Getchey v. Northumberland , 120 F. App'x 895 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
1-6-2005
Getchey v. Northumberland
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-1693
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"Getchey v. Northumberland" (2005). 2005 Decisions. Paper 1575.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 04-1693
BARRY GETCHEY,
Appellant
v.
COUNTY OF NORTHUMBERLAND
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 03-CV-0826)
District Judge: The Honorable James F. McClure
______________
Submitted Under Third Circuit LAR 34.1(a)
December 17, 2004
(Filed: January 6, 2005)
Before: NYGAARD and GARTH, Circuit Judges.
and POLLAK,* District Judge.
______________
OPINION OF THE COURT
*
Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
1
______________
POLLAK, District Judge.
In this case, we are asked to review dismissal of a complaint filed by Barry
Getchey against the County of Northumberland. Judge James F. McClure of the United
States District Court for the Middle District of Pennsylvania dismissed Getchey’s
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) on the ground that the
statute of limitations had run on the injuries alleged therein. This court exercises plenary
review over a district court’s grant of a motion to dismiss, see, e.g., City of Pittsburgh v.
West Penn Power Company, 147 F.3d 256, 262 n.12 (3d Cir. 1998). For purposes of such
review, all allegations contained in the complaint are accepted as true, see, e.g.,
Morganroth & Morganroth v. Norris, McLaughlin, & Marcus, P.C., 331 F.3d 406, 408
(3d Cir. 2003). For the reasons expressed below, we affirm the ruling of the District
Court.
II.
Getchey maintains that, on January 20, 1956, when he was twelve years old, he
was convicted of truancy from school by Alderman B. Lee Morgan of the Court of
Common Pleas of Northumberland County, Pennsylvania. Getchey was sentenced for a
2
period of ten days, beginning on January 20, 1956, to the Northumberland County Prison,
an adult correctional facility. At that time, the Northumberland County Prison did not
have facilities for juveniles. Getchey was thus placed among the adult inmates.
During his incarceration, Getchey, so he alleges, was sexually assaulted by two
other inmates on at least five separate occasions. These inmates allegedly told Getchey
that, if he reported the incidents, he would be harmed and “sent to the ‘dungeon’”
(Complaint ¶ 20). Despite these threats, Getchey reported the attacks to Paul Dungar,
warden of the prison at the time. Warden Dungar allegedly told Getchey to say nothing in
order to avoid taunting from other children and embarrassment to his mother (Id. at ¶ 21).
Without further recourse, Getchey repressed memories of the assaults, apparently until
very recently (Appellant’s Br. at 7).
Upon emergence of these memories, Getchey filed a complaint against the County
of Northumberland, alleging three counts – negligence for failing to prevent adult inmates
from assaulting plaintiff (Count I); vicarious liability for the actions undertaken by the
County’s agents, servants, and employees, including Alderman Morgan and Warden
Dungar, who allegedly acted within the scope of their employment and directly and
proximately caused plaintiff’s injuries (Count II); and punitive damages for the county’s
allegedly malicious, deliberate, intentional, willful and wanton conduct toward plaintiff
(Count III). The District Court construed Getchey’s complaint as being brought under 42
U.S.C. §§ 1983 and 1985(3).
3
The County moved to dismiss Getchey’s complaint for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil Procedure 12(b)(6).
Specifically, the County argued that Getchey’s claims were time-barred. The District
Court agreed, finding that the statute of limitations for § 1983 and § 1985(3) claims,
which it appropriately borrowed from Pennsylvania state law, is two years, and so had
long since expired. Judge McClure further found that Getchey’s repression of the
memories of the assault did not provide grounds to toll the statute of limitations. Judge
McClure approvingly cited Dalrymple v. Brown, 701 A.2d 164 (Pa. 1997), a
Pennsylvania Supreme Court case holding that repressed memory syndrome does not
constitute an appropriate ground upon which to toll the statute of limitations. In response
to Getchey’s argument that equity mandated tolling due to the County’s fraudulent
concealment, Judge McClure found that no concealment had occurred. While Getchey
may have been dissuaded from reporting his assaults, Judge McClure observed, Warden
Dungar did not deny their occurrence – a prerequisite for fraudulent concealment, see
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1387 (3d Cir. 1994). Judge
McClure concluded that dismissal of the complaint was warranted. This timely appeal
followed.
III.
Because neither 42 U.S.C. § 1983 nor § 1985(3) contains a statute of limitations,
4
“federal courts must look to the statute of limitations governing analogous state causes of
action,” Urritia v. Harrisburg County Police Department, 91 F.3d 451, 457 n. 9 (3d Cir.
1996); see also Samerie Corp. of Delaware v. City of Philadelphia, 142 F.3d 582, 599 (3d
Cir. 1998).
In determining which state limitations period to use in federal civil rights
cases, we look to the general, residual statute of limitations for personal
injury actions. See Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d
254, 105 S. Ct. 1938 (1985). We must also incorporate any relevant state
tolling rules. See Hardin v. Straub, 490 U.S. 536, 543-44, 104 L. Ed. 2d
582, 109 S. Ct. 1998 (1989). Thus, for § 1983 and § 1985 actions
originating in Pennsylvania, we look to 42 Pa. C.S. §§ 5524.
Lake v. Arnold, 232 F.2d 360, 368 (3d Cir. 2000) (applying the Pennsylvania two-year
statute of limitations to a claim alleging violation of plaintiff’s federal civil rights as a
result of her forced sterilization, performed pursuant to a policy of sterilizing the mentally
retarded). Section 5524 provides a two-year statute of limitations to personal injury
claims like Getchey’s.1
1
Appellant and appellee cite 42 Pa. C.S.A. § 5533 in addition to § 5524. Section
5533 provides that, “if an individual entitled to bring a civil action arising from childhood
sexual abuse is under 18 years of age at the time the cause of action accrues, the
individual shall have a period of 12 years after attaining 18 years of age in which to
commence an action for damages… .” This section is inapplicable for two reasons. First,
as appellees note, this tolling provision did not become effective until 1984; it “cannot
revive a cause of action which accrued and expired [twenty-eight years] prior its effective
date,” when Getchey’s injuries occurred. Dalrymple v. Brown, 701 A.2d 164, 166 n.3 (Pa.
1997). Second, even if the minority provision were in effect at the time of Getchey’s
assaults, it would still fail to excuse his delay since his thirtieth birthday – the deadline
that section 5533 stipulates – has long since passed.
5
Notwithstanding the more than four decades lapse of time since Getchey’s injuries,
he argues that the statute of limitations should be tolled under either Pennsylvania’s
discovery rule or the federal doctrine of equitable tolling.
a. The Discovery Rule
“The discovery rule provides that where the existence of the injury is not known to
the complaining party and such knowledge cannot reasonably be ascertained within the
prescribed statutory period, the limitations period does not begin to run until the discovery
of the injury is reasonably possible.” Murphy v. Diogenes Saavedra, M.D., P.C., 746 A.2d
92, 94 (Pa. 2000). Whether the discovery rule applies in cases of repressed memory is a
question of state law. See Federal Home Loan Mortgage v. Scottsdale Insurance Co., 316
F.3d 431, 443 (3d Cir. 2003) (“[Federal courts] are not free to impose [their] own view of
what state law should be; [they] are to apply state law as interpreted by the state's highest
court.”); National Surety Corp. v. Midland Bank, 551 F.2d 21 (3d Cir. 1977) (“State law
as announced by the highest court of the State is to be followed. This is not a diversity
case but the same principle may be applied for the same reasons, viz., the underlying
substantive rule involved is based on state law and the State's highest court is the best
authority on its own law.”).
In Dalrymple v. Brown, 701 A.2d 164, 166 n.3 (Pa. 1997), the Pennsylvania Supreme
Court considered whether the discovery rule ought to toll the statute of limitations where
6
repressed memory syndrome prevented the victim of sexual abuse from discovering her
injuries until some thirty years after they had occurred. The court declined to extend the
discovery rule to cases of repressed memory, stating that “[t]he very essence of the discovery
rule in Pennsylvania is that it applies only to those situations where the nature of the injury
itself is such that no amount of vigilance will enable the plaintiff to detect an injury,” and
finding that battery is not such an injury since “in a typical battery, all the elements of the
offensive touching will be present and ascertainable by the plaintiff at the time of the
touching itself.” Id. at 170. The court defended its decision on policy grounds, arguing that
a reasonable person approach to the discovery rule “allows for equity in protecting those
parties who could not, through the exercise of reasonable diligence, know they were injured
and simultaneously protects the tortfeasor from being faced with stale claims that, due to the
passage of time and the fading of memory, may be indefensible.” Id. at 170
The Dalrymple decision is dispositive here.2 See Federal Home Loan Mortgage,
316 F.3d at 443. While Getchey may have repressed memories of the assaults, the
Dalrymple reasoning precludes us from using the repression as an excuse since it is not
the case that “no amount of vigilance” would have enabled Getchey to uncover the
injuries. 701 A.2d at 170. After all, Getchey was surely aware of these as they were
2
As such, the precedents Getchey cites from jurisdictions where the discovery rule
has been extended to cases of repressed memory are irrelevant; Getchey’s invitation to
this court to join these other jurisdictions is thus one that we are not in a position to
accept.
7
occurring. See id. Indeed, we know that this awareness must have persisted at least in the
short term, for Getchey obviously possessed knowledge of the attacks at the time that he
reported them to Warden Dungar. Since what matters in Pennsylvania for the purpose of
applying the discovery rule is whether a reasonable person could have discovered the
injury within the statute of limitations, and not whether the plaintiff in fact did so, and
since Getchey could have, and indeed did, discover his injuries within that time, the
discovery rule ought not to apply to him.
b. Equitable Tolling
Equitable tolling is appropriate in three situations:
(1) where a defendant actively misleads a plaintiff with respect to her cause
of action; (2) where the plaintiff has been prevented from asserting her
claim as a result of other extraordinary circumstances; or (3) where the
plaintiff asserts her claims in a timely manner but has done so in the wrong
forum.
Lake, 232 F.3d at 370 n.9. Getchey argues that his case is like the first situation in which
equity mandates tolling the statute of limitations.
More specifically, Getchey argues that Warden Dungar misled Getchey by telling
him that he would humiliate himself and his mother were he to report the attacks to
anyone else. Yet, however unresponsive Warden Dungar may have been, he did not
mislead Getchey with respect to the availability of a cause of action because Warden
Dungar never denied that the injuries occurred. Since the first situation under which
8
equitable tolling is appropriate requires the plaintiff to have been misled about the
availability of a cause of action, the first situation does not extend to Warden Dungar’s
conduct. Thus, Getchey’s argument that equitable tolling is appropriate here is not
persuasive.
IV.
Neither the discovery rule nor the federal doctrine of equitable tolling provides
grounds for tolling the statute of limitations in this case. As such, Getchey’s case is time-
barred and the decision of the District Court is AFFIRMED.3
3
Because we reach this decision on statute of limitations ground, we need not
consider appellee’s argument that Getchey has failed to state a cognizable federal civil
rights claim.
9