense is obvious
from the face of the complaint. See Fogle v.
Pierson, 435 F.3d 1252, 1258 (10th Cir. 2006); cf.
Ball v. Famiglio, 726 F.3d 448, 459 (3d Cir. 2013),
abrogated on other grounds by, Coleman v.
Tollefson, 135 S.Ct. 1759, 1763 (2015). As Burk is
proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att'y Gen., 655
F.3d 333, 339 (3d Cir. 2011).
excessive force claims are time-barred. Pennsylvania's
two-year limitations period applies to Burk's § 1983
claims. See 42 Pa. Cons. Stat. § 5524;
Wallace v. Kato, 549 U.S. 384, 387 (2007). The
limitations period began to run from the time Burk
“knew or should have known of the injury upon which
[his] action is based.” Sameric Corp. of Del., Inc.
v. City of Phila., 142 F.3d 582, 599 (3d Cir. 1998).
Pursuant to the prison mailbox rule, a prisoner's
complaint is considered filed at the time he hands it over to
prison authorities for forwarding to the Court. See
Houston v. Lack, 487 U.S. 266, 276 (1988).
alleges that the Defendants subjected him to excessive force
during an incident that occurred on June 27, 2017. Burk knew
or should have known of the basis for his excessive force
claims on that date, because that is the date that the events
occurred and when he sustained injuries at the hands of the
officers. See Whitenight v. Commonwealth of Pennsylvania
State Police, 674 Fed.Appx. 142, 144 (3d Cir. 2017) (per
curiam) (“As Whitenight was aware of his injuries when
he was being arrested, which was over two years before he
filed this lawsuit, the District Court correctly concluded
that his claims were untimely.”); Brown v.
Buck, 614 Fed.Appx. 590, 592 (3d Cir. 2015) (per curiam)
(“Brown alleged that the officers used excessive force
against him when they shot him on March 22, 2011, and his
claim accrued then.”). However, Burk did not deliver
his Complaint to prison authorities for mailing until July 9,
2019, which is more than two years after his claims accrued.
(See Compl. at 10.) Accordingly, Burk's
excessive force claims are time-barred.
also appears to be bringing claims based on allegations that
Officer Denton planted drugs on him, and that Denton
“lied and said that [he] had heroin on [him] but no
drugs were ever found.” (Compl. at 11.) Burk's
allegations are undeveloped, as it is not clear whether he is
claiming that Denton planted drugs on him or whether he is
claiming that Denton claimed Burk had drugs on him but none
were found, or both. It is also not clear whether Burk was
ever arrested for or charged with drug possession, which
makes it difficult to evaluate whether Burk has stated a
claim under the Fourth or Fourteenth Amendments. See
generally Black v. Montgomery Cty., 835 F.3d 358, 371
(3d Cir. 2016) (“[A]n acquitted criminal defendant may
have a standalone fabricated evidence claim against state
actors under the due process clause of the Fourteenth
Amendment if there is a reasonable likelihood that, absent
that fabricated evidence, the defendant would not have been
criminally charged.”); Halsey v. Pfeiffer, 750
F.3d 273, 291 (3d Cir. 2014) (explaining distinctions between
Fourth and Fourteenth Amendment claims). Accordingly, Burk
will be permitted to file an amended complaint, so he can
provide more information about the circumstances giving rise
to this claim.
foregoing reasons, the Court will dismiss the Complaint for
failure to state a claim, pursuant to 28 U.S.C. §
1915(e)(2)(B)(ii). The Court will dismiss Burk's
excessive force claims with prejudice because it is clear
from the face of the Complaint that they are time-barred, but
Burk will be permitted to file an amended complaint as to his