2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-2-2010

Winston McPherson v. USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3757

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Recommended Citation

"Winston McPherson v. USA" (2010). 2010 Decisions. Paper 650.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 08-3757

 

WINSTON L. MCPHERSON, 

 Appellant

v.

UNITED STATES OF AMERICA; 

STATE OF NEW JERSEY; 

DISTRICT ATTORNEY JOHN DOE I;

ASSISTANT DISTRICT ATTORNEY JOHN DOE II;

DETECTIVE JOHN APPLEYARD; 

COMMONWEALTH OF PENNSYLVANIA; 

PHILADELPHIA COUNTY; 

DISTRICT ATTORNEY LYNNE ABRAHAM; 

ASSISTANT DISTRICT ATTORNEY PAUL LAUGHLIN; 

ASSISTANT DISTRICT ATTORNEY HUGH COLIHAN; 

DETECTIVE JAMES DOUGHERTY; 

DETECTIVE LEON LUBIEJEWSKI

 

 

Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 2-07-cv-06119)

District Judge: Honorable Susan D. Wigenton

 

Argued July 15, 2010
Honorable J. William Ditter, Jr., Senior District Judge for the United States *

District Court for the Eastern District of Pennsylvania, sitting by designation.

2

Before: FUENTES and VANASKIE, Circuit Judges, and

DITTER, Senior District Judge *

(Opinion Filed : September 2, 2010)

Winston L. McPherson

Dallas SCI

1000 Follies Road

Dallas, PA 18612-0000

Pro Se Appellant

Ryan A. Ulloa (Argued)

Jennings F. Durand, Esq.

Carolyn H. Feeney, Esq.

Dechert

2929 Arch Street

18th Floor, Cira Centre

Philadelphia, PA 19104

Amicus Counsel on Behalf of the Court

Sharon Swingle, Esq. (Argued)

Douglas N. Letter, Esq.

Robert M. Loeb, Esq.

United States Department of Justice

Civil Division

950 Pennsylvania Avenue, N.W.

Washington, DC 20530-0000

Counsel for Defendant - Amicus Appellee

 

OPINION OF THE COURT
3

 

VANASKIE, Circuit Judge.

Winston McPherson, presently confined in the Pennsylvania prison system on a

murder conviction, brought a civil rights action in the District of New Jersey seeking

monetary relief on the ground that New Jersey and Pennsylvania law enforcement

officials denied him his right to consular notification under the Vienna Convention on

Consular Relations (“Vienna Convention”). The District Court sua sponte dismissed

McPherson’s complaint, concluding that the Vienna Convention does not create an

individual right that is enforceable in domestic courts, and that McPherson’s suit is barred

by the statue of limitations. Without deciding whether the Vienna Convention confers an

individual right to consular notification, we agree with the District Court that

McPherson’s suit is time-barred. Accordingly, we will affirm the judgment of the District

Court.

I.

As we write only for the parties, who are familiar with the facts and procedural

history of this case, we will set forth only those facts necessary to our analysis.

McPherson is a Jamaican citizen who emigrated to the United States in 1986. He

alleges that he was arrested in 1988 and again in 1993, but neither arrest led to a

conviction. McPherson claims that at no point during those arrests did police tell him that

he had a right to consult with the Jamaican consulate. 

In 1995, New Jersey law enforcement officials took McPherson into custody for
The date of McPherson’s conviction was not included in the record before us, but 1

it was reflected in the records for McPherson’s earlier criminal and civil proceedings. We

can, and will, take judicial notice of the official record of prior court proceedings. See

United States ex rel. Geisler v. Walters, 510 F.2d 887, 890 n.4 (3d Cir. 1975) (taking

judicial notice of briefs and petitions from prior habeas corpus proceedings to make “a

full and proper record”).

Article 36, in pertinent part, provides: 2

[I]f he so requests, the competent authorities of the receiving

State shall, without delay, inform the consular post of the

sending State if, within its consular district, a national of that

State is arrested or committed to prison or to custody pending

trial or is detained in any other manner. Any communication

addressed to the consular post by the person arrested, in

(continued...)

4

questioning regarding a robbery. While McPherson was detained, questioning turned to a

murder that took place in Philadelphia. He was eventually extradited to Pennsylvania,

tried before a jury for murder, and found guilty on January 12, 1996.1

McPherson then challenged his conviction in state and federal court. In 1998,

McPherson filed a pro se petition under Pennsylvania’s Post Conviction Relief Act

(“PCRA”), 42 Pa. Cons. Stat § 9541, et seq. The Court of Common Pleas appointed

counsel, who submitted a letter pursuant to Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. Ct. 1988), stating that McPherson’s petition lacked merit. The Court of Common

Pleas subsequently dismissed the petition. McPherson obtained new counsel and

appealed. In a brief served on June 14, 1999, McPherson argued that his prior counsel

was constitutionally ineffective for failing to raise the violation of his rights under Article

36 of the Vienna Convention. The Superior Court affirmed the dismissal of 2
(...continued) 2

prison, custody or detention shall also be forwarded by the

said authorities without delay. The said authorities shall

inform the person concerned without delay of his rights under

this sub-paragraph.

Vienna Convention on Consular Relations art. 36, Apr. 24, 1963, 21 U.S.T. 77, 596

U.N.T.S. 261.

5

McPherson’s PCRA petition. Commonwealth v. McPherson, 754 A.2d 20 (Pa. Super. Ct.

2000). The Supreme Court of Pennsylvania denied allocatur. Commonwealth v.

McPherson, 759 A.2d 921 (Pa. 2000).

In 2001, McPherson filed a petition for a writ of habeas corpus in the United States

District Court for the Eastern District of Pennsylvania. McPherson argued, again, that his

prior counsel was ineffective for failing to allege that his right to consular notification

under the Vienna Convention was violated. The District Court denied the petition. As to

the ineffective assistance claim concerning his alleged rights under the Vienna

Convention, the District Court concluded that McPherson could not show that his defense

to the murder charge was prejudiced by the failure to confer with the Jamaican consulate. 

McPherson v. Lavan, No. Civ. 01-3499, 2002 WL 32341785, at *1 (E.D. Pa. Dec. 30,

2002). We denied McPherson’s request for a certificate of appealability on June 24,

2003.

 On December 26, 2007, McPherson filed the present suit against various

governmental entities and officials, seeking damages for the alleged violation of the
6

Vienna Convention. McPherson also contended that the failure to provide consular

notification violated his rights under the Fifth, Sixth, and Fourteenth Amendments. 

McPherson asserted jurisdiction under 42 U.S.C. § 1983 and the Alien Tort Statute

(“ATS”), 28 U.S.C. § 1350. 

Because McPherson brought his action in forma pauperis and sought redress from

the government, the District Court reviewed the complaint sua sponte for possible

dismissal pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b). Both provisions require the

court to dismiss a complaint that is frivolous or malicious, fails to state a claim upon

which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. The Court dismissed McPherson’s claims against the State of New

Jersey, the Commonwealth of Pennsylvania, the United States of America, and various

prosecutorial defendants, concluding that they are immune from suit. McPherson v.

United States, No. 2-07-cv-06119, 2008 WL 2985448, at *5-6, *11 (D.N.J. July 31,

2008). McPherson does not challenge these rulings. The District Court also dismissed

the claims arising under the Fifth, Sixth, and Fourteenth Amendments, concluding that

they are barred by Heck v. Humphrey, 512 U.S. 477 (1994). McPherson, 2008 WL

2985448, at *10.

The District Court dismissed McPherson’s remaining claims arising under the

Vienna Convention for two independent reasons. First, the Court concluded that the

Vienna Convention does not create an individual right that is enforceable in United States
Mr. Ulloa is an eligible law student permitted to enter an appearance pursuant to 3

Local Civil Rule 46.3. We commend Mr. Ulloa on his advocacy and appreciate the

participation of amici in this matter.

7

courts. Id. at *8. Alternatively, the District Court held that McPherson’s claims were

barred by the New Jersey two-year statute of limitations that governs personal injury

actions and is deemed applicable to civil rights actions. Id. at *9. 

McPherson appealed, and we issued an order inviting the parties to submit briefs

addressing three issues: first, whether a foreign national who is not informed of his right

to consular notification under the Vienna Convention has any individual remedy in

domestic courts; second, whether a claim under the Vienna Convention may be barred by

the United States Supreme Court’s holding in Heck v. Humphrey; and third, whether a

district court may sua sponte dismiss a complaint pursuant to 28 U.S.C. § 1915(e) on

statute of limitations grounds. The United States submitted an amicus brief urging us to

affirm the judgment of the District Court. We subsequently appointed counsel to file an

amicus brief in support of McPherson.3

II.

We have jurisdiction over McPherson’s appeal pursuant to 28 U.S.C. § 1291. Our

review of the District Court’s dismissal of the complaint is plenary. See Tourscher v.

McCullough, 184 F.3d 236, 240 (3d Cir. 1999). We accept McPherson’s factual

allegations as true and draw all reasonable inferences in his favor. See id.

McPherson argues that the District Court’s dismissal of his complaint as time-
8

barred was wrong on both procedural and substantive grounds. As a procedural matter,

McPherson contends that sua sponte dismissal on statute of limitations grounds is

inconsistent with our holding in Ray v. Kertes, 285 F.3d 287 (3d Cir. 2002). On

substantive grounds, McPherson contends, without substantiation, that equitable tolling

may allow him to pursue this action long after the limitations period otherwise expired.

A.

Ray concerned a provision of the Prison Litigation Reform Act (“PLRA”) that

states that “[n]o action shall be brought with respect to prison conditions . . . by a prisoner

confined in any jail, prison, or other correctional facility until such administrative

remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). While recognizing that

the statute clearly requires plaintiffs to exhaust their administrative remedies, we rejected

a pleading rule that would have required a complaint to allege facts demonstrating

exhaustion. Rather, we held that “failure to exhaust is an affirmative defense to be

pleaded by the defendant.” Ray, 285 F.3d at 295. 

We also found that the court below erred in sua sponte dismissing a complaint that

did not demonstrate that the plaintiff exhausted administrative remedies. Id. We relied

primarily on the text of §1997e, which provides for sua sponte dismissal if a complaint is

frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks

monetary relief from a defendant who is immune from such relief. Ray, 285 F.3d at 296

(citing 42 U.S.C. § 1997e(c)(1)). We also noted that the statute explicitly allows a court
9

to dismiss a complaint “without first requiring the exhaustion of administrative

remedies.” Id. (citing 42 U.S.C. § 1997e(c)(2)). We concluded, under the principle of

expressio unius est exclusio alterius, that the omission of “failure to exhaust” from the

grounds for sua sponte dismissal indicated Congressional intent not to include failure to

exhaust as a reason justifying dismissal. Id. 

McPherson argues that Ray stands for the general proposition that a court may not

sua sponte dismiss a complaint on the basis of any affirmative defense, including the

statute of limitations. To be sure, a limitations defense is an affirmative defense. See

Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002). Ray, however, does not go as far

as McPherson claims. This Court has long recognized that the statute of limitations can

serve as the basis for dismissal under Fed. R. Civ. P. 12(b)(6), as long as “the time alleged

in the statement of a claim shows that the cause of action has not been brought within the

statute of limitations.” Bethel v. Jendoco Const. Corp., 570 F.2d 1168, 1174 (3d Cir.

1978) (internal quotation marks omitted). This principle is consistent with our

observation in Ray that, “[a]s a general proposition, sua sponte dismissal is inappropriate

unless the basis is apparent from the face of the complaint.” Ray, 285 F.3d at 297. Ray’s

failure to exhaust was not apparent from the face of his complaint, so sua sponte

dismissal was not appropriate. 

The fact that a claim has not been brought within the statue of limitations,

however, may be apparent from the face of a complaint. The United States Supreme
10

Court, while agreeing that failure to exhaust under the PLRA is an affirmative defense

and that plaintiffs need not demonstrate exhaustion in their complaints to survive

dismissal, nonetheless recognized that a court may dismiss a complaint for failing to state

a claim when its allegations show that the complaint is not timely. The Court noted that

“[i]f the allegations . . . show that relief is barred by the applicable statute of limitations,

the complaint is subject to dismissal for failure to make a claim; that does not make the

statute of limitations any less an affirmative defense.” Jones v. Bock, 549 U.S. 199, 215

(2007). The factual allegations in the complaint, not the label of “affirmative defense,”

control the court’s decision whether to dismiss the suit. “Whether a particular ground for

opposing a claim may be the basis for dismissal for failure to state a claim depends on

whether the allegations in the complaint suffice to establish that ground, not on the nature

of the ground in the abstract.” Id.

Failure to exhaust and the statute of limitations are similar “in the abstract”: they

are both affirmative defenses. But, a court may nonetheless dismiss a suit for failing to

state a claim when the limitations defense is obvious from the face of the complaint. We

see no reason why a district court, when screening a complaint pursuant to the PLRA,

may not sua sponte dismiss a suit whose allegations make clear that the action is not

timely. Indeed, other Courts of Appeals have recognized that dismissal under these

circumstances is appropriate. See, e.g., Fogle v. Pierson, 435 F.3d 1252, 1258 (10th Cir.

2006); Dellis v. Corr. Corp. of Am., 257 F.3d 508, 511 (6th Cir. 2001); Nasim v. Warden,
Additionally, district court judges within the Third Circuit have long held that a 4

court may sua sponte dismiss complaints on statute of limitations grounds. See, e.g.,

Cason v. Arie St. Police Dept., Civil No. 10-497 (KSH), 2010 WL 2674399, at *5-6

(D.N.J. June 29, 2010); Derrickson v. Nolan, No. 2:08-cv-668, 2008 WL 2888621, at *4-

5 (W.D. Pa. July 23, 2008); Moody v. Sussex Corr. Inst., No. Civ. A. 01-374-SLR, 2002

WL 450083, at *2-3 (D. Del. Mar. 11, 2002); Johnstone v. United States, 980 F. Supp.

148, 154-55 (E.D. Pa. 1997).

11

Maryland House of Corr., 64 F.3d 951, 956 (4th Cir. 1995) (en banc); Pino v. Ryan, 49

F.3d 51, 53-54 (2d Cir. 1995). We agree that when a statute-of-limitations defense is 4

apparent from the face of the complaint, a court may sua sponte dismiss the complaint

pursuant to 28 U.S.C. § 1915 or 28 U.S.C. § 1915A.

B.

Turning now to the substantive limitations analysis, we have little difficulty

concluding that the untimeliness of McPherson’s action is apparent from the face of the

complaint. McPherson’s § 1983 claim accrued when he “knew or should have known of

the injury upon which [his] action is based.” Sameric Corp. of Del. v. City of Phila., 142

F.3d 582, 599 (3d Cir. 1998). Thus, the claim accrued at least as early as 1995, when the

arresting agents failed to inform him of his Vienna Convention rights, but certainly no

later than January 12, 1996, the date of McPherson’s conviction. See Bieregu v.

Ashcroft, 259 F. Supp. 2d 342, 355 (D.N.J. 2003) (noting that the plaintiff’s claim under

the Vienna Convention accrued when the law enforcement officers failed to inform him

of his rights under Article 36, and to the extent that plaintiff relied upon a “continuing

wrong” theory, no later than the date of his conviction). 
12

The statute of limitations for personal injury actions in the state where

McPherson’s § 1983 claim arose supplies the applicable limitations period. See Wallace

v. Kato, 549 U.S. 384, 387 (2007); Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). 

The District Court assumed that McPherson’s action arose in New Jersey, not

Pennsylvania. We need not determine whether the District Court chose correctly, as New

Jersey and Pennsylvania both have a two-year limitations period for personal injury

actions. See N.J. Stat. Ann. § 2A:14-2; 42 Pa. Cons. Stat. § 5524. Because McPherson’s

claim accrued no later than January 12, 1996, the statutes of limitations of New Jersey

and Pennsylvania required McPherson to have filed his suit by January 12, 1998. 

McPherson did not initiate this action until December 26, 2007.

McPherson contends that equitable tolling is warranted because law enforcement

officials “actively misled” him regarding his Vienna Convention rights. “State law,

unless inconsistent with federal law, also governs the concomitant issue of whether a

limitations period should be tolled.” Dique v. New Jersey State Police, 603 F.3d 181, 185

(3d Cir. 2010). New Jersey or Pennsylvania equitable tolling principles might allow

McPherson’s suit to proceed if he could show that, through no fault of his own, he had

been unable to present this action earlier. See Binder v. Price Waternouse & Co., 923

A.2d 293, 312 (N.J. Super. Ct. App. Div. 2007) (noting that equitable tolling can apply

where “the complainant has been induced or tricked by his adversary’s misconduct into

allowing the filing deadline to pass,” or “where a plaintiff has in some extraordinary way
13

been prevented from asserting his rights”) (internal quotation marks omitted); Uber v.

Slippery Rock Univ. of Pa., 887 A.2d 362, 366 (Pa. Commw. Ct. 2005) (noting that

equitable tolling applies “where the defendant actively misleads the plaintiff regarding the

cause of action,” or “where extraordinary circumstances prevent the plaintiff from

asserting his rights”). 

But McPherson cannot make the requisite showing. Even if we assume that law

enforcement officials misled McPherson at the time of his arrest and conviction, it is

undeniable that McPherson knew about his right to consular notification under the Vienna

Convention since at least 1999. As evidenced by the June 14, 1999 brief written on his

behalf in his PCRA proceedings, McPherson knew of his rights more than eight years

before he filed this suit. In light of these facts, McPherson’s invocation of equitable

tolling is unavailing.

It is true, as McPherson argues, that federal tolling principles apply “[w]hen the

state tolling rules contradict federal law or policy.” Lake, 232 F.3d at 370. But

McPherson also cannot avail himself of federal equitable tolling rules. “To be successful

in asserting this exception to the statute of limitations, [the plaintiff] must show that he or

she exercised reasonable diligence in investigating and bringing [the] claims . . . . Mere

excusable neglect is not sufficient.” Robinson, 313 F.3d at 142 (internal quotation marks

omitted). McPherson has not exercised reasonable diligence in pursuing his claim. He

waited nearly 12 years after his conviction, and more than eight years after he undeniably
14

knew of his Vienna Convention rights, before commencing this action. McPherson’s §

1983 claim is time-barred. 

Finally, to the extent McPherson asserts a claim under the Alien Tort Statute, this

claim is also barred by the statute of limitations. Although the ATS does not include a

statute of limitations, other courts have found that the statute carries a ten-year limitations

period by applying the ten-year statute of limitations governing claims under the Torture

Victim Protection Act, 28 U.S.C. § 1350, note 1. See, e.g., Cabello v. Fernandez-Larios,

402 F.3d 1148, 1153 (11th Cir. 2005); Papa v. United States, 281 F.3d 1004, 1012 (9th

Cir. 2002). Even if we assume that a ten-year statute of limitations is appropriate with

respect to McPherson’s Vienna Convention claim, and that the defendants “actively

misled” McPherson about his rights in a way that could toll the statute of limitations, the

claim is still untimely. The ten-year statute would have expired, at the latest, in January

of 2006. Even assuming McPherson did not know of the alleged violation of the Vienna

Convention until 1999, he still had more than six years on the ten-year limitations period

to bring this suit. The doctrine of equitable tolling imposes on the plaintiff the obligation

to exercise reasonable diligence in not only investigating, but also bringing the claims. 

Robinson, 313 F.3d at 142; New Castle County v. Halliburton NUS Corp., 111 F.3d 1116,

1126 (3d Cir. 1997). As the Seventh Circuit has observed: 

When as here the necessary information is gathered after the

claim arose but before the statute of limitations has run, the

presumption should be that the plaintiff could bring the suit

within the statutory period and should have done so. . . . [A]
15

plaintiff who invokes equitable tolling to suspend the statute

of limitations must bring suit within a reasonable time after he

has obtained, or by due diligence could have obtained, the

necessary information.

Cada v. Baxter Healthcare Corp., 920 F.2d 446, 453 (7th Cir. 1990). McPherson knew of

his rights by 1999. He waited more than eight years after that to initiate this action. That

is not a reasonable amount of time. Consequently, McPherson’s ATS claim is also barred

by the statute of limitations.

III.

Having determined that McPherson’s suit is untimely, we need not decide whether

the Vienna Convention confers any individual rights enforceable in U.S. courts, or

whether a claim under the Vienna Convention may be barred by Heck v. Humphrey. The

judgment of the District Court will be affirmed.